O'Bryant v. Bosserman

DORAN, J. The complaint herein, as finally amended, alleges that since the year 1939 the parties “have had dealings together and as a result of which they have acquired and hold (real) property in which they cannot agree as to their respective interests”; that the record title thereto is held by the plaintiff, Verna V. O’Bryant, as trustee, but that [354]“she recognizes that plaintiffs and defendant have interests as tenants in common,” making it necessary that such interests be determined and a partition ordered. The defendant (appellant) claims to be the sole owner and denies that the plaintiffs have any interest whatsoever in the property.

It appears from evidence adduced at the trial, that the three parties involved, Mr. and Mrs. O’Bryant, plaintiffs herein, and Mrs. 0’Bryant’s brother, the defendant Gordon Bosserman, came to California from Texas in 1936 and for a time lived in a rented house. In 1938 the defendant purchased the two lots here involved, paying $120 on the purchase price of $300. Thereafter a loan of $1,700 was procured, a house was built on the property and occupied by the parties. Title was taken in the name of the defendant who executed the trust deed, but notes secured by the trust deed were signed by all parties. Later the defendant sold an automobile and applied $350 therefrom on the loan. In May, 1942, the defendant entered the army; after the latter’s discharge in 1945 the balance of the loan, $749, was paid off in a lump sum by the plaintiffs. Appellant’s brief affirms that “All of the parties testified that there was no conversation as to the interests of the other in the property at the time of the final pay off of the loan. ’ ’

According to appellant’s brief, “In late June, 1946, a difficulty arose among the parties, and the plaintiff Verna V. O’Bryant who had in her possession, unrecorded, a power of attorney from defendant given to her during the period of his service, executed a deed to herself as trustee of the premises” and recorded the power of attorney and deed. This was the condition of the title at the time the present action was brought.

The trial court found that all parties hereto had contributed a sum total of $3,237.67 for the purchase, construction, improvement and preservation of the property, of which the plaintiffs had jointly contributed $2,044.81 against which was chargeable the sum of $717.50 “for rent for the time they occupied the property to the exclusion of defendant,” making plaintiffs’ net contribution $1,327.31; that the defendant had contributed $1,192.86. Plaintiffs were therefore adjudged to be “the equitable owners of a 52.68 per cent interest in said property and defendant of a 47.32 per cent interest therein.” An interlocutory judgment of partition was accordingly entered, and it is from this judgment that the defendant has appealed.