Fawcett v. Gregg

SHAW, J.

Action by plaintiff brought against Frances Fawcett, his mother, to have himself declared the owner of certain real estate, the legal title to which was in the name of the mother.

During the trial Frances Fawcett died and the action was continued in the name of the executor.

In addition to an answer denying the material allegations of the complaint, defendant filed a cross-complaint the purpose of which was to secure from plaintiff an accounting for the proceeds derived by him from the use of said real estate while in possession thereof.

On the issues joined the court found in favor of defendant, and upon an accounting had gave judgment against plaintiff.

The appeal is from the judgment and an order denying plaintiff’s motion for a new trial.

In substance, the complaint alleges that in 1895, in the state of Iowa, plaintiff and his father, Mahlon Fawcett, were co-partners engaged in the hardware business under the firm name and style of Fawcett & Son; that during said year they exchanged said hardware business for a farm, known as the Doxsee Farm, title to which was taken in the name of the father; that in 1905 the latter came to California, where he made a contract for the purchase of the real estate herein involved, known as the Whittier ranch or lemon grove; that in making the purchase thereof he agreed to pay five thousand dollars in cash and gave his note for six thousand dollars, secured by a mortgage upon the real estate. Pursuant to the contract, he made a payment of three hundred dollars and

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returned to Iowa and borrowed the sum of five thousand dollars upon the Doxsee Farm with which to make the first payment upon the purchase price of said lemon grove. He proposed to plaintiff, who was then living in Iowa, that plaintiff with Ms family remove to California and take care of the lemon grove, promising plaintiff that if he would do so and take the entire management and control thereof and out of the proceeds and profits of the same, pay off the deferred payment thereon and pay the mortgage on the Doxsee Farm, that he, MaMon Fawcett, was willing to give said lemon grove to plaintiff as his share of the property which they through their joint efforts- had acquired, and agreed to convey the same to plaintiff when fully paid for; to all of which plaintiff agreed. Upon the making of the first payment due upon the lemon grove, the owner thereof executed a deed to Mahlon Fawcett, who executed his notes and mortgage thereon to secure the deferred payments of six thousand dollars; that plaintiff took possession of said lemon grove and with his family resided thereon, having entire charge and management of the same, and from the proceeds thereof paid off the balance of the purchase price and also the mortgage upon said Doxsee Farm; that about one year prior to the death of Mahlon Fawcett, plaintiff suggested to his father that, in order to avoid probate proceedings and keep the property standing in the name of MaMon Fawcett, the latter make deeds to the same to plaintiff’s mother, and thereupon Mahlon Fawcett made deeds to all of the property standing in Ms name to Frances Fawcett and placed them in a box used in common by MaMon Fawcett and plaintiff, requesting that upon his death plaintiff have the deeds recorded; that in the month of December, 1908, Mahlon Fawcett, who was about to undergo a surgical operation, stated to plaintiff in the presence of defendant that he wished to arrange with plaintiff about their property interest and make provision for plaintiff’s mother during her life, and proposed to plaintiff that his mother should during her life hold title to the lemon grove and keep possession and control of the same, and upon her death he should come into full ownership thereof, pursuant to the agreement theretofore made between plaintiff and Ms father, and plaintiff should, out of the proceeds of the properties and income thereof, pay off encumbrances upon the property, ami the income from the lemon grove should be Ms and the