Chamberlain

The principal facts in this ease are as follows: The plaintiffs, E. L. Lincoln and his wife, Anna M. Lincoln, were on very friendly and confidential terms with defendant Chamberlain. All of them were living in the city of Los Angeles, and defendant Chamberlain desired to take a position in Cuba. He had a daughter whom he wished to leave with plaintiffs. At that time plaintiffs were living in a three-room apartment and had no accommodations for the daughter of defendant and none of the parties was possessed of any means wherewith to purchase a house. The defendant, however, stated to the plaintiffs that he had a friend by the name of Duncanson who would buy a place for him, but that he feared Duncanson would not do so for plaintiffs. The matter was finally arranged by Duncanson advancing the money for the purchase of the property; the title to the purchased property was taken in the name of defendant, and defendant gave back to Duncanson a promissory note and a trust deed for the property, which provided, among other things, for payments thereon to be made to Duncanson at the rate of $35 per month. Before the purchase was consummated the plan as heretofore outlined was agreed to as…

We concur in the judgment. For the reasons stated in the foregoing opinion, it seems clear that the plaintiffs are not entitled to recover on the basis of a resulting trust.

Also we think that the facts found by the court, which in that respect go no further than the allegations of the complaint, are not sufficient to establish a constructive trust. If it were pleaded and proved not only that the plaintiffs have expended substantial sums of money in the improvement, maintenance, and repair of the property, but also that those expenditures were made with the knowledge and acquiescence of the defendant and in reliance upon his promise to convey, the plaintiffs might have a better standing in court. The plaintiffs should have that opportunity, if they so desire. It has been said that “as a general rule to enable a court of equity to exclude a verbal contract for the sale of an interest in land from the operation of said statute, there must be a collateral circumstance constituting an independent equity, imposing an obligation in conscience.” (25 R. C. L., p. 700.) But the facts found by the court below in this case do not come up to that standard.

A petition for a rehearing of this…