144 P. 958 | Cal. | 1914
This is an appeal from an order of the superior court of Glenn County refusing to grant a motion of defendants for an order changing the place of trial of the action from the superior court of Glenn County to the superior court of the city and county of San Francisco.
Defendants were entitled to have the action transferred to the city and county of San Francisco, the place of their residence, *701
if it does not fall within the purview of section 5 of article VI of the constitution, or section
Section
1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form, of suchright or interest, and for injuries to real property." The precise question here is whether the action is one for the determination in any form, of an estate or interest in real property.
Admittedly, the character of the action must be determined from the allegations of the complaint, and from the character of the judgment which might be rendered against the defendants upon their default. (See McFarland v. Martin,
The action was one to have it determined that the defendants hold the legal title to certain real property situate in Glenn County, for the benefit of plaintiff and defendants, under the terms and conditions of certain contracts set forth in the complaint.
The allegations of the complaint are substantially as follows: On December 8, 1908, plaintiff and defendant Rogers entered into an agreement in writing. This agreement recited that Rogers desired to invest forty thousand dollars in the purchase of lands in the Sacramento Valley, and that whereas plaintiff was familiar with such lands and with the local situation and was widely acquainted in that section of the state, he could be of great assistance in the purchase of said lands. Rogers agreed to furnish forty thousand dollars for such investment, the lands to be inspected and decided upon and agreed to by both parties before purchase. Plaintiff agreed to devote the necessary time to the selection of said lands, the obtaining of options, the rendition of any legal services that might be required in the purchase, handling or disposition of the lands, and the looking after and management of the said lands to a certain specified extent while the same were held by Rogers, without other compensation than was provided in the agreement. It was mutually agreed "that the title to said lands shall be taken and vested in the name *702 of W.J. Rogers" and that Rogers "shall hold said lands so taken in his name, for the benefit of himself and the second party hereto (plaintiff) as hereinafter stated, and the respective interests of both parties hereto in and to said land shall be as follows." Rogers shall first receive from the proceeds of said land, whether as rental or from sales, all money furnished by him and seven per cent interest thereon, and the net profits received from rental or sale after such payment to Rogers shall be divided equally between the parties. All expenses connected with any lands so purchased, including taxes, shall be paid equally by the parties. Should a loss be sustained on any particular tract of land, the loss was to be "made up equally" by the parties. It was further agreed that after lands are purchased, they shall be placed on the market for sale, on such terms and for said prices as Rogers should decide, provided that before any sale is made, Rogers shall submit the terms and conditions of the proposed sale to plaintiff for his approval, and in the event that he does not approve the same he shall have ninety days in which to take the land and pay Rogers all his "interest therein" together with the profits Rogers would make on said proposed sale. The agreement was to remain in force as to lands purchased until the same are finally disposed of.
On March 11, 1909, an agreement in writing was entered into between plaintiff and defendant Central Pacific etc. Co., reciting the Rogers agreement, the purchase thereunder of certain land in Glenn County and the taking of the title thereto in the name of Rogers for the benefit of himself and plaintiff pursuant to said agreement, and the conveyance by Rogers to said company of the legal title to said lands. The company acknowledged and agreed that it took and holds said land subject to the terms of the Rogers agreement with plaintiff.
It was further alleged in said complaint "that pursuant to said contracts" this land was purchased in the name of said Rogers, that the company holds the same subject to all the terms and conditions of said contracts for the benefit of plaintiff and defendants, and that defendants deny that any of said land is held by defendants or either of them pursuant to or under any of the terms and conditions of said agreements or either of them, or that plaintiff has any right, title or *703 interest in said lands, and that they assert that they are not so held.
The prayer of the complaint is for a judgment that defendants hold the legal title to all of said property for the benefit of plaintiff and defendants under the terms and conditions of said contracts, and that the rights of the parties be ascertained and adjudged.
We do not see that it is necessary to determine in this action whether or not the agreement between Rogers and plaintiff created a partnership between them as to the profits and losses that might arise in the transactions contemplated thereby. Whether the agreement was one of partnership, or one of employment (seeCoward v. Clanton,
Coward v. Clanton,
The language that we have quoted from section
Assuming for the purposes of this decision that the agreement between Rogers and plaintiff created a partnership between them as to the profits and losses that might arise in transactions contemplated thereby, we know of no rule of law forbidding the action before us, an action simply to have it determined that certain persons holding the complete legal title to certain land hold it in trust for the purposes of the partnership. The rule prohibiting certain kinds of actions by one partner against another based on claims growing out of the partnership transactions does not go so far as to prohibit the action we have before us. In Traphagen v. Burt,
This action is not one to quiet title, and does not fall within the rule laid down in such cases as Von Drachenfels v. Doolittle,
We find no other matter in the briefs that requires notice.
The order appealed from is affirmed.
Shaw, J., and Sloss, J., concurred. *706