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Buell v. Buell

District Court of Appeals of California, First District, Second Division
Sep 29, 1921
201 P. 938 (Cal. Ct. App. 1921)

Opinion

Appeal from Superior Court, Fresno County; D. A. Cashin, Judge.

Action by E. E. Buell against R. L. Buell, as administratrix of E. S. Buell, deceased, and individually. Judgment for plaintiff, and defendant appeals. Reversed.

COUNSEL

Everts, Ewing & Wild and J. R. Fitch, all of Fresno, for appellant.

L. N. Barber and W.N. Gilliam, both of Fresno, for respondent.


OPINION

NOURSE, J.

Plaintiff commenced this action to quiet title to an undivided one-third interest in a certain piece of real property and improvements situated in the city of Reedley, the title standing in the name of E. S. Buell, the deceased husband of defendant. The theory of the complaint was that the property was purchased by the transfer to the vendors of plaintiff’s equity in a contract for the purchase of a certain piece of property located in Columbia Colony No. 2, which contract stood in the name of plaintiff, and was assigned to the vendors of the property in suit at the request of the deceased. The value of the plaintiff’s equity in the contract was $2,800, and the value of the property in suit was about $4,000. The defendant, who was sued both as administratrix of her husband’s estate and as an individual, alleged in her answer that the contract for the Columbia Colony property was acquired by the transfer of property belonging to her deceased husband, which was taken in the name of plaintiff at the request of deceased solely for the purpose of protecting and securing plaintiff for the repayment to her of a loan of $1,250, money borrowed by the deceased. This indebtedness was evidenced by a promissory note in the sum of $1,250, executed by defendant and her deceased husband, and dated February 26, 1917. Prior to the filing of the amended complaint upon which the suit is based plaintiff presented her claim, based upon this note, to the defendant as administratrix of said estate, and the same was duly approved. The trial court found that on December 20, 1918, the plaintiff, as purchaser, entered into a contract for the purchase of the Columbia Colony property, agreeing to pay the sum of $8,000 therefor; that in pursuance of said contract the sum of $2,800 was paid to the vendors thereof by plaintiff; that neither the deceased nor his estate had any right, title, or interest therein or thereto; that on the 27th day of February, 1919, the deceased at the request of plaintiff negotiated the transfer of her equity in said contract for an undivided one-third interest in the Reedley property, and against the will of defendant and without her knowledge obtained from the vendors thereof title to said property in the name of said deceased; that the deceased paid to the vendors thereof the sum of $2,800, received by them as first payment under the said contract of purchase, but that the same was so paid for the use and benefit of the plaintiff, and under and in pursuance of an agreement between plaintiff and deceased that the property so purchased should be her property, and that the said sum was so paid for the purpose of effecting a settlement between plaintiff and deceased. The court also found that the property so conveyed by deceased to the vendors of the Columbia Colony property was obtained by him through a series of exchanges for which the original consideration was property acquired from plaintiff and the sum of $300 of the funds of said deceased. Judgment was entered upon the findings, decreeing that plaintiff was the owner of the property in suit, that the defendant was barred from asserting or claiming any title or interest therein, that a deed thereof be executed, conveying the property to plaintiff, and that the defendant be required to account to plaintiff for the rents and profits received from said property from the date of the transfer to the date of said deed. Defendant appealed from the judgment, basing her attack upon the ground that the findings of fact are not supported by the evidence.

The portions of the findings which are made the basis of appellant’s attack are that the estate of deceased has no right, title, or interest in the property in suit; that the contract for the purchase of the Columbia Colony property was taken in the name of plaintiff in pursuance of an agreement between plaintiff and the deceased that the property purchased should be her property, and that the property conveyed to the vendors thereof, by deceased as consideration for the equity which plaintiff received from that contract was obtained by deceased through a series of exchanges into which deceased put $300 of his own funds.

Counsel for respondent has made no effort to sustain the findings by citation of evidence supporting them, and as the appeal has been taken under section 953a, Code of Civil Procedure, a complete examination of the typewritten transcript has been made necessary. From this examination it appears that each one of the findings under attack is unsupported by the evidence.

The story of the case as disclosed by the evidence, which is not conflicting, is that in the year 1908 respondent acquired a piece of property in the county of Fresno with an original investment of $900. This was exchanged for other property through the efforts of deceased, and through a series of exchanges respondent acquired what is known as the Jensen property and the property referred to as her home site. Through the exchange of the Jensen property respondent acquired the piece of property designated as the Le Grand property. About this time an agreement was drawn between respondent and deceased whereby he was given an interest in the Le Grand property or in the stock and farming implements thereon, but this agreement was canceled, and respondent entered into a contract disposing of the Le Grand property and taking in exchange therefor a piece of property in Maricopa and $6,000 on the contract of purchase, while the son obtained an interest in a rooming house in Fresno, some 40 acres of land in Texas, a lot in Seattle, and two lots in what is designated the Robinson tract. Respondent testified that at the time of this exchange she knew that deceased had acquired the rooming house and the Texas property, but that she did not know about the lots in Seattle or in the Robinson tract. Though the contract drawn by respondent and deceased recognized an interest of deceased in the Le Grand property of the value of $4,000, the value of what was then conveyed to him has not been shown. Respondent testified that the lot in Seattle was worth about $50, and it appears from the abstract included in the transcript that the Robinson deal was merely a contract of sale, with an equity of about $150. The burden of respondent’s argument is that the deceased, being the son of respondent and her confidential agent, had thus obtained an unfair advantage over her, and that the Le Grand transaction was a fraud upon her, and from this it is argued that all the subsequent transactions were tainted with fraud, and that all property thereafter acquired by the son was acquired and held by him in trust for his mother. This is merely mentioned in passing, and will be the subject of further discussion.

Returning to the story of the case, it appears that after this exchange was made (on February 16, 1916), the son continued to act for his mother in other exchanges through which she acquired a large amount of property; that at the same time he was making exchanges on his own behalf, some of which grew out of the property which he acquired in the Le Grand deal. These transactions were carried on until the death of the son on March 10, 1919. On March 21, 1918, respondent conveyed to deceased a piece of property designated as Long Bros. addition. She testified that this deed was made at the request of deceased solely for the purpose of enabling him to make an easy transfer, and with the understanding that he would deed to her the property procured in exchange therefor. Other testimony was given that it was in the nature of a settlement of a long-standing dispute which the son had with his mother as to their respective interests. However, the son taking this property and other property which he had acquired from the Le Grand exchanges, and an automobile which he owned in his own right, made various exchanges until he acquired in his own name all the property which was transferred to the vendors of the Columbia Colony property for their equity in the contract of purchase thereof. This contract, as has been said, was taken in the name of respondent; but that her son had some interest therein cannot be denied, and, in fact, this was expressly admitted by the mother on numerous occasions, both before and after his death, as well as when a witness upon the stand. Before this action was commenced she frequently stated that the Columbia Colony property, which was in her name, was owned by her son, but that she held the title for the purpose of securing payment of her promissory note. In this connection respondent testified as follows:

"Well, the only thing I ever did say was that if the property [at Reedley, the property in suit], was in my name, that I would take out what was coming to me for interest and principal and settle the boy’s affair all up, and then I would divide the rest of the money between the two children. I thought the little boy, as it was his father’s estate, that he was getting from me, that he ought to have his share as well as the little girl."

And again:

"Q. You stated you wanted to see the two children of your son get equal shares in his estate, did you not? A. Yes, sir. Q. And you recognized that he had an estate at that time? A. The estate--it was mine, but when he took this land over I told him if he never returned it that that would be all he would get of my estate, and I didn’t intend to take any of it to myself; I intended to divide it equally, what was over after paying his debts, to divide it equally between the two children. Q. You didn’t think or want to take any of this property as your own? A. Nothing only what he owed me."

And further:

"Q. Didn’t care about any of it for yourself at all? A. No, sir; I had told him it should go to his children and nothing else, he should get no more from the estate."

In explanation of this testimony it should be added that the deceased had a son by a former marriage and a daughter by his second wife, who is the appellant in this case. After separation from his first wife the son was adopted outside of the family, and immediately after the death of deceased respondent made inquiries as to the right of that child to participate in the estate of her son, and when advised that by reason of the adoption he could not participate, she then, for the first time, asserted that the property here in suit was in fact her property, and insisted upon the right to sell it, take from the proceeds thereof the amount of her claim of $1,250, and divide the remainder thereof equally between the two grandchildren. On numerous occasions before this suit was filed she admitted that her interest in the property was to the extent of her loan only, and that she desired the remainder to be equally divided between these grandchildren, and it appears from the entire record that this desire was the real cause of this litigation.

From a full examination of the entire record it appears that there is no evidence to support the finding that the deceased had no interest in the property; that there was any agreement between deceased and respondent that the equity in the Columbia Colony property should be the property of respondent alone, or that deceased did not put more than $300 of his funds into the property thus taken in the name of his mother.

As to the claim of fraud or breach of trust, which respondent asserts in her brief for the first time, it is sufficient to say that neither were pleaded nor proved. The claim is based upon the transactions which grew out of the exchange of the Le Grand property on February 16, 1916, full knowledge of which respondent testified she received within a month thereafter. If, therefore, fraud had been pleaded, it is reasonable to assume that the appellant would have interposed the plea of the statute of limitations. However, not having pleaded it, it is not open to consideration at this time.

Judgment reversed.

We concur: LANGDON, P. J.; STURTEVANT, J.


Summaries of

Buell v. Buell

District Court of Appeals of California, First District, Second Division
Sep 29, 1921
201 P. 938 (Cal. Ct. App. 1921)
Case details for

Buell v. Buell

Case Details

Full title:BUELL v. BUELL.

Court:District Court of Appeals of California, First District, Second Division

Date published: Sep 29, 1921

Citations

201 P. 938 (Cal. Ct. App. 1921)