Helm v. Hess

GRIFFIN, J.

This action was brought by plaintiff and appellant as administratrix of the estate of Irene Osgood, deceased, against defendant and respondent Katheryn S. Hess (her second cousin) for the sum of $3,500, claimed to have been loaned by deceased to defendant, prior to her death. It is alleged that defendant acknowledged said indebt

[252]

edness and agreed to pay it, and that only the sum of $75 has been paid thereon.

Defendant answered and denied generally these allegations and alleged that Irene Osgood, during her lifetime, purchased from defendant a joint tenancy one-half interest in certain real property then belonging to defendant for said sum, and that it was agreed that defendant would pay one-half of the rentals therefor to her; that defendant paid $25 per month as rental until Irene’s death and that by virtue of her death defendant became owner of the entire interest. After trial of the issues the court found generally against plaintiff’s contention and in favor of the defendant. The general question presented is the sufficiency of the evidence to support the findings.

Prior to 1949, defendant owned the property. It was valued at about $7,500-$8,000 and was subject to a note and trust deed for $3,500. Defendant was paying it off at $60 per month. On September 27, 1949, according to a letter offered in evidence by plaintiff, defendant wrote Irene that she was having difficulty in meeting the payments and inquired as to whether Irene would buy up the note and trust deed and let defendant pay her back as rent because “if anything should happen to me ... all I have goes to you in any event.” She therein stated that if she left here

“we

can either sell it or rent it.” (Italics ours.) Defendant stated at the trial that she was very close to Irene and discussed all of her (defendant’s ) troubles with her, including matrimonial difficulties she was having with her then husband.

It appears that on January 11, 1950, Irene gave defendant a check for $3,500. The trust deed was paid off, and on January 13, 1950, defendant conveyed the property to herself and Irene as joint tenants, by grant deed. It was duly recorded on January 17, 1950. On March 4, 1950, defendant wrote Irene a letter enclosing a policy of title insurance dated June 8, 1949, showing title in defendant subject to a trust deed of $3,500, and the joint tenancy deed, in which letter she stated that she was “making you a half owner.” She enclosed a check for $40 and inquired “as to how you want the interest worked out on the loan and what per cent.” Apparently these papers were found in deceased’s safety deposit box with a note reading: “These are the papers that are to be returned when I get out of hock,” signed “K”.