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Filoptohos of Agia Marina Church

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Naum Aksenov
Naum Aksenov

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"The mere recital of the salient historical facts shown in the record herein by the documentary and oral testimony would appear to refute the contention of the plaintiff that Mr. Smith or Mr. Mulkey had any idea or intention that the deed and option was either agreed to or was to be considered a security transaction, or that the deed considered with the option could be held to be in effect a mortgage. Mr. Smith was a mature man of considerable business experience; he had his own attorney to whom he could have applied for advice when on June 6th, 1939, Mr. Mulkey asserted ownership to him of this property; when Mr. Mulkey had him served with summons and complaint in the quiet title action; when Mr. Mulkey took possession of the property and exercised acts of ownership over the property and claimed to own the property freed from any interest of Mr. Smith; or when Mr. Mulkey renewed the trust deed on the property. On the contrary, so far as the record herein indicates, he was inactive and quiescent in regard to the claims of defendant of ownership of the property until he testified in this case, and even then it is not recalled he testified that the transaction was one of a security nature rather than a definite transfer to the grantee with an option back to purchase the property for a specific sum of money. His entire attitude and inaction has been entirely consistent with the theory that he had theretofore unconditionally deeded the property to Mulkey and took back an option to purchase. The only inference to be drawn from his inactivity and failure to seek to regain the property which is now claimed for him for the benefit of his creditors, was solely based upon his then honest conviction that he knew he had irrevocably parted with title to the property and had no further rights therein."

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