Cosler v. Norwood

McCOMB, J.

From a judgment in favor of defendant in an action for an accounting and partition, plaintiff appeals.

Facts: Plaintiff and defendant purchased a duplex for $27,000, the title being taken in the names of the parties as joint tenants with the understanding that each should pay half of the purchase price. Plaintiff paid a total of $6,750 on the total purchase price and defendant paid the balance. They moved into the house and defendant paid for the furniture located in it. They resided in the duplex until July 19, 1948, when plaintiff moved from the residence and filed the present action for an accounting.

The trial court decreed that plaintiff owned a one-fourth interest in the real property and that defendant owned a three-fourths interest therein, appointed a referee with authority to sell the property, and ordered the method of distributing the proceeds to the respective parties.

Questions-.

First:

Was there substantial evidence to sustain the trial coiort’s findings as to the respective interest of the parties in the real property here involvedf

This question must be answered in the affirmative. Defendant gave direct testimony as to each and every fact set forth above. Therefore under the often repeated rule, that when a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact

(Estate of Isenberg,

63 Cal.App.2d 214, 217 [146 P.2d 424]), we are bound by the trial court’s findings in accordance with the above evidence.

There is no merit in plaintiff’s contention that since the title to the real property was taken in the names of the parties as joint tenants defendant is estopped to claim that she has more than one-half interest in the property. Plaintiff by seeking a partition and an accounting put in issue the interest of each of the parties to the real property in question. Therefore the deed of joint tenancy was only one item of evidence to-be considered by the court in connection with other probative facts produced by plaintiff and defendant.

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