Borden v. Boyvin

[434]

WARD, J.

This appeal is taken by defendant as administratrix of her mother’s estate from a judgment for plaintiff in an action brought by him upon a claim of title to real property.

On May 24, 1932, 0. P. Borden, Sr., a widower, entered into a written agreement with his sister Arabelle Stronaeh, a widow, whereby Mrs. Stronaeh agreed to execute a grant deed to her brother covering property on which she resided at Hermosa Beach upon the consideration that he advance her at any time or times, within his sole discretion, various amounts of money up to the sum of $3,000. It was further agreed that Mrs. Stronaeh should pay all taxes, assessments, charges for water, light and gas, and any and all encumbrances that were or might be created against the property, of which she should have the use as long as such items were paid. The parties further agreed that C. P. Borden, Sr. would reconvey the property to Mrs. Stronaeh in the event she found a purchaser ready, able and willing to buy it, or whenever she should have repaid the amounts advanced by him under the agreement, together with interest thereon at the rate of 7.per cent per annum.

Simultaneously with the execution of the agreement, and in compliance therewith, Mrs. Stronaeh conveyed the property by grant deed to her brother, who duly recorded the instrument and over a period of years advanced her sums aggregating $2,437.74.

Until her death on January 7, 1936, Mrs. Stronaeh remained in possession, since which time her daughter, appellant herein—who was the sole beneficiary under her mother’s will, and who was appointed administratrix of her estate— has occupied the property.

In August of the year 1936, shortly before he died, C. P. Borden, Sr. deeded the property to his son, plaintiff herein. At such time the son had full and complete knowledge of the agreement above mentioned and of the deed from Mrs. Stronaeh to his father.

Notice to creditors in the matter of the estate of Mrs. Stronaeh was duly and regularly given, but no claim was filed therein by G. P. Borden, Jr.

Several years later, C. P. Borden, Jr. commenced an action against defendant herein as administratrix of her mother’s estate, wherein he prayed that the court decree that his predecessor, C. P. Borden, Sr., was during his lifetime the owner in fee simple of the property; that Mrs. Stronaeh