McMullen v. Saunders

KAUFMAN, J. This is an appeal from a judgment of the Superior Court in and for the County of San Francisco, in an action brought to declare certain real property to be held [555]in trust for plaintiff and for an accounting and receivership. The record is in the form of a settled statement.

Appellant previously made a motion in this court to correct the settled statement. This motion was denied. Appellant states that no useful purpose would be served in quoting or referring to the “so-called settled statement” on file herein, since it does not reflect the true facts, and then proceeds with her own statement of facts without benefit of transcript reference. This court must, of course, obtain the facts from the duly authenticated settled statement.

The complaint alleged that plaintiff and appellant, Della Mae McMullen, transferred to defendants and respondents, Cyril Saunders, an attorney at law, and Betty Saunders, his wife, by quitclaim deed, certain real property in San Francisco, and that at the time of this transfer an attorney-client relationship existed between appellant and respondent, Cyril Saunders; that the transfer was a security transaction; that respondent had agreed to purchase the property at foreclosure sale, to sell it and pay appellant the selling price after deducting the loan with interest at 6 per cent per annum. It was alleged that respondent was indebted to appellant’s husband, Bruce McMullen, also an attorney at law, for the balance due upon an office and fee-sharing agreement, which balance had been assigned to appellant. It was further alleged that appellant had left certain household property of a value of $750 upon the aforesaid real property, and that respondent had converted it to his own use, and that a diamond ring belonging to appellant was also wrongfully retained by respondents.

The complaint sought a judgment declaring the real and personal property be held in trust or as a mortgage; that defendant account for said property together with rents and rental value thereof; that appellant have judgment on her husband’s assigned claim; and for declaratory relief.

Respondents denied generally the allegations of the complaint and counterclaimed and cross-complained against appellant and her husband, Bruce McMullen, claiming certain sums due for rent of the real property here involved, office rent and certain other sums arising out of the two attorneys’ office-sharing agreement. It was alleged that respondents bought the real property at a trustee sale, and that thereafter Cyril Saunders stated to Bruce McMullen that he would give him as p credit on his account one-half the difference between