MacKenzie v. Voelker

NOURSE, P. J.

This is an appeal from a judgment in favor of plaintiff and respondent Anna Mackenzie, in the sum of $3,250 and interest from May 6, 1950, and against defendants William and Ella Yoelker, brother and sister-in-law of plaintiff.

Anna Yoelker, mother of Anna Yoelker Mackenzie, respondent, William Yoelker, appellant, Bernard Yoelker, and Marie Yoelker Scheger who died on March 20, 1950, had executed a deed of gift of the family home in Daly City, California, on December 2, 1938, to her four children, giving each an undivided one-fourth interest.

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Following the death of their mother, the four children held a number of conferences respecting the purchase of the home by the oldest brother, William. On May 6, 1950, Bernard Voelker, Marie Seheger and Anna Mackenzie together executed their deed conveying in joint tenancy their respective interests in the property to their brother William and Ella Voelker, his wife. They had orally agreed upon a valuation of $13,000 for the property and William was to pay $3,250 to each for his or her share. Anna Mackenzie testified that her brother Bernard was paid in full, and her sister Marie had been paid $3,000. William agreed to secure a loan on the property from the bank in order to pay off the amount promised his brother and sisters.

Following ■ the execution of the deed several meetings of the family were held. There was a great conflict in the testimony as to what was said at these conferences. William Voelker claimed that he found records showing that Mrs. Mackenzie and her husband owed a sum of $2,700 to the deceased mother, and he insisted on an accounting from the Mackenzies showing how much of this sum had not been repaid the mother, before he would pay his sister her share of $3,250. Mrs. Mackenzie and her husband insisted that this money had not been a loan, but a gift to them. Mrs. Mackenzie said her mother wanted her to use it to buy a home.

It was stipulated that William Voelker had an incumbrance of $6,500 put on the property prior to June 14, 1950, and after he received the deed from the other members of the family.

On June 14, 1950, Anna Mackenzie filed a complaint in two counts based on the alleged fraud of defendants William and his wife. The first count asks for rescission; the second for a money judgment for $3,250. The first count alleges that plaintiff served upon defendants a written notice of rescission together with a demand that they execute a deed reconveying said real property to plaintiff. The answer denies generally the allegations of the two counts, and pleads affirmatively the reconveyance of the property to plaintiff on November 13,1950, by good and sufficient deed of a one-fourth interest in the property involved herein. The second affirmative defense pleads that plaintiff agreed to deduct from the sum to be paid to her the total sum of all loans advanced to her and her husband by the deceased mother.