Terry v. Lesem

The plaintiff, whose true name is Eva Sophia Lesem, is an unmarried woman and is a daughter of the defendant. “Edith Terry” is a name assumed by the plaintiff and is the name under which she acquired any interest she may have in the property involved in this action.

In her complaint plaintiff alleges that she is, and ever since January 8, 1923, has been the owner of lot nine of block eleven, in the Beverly Tract, in the county of Los Angeles, and that the defendants, without right, claim an interest or estate therein adversely to the plaintiff. As defendant Short disclaimed any interest adverse to plaintiff, we shall treat the case as, if Mrs. Lesem were sole defendant. A second cause of action alleged that plaintiff made, but did not deliver, a deed of conveyance of said lot to the defendant; that the defendant, without plaintiff’s knowledge or consent, took possession of said deed and caused the same to be recorded; that said deed, ,so wrongfully obtained, is a cloud upon plaintiff’s title.

Upon issues presented by said complaint and appellant’s answer thereto, and after an extended trial, the court made findings and entered its decree in favor of the plaintiff. The defendant Lesem appeals.

In the case of Lesem v. Terry (Civil No. 5818) ante, p. 674 [ 265 Pac. 520 ]. This present case (Civil No. 5819) is between the same parties, and relates to a different parcel of land. The case now before us was tried some time later than the case of Lesem v. Terry. While there were separate trials, a large part of the evidence in each case covered the same series of transactions and the same relations between the parties. Much of the testimony given at the earlier trial was read into the record in this case. The appeals were presented in a single oral argument, although the records and briefs are sepa

In the other case (Civil No. 5818), the trial court found . that the deed in question there was not delivered, and this court has affirmed that judgment. In each ease the daughter, Miss Terry, claimed the land as a gift acquired from her mother. In each case the mother denied the gift and asserted ownership by reason of the alleged facts that she had purchased the land with her own money and that the daughter had wrongfully caused the title to be taken in her own name—that is, as Edith Terry. In each case the mother further claimed that after the title had been acquired in the name of Edith Terry, that grantee duly conveyed the property to her mother, Mrs. Lesem.

Since it is conceded, and no doubt is true, that the evidence is substantially alike in the two cases, in relation to the question of gift to Miss Terry, we think it sufficient to say here, that for the same reasons given in the other ¡case, the evidence is sufficient to sustain the court’s finding that the property in question here, when conveyed to Miss Terry was so conveyed at. the instance of her mother and with the intention of making a gift thereof to the grantee.

On the subject of the alleged conveyances by Miss Terry to Mrs. Lesem, there is likewise a great deal of testimony given in the first case, that' was brought into the record in the second case. This circumstance grew out of the fact that the deeds were drawn at one and the same time, and that Mrs. Lesem claimed that they were also delivered together, as part of one transaction. Some of the testimony quoted in our decision in the other ease relates solely to the deed in question there, but some of it relates to both deeds. The interview between the parties, when Mrs. Lesem claims that the deeds were delivered to her, occurred on the twenty-sixth day of August, 1922. It is true that Miss Terry, in the course of her testimony, said that at that time she “delivered” the deeds to her mother. Afterward she testified that she did not “deliver” them, and that there was

There are sundry inconsistencies and contradictions in the testimony of both of these witnesses. The trial court heard them, observed them, and weighed the evidence. The findings, which determine that the deed in question was not delivered, are sustained by amply sufficient, though not uncontradicted, evidence. This being so, the findings must be confirmed as made.

Prior to hearing on the motion for new trial, the court struck from the files the affidavits which had been served and filed by appellant. This order was based upon the ground that the affidavits had not been filed within the time allowed by law. Such affidavits must be filed and served within ten days after serving the notice of intention, or such further time as the court may allow, but not to ex

In rendering the decision of this court on appeal in Lesem v. Terry, supra, we were compelled to criticise the briefs of counsel for appellant, on account of language disrespectful to the trial court and to the judge who tried the case. The present action was tried by another judge, but he has not escaped an equally severe attack from the same pen. There are many sentences and phrases in appellant’s briefs, which are disrespectful and scandalous. It would be a tedious task to segregate them all.

Such phrases as: “The court aided the ingrate daughter”; “the court, though biased in favor of the daughter”; “if there is any excuse to be made for the judge below it might be this, . . . ”; “was this smothered and kept out of the findings”; “the bias of the judge”; “a wish to destroy the case of the mother”; these and others of like character run through these briefs. Charitable consideration for appellant, and that alone, prevents the court from striking these briefs from the files. The facts of the record, and the fair and courteous conduct of the judge, leave counsel without excuse.

The judgment is affirmed.

Houser, J., and York, J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 3, 1928.

Preston, J., dissented.