106 Cal. 651 | Cal. | 1895
The appeals are from the judgment and from an order denying a new trial.
Action by plaintiffs as executors of the last will of S. C. Hastings, deceased, to reform, and as reformed to foreclose, a mortgage executed by defendant.
Starr executed the note and mortgage in suit to William Giselman, trustee, in payment and cancellation of an existing note, also secured by mortgage, made by him to S. 0. Hastings. A few days thereafter Giselman indorsed the note, “ Pay to the order of S. C. Hastings, without recourse, William Giselman, trustee,” and delivered it to Hastings. At the same time he executed, as trustee, an assignment to Hastings of the mortgage. These papers, upon the death of Hastings, coming into the hands of the executors, of whom Giselman is one, this action was in due time commenced.
The defendant meets it by answer and cross-complaint, whereby he claims that he executed the note and
Plaintiff’s answer to the cross-complaint does not, in terms, deny that the note and mortgage were executed to Giselman as trustee for the use and benefit of the named children of S. 0. Hastings, but does deny that they are or ever have been the property of the children or any of them. Upon all other material averments of the cross-complaint it joins issue.
The children and others interpleaded by defendant, one and all filed disclaimers, and in this state of the pleadings the trial was had.
The death of Hastings and their appointment as executors admitted, plaintiffs introduced the note with its indorsement, the mortgage and the assignment of it, and rested upon this direct evidence and the presumptions arising from it. (Code Civ. Proc., sec. 1963, subds. 8,11, 21, 22; Civ. Code, secs. 1614, 3104, 3122-24.)
1. The first point presented by appellant is that the transfer by Giselman to Hastings is void, since the note and mortgage are the only instruments creating and containing the terms of the trust, and there is nothing in them to show that Giselman had the power to sell or assign. If the note and mortgage are the only instruments creating the trust, then is the trust radically defective in naming no beneficiaries. (Civ. Code, sec,
2. In support of the contention that the interest of S. C. Hastings in the note and mortgage passed by gift to his daughter Ella, it is shown that Ella was incompetent, and that the father applied for and obtained letters of general guardianship over her and her estate. In the inventory of her estate, which is duly verified by the guardian, the note and mortgage are entered as the property of the incompetent. The note was exhibited to the appraisers by or at the instance of Hastings, and by them appraised at a valuation suggested by him. The clerk of the court testified that at the time of the application for letters of guardianship the father expressed sympathy and anxiety for his afflicted child, and said he was making provision for her and desired to make such provision while he was living. “ He said he had not yet turned over any thing, but expressed his desire to do so.”
This array of facts and circumstances makes a strong presentation of the intent of Hastings to give the note and mortgage to his daughter. It is established that upon one occasion, under oath, he declared them to be her property. But such a declaration, however binding in good morals, is not of itself sufficient to establish a gift. No legal duty was imposed upon Hastings to give this particular property to his daughter, and, if the intended donation lacked any thing of consummation, the promises or declarations were but nudum pactum and not enforceable. It is not here a question of acceptance of the gift by the incompetent which, the gift being
What has been said renders unnecessary any consideration of the points presented by appellant, that Ella Hastings’ guardian was a volunteer who appeared without service of summons or cross-complaint upon either the ward or herself, and that she had no power to disclaim or to bind the ward by disclaimer.
3. The defendant has a statutory right to have a cause of action against him prosecuted by the real person in interest (Code Civ. Proc., sec. 307), and it was in the exercise of that right that he pleaded lack of title in plaintiffs and asked to have determined the conflicting claims of those whom he asserted to be the owners. But the purpose of the statute is readily discernible, and the right is limited to its purpose. It is to save a defendant, against whom a judgment may be obtained, from further harassment or vexation at the hands of other claimants to the same demand. It is to prevent a claimant from making a simulated transfer, and thus defeating any just counterclaim or setoff which defendant would
In the case under consideration the plaintiffs are prima facie legal owners, as executors, of the note and mortgage. Defendant is fully protected against those whom he names as owners and claimants by the judgment in favor of plaintiffs, and, in addition, he neither pleads nor shows any defense or setoff which he could make against the real owner, were Ella Hastings declared to be such. Therefore, by satisfying the present judgment, defendant is discharged from liability to all of the alleged conflicting claimants; and, since he does not dispute the debt nor its amount, this is all that in equity he can ask, or should desire.
4. The complaint sufficiently pleaded facts which, if proved, would entitle plaintiffs to a reformation of the
The averments in the cross-complaint, which it is complained were not found upon by the court, were
The judgment and order appealed from are affirmed.
McFarland, J., and Temple, J., concurred.