McMillen v. McDonald

DOOLING, J.

Defendants appeal from a judgment imposing a trust in favor of plaintiffs on an undivided one-half interest in certain real property in Contra Costa County. Plaintiffs are the devisees of Everett LeRoy McMillen, deceased, and his executor.

Decedent and defendant, Grace E. McMillen, were married in 1940 and remained husband and wife until decedent’s death in 1951. In 1945 they acquired the property here in litigation. This property was conveyed by the McMillens, admittedly without consideration, in 1947 to the other appellants, Victor Hans Holding and Leah Holding, his wife. Victor is the son of appellant Grace McMillen by a previous marriage.

The court found that the property was community property of the McMillens, that it was conveyed by them to the Holdings without consideration for the sole purpose of convenience and to obtain a veteran’s tax exemption to which Victor Holding was entitled; that after this conveyance Grace Mc-Millen continued to manage and handle the property as if it belonged to herself and her husband all in a manner inconsistent with ownership in the Holdings; and “that said

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defendants Victor Hans Holding and Leah Holding well knew and fully understood and recognized that said conveyance was for the convenience of the decedent and defendant Grace B. McMillen and that they were required and obligated to reconvey said real property to decedent and defendant Grace B. McMillen upon request of said parties.”

Under the rule of

Orella

v.

Johnson,

38 Cal.2d 693, 697 [242 P.2d 91], where property is conveyed without consideration to one who orally promises to reconvey it to his grantor, and the grantee will be unjustly enriched by retaining the property, he may be compelled to make specific restitution to his grantor “ (w)hether or not there is a confidential relationship or whether or not the original transfer was induced by fraud.” The findings above summarized are sufficient to satisfy this rule and to support the judgment.

Appellants argue that the finding above quoted finds no express promise to reconvey. The acceptance of the property by the Holdings when they “well knew and fully understood and recognized . . . that they were required and obligated to reconvey said real property” carries with it at least an implied promise. The conduct of the parties as found is inconsistent with any other conclusion. The argument that the time when the Holdings “well knew and fully understood” this obligation is not fixed by the finding does not impress us. The tenor of the finding is that they well knew and fully understood this at all times. As aptly said in