Flores v. De Flores

JAMES, J.

Plaintiff brought this action in equity, asserting that he was the owner of a one-half interest, which he held in common with the defendant, who owned thé remaining interest, in certain real property which was described in his complaint. He further alleged that income in the way of rentals had been collected by the defendant, who had failed to make accounting to him for any part thereof. His prayer was for partition of the property according to the interests of the parties, and for a share of the rentals and profits as the same might appear to be due him. The allegations of the complaint were sufficient in form and substance to authorize a judgment for the relief demanded. The action was tried, findings and judgment were made in favor of the defendant, and plaintiff has appealed.

To establish his interest in the land, plaintiff offered in evidence two documents, both of which were in practically identical terms, except that one was dated on the 15th of June, 1917, and the second on the 16th of July, 1917. Each purported to transfer to the plaintiff a twenty-five per cent interest in the property referred to therein, and the description of the property affected in both instruments was the same. We quote those portions of the instruments which are important to be considered in connection with the questions raised by the defendant’s appeal: “Mrs. Juana E. de Flores, widow, declares and shows, that in one of the civil courts which is established in the City of El Centro, County of Imperial Valley, of the State of California, in the Republic of the United States, and in the court of the First Instance of this judicial district of Mexicali, there are being

[597]

determined at the present time the probate actions of the properties of her deceased husband, Mr. Francisco Flores, who died in the City of Calexico in the month of March last of the present year, and who before dying, executed in her favor a will, leaving to her as a sole and entire heiress, all of his properties which he possessed, as well in the City of Calexico as in this city, and is as follows: . . . seven lots situated in the City of Calexico, of and in the United States of North America, there being on one lot constructed two houses of wood and on the land which • embraces the six lots, there being constructed one house, and the rest remaining vacant, and of which property she will take possession as soon as the suits concerning same are terminated and the respective adjudication is made. The said Mrs. Juana E. de Flores, widow, declares that she sells, grants and conveys to Mr. Jose Maria Flores, a 25% of the rights which she represents in the properties, which are described in the article which precedes, or which is a one-quarter part of same, for the sum of 500 pesos, national gold, or its equivalent, $250.00, which the vendor acknowledges to have received before this act. ... It is agreed that the buyer shall enter into possession of the (25%) twenty-five per cent that this represents in the properties to which this writing refers, as soon as the adjudication is made to the seller, but from, now he shall be able to receive the profits and rents which belong to him according to the right which he represents.” Issue was made, first, as to the execution of the instruments by the defendant, and, second, it was urged that the property was not sufficiently described in the documents to enable the land to be located by reference to that description. At the trial it was contended further that the evidence did not assist in making certain that description. The court found that defendant had executed the documents referred to, but sustained the other contentions and concluded that the property had not been identified either by the descriptions in the instruments of conveyance or the evidence submitted.