Fuschi v. Vir Den

WILSON, J.

This is an action to impress and enforce an alleged resulting trust in real property. Findings and judgment were in favor of defendants, and plaintiffs have appealed from the judgment.

In May, 1946, plaintiffs and Louise Vir Den, now deceased, entered into negotiations with Mr. and Mrs. Matlin for the purchase of real property. They reached an agreement that the Matlin property would be purchased for $14,000 payable $8,000 in cash, the remaining $6,000 to be secured by mortgage or trust deed payable at the rate of $60 a month. Defendant Leon Vir Den was not present at the time. A cash payment of $200 was made to the Matlins to bind the transaction.

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An escrow was opened wherein $3,500 was paid, the same having come from the bank account of Louise Vir Den, and the further sum of $4,365 from the bank account of defendant Leon Vir Den. A trust deed in the sum of $6,000 was executed by Leon.

Plaintiffs contend that the aforesaid sum of $200 was paid by them and that a trust resulted in their favor for that amount; that a trust resulted to the extent of $6;000 in their favor because they had orally agreed to pay the amount of the trust deed; that a trust resulted in the sum of $3,500 in favor of the estate of Louise Vir Den because that amount had been advanced from her bank account, to one half of which sum plaintiff Greta Fuschi, decedent’s daughter, is entitled. The evidence is in conflict as to each of such contentions.

Plaintiffs testified that the deposit of $200 was made by plaintiff Antonio Fuschi while defendant Leon Vir Den testified that his mother paid the sum in question and he reimbursed her in that amount. The receipt from the Matlins for $200 was made in the name of Louise Vir Den. Since the evidence with reference to such amount is conflicting the finding thereon will not be disturbed. .

As to the sum of $3,500 it was shown that the money was withdrawn from Louise Vir Den’s bank account and placed in the account of Leon Vir Den. Plaintiffs assert that Mrs. Vir Den in effect deposited this sum in escrow while defendant testified that such amount was a gift to him from his mother. The finding as to this amount in favor of defendants will not be questioned since there is evidence to sustain it and other evidence only raises a conflict.