Townsend v. Wingler

• Decision Date: 07 November 1952
• Citation: 114 Cal.App.2d 64,249 P.2d 613
• Court: California Court of Appeals Court of Appeals
• Parties: TOWNSEND v. WINGLER et al. Civ. 19098.

Page 613

249 P.2d 613

114 Cal.App.2d 64

TOWNSEND v. WINGLER et al.

Civ. 19098.

District Court of Appeal, Second District, Division 2, California.

Nov. 7, 1952.

Stanley M. Evans, Los Angeles, for appellant.

Gordon Stater, Los Angeles, for respondents.

FOX, Justice.

Plaintiff brought this action against his daughter and her husband alleging that in July, 1948, he conveyed two parcels of real property and assigned a trust deed note to her as collateral security for loans to him aggregating 'about $10,000,' which he alleged had been repaid to her out of the proceeds from the collateral. Plaintiff demanded a reconveyance of the property and an accounting.

Defendants denied the property was conveyed as collateral security for any loan. They affirmatively alleged the conveyances were for a good and valuable consideration, and that plaintiff had no interest in the property; that the property was conveyed pursuant to a written agreement between plaintiff and his daughter (which was approved by her husband) whereby defendants agreed to provide funds for plaintiff to carry on certain litigation in which he was then engaged and for other purposes, and to pay plaintiff $100 per month for ten years, or the balance of his life, whichever was longer; that pursuant to this agreement they had paid to plaintiff, or for his benefit, more than $16,000, and had provided him with funds and benefits in excess of $100 per month. They further state that they have at all times complied with said agreement and have never denied their obligation thereunder, and that plaintiff has received and accepted, and continues to accept, all the benefits under the agreement.

The court resolved the issues in favor of the defendants and rendered judgment that plaintiff take nothing. He appeals from the judgment.

Plaintiff challenges the sufficiency of the evidence to sustain the findings and judgment. His contention, however, is not well founded. The burden of showing that these conveyances were mortgages was upon him. Wehle v. Price, 202 Cal. 394, 396, 260 P. 878; Deniz v. Ferraiz, 91 Cal.App.2d 416, 418, 205 P.2d 113; Gronenschild v. Ritzenthaler, 81 Cal.App.2d 138, 144, 183 P.2d 720. 'The presumption is that a deed is what it purports to be and one who seeks to overcome such presumption has the burden of producing clear and convincing proof.' Spataro v. Domenico, 96 Cal.App.2d 411, 413, 216 P.2d 32, 33; Beeler v. American Trust Co., 24 Cal.2d 1, 7, 147 P.2d 583. 'Whether the evidence offered to change the ostensible character of an instrument is clear and convincing is a question for the trial court and its determination in favor of either party upon conflicting or contradictory evidence is not open to review on appeal.' Spataro v. Domenico, supra; Beeler v. American Trust Co., supra; Baines v. Zuieback, 84 Cal.App.2d 483, 488, 191 P.2d 67. Here plaintiff sought, principally by various conversations, to establish that these deeds did not convey an absolute title but were in fact given as and understood to be security for certain loans. The defendants deny any loan, security or mortgage arrangements with respect to the conveyances. They produced a written agreement which plaintiff, an attorney in this state for many years, had prepared, and which was signed by him and his daughter and approved by her husband, which set forth the terms of their agreement. This document contains no suggestion that the property was to be conveyed as security or that plaintiff retained any interest in it. In weighing the evidence and resolving the conflict the trial court was entitled to consider the fact that at a previous hearing on supplemental proceedings by a judgment creditor plaintiff testified that he had no equity or interest in these properties. The determination by the trial court of this factual question adversely to plaintiff is binding on this court. Spataro v. Domenico, supra.

In his brief in this court plaintiff for the first time seeks to attack the transaction on the grounds of undue influence, fraud and coercion. He argues that there is a presumption that the deeds and the contract between him and his daughter are vitiated upon these grounds and that the burden was upon defendants to establish they were free from such taint. The relationship of parent and child, per se, is not creative of any inference of imposition, undue influence or fraud. Jorgensen v. Dahlstrom, 53 Cal.App.2d 322, 333, 127 P.2d 551; Best v. Paul, 101 Cal.App. 497, 499, 281 P. 1089; Carleton v. Bonham, 60 Cal.App. 725, 738, 214 P. 503; 20 Cal.Jur., p. 443, sec. 41. It is suggested that such an inference arises by reason of the fact that plaintiff was past 70 years of age when these transactions took place. This is not true. Even the advanced age of a grantor is not alone sufficient to raise such an inference or presumption. Soberanes v. Soberanes, 97 Cal. 140, 146, 31 P. 910; Johnson v. Studley, 80 Cal.App. 538, 559, 252 P. 638; Best v. Paul, supra. The burden was upon plaintiff to show, as a fact, that the deeds he prepared and executed, and the contract he prepared and signed, were induced through fraud, undue influence, or coercion on the part of defendants. Carleton v. Bonham, supra, 60 Cal.App. 739, 214 P. 508, 509; Jorgensen v. Dahlstrom, supra. This he failed to do. He did not raise any such questions by his pleadings. He simply alleged that the deeds were 'delivered to defendant [his daughter] as collateral security for cash loans from her to him aggregating about $10,000.' Furthermore, during the trial p...