Atkins v. Atkins

WARNE, J. pro tem.

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The pretrial conference order entered in this action declared: "This is an action to set aside a deed, to quiet title and, alternatively, for recovery of value of. . . real property. ...” The judgment declared the deed, absolute in form, to be a mortgage, and the court entered judgment accordingly in favor of respondents. Appellant appeals from the judgment.

Stating the facts in the light most favorable to the plaintiffs the record shows that Sharon Atkins, hereinafter referred to as respondent, is an elder brother of appellant. Respondent is a retired physician and appellant is a practicing dentist. Respondent acquired the subject property in 1946 or 1947 and has been in possession thereof at all times herein involved. From time to time appellant assisted respondent financially. In 1955 respondent sought appellant’s help in stocking the ranch. Appellant advised respondent that he was not going to advance any more money without having some protection. However, appellant did promise respondent that he would look after respondent’s young daughter and educate her. At that time respondent reposed great trust and confidence in appellant. After many conversations in regard to

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their families and finances, respondent suggested that he deed the ranch to appellant in consideration of $11,500 in cash and the transfer of some real property worth approximately $31,000. Appellant agreed, and on August 17, 1955, respondent executed a grant deed which recited it was for “value received,” but the revenue stamps attached thereto reflected a consideration of $11,500. Respondent was paid $1,000 and appellant paid approximately $1,300 to discharge back taxes and an unsatisfied judgment. Thereafter, appellant purchased cattle and equipment for the ranch which respondent continued to manage.

According to respondent, appellant asked that he be allowed until the first of the year to pay the balance due and respondent agreed. However, when that time came, appellant declared that he was unable to complete the deal. Respondent replied that that was agreeable and that he would list the property for sale. This he did and obtained an offer to purchase. However, appellant refused to comply unless he received $14,500 out of the proceeds of the sale. Respondent claimed that amount was far in excess of what he owed appellant and the parties could not reach an agreement. Whereupon, respondents brought the present action alleging the agreement and appellant’s refusal to perform. The complaint prayed in the alternative for judgment of $40,500 or rescission of the contract, cancellation of the deed, and the quieting of respondents’ title. After the trial and over appellant’s objection, the court permitted amendment of the complaint by the addition thereto of a cause of action which alleged that the deed was executed to secure an indebtedness due appellant from respondents in the sum of $9,834.86. Appellant assigns as error the allowance of the amendment, claiming that it stated a new cause of action without the issues as framed by the pretrial order; but his main attack on the judgment is lack of evidence of a security transaction. However, appellant’s own testimony supports the court’s finding that the respondents conveyed the property to appellant as security for funds theretofore advanced by appellant.