Svistunoff v. Svistunoff

California Court of Appeal Nov 17, 1949 No. Civ. 14071Published

Before: Dooling

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Holding. The court held that a voluntary constructive trust was established by the defendant's oral promise to reconvey property to his parents, and that the statute of limitations did not begin to run until the defendant repudiated that promise.

Issues

Whether the evidence supports the finding of an oral promise to reconvey property creating a constructive trust.
Whether the statute of limitations bars an action to enforce an oral promise to reconvey property.
Whether the defense of unclean hands is available when not pleaded or raised in the trial court.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Until the repudiation of the oral promise to reconvey the grantors are entitled to rely on the promise and the statute only commences to run upon the repudiation of the oral agreement.”

“It is not every wrongful act, nor even every fraud, which prevents a suitor in equity from obtaining relief.”

DOOLING, J.

This litigation is between parents as plaintiffs and their son as defendant. In 1939, the son, hereafter called Peter, was residing and domiciled in the United States of America and his parents, hereafter called Michael and Maria, were in this country temporarily, their place of domicile then being Harbin, China. While in this country in Í939, Michael and Maria acquired by deed the title to real property in San Francisco improved with an apartment house. They in turn deeded the property to Peter in the same year and returned to Harbin. Maria reentered the United States as an immigrant in 1941, and Michael returned as an immigrant in 1946. Upon Michael’s return he demanded of Peter that Peter reconvey the apartment house property to Michael and Maria and upon Peter’s refusal the parents commenced this action.

The complaint alleged and the court found that plaintiffs conveyed the property to defendant upon his oral promise to reconvey it to plaintiffs, their demand upon him to reconvey and his refusal. The facts so pleaded and found support the finding and judgment that the property is held in trust for Michael and Maria by Peter, the trust being of that character sometimes described as a voluntary constructive trust or a positive voluntary trust resting in parol.

(O’Brien

O’Brien,

50 Cal.App.2d 658, 660 [123 P.2d 877].) “It is the violation

[653]

of the parol promise which constitutes the fraud upon which the trust, arises.”

(Cooney

Glynn,

157 Cal. 583, 587 [108 P.506].)

Although appellant argues to the contrary the evidence supports the finding of an oral promise to reconvey. Michael testified: “My son ... said that he will keep my property until I come back ...” and further that he refused a request of Peter to convey the property to him as a gift.

The confidential relationship between the parties

Svistunoff v. Svistunoff

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DOOLING, J.

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