Gerstner v. Scheuer

MOORE, P. J.

Plaintiff sued to enforce a trust upon Lot 9, Harvard View Tract in the city of Pasadena, to the extent of his contribution of the purchase price. From a judgment awarding him 48/115 interest in the property, defendants appeal. The judgment is attacked upon the grounds that (1) the finding of an oral agreement on July 28, 1944, of trust in cotenancy is not supported; (2) error in including respondent’s payment of $700, February 5, 1945, as a part of his trust interest; (3) error in charging appellants’ share only with the trust deed lien of $5,500 executed by appellants after February 5, 1945.

The Findings

The court found that on July 28, 1944, the parties agreed to purchase Lot 9 as tenants in common for the sum of $5,750; respondent promised to contribute $2,400 of the purchase price, the balance to be paid by appellants; pursuant to such agreement, respondent on the same day gave appellants $1,700 in cash to apply on the purchase; defendants purchased the lot and paid Raoul Hetu, the owner, $5,000, executed a note to other parties in the sum of $3,500 and a trust deed securing same on Lot 9, also a note to Hetu for $750 and a trust deed securing that note, as a second lien, but appellants took title in their own names subject to the two liens. On February 5,

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1945, respondent gave appellants $700 for the purpose of paying Hetu the balance due on the note of $750 and they used it for that purpose. On the last-mentioned date without the knowledge of respondent appellants paid off the $3,500 note, but contemporaneously borrowed $5,500 and to secure its payment gave a deed of trust on Lot 9 which is the only encumbrance on the title. However, plaintiff is found to be the owner of 48/115 interest which, as between the parties, is free from the $5,500 debt.

The Evidence Supports the Finding

The evidence adopted shows that the parties had been intimate and confidential friends since 1937 when they resided in Florida. After Mrs. Gerstner deceased, December 27, 1943, appellants and Mrs. Scheuer’s mother moved into respondent’s home and the four occupied the household and lived as one family, “on a 50-50 basis, half and half.’’ The Scheuers were 50 and 52 years of age; respondent was 64 when they drove to California in his automobile, arriving July 19, 1944. Appellants were hearty and hale while respondent was a sufferer from asthma. Respondent then had $3,169 in money in addition to valuable personalty. Shortly after reaching Los Angeles they commenced to search for a home. After some inquiries and negotiations they determined upon Lot 9 for which Mr. Hetu demanded $5,750 of which $2,500 should be cash. Respondent replied in the presence of appellants, “I couldn’t begin to pay anything like that.” Two days later the owner agreed to accept $1,500 cash as the down payment and a second mortgage for $750. At that time respondent “handed Mr. Scheuer $1,750 in the bank,” left the deal in the hands of appellants as his “trusted friends” and told them the property “was to be bought for all of us ... I was in very ill health and had intentions of going away. ’ ’ In order to consummate the transaction appellants procured a loan on the property in the sum of $3,500. When respondent asked about the inclusion of his name on the deed as a grantee, Mr. Scheuer replied, “We can take care of that later.” All three occupied the house on August 5, 1944. Respondent purchased furnishings for it during the succeeding six months. On February 5, 1945, he gave Mr. Scheuer $700 to pay off the second mortgage. At that time he had already learned that the title to Lot 9 was vested in appellants’ names only. Although he asked Mr. Scheuer a dozen times between July 28, 1944, and February 19, 1945, whether his name was “in the title”