Gilbert v. Penfield

CHIPMAN, C. Action to have a trust declared in favor of plaintiff as to certain lots -situated in Santa Barbara, and that defendants E. H. and W. H. Penfield convey said lots to plaintiff. They denied the alleged trust, and averred that defendant E. H. Penfield took a conveyance from plaintiff of the lots in question and holds the title in trust, as he alleges it to be.

Defendant W. H. Penfield filed a cross-complaint asking foreclosure of a deed, held by him, as a mortgage to one of the lots, the subject of the alleged trust. J. 0. Gilbert is husband of plaintiff, and is -made defendant in the cross-complaint.

The court, as conclusions of law, found plaintiff not entitled to the relief asked by her; that the legal title to the lots in question is vested in defendant E. H. Penfield, subject to certain trusts set forth in the findings; that defendant W. H. Pen-field has a valid subsisting mortgage on certain of -the property and is entitled to foreclosure thereof, and that the rights of plaintiff and said J. 0. Gilbert are subordinate to the lien of said W. H. Penfield. Plaintiff appeals from an order denyiüg her motion for a new trial, but does not appeal from the judgment. The only question presented by counsel for appellant is, Does the evidence support the findings?

Plaintiff and defendants, the Penfields, are cousins; plaintiff came to California in August, 1887, and was then unmarried, [236]and made her home with defendant, E. H. Penfield, at Santa Barbara; upon the recommendation of her cousin, E. H., she purchased certain Santa Barbara city lots in block 80 and in block 147, and a certain other lot she purchased contrary to his advice; E. H. testified, and the court found, that before she made any purchases he verbally promised, as to those made upon his approval, “that he would stand between her and loss, but .... he received no consideration for or by reason of, and reaped no benefit from, said purchases or any of them, and had no interest in them.” The purchases in block 80 and block 147, recommended by E. EL, were made in December, 1887—the lots in block 80 being subject to two mortgages held by one Hassinger, and the lot in block 147, being under mortgage to one Pilcher. On March 37, 1888, plaintiff borrowed six hundred dollars on her note, signed also by E. H., to raise money for her own uses, and which was used by her; this note E. H. afterward paid, and “plaintiff has never repaid him the whole or any part of the sum so paid by him on said note.” In 1889 plaintiff paid the Pilcher mortgage, and the spring of 1890 found her the owner of the lots in blocks 80 and 147, subject to the Hassinger mortgages; payment was pressed by Hassinger, “and, plaintiff being unable to meet the indebtedness, the defendant E. H. Penfield offered to take the property from plaintiff for the purpose of handling the indebtedness for her and carrying the property until an advantageous sale could be effected. Accordingly, plaintiff conveyed to him all the property described in the complaint upon the following trusts, and no others: To provide for taking up the two Hassinger mortgages, and to hold the property until a favorable time to sell the same should come, at which time he should sell the same and apply the proceeds of sale, first, to the payment of the sum due upon the indebtedness represented by the Hassinger mortgages and to reimburse himself for the payment of the six hundred dollar note, and then to apply the surplus to repaying plaintiff her outlay on said lots, and then to divide any excess between plaintiff and himself.” Plaintiff conveyed to E. H. upon the trusts above stated, April 30, 1890, and on the same day E. El. procured his brother, defendant, W. H., to purchase the two Hassinger mortgages for the sum of nine hundred and