Rench v. McMullen

DOOLING, J.

Plaintiff brought this action to enforce an alleged resulting trust against McMullen. Pending the action McMullen died and the executor and executrix of his will were substituted as defendants. They filed a cross-complaint to quiet title and judgment went for defendants and cross-complainants.

The real property involved in the litigation was purchased by McMullen under an arrangement worked out by appellant Rench with the vendor. It is admitted that McMullen was the signatory to the original option to purchase and that McMullen made the down payment on the property and paid the balance of the purchase price from his own funds. The trial court found that the income received by McMullen from the property had been more than enough to repay these amounts.

Appellant testified that he had discovered that the property was for sale at a low price, had tried to raise the funds to purchase it himself and had then informed McMullen,

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with whom he had had various business dealings over a period of many years, of the opportunity to buy it. He testified that McMullen had orally agreed to advance up to $15,000 on the transaction as a loan to appellant, to take the title in McMullen’s name as security and to transfer it to appellant upon his repaying the advances with 6 per cent interest. Appellant’s extensive activities in connection with the purchase of the property, its improvement and its subsequent rental were corroborated by a number of witnesses. It was established that a personal employee of appellant, whose salary was paid by appellant, had also devoted time to the transaction and that the original option to purchase the property which McMullen had signed was prepared by appellant’s attorney at appellant’s request. Some time after the property was acquired by McMullen, in connection with another transaction, McMullen offered appellant a 25 per cent interest in the property in litigation. Bench thereupon asserted his claim both orally and in writing to the entire property and, upon McMullen’s denial both orally and in writing that Bench was entitled to the property, this action was commenced.

By way of impeachment of appellant, his conviction of a felony was proved and by way of rehabilitation appellant proved his subsequent pardon by the governor. The effect of these facts as discrediting appellant’s testimony was for the trial court to determine. If the trial judge after weighing the facts of conviction and pardon reached the conclusion that appellant’s testimony was not worthy of full belief his discretion cannot be interfered with on appeal.