Johnson v. Altman

DRAPEAU, J.

By the instant action, plaintiff seeks to establish a trust in an undivided one-half interest of a parcel of realty together with the household equipment and certain livestock located upon the premises.

It appears to be undisputed that pursuant to an oral agreement between them, the parties hereto purchased the property on February 21, 1946, for $14,000 cash. Plaintiff and defendants each contributed $5,000 of their own money and defendants borrowed $4,500, payable at the rate of $47.73 per month, secured by a trust deed on the property. Four thousand dollars of this loan was used to complete the purchase price, the balance of $500 was retained by defendants. It was also agreed that each of the parties was to pay one-half of the purchase price and that title to the property should be taken in the names of the defendants. It is conceded that

[468]

plaintiff never paid the remaining $2,000 which she assumed to pay on the purchase price.

Plaintiff testified that she repeatedly requested defendants between February 21 and July 5, 1946, to give her some written evidence of her ownership of an undivided one-half interest in the property. Defendant Ralph B. Altman, who is plaintiff’s brother, testified that he had a conversation with plaintiff on July 5th at which time the latter stated that she “wanted to get out of the deal. She didn’t want any part of the property. All she wanted was her money back with interest. ” As a result the following instrument was executed by defendants and delivered to plaintiff:

“Feb. 21, 1946

“Received of Della N. Johnson the sum of Five Thousand no/100 dollars ($5,000.00) as a loan with interest at 6%. To be paid in part or in full as soon as possible.

R. B. Altman

Cora S. Altman”

With respect to this document the trial court questioned plaintiff as follows:

“The Court: Let me ask you a question, Mrs. Johnson. When he handed you this paper you testified he said, ‘ Suppose we make this a straight loan.’ You said, ‘All right’?