This is a suit to enforce an alleged trust (resulting and constructive) in land conveyed to defendant's grantors by plaintiffs' alleged trustee. The findings and judgment were for the defendant; and the plaintiffs' appeal from an order denying their motion for a new trial. Both parties — with an exception that will be noted — rely on the same deraignment of title, which is as follows: —
1. Judgment in favor of plaintiff Burkhart against Teresa Luhring, of date September 19, 1891, for the sum of $85.85 — afterwards assigned to plaintiff Brooks; who was then the wife of Burkhart, but afterwards divorced.
2. Sheriff's sale under execution on the judgment for the sum of $135.75, and certificate of sale to plaintiff Brooks, of date July, 1895; at which time, it is alleged in the complaint and not denied, she was still the wife of Burkhart. On this point there seems to be some confusion. The finding of the court is to the contrary of the allegation; and in the respondent's brief it is said that the parties had been divorced nearly two years prior to the sale. But we are cited to no evidence in support of this assertion, and have not been able to find any. The point is material only to the matter in evidence.
3. Assignment of certificate of sale, for recited consideration of $135.75, and subsequent sheriff's deed, January 22, 1896, to Daniel Burkhart and Leonard Brooks; sons, the former, of plaintiff Burkhart, the latter, of plaintiff Brooks.
4. Conveyance by Leonard Brooks to Daniel Burkhart, and allotment of the land in question to the latter, by judgment in a partition suit, in the year 1899.
5. Deed of Daniel Burkhart, during his last illness, to Sexton Grider, of date January 8, 1901.
6. Deed from Sexton Grider to defendant, of date January 9, 1901.
In addition to the above, it is alleged in the second count of the complaint that during the last illness of Daniel Burkhart, and before his deed to Sexton Grider, a deed, in execution of the trust, was made and delivered by him to his father, and brother, John Burkhart. But there will be no occasion to consider this aspect of the case.
It is alleged by the plaintiff in effect: That the plaintiff Mrs. Brooks, under agreement to that effect, took the certificate *Page 136 of purchase at the sheriff's sale for the joint use and benefit of herself and husband, in certain definite proportions; that the certificate was assigned by her, and, by the direction of plaintiffs, the sheriff's deed made, to Leonard Brooks and Daniel Burkhart, without consideration, and upon a parol agreement and understanding that they should hold the land in trust for plaintiffs; that the deed of the former to the latter was made by direction of plaintiff Burkhart upon the same trust and confidence; that the trust was repeatedly admitted by Leonard and Daniel; and, finally, that the deeds from Daniel to Sexton Grider, and from the latter to the defendant, were taken by the grantees, respectively, with full knowledge of the trust.
It is further alleged, in effect: That the deed to Sexton Grider was procured by the fraud and undue influence of the grantees, acting in conspiracy with one Bigelow and others; and that the defendant took the deed with knowledge of the trust relations between Daniel and the plaintiffs, and of the fraud and conspiracy of its grantors and Bigelow. These allegations occur in the second count of the complaint, wherein all the facts set out in the first count are also alleged. On all of the issues thus raised, the findings were adverse to the plaintiffs.
The points urged by the appellants are: That the material findings are not supported by the evidence; that a new trial should have been granted on the affidavits of newly discovered evidence; and that the court erred in sustaining the objections of the defendant to questions put to the plaintiff Brooks and her son Leonard as to the agreement or understanding under which they took their respective titles.
The last point, if sustained or held to be untenable, will dispose of the appeal; and, as we are of the opinion that it is well taken, it will be sufficient to say of the others that evidence was introduced by the plaintiffs to prove their material allegations — some of it of a very cogent nature; and that it is claimed by the appellant, not without some plausibility, that "had the court not been in error upon the law of this matter, it would doubtless have granted a new trial on the affidavits." Our attention will, therefore, be confined to the point raised by the exclusion of the testimony of Mrs. Brooks and her son Leonard. *Page 137
As to the former, it is urged by the respondent that the evidence offered was inadmissible because it appeared that Mrs. Brooks was "the owner of the judgment which was the consideration of the sale." But — leaving out of view that it appears that advances for sheriff's costs were made by Burkhart, which would constitute part of the consideration — her testimony as to her part interest with her husband in the property purchased (the fruit of the judgment) would have been cogent to prove that she was similarly interested in the judgment itself; and the justice of this inference is confirmed by her own express testimony to that effect. Nor were it otherwise, are we to be understood as holding that the point would be tenable.
But the principal point urged relates to the testimony of Leonard, and is, that, a money consideration being recited in the assignment of the certificate, and in the sheriff's deed to him, parol evidence was inadmissible to establish the alleged trust; in support of which contention Russ v. Mebius, 16 Cal. 350, and other cases are cited. But these were cases where the trusts sought to be established were in favor of the grantor; and if it be assumed for the purposes of the decision, that such trusts continue to exist, as resulting trusts, under the codes (Feeney v. Howard, 79 Cal. 5301), yet the principle announced in Russ v.Mebius is peculiar to that class of cases, and has no application to the kind of resulting trusts referred to in section 853 of the Civil Code. In trusts of this kind the consideration is usually recited, yet parol testimony is always admissible. (Hidden v.Jordan, 21 Cal. 93; Beyles v. Baxter, 22 Cal. 575; Millard v.Hathaway, 27 Cal. 119, 142; cases cited, Pomeroy's ed. Civ. Code, section cited.) The evidence offered was, we think, clearly admissible, and its exclusion material error.
We advise that the order appealed from be reversed and the cause remanded for a new trial.
Cooper, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion, the order appealed from is reversed and the cause remanded for a new trial.
Van Dyke, J., Shaw, J., Angellotti, J. *Page 138
On petition for rehearing in Bank, the following opinion was rendered February 28, 1905, by the court in Bank: —
1 12 Am. St. Rep. 162.