Hunt v. Swyney

HAYNES, C. Appeal by defendant, Swyney, from a judgment in favor of the interyener, Honora Sharp, and from an order denying his motion for a new trial. An action.was commenced October 17, 1887, by plaintiff, as the executor of the will of George F. Sharp, deceased, against the defendant Swyney et al., to compel said Swyney to convey to plaintiff a certain lot in the city of San Francisco, and to recover the value of the use thereof, alleging that said Swyney held the title in trust for the estate of his testator. Honora Sharp, the widow of said George F. Sharp, filed her complaint in intervention August 17, 1888, alleging the same facts, except that Swyney held the property in trust for her, and that she, and not the estate, was the owner, and entitled to a conveyance and to recover the rents and profits. On December 21, 1880, Alfred Rising and wife executed to George F. Sharp [110]their note for $3,500 for money loaned, and a mortgage upon the lot in question to secure the same. On December 10, 1881, Sharp assigned the note and mortgage to defendant, Swyney, who foreclosed the mortgage, and upon a sale under the decree, in July, 1882, bid the amount of the judgment, and became the purchaser of the lot in controversy. Swyney assigned the certificate of purchase to one Pennie, to whom the sheriff executed a deed, but Pennie afterward conveyed the lot to defendant, Swyney. George P. Sharp died in October, 1882. For three years last before Sharp’s death Swyney was his law clerk, and during the same time was the agent of Mrs. Sharp in collecting the rents of her separate property. Plaintiff claimed that the note and mortgage were assigned to Swyney in trust, for collection for the benefit of Mr. Sharp. Defendant Swyney claimed that he purchased and paid for the note and mortgage and foreclosed it for his own benefit, and the intervener, Mrs. Sharp, claimed that the consideration of the note and mortgage was her separate money, which her husband had invested for her, taking the note and mortgage in his own name; that the assignment to Swyney was without consideration and in trust, for foreclosure, collection and purchase for her exclusive benefit. Swyney’s answer put in issue the material averments of the intervener’s complaint, and pleaded the statute of limitations.

The findings fully sustain the contention of the intervener, but it is contended by appellant that in several material matters they are not justified by the evidence. So far as the findings are adverse to defendant’s claim that he purchased the note and mortgage, and was the owner of them in his own right, and not in trust for the use and benefit of any person other than himself, the evidence, while conflicting, could lead to no other reasonable conclusion than that reached by the court. The particulars in which the testimony of the intervener is least satisfactory, and which are largely commented upon by appellant, are those which relate to the question whether the trust was for the benefit of herself or her husband ; but the trust having been found on sufficient evidence, that is a question which does not materially concern the appellant, though the findings in that respect are sufficiently supported. Appellant also specifies several particulars in which he contends the court erred during the trial.