Givens v. Johnson

MOORE, P. J.

Having the record title in her name, appellant Givens sued to quiet title to lot 23 described in the judgment. Inasmuch as she is the only cross-defendant concerned with this appeal she alone will be referred to as appellant. In addition to her denial of plaintiff’s claims, respondent by cross-action alleged that the lot was purchased by herself and her husband by the payment of $500 of their own money and by their agreement to pay their vendors $30 monthly until the balance of $2,000 should be wholly paid; that appellant took the title in her name with the understanding that she would hold it in trust for respondent and her husband pending the discharge of the' incumbrance. Appellant is the aunt of cross-defendant Millard Johnson, respondent’s former husband, who declined to join respondent in. the action. Because of his refusal to cooperate with respondent she joined him as cross-defendant and he appeared as a witness against her.

The judgment entered declares that the lot is the community property of defendant and her former husband; that appellant has no interest therein except the sum of $450; and that she holds the record title as trustee for Vivian and Millard.

Appellant contends for a reversal on two grounds: (1) That the evidence is insufficient to support the findings and (2) the court abused its discretion in denying plaintiff’s counsel opportunity to argue her cause at the conclusion of the evidence.

According to the findings, on August 4, 1939, respondent and her husband purchased lot 23 from Mr. and Mrs. Arra M. Reed, negotiations for the purchase having been initiated by appellant. In order to effect the purchase Vivian and Millard borrowed the sum of $500. While Mrs. Givens executed the note for the balance of $2,000, payable in monthly installments of $30, and the trust deed securing same, such payments were made by Vivian and Millard until

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November, 1943. Promptly upon the close of the transaction for the purchase respondent and her husband occupied the property but it was agreed that appellant should hold the title in trust for them until they should discharge the trust deed and note.

While there is evidence contradictory of that adopted by the trial court the latter furnishes ample support for the findings. Respondent testified that she resided on the property from the date of its purchase until August, 1945; that her husband resided there until divorced in May, 1944; that she and Millard borrowed $500 on his insurance policy and with such sum made the down payment on the purchase price, that previous to the loan she had paid the monthly installments of the premium on the policy with moneys earned by herself and her husband; that she and her husband likewise made the monthly payments on the property out of their community funds; that such payments were made to the Union Bank and Trust Company, whose receipts therefor were admitted in evidence. She testified that she tendered no further payments after it had refused to accept them; that she then began to forward them to Mr. Reed at Oakland, but that he also declined to receive them from her.