Rowan v. Pedrotti

VAN DYKE, P. J. This is an appeal from a judgment in an action brought by appellant to quiet her title to a residence in Petaluma which had been sold to respondent under a power of sale contained in a deed of trust of which he was a beneficiary.

Respondent is a single man in his middle seventies. In the latter part of 1945 he was living with his nephew who was married to appellant’s sister-in-law. The two visited appellant and her family approximately twice a week and a cordial social relationship existed. Appellant had been recently widowed and was unable to find adequate living quarters for herself and her three children. In order to assist her, respondent furnished $10,500 with which she purchased the house and lot, which is the subject of this litigation. The appellant contended that the money was a gift to her from respondent; respondent said that he loaned her the money. The court found in accordance with his assertions. This finding is not here challenged.

The property was conveyed to appellant by two separate deeds executed on November 26 and November 27, 1945. On December 8th, appellant and respondent went to the office of appellant’s attorney, where she executed a deed of trust which had been prepared at her request. It secured the payment of her promissory note in favor of respondent in the amount of $10,500 payable at the rate of $50 per month without interest. The note provided that in “consideration for the loan” appellant would furnish respondent board, room "and personal laundry service for $50 a month to be credited upon the amount of the note. It may be said here that this obligation was carried out by appellant for a considerable period of time and until this controversy arose. Concerning the execution of the note and the deed of trust appellant testified that she executed them in order to assure to respondent a home, and at the same time protect her children’s succession rights to the property, at a time when she was about to undergo a major operation which she might not survive. After execution the note and deed of trust were left at the attorney’s office. Six months later he recorded the deed of trust and thereafter, when the instrument was returned to him by the recorder, he mailed both the note and the deed of trust to appellant, stating in his letter that he sent the instruments to her for “delivery” to respondent. There was no direct testimony as to what instructions, if any, were given to the attorney concerning either the recordation of the deed of trust or the transmittal of the instruments to [649]appellant. She kept them in her possession from that time on and they were never physically handed over to respondent. Neither did she, until long after the receipt of the instruments, take any action by way of protest against the recording of the deed of trust. She received the instruments January 13, 1947, and six years later, on January 29, 1953, she began a suit to quiet title against the respondent, which suit was later dismissed without prejudice. On October 4, 1951, appellant recorded a request for copies of notices of default and sale. On September 15, 1952, the Sonoma County Land and Title Company, acting as the trustee substituted for the original trustee, sold the property to respondent at public sale for $10,693.13 and later conveyed the same to him by its trustee’s deed. The trial court upheld the validity of the sale proceedings and adjudged respondent to be the owner of the property.