Helm v. Zaches

WARD, J.

This is an appeal by defendants from an order adjudging and decreeing that defendants hold legal title to certain real property in trust for plaintiffs, who, as the true owners, are entitled to possession. Defendants are ordered and directed to execute and deliver a proper deed of conveyance of the property to plaintiffs upon the payment to defendants by plaintiffs of a specified sum, with interest, and the amount of taxes which had been paid by defendants on the [property.

The complaint alleges a copartnership consisting of Paul Zaches and Harry Raine, and it is admitted they were doing business as Herald Printers and Publishers. It is also alleged that Clara D. Helm entered into an agreement with Harry Raine to make a loan to plaintiffs of funds necessary for the purchase of certain real property; that legal title to the property in accordance with the agreement was taken by the Her-

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aid company as security for the loan; and that Raine agreed to advance $1,800 as a down payment, and to borrow the balance of $2,700 from the Carmel Branch of the Monterey County Trust and Savings Bank, upon a promissory note secured by a deed of trust upon the property and providing for monthly payments upon principal and interest. The complaint further alleges “That the aforesaid agreement and the loan thereafter were made by defendant Harry Raine as a partner acting for and on behalf of the Herald Printers and were made subject to the approval thereof by defendant Paul Zaches, the other of said partners. ’ ’ The court, by reference to the allegations of the complaint, found that the agreement was made subject to the approval of Zaches.

The preliminary facts are substantially as follows: Clara Helm with her two children desired to live on the Monterey peninsula while her husband was with the armed forces overseas. She and her sister, defendant Mary Raine, with whom she was then living, were looking for a house to rent, but could find no suitable place where children were welcome so they started looking for something to buy. Mrs Helm did not have money for a down payment. When the house here involved was discovered her brother-in-law, Harry Raine, was asked to look at the property. He then told her that he would advance the money for the down payment of $1,800, borrowing from the bank on the credit of his business partnership, and it was understood that he would personally obtain a loan for the balance of the purchase price. There were two houses for sale by the same owner and the particular house decided upon was selected because it had a private bedroom and bath in the back which could be rented to repay the down payment loan. Mrs. Helm was to make the payments to the bank, and agreed to repay to her brother-in-law the amount of the down payment. She was told by Raine that she would have a “buyer’s lease.” At that time Raine was carrying on the business of the Herald Printers and Publishers while his partner, Zaches, was in the Army in the eastern part of the United States. In the beginning when the aforementioned discussion was had about buying the house, Raine had said that