19 Cal. App. 2d 159 | Cal. Ct. App. | 1937
Plaintiff appeals from a judgment rendered by the court in an action to quiet title to certain real property which we shall hereafter call the Painter Avenue property, located in the city of Whittier. It is contended that the evidence was insufficient as a matter of law to support the findings upon which the decision of the trial court was based.
The principal defendant in the case is F. W. Hadley, sued as the executor of the Estate of Adolph Tsheppe, who died on April 23, 1934, at which time the property involved stood in his name. It appeared from the evidence that appellant in
After these two people had lived together for a period of three years or more, they became interested in the Painter Avenue property, which in September of 1922 they undertook to buy from Jacob Stern & Sons, Inc. The purchase price of the property was $8,000. Upon it was an old house and while it was the original intention of the parties to make the purchase under a contract running over a lengthy period of time, that purpose was abandoned when the owners of the land objected to the demolition of the old building standing upon it. This objection was made in December of 1922, after Mrs. Eldred had made two of the first three monthly payments of $60 which had theretofore become due. The balance of the purchase price was paid at that time by Mr. Tsheppe, and Stern & Sons, Inc., issued a deed dated December 2'2, 1922, conveying to Tsheppe an undivided one-half interest in the real estate and to Mrs. Eldred, also, an undivided one-half interest. One month later, on January 22, 1923, Mr. Tsheppe and Mrs. Eldred conveyed to J. H. Reese and Rose T. Reese all their right, title and interest in and to the property in question, and the Reeses immediately re-conveyed the property in joint tenancy to Mr. Tsheppe and Mrs. Eldred. This deed was recorded on February 7, 1923. Mrs. Eldred testified that Mr. Tsheppe stated to her at the time she was made his joint tenant that “He wanted me to stay with him; take care of him the rest of his days, and he wanted me to have that as my work, and he wanted to make it solid so it could not be taken away from me”; and as to the income from the property: “He wished all that income as long as he lived. Q. What did he say in that regard? A. Then he said, ' When I close my eyes, it will be yours. ’ ’ ’
“E. Whittier October 24th 1923
“For the consideration of Five hundred Dollars paid to me by check $120.00
Furniture in home $280.00
443 S. Newlin Ave.
One hundred dollars 100.00
credit on Royalty on Shepp Noble lease
500.00
“I herewith agree to terminate contract of partnership in the property 325 N. Painter Ave. wich I entered into with Adolph Tsheppe.
"Sept. 22nd 1923 (Signed) Mrs. E. Eldred.”
“Jan.
It appears from an examination of the photostatic copy of this instrument which was introduced as an exhibit at the trial that alterations were made in the document as originally written. The word “Sept.” was stricken and “Jan.” written by the hand of Mr. Tsheppe in pencil beneath it. The final digit which originally appeared in the year of the date was erased and the figure “3” was entered, but when the changes were made is not known. Respondents offered in evidence a statement handwritten by Mr. Tsheppe showing the condition of his account with the Whittier Savings Bank during the year 1923 containing under date of October 24th the following notation “partnership with Mrs. Eldred ended today by paying her $500, partly in goods, credit and check”. Respondents contend that the signing by Mrs. Eldred of this $500 contract in 1923 operated virtually as a surrender of all rights in the property which she had received by the joint tenancy deed and that the surrender was made complete legally when, several years later, on the 12th day of December, 1929, she conveyed to Mr. Tsheppe by means of a grant deed, an undivided one-half interest in and to the Painter Avenue property. During all the intervening years this property was held in joint tenancy by Mr. Tsheppe and Mrs. Eldred. Shortly after it was acquired in January of 1923, it had been improved by the construction of a large building on the front of the lot and garages with housekeeping apartments over
In the fall of 1929, Mrs. Eldred, who bought and sold property on her own account, wished to borrow $2,000 to enable her to purchase a parcel known as the Hecathorn property. According to her testimony she asked Mr. Tsheppe for the loan; he agreed to make it and a little later, on December 12, 1929, an escrow was made at the Whittier branch of the Bank of America, under the terms of which Mr. and Mrs. Hecathorn contracted to sell their property to Mrs. Eldred upon a down payment of $2,000, and Mr. Tsheppe deposited that sum in the escrow payable to the order of Elizabeth Eldred: “ . . . provided that on or before 30 days from date hereof you can deliver to me the following: 1st—Unrecorded deed, executed by Elizabeth Eldred in favor of Ad. Tsheppe of her undivided one-half interest in and to the real property, described as follows : (then follows a description of the Painter Avenue property). 2nd—Contract, unrecorded, dated December 12, 1929, executed by and between J. L. Hecathorn and Blanche M. Hecathorn, husband and wife, as Vendors, and Elizabeth Eldred, (then follows a description of the Hecathorn property). 3rd—Collateral Security Note for $2,000.00, dated December 12, 1929, executed by Elizabeth Eldred in favor of Adolph Tsheppe, due three years after date, with interest from the date at the rate of 7 % per annum, payable quarterly, at Whittier Branch, Bank of America of California, Whittier, California, and covering the above mentioned contract.” As to the deposit in escrow of this deed by which Mrs. Eldred conveyed a one-half interest in the Painter Avenue property to Mr. Tsheppe, she testified: “Well, he said he would put up the deed for security. I had some oil papers to offer him, but he said no; he would put up this deed. And jokingly he said, if I couldn’t pay the two thousand, I would lose my opportunity for the apartment house.” (Meaning the Painter Avenue property.) “Q. What did you say? A. I said, ‘Well, in six
Mrs. Eldred had never at any time received any income from the property, and the deed which she made to Mr. Tsheppe on December 12, 1929, was not recorded until December 27, 1930, at which time the Whittier National Trust &
Appellant argues strongly that the agreement to terminate the partnership related solely to a partnership in revenues and not to ownership of the realty, finding support for this argument in the fact that for more than six years after October 24, 1923, no change was made in the title to the Painter Avenue property. It continued to be held in joint tenancy by appellant and decedent. Further, it is pointed out that when appellant’s interest as a joint tenant was finally conveyed by the deed of December 12, 1929, it was by means of an “unrecorded deed” so described in the escrow, and appellant maintains that it seems reasonable, under the circumstances, to conclude that this deed-which was not recorded for more than a year thereafter was given as additional security for the loan of $2,000 made by decedent to appellant. Otherwise, it is said, the only security decedent would have received in this transaction was the contract of purchase which appellant had made with the Hecathorns and the transaction in that form would have made him in effect the purchaser of the Hecathorn property instead of Mrs. Eldred who contracted for it. If the purpose of the deed when given in December of 1929 was to divest Mrs. Eldred permanently of her interest in the Painter Avenue property, why, appellant asks, was the arrangement made that it should be held as an unrecorded deed? And, if it were not to be held as an “unrecorded deed” on the theory that those words were written by the escrow clerk merely as a description of the instrument without any special meaning to be attached to the word “unrecorded” then why, when Mr. Tsheppe received the deed, did he not actually record it if it was his intention to terminate the joint tenancy ? Very likely these and other arguments which appear in appellant’s able brief were addressed to the trial court, but that tribunal, notwithstanding, was not convinced that the deed was intended merely as security for the payment of the $2,000 note. We have no means of knowing what passed through the mind of the trial judge. As opposed to the arguments of appellant he may have given some consideration not only to the partnership termination agreement but also to the fact that the escrow instructions signed by Mr. Tsheppe did not mention the deed as security for the performance of any promise, while it did expressly refer to the ‘‘ Col
Judgment affirmed.
Houser, P. J., and York, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 1, 1937, and an application 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 April 8, 1937.