Elms v. Elms

SPENCE, J. This is an appeal by Alberta E. Montague, the intervener, from certain portions of the judgment and interlocutory decree of divorce relating to a parcel of real property.

The plaintiff and defendant in the divorce action were respectively the mother and father of the intervener. The real property in question consisted of an apartment house which was found by the trial court to be the separate property of the plaintiff. The trial court further determined that neither defendant nor the intervener had any interest therein. Defendant took no appeal but the intervener appealed from the portions of the judgment and decree denying her any interest in said real property.

It was alleged by the intervener that she contributed a portion of the purchase price of said real property and that it was agreed, at the time of the purchase, that the real property would be held in trust for her use and benefit “proportionately in conformity to the contribution and payments made". The trial court found against these allegations and made the following further findings relating to the purchase of said property:

“That at the time the real property described in paragraph V hereof was purchased by plaintiff, intervener Alberta E. Montagne advanced and loaned sums of money to plaintiff, but that all of said loans or advances were, in so far as said real property was and is concerned, made by intervener on the basis of the general credit of plaintiff, and that said intervener so regarded them; and that said intervener at no time advanced or furnished funds to plaintiff for the purpose or with the understanding that said funds should be used to purchase or acquire an interest in said property for said intervener. That the conduct and actions of said intervener concerning said property have been inconsistent with any claim of ownership of, or an interest in, said prop[698]erty; that said intervener permitted plaintiff to go into the possession of said property and make extensive improvements thereon at her own expense; that plaintiff has done all of the work required to maintain and operate said property and that said intervener has done none of said work; that, with the knowledge of intervener, plaintiff has collected the income from said property and disbursed it as she saw fit; that plaintiff, with the knowledge of said intervener, has paid all costs and charges in connection with said property, and arranged and executed, on her own credit, all loans secured by said property; and that when said intervener occupied an apartment in said property, she paid rent therefor to plaintiff.”