Bealmear v. Smith

McCOMB, J. From a judgment in favor of defendants after trial before the court without a jury in an action to impress a constructive trust upon certain real property, plaintiffs appeal.

Pleadings: In the complaint plaintiffs allege that they conveyed a described parcel of real property to defendants upon defendants’ oral promise to reconvey the property to plaintiffs upon demand; that plaintiffs had demanded the property be reconveyed to them but that defendants refused to do so and were threatening to sell the property.

Evidence: At the trial defendant Virgil Smith testified that plaintiffs executed and delivered to him a deed covering the property in question wherein he and his codefendant were named as grantees, and that such deed was delivered to him as a Christmas present. Both defendants denied that they or either of them had ever made any agreement whereby they promised to reconvey the property to plaintiffs.

Findings : The trial court found (a) that on the 19th day of November, 1945, plaintiffs “deeded the real property” here involved to defendants,1 and (b) that it was not true that plaintiffs agreed to reconvey the property to defendants upon demand.2

Contentions of Plaintiffs : First: The preponderance of the evidence does not support the findings of the court.

This proposition is not properly before this court and will not be considered since it is the established rule that courts of review will not pass upon the weight or preponderance of evidence, and where, as in the instant case, there is substantial evidence (see above) to support the findings, the review[181]ing court will not look further into the evidence. (Washko v. Stewart, 20 Cal.App.2d 347, 348 [67 P.2d 144]; Crain v. Security Title Ins. etc. Co., 6 Cal.App.2d 343, 345 [44 P.2d 632]; Waen v. Ohio Farmers Ins. Co., 4 Cal.App.2d 513, 516 [41 P.2d 168]; Bowman v. Carroll, 120 Cal.App. 309, 311 [7 P.2d 734].)

In 1909, Mr. Presiding Justice Allen in Berger v. Horlock, 10 Cal.App. 352, at page 357 [101 P. 918] made this pertinent remark relative to the proposition here presented: “The supreme court, and this court in conformity therewith, has so repeatedly said that where the evidence is conflicting and there is any evidence tending to support the finding of the trial court the same will he sustained, that a time should arise when the bar will recognize the force and extent of this rule and cease to burden appellate courts with appeals involving only the right of the trial court to give such weight and effect to the evidence as, in its judgment, is proper under the circumstances of the ease.”