Prefumo v. Russell

ALLEN, P. J.

Action to determine conflicting claims to real property.

The findings of the court, all of which have support from the evidence, are substantially these: Defendants and certain other persons named were the owners in 1894 of an equitable estate in certain real property acquired through a contract for its purchase. Owning such equitable interest, they at that time executed a deed to one Prefumo, the husband of plaintiff, purporting to convey said premises, in connection with which Prefumo executed to his grantors an instrument in writing certifying that such deed was so executed in trust and the title to said property was accepted in trust for certain purposes therein declared. Thereafter, in December, 1894, the owners of the legal title insisting upon the payment of the balance of the purchase money due, Prefumo and his former grantors entered into another agreement through which it was agreed that Prefumo was to advance and pay the owners of the legal title the balance due them, and that a deed should be executed to Prefumo conveying the legal title to said property; that thereafter the defendants should sell said property in lots and from the proceeds Prefumo was to be reimbursed for the amount paid to acquire the legal title, and, in addition, should pay the other co-owners in the equity certain sums of money in lieu of their interest in the premises; that after such payment, if any property remained unsold, the same should be conveyed to defendants; that defendants were to have such interest in said property only in the event they paid to said Prefumo said moneys aforesaid by sale of lots or otherwise; that under this agreement Prefumo accepted the legal title, paid the purchase money, and in 1895 paid to the co-owners the money due them in lieu

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of their interest; that at the date of the acquirement of the legal title Prefumo took possession of the premises and he and the plaintiff have held possession ever since, paying all taxes assessed thereon; that defendants have paid nothing to Prefumo since the conveyance to him of the legal title, and that in April, 1902, Prefumo made a voluntary conveyance of the premises to plaintiff, his wife, who took the same with full knowledge of the facts hereinbefore found; that the amount so paid by Prefumo under said agreement, with interest, amounted at the time of the hearing of the cause to $2,518.58.