231 P. 375 | Cal. Ct. App. | 1924
The trial court awarded a judgment against the defendant quieting the title to a small farm located in Santa Cruz County and from that judgment the defendant has appealed under section 953a of the Code of Civil Procedure.
Alfred Rodriguez, the deceased, Frank O. Rodriguez, the defendant, Melquicidec J. Rodriguez, A. B. Rodriguez, and Santa Arana were brothers and sisters, and Charles Warden, Lucille Warden, and Lizzie Warden Marini were nephews and nieces of the above-named persons, and the family relations existing among them seem to have been altogether friendly. The deceased had been the owner of the farm in question for twenty years or longer. The county of Santa Cruz instituted proceedings to condemn a right of way for a public road across the farm and the deceased became very much excited and worried over the condemnation proceedings. He employed Mr. Charles B. Younger to act as his attorney in the condemnation proceeding, but continued, nevertheless, to worry and fret regarding the outcome of that litigation. Later he became obsessed with the opinion that if he should deed the farm to someone else that said act on his part would defeat the condemnation proceeding. So entertaining the opinion above stated, he called on his sister, Mrs. Arana, on December 19, 1915. She testified that he asked her for permission to deed the farm to her. She *401 declined to allow him to do so, saying that she had too many responsibilities, and thereupon he asked her to telephone to the defendant to come to Santa Cruz that he might lay the matter before him. She did so and the defendant stated that he would call the next day. Accordingly, on December 20th, the defendant went to Santa Cruz and at the railroad station he was met by the deceased. The appellant testified that the deceased stated that he wanted to transfer his property to him. He did not say why. The appellant asked no questions. Together the two went to Mr. Younger's office and Mr. Younger wrote out a grant, bargain, and sale deed, by the terms of which the deceased conveyed to the defendant the title to the entire farm. At that time the deceased was in possession of the farm and remained in possession of the farm until his death. In the month of February, 1916, approximately three months after receiving title, the defendant settled the highway problem with Santa Cruz County and received three hundred dollars, which he immediately paid to the deceased. It is stipulated in the record that no consideration for the deed passed from the defendant to the deceased. So far as the record discloses, no one was present at the oral conversation had between the defendant and his deceased brother before they appeared in Mr. Younger's office. When they were in his office Mr. Younger testified that the deceased made no statements as to why he was making the deed nor the terms on which he was making the same. The witness said he asked the deceased if, in his Spanish way, he thought by conveying the property to someone else he was doing away with the lawsuit, or would cause the county to bring another suit, and the deceased stated that such was not the reason that he was conveying the property. But he did not state what was his reason. The witness said that he assumed that the grantor asked him to make the deed, but the grantee had quite as much to say about it as the grantor. The witness further testified that he did not draw any other papers on that occasion. After the deed was executed the grantee and grantor took it to the recorder's office. Later the two brothers went to the house of Mrs. Arana to abide the time of the departure of the train which would take the defendant back to his home. Mrs. Arana and her niece, Mrs. Marini, who was a member *402 of the household, testified as to some conversations that occurred there that day. Mrs. Marini testified: "A. Yes, I was present there all the time. Q. When your Uncle Mel and Uncle Alfred came there? A. Yes. Q. Will you please state what you heard said between your two uncles at that time with reference to this transaction? A. I heard nothing only that my Uncle Alfred said it was all over, and he looked at grandma and he looked at my Uncle Mel, and he said, 'Remember what I told you about her,' and he pointed at my aunt, rather, and my uncle said, 'Yes, yes.' That's all there was said about it."
[1] In support of his appeal the appellant contends that the trial court erred in admitting in evidence the declarations of the deceased. In that behalf the appellant contends that the trial court erred in admitting in evidence declarations of plaintiff's intestate made in the presence of Mrs. Arana and Mrs. Marini, without the presence of the defendant, before the execution of the deed in litigation. It will be noted that those declarations were made on the day before the deed was made, but it will also be noted that the declarations were made by the deceased at the very time that he was engaged in arranging the transfer which is in litigation. The court did not err in receiving such declarations in evidence. (Code Civ. Proc., sec. 1850; Lewis v. Burns,
[2] That the evidence objected to was properly admitted in the instant case is patent when we come to consider the case as pleaded and proved by the respondent. It will not be contended that because two persons are brothers a confidential relation exists; however, that relationship is one circumstance to be considered. In the case before us the *403
defendant testified that at one time the deceased held the title to appellant's property as the agent of the appellant. Mrs. Arana testified that before the deed was executed the deceased came to her and asked her to take and hold the title to the property for the purpose of preventing, or delaying, the condemnation proceedings. When she declined to do so he asked her to telephone to the defendant to come to him immediately. All of the evidence shows that the defendant did so. After the deceased and the appellant met no third person heard the conversation that occurred. But a short time after the defendant arrived the deceased executed a deed conveying practically all of his property to the defendant, and it is a stipulated fact that no consideration moved from the defendant to the deceased. Having made that showing, the plaintiff had established a prima facie case under the provisions of section 2235 of the Civil Code. The duty then rested on the defendant to take up the burden of proof and show, if he could, that the transaction was fair, just, and equitable to the deceased. (Campbell v. Genshlea,
[3] In this case the plaintiff had pleaded and had introduced some evidence showing that the transaction between the deceased and the defendant was one between a beneficiary and a trustee, and that the trustee held the property in violation of a confidential relation. These allegations pleaded an involuntary trust. (Civ. Code, sec. 2235) The case of Tainter v. BroderickLand Inv. Co.,
The judgment is affirmed.
Langdon, P. J., and Nourse, J., concurred.
A petition 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 December 26, 1924.
All the Justices present concurred.