Opinion
Page __
__ Cal.App.2d __ 340 P.2d 714 Vincent J. HORTON, Plaintiff and Appellant, v. Norvin R. KYBURZ, Defendant and Respondent. Civ. 9555. California Court of Appeals, Third District June 25, 1959Rehearing Denied July 7, 1959.
Hearing Granted Aug. 21, 1959.
[340 P.2d 715] Rowland & Paras, Sacramento, for appellant.
Brandenburger, White & Dillon, Sacramento, for respondent.
WARNE, Justice pro tem.
In this action appellant sought to have respondent declared a constructive trustee as to an undivided one-half interest in certain real property. The first cause of action relates to certain acreage in El Dorado County, hereinafter referred to as the ranch. The second cause of action related to certain improved property in Sacramento County as to which the same relief was sought.
While appellant appeals from the entire judgment, he states in his briefs that he is only prosecuting this appeal from the trial court's decision for respondent on the first cause of action. Hence it follows the judgment insofar as it affects the property mentioned in the second cause of action must be affirmed.
Appellant is the natural son of Robert E. Horton by a former marriage. On December 12, 1916, Robert remarried. His new wife was Elizabeth A. Horton, to whom he remained married until his death on January 17, 1931. The respondent Norvin R. Kyburz is a grandnephew of Elizabeth. The property here involved was acquired during the second marriage.
After Robert's death, Elizabeth continued to own the property until February 15, 1954, at which time she executed a joint tenancy deed granting title to said real property to herself and respondent. Subsequent to the death of Elizabeth the joint tenancy was terminated and title to the ranch property vested solely in respondent. The property acquired by respondent by virtue of the joint tenancy deed of 1954 and its termination after Elizabeth's death is the same property as that originally acquired by Elizabeth and Robert in 1930, with the exception of 63 acres which Elizabeth sold to the United States Government in the year 1948 for the sum of $50 per acre. Appellant's asserted right to have the respondent declared constructive trustee of an undivided one-half interest in the remaining 160 acre ranch property is based upon the law as stated in Ryan v. Welte, 87 Cal.App.2d 897, 198 P.2d 357, and Notten v. Mensing, 3 Cal.2d 469, 45 P.2d 198. Appellant alleged and presented evidence to show that prior to Robert's death Robert and Elizabeth had agreed that everything which they owned they would hold as joint tenants; that upon the death [340 P.2d 716] of either, the survivor would own all of such assets; and that upon the death of the survivor, he or she would devise all of the property one-half to appellant and the remaining one-half 'to the relatives of Elizabeth A. Horton, in accordance with her own wishes.'
Appellant then alleged that in reliance upon the said agreement Robert 'forbore to make any testamentary or other disposition thereof, or any part thereof, to any members of his own family.'
Respondent denied that any agreement had been made between Robert and Elizabeth and further interposed the defense that he was a bon fide purchaser, in that Elizabeth conveyed the property to him for a good and valuable consideration, to wit: the making and performance by him of an agreement between them 'that if this defendant would maintain and improve said real property during the lifetime of said Elizabeth A. Horton that she would convey to him a joint tenancy interest in said real property hereinabove described.' He further alleged that for more than 7 years prior to the death of said Elizabeth A. Horton on October 11, 1956, he improved and maintained said property, which services consisted of the construction of small buildings thereon, roofing of a barn on the premises, planting of permanent pasture, development of water for springs, repair and construction of roads, repair of buildings and fences, and the removal of brush.
The trial court found that said oral agreement had been made by the spouses; that in reliance upon said oral agreement they had placed and maintained all of the property acquired by them, or either of them, during their marriage in joint tenancy with each other, including the real property herein referred to, and said Robert E. Horton did forbear to make any testamentary or other disposition thereof, or any part thereof, to any members of his own family in the event that Elizabeth should survive him; that Robert had made a will dated February 18, 1930, wherein he did purport to devise to his son, appellant herein, the ranch property. The trial court further found that respondent's special defense was true and that respondent was a bona fide purchaser of said real property, and 'to enforce against said defendant [respondent] the oral agreement made and entered into between said Robert E. Horton and Elizabeth A. Horton * * *, would be harsh, oppressive and unjust.' Accordingly, judgment was entered in favor of respondent and this appeal followed.
Appellant attacks the finding that respondent was a bona fide purchaser of the ranch property and also assigns as error the admission into evidence of Elizabeth A. Horton's statement made to her attorney that she had promised to give respondent a joint tenancy in the property. Also that it was error to admit into evidence a last will and testament of Elizabeth in which she left all her property to her grandnephew. Thus the gist of the problem is whether or not respondent under the provisions of sections 1107 and 1214 of the Civil Code was a purchaser in good faith and for a valuable consideration so that his joint tenancy from Elizabeth cut off any right appellant may have had to enforce a trust against the ranch property. It should be noted that in order to prevail respondent must (1) have been a purchaser in good faith, that is, have acted bona fide, and (2) have given conjunctionally a valuable pecuniary consideration, or its equivalent, as the words 'good faith' and 'valuable' are interpreted under these statutes; and in absence of either one or both of these prerequisites, he cannot prevail and the burden of proof is cast upon him. Scott v. Umbarger, 41 Cal. 410, 419; Eversdon v. Mayhew, 65 Cal. 163, 3 P. 641.
In Cain v. Richmond, 126 Cal.App. 254, at page 260, 14 P.2d 546, at page 549, the court said: 'A valuable consideration is such as money or the like, and the adequacy or inadequacy of the amount, or its disproportion to the actual value of the property, does not affect the question of the kind of consideration. Lindley v. Blumberg, 7 Cal.App. 140, 93 P. 894. The adequacy of the consideration is an element of the good faith of the transaction, and has no bearing upon whether the consideration is a valuable or [340 P.2d 717] good one. Frey v. Clifford, 44 Cal. 335, 342; Clark v. Troy, 20 Cal. 219, 220, 224.' A valuable consideration for a conveyance of land may be other than the actual payment of money and may consist of acts to be done after the conveyance. Stanley v. Schwalby, 162 U.S. 255, 16 S.Ct. 754, 40 L.Ed. 960.
Applying the above rules to the instant case it appears to us that the trial court's findings find ample support in the record. A recitation of the facts most favorable to respondent as disclosed by the record are as follows: Respondent was born on May 30, 1928. He was raised by his aunt and lived with her for as long as he can remember. While living with his aunt she paid all of his expenses, including furnishing him with food, clothing, a place to live, transportation, etc. Their relationship was like that of mother and son. During the early years of his boyhood respondent assisted his aunt in the care of her properties by mowing lawns, caring for the yard, doing odd jobs, attending the minor repairs of the ranch, and the upkeep of her rented units in Folsom. Respondent graduated from high school in the summer of 1947, at the age of 19, and thereafter held a job full time for a year as an apprentice electrician. He had various other jobs until he went into military service. He also worked for his aunt in his spare time. He entered military service on September 18, 1949, and remained in the service untill September 14, 1953. Upon his return from the service he got a job from one W. M. Rumsey for a period of about 8 weeks, again full time. He then obtained a job with the Campbell Soup Company in Sacramento, again full time, where he worked 5 weeks. Then be obtained a job in San Francisco where he worked for 6 or 7 months, again full time. Then he moved back to Sacramento to work for the San Juan High School for about 6 months. Then he obtained work with the United States Government, where he worked full time from 1955 to the time of his greataunt's death.
In 1949 Elizabeth told respondent that if he would continue helping her with her places and the ranch she would leave them to him. The substance of Elizabeth's undertaking was repeated occasionally thereafter. Prior to that time respondent assisted Elizabeth in maintaining the ranch by cutting brush, fixing fences, burning brush and clearing land. He also did work on certain rental properties in Folsom, Sacramento County, owned by his great-aunt. The work consisted of laying linoleum, papering, painting, etc. Respondent testified that after the oral agreement of 1949, he continued to do the same work, except on a larger scale. In 1954 respondent paid some of the expenses of clearing the ranch property and Elizabeth assured him that she would protect him and give him a joint tenancy interest.
Respondent described the work that he and his aunt did on the ranch as follows: 'Well, we fixed the fences. We put in the northeast fence which was about a little over a quarter of a mile, and I built the northwest fence. It is about a quarter of a mile, about ready to fall down, and a couple of cross fences. We had three wells drilled. We paid fifty per cent apiece. I mean it was fifty fifty on the wells. Put an aluminum roof on the barn and jacked it up and poured a foundation on the north end of it and pillars through the middle and through the south end. We run water to the corral and across the road; put in pressure pumps and separator house. We knocked the front of it off and rebuilt that, reroofed it; put a foundation in the front of it and put a cement floor in it. We built a large three-car garage out of aluminum; and the clearing of the land and the reservoir around the hill; and the seeding of the south side; and there is about an acre of permanent pasture besides the brush clearing and burning and stuff that we had done before that.' The clearing of the brush and fixing of the fences occurred prior to 1949. The wells were placed on the property in 1954 and 1955; and while the record is silent as to just when the rest of the work was performed or the improvements were made, the inference is that it was done after 1949, since prior to that year the property was leased out for cattle grazing.
[340 P.2d 718] Applying the hereinabove stated rules of law to the facts as above related, we feel that the trial court's findings are amply supported.
To support his claim that he was a bona fide purchaser from his great-aunt, respondent introduced all statements made by Elizabeth to her attorney at the time he drew the joint tenancy deed of February 15, 1954, to the effect that she wanted the deed drawn because she wanted to comply with her agreement with her great-nephew. Appellant objected to this testimony upon the ground that it is hearsay and self-serving and the objection was overruled. The very same type of oral statements by Elizabeth to respondent himself were offered in evidence, objected to upon the same ground, and admitted after overruling the objection. Also, after objection, the court admitted into evidence a last will and testament of Elizabeth, dated November 16, 1954, in which she left all her property to her grand-nephew, together with the reasons for the execution of her will as stated by her attorney.
These statements of Elizabeth, both to respondent and to her attorney, are claimed by appellant to have been erroneously admitted by the trial court. We do not agree. The statements made at the time of the execution of the will and the deed of conveyance were admissible as part of the transaction. Code of Civ.Proc. sec. 1850.
Appellant's case rested on the alleged oral agreement, a part of which was that the survivor of Elizabeth and Robert Horton would leave appellant a one-half interest in the property. Thus, fulfillment of the agreement would depend upon Elizabeth Horton's devising said one-half interest to appellant if she did not convey it to him during her lifetime. 'This testamentary act being a part of the transaction alleged by appellant, evidence concerning such act or the omission thereof was admissible as part of the whole transaction * * *' Frazure v. Fitzpatrick, 21 Cal.2d 851, 858, 136 P.2d 566, 570. The statements of Elizabeth to her attorney who drafted the deed and will were admissible as part of that transaction and were relevant to the reason for the conveyance and what Elizabeth intended to accomplish thereby. Orella v. Johnson, 38 Cal.2d 693, 696, 242 P.2d 5; Sethman v. Bulkley, 9 Cal.2d 21, 24, 68 P.2d 961; Simons v. Bedell, 122 Cal. 341, 349-350, 55 P. 3; Airola v. Gorham, 56 Cal.App.2d 42, 50-52, 133 P.2d 78; Code of Civ.Proc. sec. 1850. Therefore, there was no error in the admission of that evidence.
No other points require discussion.
The judgment is affirmed.
VAN DYKE, P. J., and SCHOTTKY, J., concur.