O'Rourke v. Skellenger

[271]

SHAW, J.

This is an appeal by the defendant from the judgment. The object of the action is to declare and enforce an alleged trust in certain parcels of land of which the decedent Owen McCabe, died seized. By his will he devised the land to his wife, Ellen McCabe, for her natural life, with remainder to his children, Nellie McCabe Rosenberger, Margaret C. Skellenger, and Eugene McCabe. Ellen died on March 2, 1907. Eugene, on October 30, 1905, conveyed his interest in the land to the plaintiff, O’Rourke. Margaret C. Skellenger was the wife of the defendant. She died on November 3, 1909.

The record on appeal was made up in the manner prescribed in section 953a of the Code of Civil Procedure. It is not printed. Section 953c provides that such transcripts need not be printed, but it adds that “in filing briefs on said appeal the parties must, however, print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court.” The appellant has not complied with this requirement of the statute. Some short extracts from the record are printed in his briefs, but not enough to enable us to determine the issues or the questions presented for review. In this condition of the case we do not think we are required to make more than a cursory examination of the typewritten record on file. Indeed, we would be fully justified,' under the provision above quoted, in refusing to examine it at all.

From the examination we have made we find the case, as alleged, proven, and found by the court, is in substance and effect as follows:

Owen McCabe, in his lifetime, had mortgaged the land to one Forster and the mortgage remained unpaid at his death. Forster began a foreclosure suit thereon. Thereupon the defendant agreed with the heirs of McCabe that he would advance for them the money to buy the Forster mortgage, that he would buy said mortgage therewith, that he would then have himself substituted in the suit as plaintiff, obtain judgment by default against the estate and heirs for the foreclosure thereof, cause execution to issue thereon, buy the land in his own name at the foreclosure sale for the amount of the mortgage debt, interest, and costs, obtain the foreclosure deed therefor to himself at the expiration of the period of redemption, and thereafter hold the said land in trust for the