Hunt v. Friedman

McKee, J. On the 16th of January, 1872, J. S. Friedman, in an action wherein he was plaintiff, and Peter Donahue and others were defendants, recovered judgment for the possession of certain lands and premises in the city and county of San Francisco. The judgment was affirmed by the Supreme Court of the State on the 4th day of February, 1875, and ultimately by the Supreme Court of the United States by the dismissal of an appeal taken to that court (92 U. S. 723); after which Friedman was restored to the possession of the lands. On the 5th day of January, 1878, Friedman, in an action wherein he was plaintiff, and Alexander Austin was defendant, also recovered a money judgment, as compensation for some portion of the lands, recovered by the former judgment, which had been taken by the city of San Francisco for a public park, and the amount of the judgment was paid over to him on the 22d of January, 1878.

In the lands and moneys recovered by these judgments, W. H. Sharp claimed to be the equitable owner of an undivided one third interest, which he transferred to George H. Sharp, the testator of the appellant who brought this action to have Friedman declared a trustee of such interest for his benefit, upon the grounds, as urged upon the argument of the case on appeal, that a resulting trust for the benefit of W. H. Sharp) arose out of the transaction, between him and Friedman, by which the latter prarchased and acquired the title to the lands, and that he after-wards executed a declaration of trust for the benefit of the former.

But the only allegations of trust specified in the complaint are: “That during the several p>eriods of time hereinbefore alleged said defendant Friedman held, and still holds in trust for plaintiff, the legal title for the interest of the plaintiff and bis predecessor in the several parcels of land; that on May 27, 1870, defendant Friedman did duly execute and acknowledge in writing that W. H. Sharp was the equitable owner and entitled [512]to an undivided one third part in and to the same.” This is but a statement of an express trust. Yet, under these allegations, evidence was given of the purchase by Friedman, and- of the arrangement between himself and W. H. Sharp for the prosecution of litigation for recovery of the lands.

The defendant testified that he purchased and acquired title to the lands in his own name for himself alone, that the purchase was not made for the benefit of himself and Sharp, nor did Sharp contribute, or agree to contribute, either money or services for the purchase; that after he had purchased the lands with his own money, and obtained his deed, he consulted with Sharp as to the validity of the title and the prosecution of a suit to recover possession of the lands, and retained Sharp to bring suit for possession, and prosecute it to a successful issue, for which he agreed to give him an undivided one third interest in the recovery. Under that agreement Sharp brought the action, and conducted the litigation in which he recovered a judgment in December, 1869; but that judgment was set aside in March, 1871, and Friedman, having become dissatisfied with Sharp for delay in the prosecution of the suit, employed other attorneys. After that Sharp took no active part in the litigation. The other attorneys prosecuted the suit to final recovery.