Guerrero v. Ballerino, No. 3,495

No. 3,495 | Cal. | Jul 1, 1874

By the Court, McKinstry, J.:

It was important to ascertain whether the defendant, administrator, was directly or indirectly the purchaser at his sale of .the intestate’s land. (Probate Act, Sec. 193; Boyd v. Blankman, 29 Cal. 19" court="Cal." date_filed="1865-07-01" href="https://app.midpage.ai/document/boyd-v-blankman-5435893?utm_source=webapp" opinion_id="5435893">29 Cal. 19.) The Court below found in effect that he was' not.

I am authorized to say that all the Justices of this 'Court are of the opinion that the finding is "against the evidence.

- The administrator’s Sale took place on the 27th of March, 1867, but was not confirmed by the Probate Court until February, 1868. More than five months elapsed after the confirmation before .the deed to Yarrow, the nominal purchaser, was recorded. The conveyance from Yarrow to the defendant was made one month and twenty days after the discharge of the latter as administrator.

The nominal purchaser from the administrator is dead; and the defendant finds himself unfortunate in the circumstance, that no third person was present when one thousand nine hundred dollars—the alleged purchase price—was paid by Yarrow to him; when the two thousand dollars was loaned by him to Yarrow, or when the additional one thousand dollars was paid to make up the consideration for the re-conveyance.

He may also regret" the omission, sworn to by him, to make any entries-in his books' of- account, or any written memorandum of the transfers of moneys between Yarrow and himself. ■ This omission perhaps would have been supplied, had the defendant been able tó recover the book, which, on the first day of the trial, he stated he had in his possession, but which on the" next day he declared was lost. The defendant says this book (which he admits he showed to the witness, Cohen) contained only an account for groceries furnished by Yarrow; but Cohen testifies that the book was a general account book, not confined to groceries, but extending to moneys, rents, charges for taxes—being a general running account.

It is true Yarrow paid the taxes on the property, while the apparent legal title stood in him; but the evidence proves that he charged the sums so paid to the defendant. The defendant admits that he continued 'to collect the rents after the sale and conveyance to Yarrow; but says he paid them over to him for a month or so, when he loaned Yarrow two thousand dollars. He testifies that the latter gave his note for this sum, bearing no interest, and that he—the defendant—was to collect and keep the rents as payment for the use of the money; that Yarrow claimed that defendant should pay the taxes -out of the rents received; to which defendant demurred, and thereupon demanded his two thousand dollars. The money not being repaid, the defendant offered Yarrow an additional one thousand (three' thousand dollars in all) for the property, which the latter accepted. The property does not appear to have been worth more, when re-conveyed, than when sold to Yarrow, at which time, as shown by defendant’s witnesses, one thousand nine hundred dollars was its full value. Defendant testifies that he was at Yarrow’s store when he paid the last one thousand dollars, gave up the note for two thousand dollars, and took the deed of conveyance to himself. F. Howard and B. Nicolet subscribed the deed as witnesses, but were not present when the money was paid.

Many of the statements of the defendant are, in themselves, highly improbable; when his narrative brings him to events which, according to ordinary experience, should be known to others, he is uncorroborated; in an important respect he contradicts an allegation of his verified answer; in one matter of consequence he is contradicted by the witness Cohen; and, if we can attach any credibility to the testimony of the plaintiff, Dolores Guerrero (not directly denied,) the defendant seemed anxious to affirm the sale to Yarrow, when it was suggested that a larger sum could be realized.

Judgment and order denying new trial reversed. Remittitur forthwith.