Cella v. Cosgro
| Decision Date | 09 February 1953 |
| Citation | 115 Cal.App.2d 816,253 P.2d 57 |
| Parties | CELLA v. COSGRO et al. Civ. 18694. |
| Court | California Court of Appeals Court of Appeals |
Prentiss Moore, and George E. Lindelof, Jr., Los Angeles, for appellants.
Keane & Wickhem, Frank Wickhem, Los Angeles, for respondent.
The complaint herein seeks the cancellation of certain deeds covering the respondent's home property located at 1167-1169 Bonnie Beach Place, Los Angeles County. In three counts, appellants are charged with undue influence and fraud in the procuring of an agreement and deed from the respondent who was then of the age of 77 years. Mistake of law is also alleged. The trial court found in favor of respondent.
It appears from the record that on April 23, 1940, taxes on the property having become delinquent, in the amount of $464.31, plus interest and penalties, respondent made a payment thereon of $217 and arranged for payment of the balance under the so-called ten year plan. The appellant Leah Porter Cella, denominated 'the principal defendant', respondent's daughter-in-law, thereafter took the respondent to the office of an attorney in Huntington Park where an agreement was drawn and executed, dated April 1, 1943. The respondent thereby agreed to convey the Bonnie Beach property to appellant Mary Barr Cosgro, the mother of Leah Cella, who agreed to pay the delinquent taxes.
It was further agreed that the respondent John A. Cella, 'shall during his lifetime have the exclusive use and right of occupation of three back rooms in the house now located upon said premises and now occupied by him * * * all without expense to him; and * * * shall have the exclusive right to use and occupancy of the garage located upon said premises during his lifetime and without cost and expense to him'. Mary Barr Cosgro also agreed to 'at all times keep said real property free and clear of liens of whatever nature', and not to 'sell or otherwise dispose of said real property during the lifetime of' respondent.
The trial court found that prior to execution of the agreement, Leah Cella and Mrs. Cosgro had applied to one Sims for a loan of $1,000, and that in the latter part of April, 1943, Mrs. Cosgro, then being record owner of the property, executed a trust deed to Sims to secure said loan. This trust deed remained a lien on the property until July 1, 1946 when it was superseded by a new trust deed for $2,600 in favor of Atlantic Savings and Loan Association.
Previous to the execution of the $2,600 trust deed, and on June 8, 1945, Mary Barr Cosgro, then being about 80 years of age, executed a grant deed of the property in question to Leah Porter Cella. The $2,600 trust deed was then executed by Leah Porter Cella, and the trial court found 'at the instance and urging of said defendant Leah Porter Cella, and without legal or other independent advice, and not comprehending the nature and effect of signing said note and deed of trust, the plaintiff (John A. Cella) did join with said Leah Porter Cella in the execution of said note and deed of trust'. John A. Cella 'did not at the time of making said loan, nor at any time thereafter, receive any of the proceeds of said loan'.
Beginning with April 2, 1943, appellant Leah Cella collected rent on the part of the premises not occupied by the respondent, at the rate of $22.50 per month, and paid taxes and upkeep. As a result of an accounting in open court, it was determined that up to October 31, 1950, defendants had collected rents in the sum of $2,025, and 'had expended in connection with the said property the sum of $2,078.61, leaving a balance due from the plaintiff to the defendants of $53.61'.
On June 30, 1948, the respondent married a second wife, Delilah Cella, and thereafter, as stated in appellants' brief, 'friction developed', which finally led to the present action to rescind the transaction and recover back the property, which was filed on December 1, 1948. Shortly after the new Mrs. Cella started to live with respondent, Leah Cella collected $15 per month from Mrs. Cella, which, however, was later returned. Leah Cella also told the respondent and Mrs. Cella that the property was going to be sold to the tenant of the front portion, one John Sardini, whereupon John Cella notified the prospective purchaser of respondent's interest, and for the first time, consulted an attorney in regard to the matter.
The trial court found that previous to making an agreement with Mary Barr Cosgro, the respondent 'by reason of said advanced years * * * had been unable unassisted properly to manage or take care of his property and was likely to be deceived by designing persons'. It was further found that the reasonable and market value of the property was $5,000; that 'the defendant Leah Porter Cella maintained a close, intimate and confidential relationship with the plaintiff', and that 'well knowing the plaintiff's physical and mental condition as a result of his advanced years, and well knowing the plaintiff's economic status, procured the plaintiff to execute' the agreement in question; that respondent had no independent advice, and did not fully comprehend 'the nature and effect of said agreement'.
The court further found that notwithstanding the agreement that the property should not be sold or disposed of during respondent's lifetime, and should be kept 'free and clear of liens of whatever nature', the property was conveyed by Mary Barr Cosgro to the latter's daughter, Leah Porter Cella; that as hereinbefore stated, a trust deed for $1,000 had been placed on the...
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