Atkinson

This is an action by W. L. Atkinson, doing business under the fictitious name and style of W. L. Atldnson & Company, as plaintiff, against F. H. Boynton, as defendant, to have a trust declared in favor of the plaintiff in a certain promissory note and deed of trust, to the extent of $5,000. Said note and deed of trust standing in the name of said defendant.

In so far as it is material on this appeal, the complaint alleges that on or about the twelfth day of January, 1925, D. H. and Rebecca I. Arakelian made, executed and delivered to the defendant an interest-bearing promissory note in the sum of $45,000 and, as security for the payment thereof, executed a deed of trust in favor of the defendant covering certain lands situated in the county of Santa Clara. It is further alleged that $40,000 of the consideration for said note was furnished by the defendant and the remaining $5,000 by the plaintiff; that ever since the execution of said note and deed of trust the defendant has held and still holds the same in trust for the plaintiff to the extent of $5,000, with the accrued interest upon said last-named amount, but that the defendant refuses to acknowledge plaintiff’s interest…