Sherman v. Sandell

Harrison, J. Plaintiffs are the daughters of the defendant, Catherine Sandell, formerly Catherine Bornheimer, and seek by this action a judgment declaring that certain lands were conveyed to and are held by her in trust for them; that she be restrained from mak[374]ing any conveyance or other disposition of said lands, and that the court remove her from her office as trustee of said lands, and appoint another trustee in her place. Judgment was rendered in favor of the defendants, from which and from an order denying a new trial the plaintiffs have appealed.

In December, 1871, Francis Bornheimer was the husband of the defendant, Catherine Sandell, and, being sick and in the belief that he would not recover, executed to her a conveyance of several tracts of land in San Francisco, including those described in the complaint. The deed of conveyance is absolute in form/ and purports to have been made in consideration of the love and affection of the grantor for his wife. Bornheimer, however, recovered from his illness, and continued to live with his wife until his death, upwards of eighteen years afterward, in February, 1890, and during this time he and his wife sold and disposed of a large amount of the land described in the deed of December, 1871. The present action was commenced in November, 1892. No writing evidencing the alleged trust is shown to have been made by either Bornheimer or his wife, but the plaintiffs sought to show the creation and existence of the trust by means of oral testimony only, consisting of declarations made by the parties to the instrument at the time of its execution, as well as before and subsequent thereto. The court found that the conveyance was not made upon any trust for the benefit of the plaintiffs, or either of them, and this finding is attacked by them as unsupported by the evidence.

It is well established that although a conveyance of lands is absolute in terms, and on its face purports to convey an estate in fee, it may nevertheless be shown that the lands are held by the grantee in trust; and that the terms of such trust may be shown by oral testimony. In order, however, that the lands so conveyed - may be impressed with a trust, the trust must be created and its terms agreed upon by the parties to the instru[375]ment at the time of its execution, or the instrument must be executed in pursuance of such previous agreement. An absolute conveyance of lands cannot, after its execution, be turned into a trust by any oral declarations of the parties thereto. The statute of frauds forbids the creation of a trust in real property by simple verbal declarations of its owner, and a grantor cannot, by any subsequent declarations, defeat the effect of his deed. It is also well established that the evidence which will authorize a court to find that a conveyance of lands which is absolute in terms was in reality made upon a trust must be clear, satisfactory, and convincing; that the parties to an instrument which is clear and unambiguous in its terms must be presumed to have intended the legal effect of those terms, unless it is clearly and satisfactorily shown that it was their mutual intention that those terms should have a different effect. (Mahoney v. Bostwich, 96 Cal. 58; 31 Am. St. Rep. 175. Ensign v. Ensign, 120 N. Y. 656.) The burden of proof to thus vary the terms of the instrument is upon the party who claims contrary thereto, and he must establish his allegations by a preponderance of evidence. If the verbal declarations are contradictory or uncertain, the presumption that the instrument correctly expresses the agreement between the parties is not overcome. This issue is purely one of fact, and is to be determined by the trial court, and to the extent that its determination rests upon the mere preponderance of evidence, or upon the consideration of conflicting or contradictory evidence, the finding of the trial court is not open to review in this court. (Brison v. Brison, 90 Cal. 334.)