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District Court of Appeal, Third District, California.


Civ. 6624.

Decided: January 13, 1942

C. E. Luckhardt, of San Jose, for appellants. Grattan, Kirby & Pasquinelli and Owen D. Richardson, all of San Jose, for respondents.

This is an appeal from a judgment in favor of respondents and against appellants quieting title of respondents in and to certain real property in the County of Santa Clara, State of California, cancelling a note executed by respondents to F. A. Hunter, father of respondent C. E. Hunter, and cancelling a trust deed executed and delivered by respondents to F. A. Hunter and appellant Lydia Hunter to secure the payment of said note.

Respondents C. E. Hunter and Maud M. Hunter are husband and wife. F. A. Hunter was the father and appellant Lydia Hunter is the mother of respondent C. E. Hunter, and appellant Grandin H. Miller was named as trustee in the trust deed ordered cancelled by the judgment. During all of the times of the events out of which this action arises F. A. Hunter was living. He died in August, 1935. At the beginning of the events out of which this action developed respondents were living at Browns Valley, Yuba County, California, and F. A. Hunter and appellant Lydia Hunter lived on a ranch in Santa Clara County. The senior Hunters were well along in years and desired to have their son near them for the purpose of helping to farm and manage the ranch upon which they resided, and to do away with the long trips and traffic dangers in going north to visit the son and daughter–in–law, it being their practice to go to the northern part of the state where respondents resided to visit them about twice each year.

For the purpose of inducing respondents to dispose of the property upon which they were living and to come and reside near where the senior Hunters resided, the latter offered to purchase for respondents a piece of land upon which they could reside and make their home. Respondents did not desire to make the move south, although they were desirous at the time of disposing of the property which they had so that they could move to San Francisco where respondent C. E. Hunter had the opportunity of securing a good position. Respondent wife particularly objected to making the move requested by the parents of her husband.

The negotiations continued over a period of time. Finally F. A. Hunter succeeded in finding a place, consisting of thirty–five acres, adjoining the property upon which he and his wife resided, which could be purchased for the sum of seven thousand dollars. This property had no suitable home upon it and was planted only with young trees which would not bear for several years. The condition of this place was one of the grounds upon which respondent Maud Hunter based her objections, as she was averse to leaving her comfortable home where they were then living and to moving upon a place where there were no adequate buildings and where the property for a considerable period would not be income–producing. Eventually respondents were persuaded to accept the proposition and consented to move to Santa Clara County. They succeeded in trading their property in Yuba County for property in Glendale.

F. A. Hunter and respondent C. E. Hunter then proceeded to arrange for the purchase of the thirty–five acre tract involved in this action, which was sold at a trustee's sale. F. A. Hunter gave to respondent son a check for seven thousand dollars for the purpose of purchasing the property. Appellant Lydia Hunter assisted in the drawing of this check. The property was purchased and a deed was executed to respondents. Throughout all of these proceedings appellant Lydia Hunter was present at, and participated in, many of the conversations between the parties in connection with the transaction. The deed to the property was executed and delivered to respondents on or about the 11th day of November, 1932. On or about the 11th day of February, 1933, respondents, without previous discussion with F. A. Hunter and appellant Lydia Hunter, or with either of them, visited appellant Grandin H. Miller, an attorney, and requested him to prepare an instrument which would enable the senior Hunters to secure title to the property in the event that anything should happen to respondents, the reason given by respondents for this action being that they desired to protect the F. A. Hunters in the event that they should predecease F. A. Hunter. A note for seven thousand dollars, bearing four per cent interest, and a deed of trust upon the property to secure its payment was prepared by Mr. Miller, in which he was named trustee, and executed by respondents and delivered to F. A. Hunter and appellant Lydia Hunter.

After moving from Browns Valley to Santa Clara County respondents resided a part of the time with the senior Hunters and a part of the time upon the property involved herein, and respondent C. E. Hunter assisted his parents in the management and care of their property, and during a portion of the time had a lease upon the ranch of his parents.

Shortly after F. A. Hunter's death respondents requested Lydia Hunter to execute to them a release of the trust deed so that it would not appear as an incumbrance against the property. At first appellant Lydia Hunter was willing to execute such release but later refused to do so. This action was then commenced.

In view of the conclusion we have reached, the foregoing is deemed a sufficient statement of the facts. The amended complaint sets forth several counts, the first of which is in the usual form in actions to quiet title to real property, and alleges that plaintiffs are the owners, in the possession, and entitled to the possession of the real property involved. Another count alleges that the said note and trust deed were executed without consideration. In its findings the trial court found in accordance with the allegations of the complaint and judgment was entered in conformity with the findings.

There are many sharp conflicts in the evidence. It is the position of the appellants that there was not a gift of the thirty–five acre tract of land involved herein to respondents but that the seven thousand dollar check delivered to respondents for the purchase of the property was a loan or advancement; that the note was given to evidence the loan; and the deed of trust was executed and delivered for the purpose of securing its payment. Appellants contend that there was not sufficient evidence in the record to support the findings and conclusions of the trial court and the judgment made and entered thereon. In connection with this contention, in the brief of appellant it is stated: “The appellant realizes that if there is any evidence in the record that may sustain the respondents' position upon such a question of fact as is squarely placed before the reviewing court on the position as outlined above, that the appellants cannot hope to prevail in their appeal.”

It is urged by appellants that in this particular case a much greater burden of proof is required of plaintiffs than is the case in the ordinary civil action. For the making and execution of the note and trust deed a consideration is presumed, and where a gift is first claimed subsequently by the donee, the burden of proof to be sustained by the donee is far and away greater than the proof ordinarily required. The case of Sullivan v. Shea, 32 Cal.App. 369, 162 P. 925, 926, in support of this contention is cited. Therein it is said: “It is also said to be the rule that where a claim of gift is asserted after the death of the donor, every element necessary to constitute a gift must be sustained by explicit and convincing evidence. In support of this rule, in the case of Whalen v. Milholland, 89 Md. [199], 211, 43 A. [45], 50, 44 L.R.A. 208, the court said: ‘Mindful of the facility with which, after the alleged donor is dead, fraudulent claims of ownership may be founded on pretended gifts of his property asserted to have been made whilst he was living, it is but a salutary precaution which demands explicit and convincing evidence of every element needed to constitute a valid donation whether it be a donation inter vivos or mortis causa. Even then, fraudulent claims may prevail, but the rigid requirement of the clearest proof will at least diminish the number.’ To the same effect see Davis v. Davis, Sup., 104 N.Y.S. 824; De Puy v. Stevens, 37 App.Div. [289], 293, 55 N.Y.S. 810; Denigan v. Hibernia Sav. & Loan Soc., 127 Cal. [137], 141, 59 P. 389; Lehr v. Jones, supra [74 App.Div. 54, 77 N.Y.S. 213].”

The statement of facts hereinbefore set forth is, in the main, based upon the testimony of respondents. Their testimony was amply corroborated by testimony of other witnesses who were present at some of the conversations of the parties and one of whom actually participated in the consummation of the transaction. The duty devolved upon the trial court, in view of the conflicts and the burden of proof cast upon the respondents in this case, to determine the facts. In its decision the court found that respondents had sustained the burden cast upon them by the explicit and convincing proof required of them. The questions involved were those of fact to be passed upon by the trial court after consideration of all of the evidence and the inferences to be drawn therefrom. Sullivan v. Shea, supra, 32 Cal.App. at page 372, 162 P. 925. We have carefully reviewed all of the evidence adduced at the trial as shown by the transcript on appeal and we cannot say that the facts found are not based upon explicit and convincing evidence sufficient to support the decision of the court and judgment entered thereon.

Further, it appears that, under the facts necessarily found by the trial court, there was consideration for the vesting of title in the thirty–five acre tract in respondents and for the payment by the senior Hunters of the seven thousand dollars as the purchase price. This consideration consisted of the change in the circumstances of respondents at the request and importunities of the senior Hunters and the duties, requirements, and acts resulting therefrom and their conformance therewith up to the time of the demise of F. A. Hunter.

There is also the contention that the seven thousand dollars paid was the community property of F. A. Hunter and appellant Lydia Hunter, and that the latter did not consent, in writing, to the transaction. It is not questioned that the husband may not give away or transfer, without adequate consideration, the community property of the spouses without the written consent of the wife. However, if we assume, for the purpose of this contention only, that the transaction was a gift, nevertheless, appellant Lydia Hunter participated therein. She was at all times familiar with, and participated in what was being done and permitted respondents to believe that they were to be vested with title to the property involved without having to repay the seven thousand dollars or interest thereon. Therefore, we are satisfied that, there being consideration moving between the parties, some of which benefit at least she received, and that she permitted the transaction to be consummated without objection, this contention is untenable. It follows that, as to the note and deed of trust, there was no consideration therefor, the execution and delivery thereof being intended only for the purpose of securing the senior Hunters in the event the death of respondents should precede that of F. A. Hunter. It is not claimed that there were any rulings of the trial court which were prejudically erroneous.

The facts as found by the trial court being sufficient to support the judgment, it is ordered that the judgment be, and it is hereby affirmed.

MONCUR, Justice pro tem.

THOMPSON, Acting P. J., and TUTTLE, J., concurred.