Fontes v. Menke

STURTEVANT, J. In an action to quiet title the trial court denied the plaintiff any relief and from the judgment he has appealed. From the first count contained in plaintiff’s amended complaint, which he says states the facts, we gather the following:

Emma M. Fontes died testate on October 14, 1933. She left her surviving this plaintiff, her husband. They were married May 6, 1919. In June, 1932, they separated. At all times down to the date last mentioned a confidential relationship existed between them. On November 2, 1920, Mrs. Fontes purchased the land in suit which consists of a lot in the city of Salinas, Monterey County. She paid $1,000 for it out of her separate funds. In February, 1922, she informed the plaintiff that her mother, Emma C. Menke, would advance the moneys to pay the cost of labor and materials to build a dwelling house and also a garage for the plaintiff and his wife. About the 6th day of March, 1922, plaintiff, in reliance upon the promises and representations of his wife, entered into an oral agreement with his wife to accept the offer of Mrs. Menke to erect a dwelling house and garage on said vacant lot with funds to be supplied by her, that the record title to said vacant lot should remain in the name of plaintiff’s wife, subject, however, to the agreement between plaintiff and his wife that if Mrs. Menke demanded payment of the moneys advanced to construct said dwelling house and garage, and if plaintiff and his wife were not possessed of sufficient moneys to pay the same, that said parties would offer to convey said premises to Mrs. Menke and, in that event plaintiff’s wife agreed to execute a conveyance of said real property, together with the improvements thereon, to Mrs. Menke in payment of the moneys so advanced; that, in the event Mrs. Menke refused to accept a conveyance of said premises in payment of said moneys advanced as aforesaid, plaintiff and his wife would offer said premises for sale and in the event of sale the said plaintiff’s wife would execute a conveyance to the purchaser and [305]the proceeds would be used in reimbursing Mrs. Menke and it is further agreed that said lot and improvements should become from the time of acquisition, the community property of the said parties, subject, however, to the contingencies aforesaid and to the further contingency that if plaintiff was not compelled to reimburse Mrs. Menke or to pay for the cost of constructing said dwelling house and garage out of his separate funds, and was discharged from all obligations in connection therewith, then in such event plaintiff would have no interest in said premises; but if, on the other hand, plaintiff was compelled to discharge said obligation, said contingencies and trust conditions would terminate and plaintiff's right and interest in said premises would become absolute. Said agreement was induced solely in reliance upon the said promises and representations of plaintiff’s wife and plaintiff believed and relied upon said promises.and representations, and accepted the said offer of Mrs. Menke and entered into an agreement for the erection of said dwelling house and caused said dwelling house and garage to be erected upon the said vacant lot and, but for the representations, plaintiff would not have entered into said agreement or incurred any obligation in connection with the cost of erecting said dwelling house and garage; that plaintiff believed and relied upon said promises and representations of his wife because of the confidential relationship of husband and wife existing between said parties. The moneys loaned by Mrs. Menke amounted to $4,300. The loan was evidenced by a note dated July 1, 1922, which was renewed from time to time and the last note was dated January 1, 1931, was payable one year after date, and was also written for the sum of $4,300. Mr. and Mrs. Fontes never offered to transfer the property to Mrs. Menke, nor did they attempt to sell the property, because Mrs. Menke consented to extend the time to pay their note. On or about the 16th day of September, 1933, plaintiff’s wife, in disregard of her promises and representations to plaintiff, and acting in concert with Mrs. Menke, and the defendant Lita C. Menke (sister of decedent) entered into a fraudulent scheme to compel plaintiff to pay out of his separate funds all of said moneys so borrowed and to deprive him of any interest in said real property. In furtherance of said scheme plaintiff’s wife fraudulently and in disregard of her promises and representations