Kowalsky v. Kimberlin

MELVIN, J.

Appeal from a judgment in favor of defendant Barlow.

Plaintiff sued to quiet his title to a half interest in section 5, township 26 south, range 26 east, Mount Diablo base and meridian, in Kern County. According to the allegations of the amended complaint this half interest was acquired in 1888, when Henry I. Kowalsky furnished one-half of the purchase price to his brother, Joseph N. Kowalsky, who bought the land from the Southern Pacific Company, the grantee of the United States government. Joseph took the title in his own name and held it until 1910 when he sold and deeded the property to respondent, John W. Barlow. The contention of the plaintiff at the trial in the superior court, and upon appeal, was that the property was impressed with a trust in his favor and that respondent had full notice thereof when the legal title passed to him from Joseph N. Kowalsky.

It was not denied that the legal title was and had been for many years before the sale to Barlow in Joseph N. Kowalsky, and that there was nothing of record to apprise intending purchasers that Henry I. Kowalsky had paid any part of the purchase price. It is not denied that Joseph represented himself to O. B. Kimberlin (who had a contract to buy the property and through whom respondent purchased) that he, Joseph, was the sole owner. It is not pretended that John W. Barlow ever had personal notice of Henry I. Kowalsky’s pretense of interest until long after the deed passed and the money was paid, but appellant’s theory of the case rests upon the supposed efficacy of attempted notice to persons and corporations designated by him as “agents” of the purchaser.

It appears clearly from the evidence and.the court found that on January 19,1910, Joseph N. Kowalsky and O. B. Kimberlin entered into an agreement in writing whereby the former promised to sell, and the latter to buy, the property

[508]

here in controversy for the sum of $5,472 of which $547.20 was paid at the date of the execution of the contract. This agreement also provided that Kowalsky should place in escrow with the First National Bank of Berkeley a conveyance of the property to Kimberlin or such person as he might designate, to be delivered upon the payment of the balance of the purchase price. On January 29, 1910, upon Kimberlin’s request Joseph.N. Kowalsky executed and acknowledged such a conveyance, which was deposited with the Anglo-London-Paris National Bank of San Francisco with written instructions to deliver said deed to the First National Bank of Berkeley for surrender to Kimberlin or to such person as he should nominate, on payment of the balance of the purchase price. It was also found that “said written instructions from said defendant Kowalsky directed said San Francisco bank to direct, said First National Bank of Berkeley, that .if said Kimberlin, or his order, should so request the said First National Bank of Berkeley, said bank should forthwith forward said deed to any bank in Los Angeles that said Kimberlin might designate, with directions that said deed should be held by said bank at Los Angeles, California, to be delivered to said Kimberlin, or order, on payment of said sum of $4,925; and further directed that if said sum of $4,925 was not paid on or before thirty days after January 29, 1910, either at said First National Bank of Berkeley^ or at said bank at Los Angeles, said deed should forthwith be returned to be held subject to the order of defendant Kowalsky. ’ ’ The bank at Berkeley received the conveyance, and upon Kimberlin ’s written order transmitted it to the Los Angeles Abstract & Trust Company, to be delivered by that corporation to Robert Barry, or his order, on payment of $10,560 by February 20, 1910. Barry was Kimberlin’s agent, and by his written instructions of January 18, 1910, he authorized the Los Angeles Abstract & Trust Company to deliver the conveyance to Barlow. Prior to February 12,1910, John W. Barlow had paid all of the sum of $10,560 to the Los Angeles corporation in full compliance with the terms of his agreement to purchase from Kimberlin. On that date Barlow’s attorney and agent approved the form of the deed and authorized the abstract company to finish the escrow when the certificate of title was deliverable according to the instructions of Barlow. Subsequently this money was duly remitted to the bank at