Doane v. Hooper

DESMOND, P. J. Plaintiff, claiming title to an undivided one-half interest in Lot 8, Block 9, Tract 1589, county of Los Angeles, named as defendants in an action to quiet title, Daisy D. Hooper, widow of C. E. Hooper, J. Sherwood Dresser [543]and Ms wife, Lura H. Dresser, Otto Lande and Tressie^M. Lande, husband and wife, and several other individuals who need not be mentioned since they have been eliminated by stipulation or quitclaim. The complamt also asked for an accounting. A first amended complamt filed after a demurrer was sustained made it appear from its caption that the suit was also “To Declare a Resulting Trust in Real Property. ’ ’ This item of the caption was continued into the third amended complaint upon which the cause finally was heard. The trial resulted in a judgment in favor of plaintiff as to title to an undivided one-half interest in said Lot 8, subject to the right of defendants Lande to receive a deed to the west 44 feet of Lot 8 upon the payment of $1,706.39, balance due under a contract of purchase, which payment Mr. and Mrs. Lande tendered into court. The judgment also settled the account in favor of plaintiff but he appeals from the entire judgment for the apparent reason that the trial court in determimng the sum of money to be credited to him refused to consider any payments which might have been made prior to January 31, 1939, upon the Lande contract or for rental accruing prior to that date from the use and occupation of said Lot 8 exclusive of the Lande parcel.

The reason for the refusal appears in paragraph XVI of the Findings of Fact, reading as follows: ‘ The Court further finds that prior to the death of C. E. Hooper on January 31, 1939, the defendant Otto Lande paid to said C. E. Hooper certain moneys as reflected on the back of said Lande contract, but the Court further finds that neither defendant Daisy D. Hooper nor defendant Lura H. Dresser received any of said sums and the Court finds that plaintiff is entitled to no credit for the same.” A preceding finding throws light upon the reasoning of the trial judge. We copy it here:

“The Court further finds that Charles Edward Hooper, also known as Charles E. Hooper, and also known as C. E. Hooper, died on January 31, 1939, leaving surviving him the defendant Daisy D. Hooper as his widow and the defendant Lura H. Dresser as his daughter.

"The Court further finds that the estate of the said Charles E. Hooper, deceased, was duly probated and administered in the Superior Court of the State of California, in and for the County of Los Angeles; that during the said C. E. Hooper’s life he made all collections covering the described property and was solely and exclusively in complete possession and