Nevarez v. Nevarez

• Decision Date: 19 April 1962
• Citation: 202 Cal.App.2d 596,21 Cal.Rptr. 70
• Court: California Court of Appeals Court of Appeals
• Parties: Soledad NEVAREZ, Plaintiff and Respondent, v. Nellie J. NEVAREZ, Defendant and Appellant. Nellie J. NEVAREZ, Plaintiff and Appellant, v. Elizabeth SOTO, Defendant and Respondent. Civ. 25513, 25514.

Page 70

21 Cal.Rptr. 70

202 Cal.App.2d 596

Soledad NEVAREZ, Plaintiff and Respondent, v. Nellie J. NEVAREZ, Defendant and Appellant.

Nellie J. NEVAREZ, Plaintiff and Appellant, v. Elizabeth SOTO, Defendant and Respondent.

Civ. 25513, 25514.

District Court of Appeal, Second District, Division 4, California.

April 19, 1962.

Lyle W. Rucker, Los Angeles, for appellant.

David C. Marcus, Los Angeles, for respondents, Soledad Nevarez and Elizabeth Soto.

BALTHIS, Justice.

This case presents the typical and somewhat frequent problem involved in interpreting the effect of a deed given by one member of a family to another while seriously ill.

Briefly, the facts alleged and found by the court may be summarized as follows: In 1949 the mother, Soledad Nevarez, was ill and was advised she would have to undergo major surgery. She was of Mexican extraction, spoke only the Spanish language and was unable to read, write or speak English. She owned a parcel of real property where she resided, having owned the same since 1941. Soledad Nevarez had several children including a son, Solomon. Having confidence and trust in her son, she desired to place the title to her home in the name of her son Solomon so that in the event she did not recover from her surgery he should upon her death divide the property equally between all of her surviving children. She further advised her son that in the event she did survive the surgery then the property should remain as her own property. On February 14, 1949, the son Solomon and his wife, Nellie J. Nevarez, took the mother Soledad to an attorney and the attorney, after conferring in English with Solomon, prepared the document and presented it to Soledad for her signature. The son represented to his mother that this deed would carry out her wishes and, relying upon the statements of her son, Soledad executed the document and it was recorded on February 14, 1949. This document was a deed absolute and conveyed title to the premises to her son Solomon as his sole property reserving a life estate to Soledad Nevarez.

Soledad underwent major surgery in July 1949 and fully recovered therefrom. In 1951 the son Solomon needed funds to engage in a business venture and Soledad, Solomon and the wife Nellie executed a note and trust deed on the property for the amount of $2,700. These funds were used by the son Solomon. In December 1952 Solomon conveyed title to the property to his wife, Nellie J. Nevarez, and subsequently, in April 1956, the son Solomon died. His wife Nellie did not know the property had been conveyed to her by her husband until subsequent to his death. The encumbrance on the property at the time of Solomon's death had been paid down to the amount of $942.00. The mother Soledad, after the death of her son Solomon, and in connection with the payment of taxes on the property in the year 1956, discovered the facts about the true nature of the deed she had executed in 1949 and also about the conveyance of the property by Solomon to his wife Nellie. Upon such discovery and in the same year, 1956, she filed an action against Nellie J. Nevarez to quiet title to her property. The encumbrance being in default, a daughter of Soledad, Elizabeth Soto, paid off the balance due on the note and trust deed and took an assignment of the same. Before the trial of the main action (Soledad Nevarez v. Nellie J. Nevarez), another action in the Superior court was filed entitled Nellie J. Nevarez v. Elizabeth Soto, which involved the encumbrance on the property and, in effect, sought to quiet title to the property in the name of Nellie J. Nevarez and sought relief in the way of payment of the encumbrance then held by Elizabeth Soto. This second action brought by Nellie J. Nevarez is essentially secondary to the other and involves the same issues as to the effect of the deed originally given by the mother to her son Solomon. While the two actions involved were consolidated for trial and appeals are taken from the judgments in both cases, for convenience the cases will be discussed on the basis of the principal action filed (Soledad Nevarez v. Nellie J. Nevarez).

The case was tried in July 1960 by the court sitting without a jury and after the trial of the cause and upon motion of the plaintiff Soledad the trial court granted plaintiff leave to file an amended complaint to conform to proof. Defendant moved for an order denying the filing of such amended complaint and also filed a demurrer. After denying the motion and overruling the demurrer, the trial court found in favor of plaintiff Soledad and rendered judgment decreeing that defendant Nellie J. Nevarez holds title to the property as constructive trustee for plaintiff. In the related action the court denied plaintiff Nellie J. Nevarez the right to quiet title to the property and held that the defendant Elizabeth Soto was the owner of the encumbrance mentioned. Defendant Nellie J. Nevarez (hereafter referred to as defendant) appealed from the judgment rendered in both actions.

Defendant first contends that the trial court erred in permitting the filing of the amended complaint to conform to proof. This contention is based upon the argument that such amended complaint does not state facts sufficient to constitute a cause of action and also that it does not actually conform to the proof adduced at the trial. Both of these points are without merit.

Upon the trial of the case the court correctly held that the proper theory of plaintiff's cause of action was one for the decreeing of a constructive trust rather than one to quiet title. Plaintiff, holding only a legal life estate in the property, could not quiet title to the fee or remainder interest in the property without first establishing her equitable interest under a constructive trust.

The trial court has the discretion to permit amended pleadings to conform to proof adduced at the trial. The rule is stated in Rieger v. Rich, 163 Cal.App.2d 651, at page 666, 329 P.2d 770, at page 779 as follows: 'Appellants rest a claim of prejudicial error upon the action of the trial court in permitting respondents over objection, to file an amended complaint to conform to proof after the trial had been concluded. Conceding that the amended complaint raised issues not framed by the original pleadings, it did plead issues raised by the evidence and which were treated as such during the trial. The granting or denial of permission to file amendments to pleadings to conform to proof rests largely in the discretion of the trial court. The reason therefor is obvious and is intended to insure, as far as possible, that substantial justice is done by a liberal construction of the rule. When the amended complaint filed herein is compared with the evidence adduced at the trial, we are satisfied that there was no abuse of discretion on the part of the court in permitting it to be filed.'

In the instant case defendant contends that plaintiff should not have been permitted to file an amended pleading stating a different cause of action. Such an argument was answered in Vick v. Grasser, 169 Cal.App.2d 692, 338 P.2d 223, where the trial court had denied plaintiff the right to file an amended pleading. In reversing the trial court, the appellate court said, at page 700, 338 P.2d at page 228: '* * * we are convinced that the trial court erred in not permitting the second amended complaint to be filed. We believe that the trial court denied the motion to file the amended complaint because it was under the impression that the proposed...