147 P. 942 | Cal. | 1915
On May 29, 1909, a complaint was filed in which the plaintiffs attempted to allege two causes of action one to quiet title to certain property in Siskiyou County, and the other based upon the asserted fraud of one Jerome Churchill as one of the administrators of the estate of Charles B. Boyes, deceased, in conducting a sale of the property involved to one Renner, who by a previous arrangement with said Churchill conveyed the land to him and to the Siskiyou County Bank. The sale was made after order of court in that behalf and the amount obtained was the exact sum necessary to cancel a mortgage on the property in which Jerome Churchill and the Siskiyou County Bank were the mortgagees. The date of said sale was December 21, 1895. It was alleged that before the death of said Churchill in 1908 he acquired the bank's title to the property and conveyed it to the Churchill Company, a family corporation of which he was a member. A demurrer to the second cause of action was sustained September 21, 1912, and on October 7th of *730 that year a "First Amended Complaint" was filed, seeking to set up a cause of action based upon the alleged fraud. A demurrer to this complaint was sustained and plaintiffs failing to amend their pleading, judgment was entered against them.
It was alleged in the first amended complaint that Jerome Churchill was at the time of his death in 1908 an administrator of the estate of Charles B. Boyes, deceased, and that he had never been discharged from the office of guardian of the minor heirs of said Boyes, to which he had been regularly appointed. It was also averred that no final accounting had ever been made in either the guardianship proceeding or the estate of Charles B. Boyes.
The probate sale was made at public auction and was confirmed by the court on January 11, 1896. The alleged fraud of Churchill was "that for the purpose of shutting out competition in bidding at said sale, and for the purpose of preventing other bids being made at said sale, other than his own," he caused the sale to be called at "about the hour of 9 o'clock" of December 21, 1895. It had been advertised to take place at 10 o'clock, and "by reason of no competitive bids the sum for which said premises were bid in was far below the real and true value thereof."
It thus appears that the sale took place more than fourteen years prior to the commencement of the action and more than sixteen years before the filing of the first amended complaint. On the confirmation of said sale Jerome Churchill, administrator, and Margaret Janes Boyes, widow of Charles B. Boyes, and administratrix of his estate, executed to the purchaser a deed which was recorded January 17, 1896. Thereafter the purchaser gave his deed to the property to Churchill and the Siskiyou County Bank, which was also recorded on January 17, 1896, more than thirteen years prior to the commencement of the action, and said deed had been of record more than twelve years before Churchill's death. Margaret Jane Boyes continued the administration of the estate of her deceased husband until April 21, 1910, when she resigned. It is to be noted that Margaret Jane Boyes is not a party to the action in any capacity and that since its commencement and before the filing of the first amended complaint she joined with six of her *731 children in a deed granting to the defendant all interest in the property involved.
Respondents call our attention to the further fact that the other children, appellants herein, have been of the age of majority at least since a time prior to November 27, 1903.(Estate of Boyes,
But appellants contend that by his fraud Mr. Churchill became their trustee; that his possession was their own; and that consequently the statute could not run against their rights. The rule which they invoke and the authorities which they cite are applicable to express trusts — not to involuntary trusts. A trustee of such a trust need not repudiate it in order that the statute should begin to run. (Hecht v. Slaney,
All that has been written above has assumed that the fraud was sufficiently alleged. Respondents contend with much force that the complaint failed to aver fraud with that particularity and clearness required in all bills of equity seeking such relief as is here prayed for. But we need not go into that question as the cause of action, even if sufficiently set forth, is very clearly barred by the statute of limitations.
The judgment is affirmed.
Henshaw, J., and Lorigan, J., concurred.