Farrah v. Farrah

¶1(concurring). The majority opinion virtually concedes that the finding of the trial court that the purchase price of the property was the proceeds of the two mortgages was incorrect because it recognizes that a deposit of $3500 was also paid to the seller. This error is deemed immaterial, however, because of the court’s finding that the plaintiffs did not pay any part of the purchase price. The finding referred to is as follows: “The court did not find that the plaintiffs paid the purchase price. On the contrary, the purchase price was the proceeds of the two mortgages.” The failure of the court to realize that at least1 $3500 more than the *504mortgage proceeds was paid to the seller explains the absence of any finding as to who paid the balance of the purchase price. The defendants admitted that they had not done so. The mistake as to the amount of the purchase price cannot be regarded as immaterial because it may well have induced the court to reject the testimony offered by the plaintiffs that the balance of the price had been paid by them or in their behalf. The court could hardly accept this testimony while laboring under the misapprehension that there was no such balance.

¶2Nevertheless, I agree with the result, because the court appears to have found that any presumption of a resulting trust was rebutted by the fact that the defendants acquired the property to provide a home for the plaintiffs and their family and also as an investment property. The memorandum of decision states: “The plaintiffs also assume that since the court found no intent by the parties to create a trust that there was a vacuum in which a resulting trust arose. On the contrary, the court found that the defendants purchased the property primarily to provide a home for the plaintiffs and their family but also to take advantage of tax consequences of such investment property.” This alternative ground of the decision was not clearly erroneous.