Madsen v. Madsen

These two appeals have been taken in the same case and from different parts of the same judgment, and it has been stipulated between the parties that the same transcript shall suffice for both appeals.

The facts of the case upon which both appeals depend for their determination are substantially these: The plaintiff, Mads C. Madsen, was a native of Denmark, where he lived until he was about fifty-five years old, when he came with his wife to California. Five grown children had preceded him to this state. Shortly after his arrival he and Hans Madsen, one of his sons, bought a ranch near Santa Rosa, where he lived with his said son for a while. In November, 1899, this ranch was sold, and the plaintiff herein received his share of the proceeds of such sale. Not long thereafter he received an invitation from the defendants herein to come and live with them at their home in San Rafael. The family of the defendants consisted of themselves and four children, and they were living in a small four-roomed cottage for which they were trying to pay. This was apparently inadequate for the two families. The defendant Martin Madsen had been for some time desirous of acquiring a larger lot and building another house but was unable financially to do so. It was presently arranged that the plaintiff should furnish the sum of one thousand two hundred dollars, which his said son Martin was to put into the purchase of two lots and the building of a house thereon large enough to accommodate

Upon the trial the court found in plaintiff’s favor as to the fact that a resulting trust had arisen in so far as the plaintiff’s first contribution of the sum of one thousand two hundred dollars to the original purchase price of the property was concerned; but the court found in the defendants’ favor as to the latter sum of five hundred dollars advanced by the plaintiff upon the theory that the advance of said later sum was in the nature of a loan to the defendants which they agreed to repay, and hence as to it no resulting trust in the property arose. From that portion of the judgment which declares a resulting trust to have been created as to the said sum of one thousand two hundred dollars invested in the purchase and improvement of the property in question the defendants have appealed; while as to the latter portion of the judgment declaring that as to the later advance of five hundred dollars no resulting trust arose the plaintiff has appealed, and both appeals have been transferred to this court for review.

The defendants upon the first of these appeals make two contentions—first, that the findings do not support the judgment ; and second, that the evidence is insufficient to sustain the findings.

As to the first of these points we find no merit in the defendants’ contention. It is true that the court did not expressly

The second contention of the appellants upon their appeal is that the evidence does not sustain the findings of the court in the respect above stated. The testimony of the father and son is in sharp conflict as to the understanding between them at the time the father paid over the one thousand two hundred dollars to Ms son. The father did not understand or speak the English language and testified through an interpreter. Doubtless his testimony lost something of its directness in the process of translation, but we think that it sufficiently shows, if believed by the court, that the plaintiff was led to understand and believe, and did so understand and believe, that he was to have an interest in the property and a home thereon as long as he lived, and that the payment by him of the sum of one thousand two hundred dollars to his son for investment in the property in question was made upon this understanding and belief, and that the same was not entitled to be a gift or advancement or loan.

The plaintiff herein has also prosecuted an appeal from that portion of the judgment which decrees that as to the subsequent payment of five hundred dollars made by the plaintiff to his son Martin Madsen no resulting trust arose. It is sufficient upon this appeal to say that in respect of this payment also the evidence is conflicting, and that the trial court was entitled to resolve such conflict in the defendants’ favor, and having done so we shall not interfere with the discretion which it clearly has not abused.

As to the second appeal the judgment is also affirmed.

Lennon, P. J., and Kerrigan, J., concurred,

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 7, 1918.