DocketNumber： L.A. No. 853.
Citation Numbers： 65 P. 1040, 133 Cal. 500
Judges： VAN DYKE, J.
Filed Date： 7/31/1901
Status： Precedential
Modified Date： 1/12/2023
This action was brought to forclose a mortgage, dated January 30, 1897, made by the defendant Kaeding to the plaintiff, Spitler, and defendant Kate S. Williams, to secure the payment of a promissory note of even date for the sum of two thousand five hundred dollars. The note was made payable to said Spitler and Kate S. Williams, and the mortgage to secure the same recites that "the interest of said Kate S. Williams in the aforesaid note and mortgage is fifteen hundred dollars, and the interest of said William Spitler is one thousand dollars." The fifteen hundred dollars belonged to appellant, J.W. Casebeer, and the one thousand dollars belonged to plaintiff, Spitler, and they two united in loaning said money, to secure which the note and mortgage were given, and it was by direction of appellant, Casebeer, that the note and mortgage, as to the amount loaned by him, were made payable to said Kate S. Williams, who is his daughter. In his answer, appellant, Casebeer, states that he did not give the said fifteen hundred dollars to Kate S. Williams, nor his interest in the said note and mortgage; that the only purpose of having said note and mortgage made in the name of said Kate S. Williams was to apparently invest her with the ownership of the three-fifths interest therein, in order to give her some financial standing, and that said Kate S. Williams at the time promised and agreed that whenever he should desire she would assign to him the said three-fifths interest in said note and mortgage. On the other hand, the respondent Kate S. Williams in her answer and cross-complaint alleges that the note and mortgage, as to the three-fifths interest, were made and executed to her by the direction of appellant, her father, for the purpose of making the said fifteen hundred dollars as a gift to her, and the same was then and there given to her by the said appellant, and she denies that she ever promised to assign the said note and mortgage when requested. The court finds: "That said J.W. Casebeer did give said sum of fifteen hundred dollars to said Kate S. Williams, and did give her said note and mortgage; that it was not the only purpose, nor any purpose, of having said promissory note and mortgage in the name of said Kate S. Williams to apparently invest her with the *Page 502 ownership of the three fifths interest in said note and mortgage, in order to give her some or any financial standing; that said note and mortgage were not made in her name for the purpose of apparently, or otherwise, giving her some financial or any financial standing; that she did not, immediately before the execution of said note and mortgage, or any time, or at all, promise and agree, or promise or agree, with the said J.W. Casebeer, that she would, whenever he should desire, or at all, assign said three-fifths interest in said note and mortgage, or in said note or in said mortgage, to him." The appeal is taken from an order denying defendant Casebeer's motion for a new trial.
The main contention on the part of appellant is, that the evidence does not support the findings. The testimony of the witnesses to the effect that it was intended as a gift by appellant, Casebeer, to his daughter, if credited, is sufficient to overcome the testimony in behalf of appellant on that point. The judge of the trial court before whom the witness testify has the opportunity of noting their manner and appearance while under examination, and therefore is in a better position to judge of their credibility than the appellate court. Hence the rule, that wherever there is a substantial conflict in the testimony, the finding of the trial court will not be disturbed. Aside from the parol testimony, the fact of the taking of the note and mortgage in the name of his daughter is prima facie evidence that the appellant intended to make a gift of it, as no implication of a trust arises upon a purchase of property by a parent in the name of a child. Prima facie, such a purchase is to be regarded as a gift or advancement. (Russ v. Mebius,
The court sustained an objection made on behalf of Mrs. Williams, to a question put to Mr. Kaeding, in reference to the length of time Williams was employed by him, and the appellant contends that this was error, inasmuch as it was material in explanation of appellant's statement that the note was made in the name of his daughter for the purpose of securing employment for her husband, Williams. But the witness had just answered a direct question by appellant's counsel, as follows: "How long did you keep Mr. Williams there?" — so that the question to which the court sustained an objection was a mere repetition of the one which had already been asked and answered.
Appellant also contends that the court erred in admitting, over his objections, a deed from him to his daughter, Isabel Tucker, and granddaughter, Adrienne Dowell, to certain property, and a letter in relation thereto. Appellant's witness Bowton, on direct examination, testified that he drew the papers, to wit, the note and mortgage in suit, at the dictation of Mr. Casebeer, and had before that drawn up for him some deeds to his daughter and granddaughter, and respondent's attorney offered in evidence, in connection with the *Page 504 cross-examination of this witness, the deeds which he had referred to and identified, so that the matter objected to was really in cross-examination of what the witness testified to in chief. The other rulings of the court alleged to be erroneous by appellant are either harmless or quite immaterial, and require no special consideration.
The order appealed from is affirmed.
Garoutte, J., and Harrison, J., concurred.