Hernandez v. Hernandez

• Decision Date: 24 March 1952
• Citation: 242 P.2d 59,109 Cal.App.2d 903
• Court: California Court of Appeals Court of Appeals
• Parties: HERNANDEZ v. HERNANDEZ. Civ. 18648.

Page 59

242 P.2d 59

109 Cal.App.2d 903

HERNANDEZ v. HERNANDEZ.

Civ. 18648.

District Court of Appeal, Second District, Division 3, California.

March 24, 1952.

Rehearing Denied April 9, 1952.

Hearing Denied May 22, 1952.

Jacque Boyle, Los Angeles, for appellant.

A. Moresby White, Los Angeles, for respondent.

VICKERS, Justice pro tem.

The plaintiff (respondent herein) filed this action to quiet title against his son, the defendant (appellant herein). The defendant filed an answer and cross-complaint. By the answer the defendant denied the allegations of the complaint and alleged as a separate defense that he and the plaintiff were the owners of the property in question as joint tenants and that the possession of the plaintiff and the payment by him of taxes and assessments had been pursuant to the joint tenancy and not under a claim hostile to defendant's rights. By the amendment to his answer the defendant alleged that on or about January 24, 1944, the parties had entered into an agreement to purchase the property in question as joint owners; that pursuant to the agreement the defendant had advanced $1,000 to the plaintiff and that the plaintiff had added an additional $1,000 and had made the down payment upon the property with that $2,000; that the parties had agreed that the payments on the trust deed, given to the seller of the property, would be made from the rents and profits received from the property and that such payments had been so made; further, that whatever right, title, interest or estate the plaintiff had in the property was held in trust for the defendant to the extent of a one-half interest.

By the first cause of action of his cross-complaint the defendant alleged that the parties were seized in fee as joint tenants of the property, that the plaintiff asserted an estate adverse to the defendant's estate and that the same was without any right whatsoever. By his second cause of action in the cross-complaint the defendant alleged that the plaintiff had collected and received rents from the real estate in question as a joint tenant and that the defendant was entitled to an accounting therefor. By his answer to the cross-complaint the plaintiff denied each and all of the allegations thereof, pleaded statutes of limitations, alleged that the defendant was estopped from making any claim to the property, and alleged that the alleged right of the defendant as a joint tenant had been obtained by undue influence exercised upon the plaintiff by the defendant or his agent, the defendant's brother, Jose Hernandez.

The trial court made its findings of fact and conclusions of law and signed its judgment in favor of plaintiff and the same were filed and entered. Defendant served and filed his notice of appeal therefrom and also serve and filed his notice of motion for a new trial. At the time of denying the motion for new trial the court ordered the plaintiff to draw up a new judgment to conform to the findings. Thereafter amended findings of fact and conclusions of law and an amended judgment were signed by the trial court and were filed and entered. As stated by the defendant in his opening brief the amended findings contain some matters not in the original findings and the amended judgment and original judgment are essentially the same. It appears to have been done under the power conferred by Code of Civil Procedure, section 662, see Estate of Coffin, 44 Cal.App.2d 178, 180, 112 P.2d 34. No attack is made by the defendant on the procedure so followed. The effect of the court's action was to eliminate the original findings and judgment. The appeal from that judgment must therefore be dismissed.

By its amended findings the court found that the plaintiff had purchased the property on January 24, 1944, paying $2,000 in cash and executing a $4,000 promissory note and trust deed; that on January 15, 1945, the plaintiff had executed a deed of grant purporting to grant the property involved to the plaintiff and the defendant as joint tenants, but that the same was procured from the plaintiff by false and fraudulent representations then made to him by his son, Jose Hernandez, to the effect that said deed was necessary to protect the rights of the plaintiff; that these representations were false and untrue, but were believed and relied upon by the plaintiff; that there was no consideration for the deed and that the same was made without the knowledge or consent of the defendant and the same was never delivered to him, and that in all of these matters the said Jose used undue influence upon the plaintiff. The court further found that the plaintiff had been in possession ever since January 24, 1944, had paid all monies due under the note and trust deed as well as all taxes and assessments and that he was the legal owner of said real estate. The court further found that the defendant had never been a joint tenant with the plaintiff in the real estate; that the plaintiff had not paid taxes and assessments on the property in pursuance of a joint tenancy with the defendant, and that the defendant had never made any claim upon the plaintiff, as to the property, until the filing of this action. The court further found that it was not true that the parties had entered into an agreement to purchase the property as joint owners or that the defendant had given the plaintiff $1,000 to pay on the purchase price or that the parties had agreed that the payments under the trust deed would be made from the rents and profits.

By its amended judgment the court declared the plaintiff to be the legal owner of the property; that the joint tenancy deed was a cloud upon his title; that the same should be set aside and cancelled; and that the title of the plaintiff was forever quieted against all claims, etc., of the defendant. The defendant appeals '* * * from the whole of said judgment * * * from the Court's denial of defendant's motion for a new trial, and from all the orders and rulings of the trial court in the above entitled action.'

It appears from the reporter's transcript that while 17 and 18 years old the defendant was gainfully employed and earned from $31 to $44 a week; that he retained $10 per week of these earnings and deposited the rest with his mother. During this period defendant was living with his mother and the plaintiff and did not pay any board or room rent except such as may have been deducted by the mother from his earnings. He testified that he thereafter entered the armed forces and at that time that his mother held $800 of his money, which he was going to use to buy an automobile upon his return from the Service. On January 24, 1944, while the defendant was overseas the plaintiff entered into and consummated negotiations to purchase the property in question from one Rose Segale for $6,000, making a down payment of $2,000 and executing a note and trust deed for $4,000. For some unexplained reason the deed executed by Mrs. Segale named David and Catherine Hernandez as the grantees. There is no evidence that they advanced any portion of the consideration and neither of them testified in this action. Mrs. Segale testified that the only person she dealt with in regard to the property, from the time of its purchase by the plaintiff to the date of the final payment, was the plaintiff. During the spring of 1944 defendant's mother died. On November 14, 1944, David and Catherine Hernandez deeded the property to the plaintiff.

On January 15, 1945, the plaintiff executed a joint tenancy deed of the property in favor of himself and the defendant. The plaintiff, who could neither talk, understand nor read English, said he signed this document not knowing what it was solely because his son Jose told him to do so. Jose testified that he took his ...