Fischer v. Ostby

DOOLING, J.

Appellant appeals from a judgment quiet ing title against her. The court found as to the property involved that without any consideration passing from appellant she acquired by deed an interest in the property as a cotenant of the plaintiff and respondent; that respondent permitted this at appellant’s solicitation and as an accommodation to her and on her promise to convey her undivided interest to respondent on demand; that respondent permitted appellant’s name to appear in the deed “out of affection as her sister, by her implicit faith in her” and without independent advice and that appellant had refused to make such a conveyance in violation of her oral promise.

It is not disputed that these findings are sufficient to establish a trust in favor of respondent. The complaint was a simple one to quiet title and appellant attempts

[530]

to argue on appeal that such a complaint is not sufficient to raise an issue of equitable title.

(Chase

v.

Cameron,

133 Cal. 231 [65 P. 460].) The rule may be conceded but the argument is not open to appellant because an examination of the record shows that the issue of trust relationship was litigated without objection in the trial court. Where the parties voluntarily litigate an issue before the trial court they are estopped from raising the objection on appeal that the issue was not tendered by the pleadings.

(McAllister

v.

Union Indemnity Co.,

2 Cal.2d 457, 460 [42 P.2d 305] ;

Lande

v.

Southern Cal. Freight Lines,

85 Cal.App.2d 416, 419 [193 P.2d 144];

Rollins

v.

Hedin,