Hellman v. Messmer

Belchee, C. C. —The plaintiffs, as executors of the last will of Andre Briswalter, commenced this action to compel the defendant to convey to them certain real property in the city of Los Angeles.

The complaint alleges that Briswalter in his lifetime purchased the property in controversy from Pio Pico for the sum of one thousand dollars; that the defendant was employed by him as his agent to negotiate the purchase, and as such agent did negotiate the purchase for and on account of his principal; that the property was conveyed by Pico to defendant, who agreed to take and hold the same in his own name for the use and benefit of Briswalter, and that the purchase-money was paid by Briswalter.

[168]The answer denies that Briswalter purchased the property, and alleges that “ said Briswalter desired to purchase the property mentioned in the complaint, but the personal relations between Pio Pico and said Briswalter were such that said Briswalter did not believe he could accomplish such purpose without the intervention of some third party. This defendant, knowing that said Briswalter desired to purchase said property, and being himself friendly with said Pico, said Pico came to defendant and stated to him that he would not sell said property to said Briswalter, but would sell it to this defendant. This defendant thereupon bought said property in his own name, and paid for it with his own money, but afterwards said consideration was paid to him from and out of the funds of said Briswalter, it being then and there the intention of said Briswalter and of this defendant that this defendant should, if said Briswalter desired, convey to him, said Briswalter, said property so purchased from said Pico.” The answer then further alleges that before his death Briswalter made a gift of the property to the defendant, “whereupon this defendant accepted such gift, and has since retained the title of the same, and is now the owner thereof, free from any charge or trust in favor of said Briswalter or his estate, or said plaintiffs, or either thereof.”

The court below found that all the allegations of the complaint were true; that the defendant “was employed by Briswalter, and undertook for him to negotiate with and purchase from the said Pico for him, the said Briswalter, the said property”; and that the defendant, “as the agent and friend of said Briswalter, and not otherwise, bought said property and paid the said Pico for it out of his, the defendant’s, own money; but the money so paid was at all times considered and intended by him as a loan of said money to the said Briswalter, and thereafter, to wit, on April 13,1885, thó full consideration and