Ravano v. Sayre

These two cases were consolidated for the purpose of trial and also for the purposes of appeal. Action No. 4604 was commenced by Luigi Ravano et al. v. Etta M. Sayre et al., to set aside a trustee’s sale of real property by virtue of the authority contained in a trust deed given by Ravano. et al. to secure a debt to the Sayres. The Bank of America National Trust and Savings Association intervened because of a debt owed to it by the Ravanos.

In action No. 4605, Sayres et al. brought an action in ejectment against the Ravanos et al. to recover possession of the property which is the subject of the deed of trust. The Sayres recovered judgment in both actions. The Ravanos have appealed from the judgments.

Appellants contend that the sale of the real property under the deed of trust was prematurely made in that the respondents extended the time for the payment of the debt secured by the deed of trust until December, 1930, and the sale was made by the trustee in July, 1930. A jury was impaneled, who, in answer to the only inquiry propounded to them, held that the time had been extended for the payment of the debt, as claimed by the appellants. The court ignored the special verdict of the jury and made complete findings in both cases, and, among other things, found; that the time had not been extended for the payment of the debt.

It seems to be conceded by all parties that the court had a right to ignore the special verdict of the jury, but, it is said by appellants in their brief: 1 ‘ Sayres extended time for payment of notes.” They then proceeded to argue that the evidence sustains this contention. We therefore take it that they challenge the sufficiency of the evidence to sustain the finding of the court, that the time was not extended.

An examination of the record discloses that the evidence upon this subject is in sharp conflict. Without reciting all of the evidence in detail, it is sufficient to say that Logan Sayre, who, it is claimed, granted the extension of time, testified that he never at any time granted an extension. The court asked him: “Well, did you ever grant him any extension of time?” To which he replied: “No, sir.” There does not appear to be anything inherently improbable in the testimony of Sayre, and without further presentation of the evidence upon this subject, that alone is sufficient to

It is further contended by the appellants that the Sayres were guilty of fraud and oppression. Upon this subject it is contended that during the four years between the making of the deed of trust and the sale thereunder, the respondents bought from the Ravanos, merchandise; that they used a pumping plant belonging to the latter; that they were going to remit part of the money due them; that in the month of October, 1929, they obtained $2,800 from the Ravanos before it was due, and told them that they would not bother them any more until December, 1930; that they promised to finance the Ravanos on a new loan for $6,000 to be secured by a crop mortgage; that, relying upon the latter promise, the Ravanos proceeded to incur indebtedness in the way of improvements on the land in controversy, and also incurred expense by hiring men to work thereon; that the failure of the Sayres to fulfil their promise of loaning the money compelled the Ravanos to seek the loan elsewhere; that during part of the time the Sayres charged simple interest, and that for the purpose of the sale they charged compound interest on the loan.

The evidence upon the several subjects thus presented is conflicting. However, there is ample evidence to sustain the decision of the court. It appears that the merchandise furnished by appellants was not a consideration for any change in the terms of the deed of trust, and appellants were given credit for such merchandise in the final settle

It is also contended by appellants that they were entitled to an accounting of the transactions between them and the respondents. The items of the account were clearly within the knowledge of the appellants; in fact, the merchandise furnished by the appellants was peculiarly within their own knowledge. Furthermore, an accounting is not within the issues raised by the pleadings.

It is claimed that the property sold under the deed of trust was purchased by the respondents for a sum in excess of the amount owing. The court found that the amount due on the debt was $18,323.78. The property was bought by the respondents for $17,000. But if such were a fact, under the terms of the trust deed, any surplus for which the property sold would be held by the trustee for the account of the appellants:

It is also contended that the appellants were ready, willing and able to pay the correct amount due, and offered to do so. But the evidence does not support this claim. It seems that at one time an offer of $10,000 was made, but at that time there was more than $13,000 due, and the offer was refused. It also appears that there was one day on which the Ravanos had at their command sufficient money

We are of the opinion that the judgment of the trial court is correct in each case, and should be affirmed. It is so ordered.

Thompson, J., and Plummer, Acting P. J., concurred.