Townsend v. Wingler

California Court of Appeal Nov 7, 1952 No. Civ. 19098Published

Before: Fox

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Holding. The court held that the plaintiff failed to meet the burden of proving that the property conveyances were intended as security for a loan rather than absolute transfers, and that the plaintiff could not raise new theories of fraud or undue influence for the first time on appeal.

Issues

Whether the evidence was sufficient to support the trial court's finding that the property conveyances were absolute rather than security for a loan.
Whether the appellate court should consider claims of fraud, undue influence, and coercion raised for the first time on appeal.
Whether the trial court's findings were inconsistent or contradictory.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The presumption is that a deed is what it purports to be and one who seeks to overcome such presumption has the burden of producing clear and convincing proof.”

“The relationship of parent and child, per se, is not creative of any inference of imposition, undue influence or fraud.”

“Ordinarily an appellate court will not consider a theory of a case different from that relied on in the trial court and which is presented for the first time on appeal.”

FOX, J.

Plaintiff brought this action against his daughter and her husband, alleging that in July, 1948, he conveyed two parcels of real property and assigned a trust deed note to her as collateral security for loans to him aggregating “about $10,000,” which he alleged had been repaid to her out of the proceeds from the collateral. Plaintiff demanded a reconveyance of the property and an accounting.

Defendants denied the property was conveyed as collateral security for any loan. They affirmatively alleged the conveyances were for a good and valuable consideration, and that plaintiff had no interest in the property; that the property was conveyed pursuant to a written agreement between plaintiff and his daughter (which was approved by her husband) whereby defendants agreed to provide funds for plaintiff to carry on certain litigation in which he was then engaged and for other purposes, and to pay plaintiff $100 per month for ten years, or the balance of Ms life, whichever was longer; that pursuant to this agreement they had paid to plaintiff, or for his benefit, more than $16,000, and had provided him with funds and benefits in excess of $100 per month. They further state that they have at all times complied with said agreement and have never denied their obligation thereunder, and that plaintiff has received and accepted, and continues to accept, all the benefits under the agreement.

The court resolved the issues in favor of the defendants and rendered judgment that plaintiff take nothing. He appeals from the judgment.

Plaintiff challenges the sufficiency of the evidence to sustain the findings and judgment. His contention, however, is not well founded. The burden of showing that these conveyances were mortgages was upon him.

(Wehle

Price,

202 Cal. 394, 396 [260 P. 878];

Deniz

Ferraiz,

91 Cal.App.2d 416, 418 [205 P.2d 113];

Gronenschild

Ritzenthaler,

81 Cal.App.2d 138, 144 [183 P.2d 720].) “The presumption is that a deed is what it purports to be and one who seeks to overcome such presumption has the burden of producing clear and convincing proof.”

Townsend v. Wingler

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FOX, J.

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