57 Cal. 368 | Cal. | 1881
This action is brought to enforce an alleged trust. Defendant had judgment in the Court below, and the plaintiffs appeal from the judgment, and from an order denying them a new trial. The case is one of considerable interest, not only because of the questions, but also by reason of the amount involved. The questions, however, in our opinion, are not difficult of solution. So far as material to be considered, the facts are as follows: On the 9th of February, 1856, one William A. Bichardson conveyed by deed to the defendant Throckmorton the Saucelito rancho situated in Marin County, the Albion rancho situated in Mendocino County, and certain real property situated in San Diego County. Maria A. Bichardson, wife of William A. Bichardson, Stephen Bichardson, his son, Mariana Torres, his daughter, and Manuel Torres, her husband, joined in the deed, though they had no interest in the property. At the time of the execution of the deed to defendant, a covenant was executed, signed by all of the parties to the deed, in which the defendant, in consideration of the conveyance to him, covenanted as follows : “ That I, the said Throckmorton, shall sell and dispose of • so much of the above-mentioned real estate (namely, the estate conveyed by the deed) as I may deem necessary to liquidate, pay off, or discharge all the debts and incumbrances which constitute liens on said property, or any part thereof, at the time of the execution of the deed last above mentioned. And after all such debts or incumbrances shall be discharged or extinguished, together with all such debts and incumbrances as may be a present or future lien upon said premises, that I, the said Throckmorton, will account and pay over to said Stephen Bichardson and Mariana Torres the one-fifth part of all moneys remaining on hand, if any there be, arising from such sales of real estate after the discharge of such indebtedness and expenses accruing in the transaction of said business. And that I, the said Throckmorton, shall’ sell all of the said lands above described within three years of the date
At the time of the conveyance to the defendant, to wit, February 9th, 1856, William A. Richardson was largely indebted, and there were then existing liens on the property conveyed. Among other liens, there was a mortgage upon the Saucelito rancho, executed by the said William A. Richardson to one Joseph Black, and by him assigned to one J. Mora Moss, which mortgage had at that date been ripened into a decree of foreclosure. There was also then existing another mortgage upon the Saucelito ranch, executed by the said William A. Richardson to one Barton Ricketson, which mortgage was about to be foreclosed. Shortly afterwards, to wit, on the 18th of February, 1856, an action was commenced in the Seventh District Court to foreclose the last-mentioned mortgage, in which action the said William A. Richardson, Stephen Richardson, Maria A. Richardson, Mariana Torres, Manuel Torres, and others were made defendants, as were also the defendant Throckmorton and the said J. Mora Moss, assignee of the Black mortgage. The complaint in that action prayed judgment of foreclosure and sale of the mortgaged premises to satisfy both of the mortgages mentioned. All of the defendants were personally served with the summons in the action. Afterwards, and in the month of April, 1856, said William A. Richardson died testate in the
To prevent forced sales of the property, and to afford defendant Throckmorton the time and opportunity to find purchasers and make sales of the property to pay and discharge the indebtedness of said William A. Richardson, he, defendant, exerted all the means in his power to hinder and prevent the prosecution of said foreclosure suit to judgment; and in the mean time he made strenuous efforts to make sales of the lands in order to discharge the debts of the said William A. Richardson, and to free the property of the incumbrances; but he was then unable to consummate any sale. On the 6th of March, 1862, judgment was entered in the District Court in the foreclosure suit of Ricketson v. Richardson et als. An appeal having been taken to the Supreme Court, the judgment of the District Court was directed to be modified; and accordingly, on the 31st of October, 1862, a final decree of foreclosure and sale was entered in the action, by which it was directed that the lands of the Saucelito rancho (except the homestead) should be sold, and that out of the proceeds of the sale the J. Mora Moss mortgage be first paid, and that next the Ricketson mortgage should be paid. Under this mortgage, the sheriff of Marin County, on the 5th day of June, 1863, sold all the land of the Saucelito rancho (except the homestead of Richardson and the town of Saucelito) for the sum of §84,000, that being the amount of the judgment, including the expenses of sale. Edward E. Stone became the purchaser at the sale, and received the sheriff’s certificate.
After the certificate had been issued to Stone, but before the sheriff had executed to him a deed, to wit, on the 18th of September, 1863, the defendant Throckmorton, Maria A. Richardson, Stephen Richardson, Manuel Torres, Mariana Torres, and Manuel Torres as executor of the estate of William A. Richardson, deceased, and others, commenced an action in the Seventh District Court against Edward E. Stone et als., for the -purpose of vacating and annulling the said sale to Stone, the complaint in which action was verified by the defendant Throckmorton, and alleged as one of the grounds entitling the plaintiffs to the relief sought; that he, Throckmorton, together with Torres, as
Pursuant to this compromise, Stone, on the 25th of February, 1865, executed to the defendant Throckmorton a deed for the property mentioned in the sheriff’s deed, made to him under the foreclosure sale; and on the 7th of March, 1865, there was entered in the minute book of the said Fifteenth District Court, in the aforesaid cause of Throckmorton et al. v. Stone et al., the following: “ And now, on this day come the parties plaintiffs and defendants, by their respective attorneys of record, and by their stipulation entered into in open Court, consented to vacate the order setting aside the sale mentioned in the complaint, and directing a finding to that effect, entered herein on the 12th day of December, A. D. 1864, and to a dismissal of this suit. It is therefore ordered, adjudged, and decreed, that the said order
The $45,000 paid by Throckmorton to Stone in effecting the compromise was obtained by Throckmorton by executing his promissory note therefor, and securing its payment by mortgaging the Saucelito rancho; and the $45,000 so paid Stone was a settlement not only of the Ricketson and Black mortgages, but also of the Watson judgment against Throckmorton individually. At or about the time of the settlement with Stone, the defendant Throckmorton executed other mortgages upon the Saucelito rancho, upon which he obtained the additional sum of $30,000, with which he discharged the other indebtedness of said William A. Richardson.
On the 4th of August, 1868, the defendant Throckmorton, pursuant to the covenant of February 9th, 1856, conveyed the homestead of William A. Richardson to Stephen Richardson for the use of Maria Antonia Richardson.
On the 28th of March, 1857, Stephen Richardson, Manuel Torres, and Mariana Torres conveyed all their interests in, and rights under, the covenant of February 9th, 1856, to one William A. Darling, who subsequently, on the 9th of December, 1861, conveyed all of his interest therein to Horace P. Janes. On the 6th of October, 1862, Janes died intestate in the city and county of San Francisco, leaving surviving him as his heirs at law and next of kin the plaintiffs in this action. On the 8th of October, 1862, Charles B. Polhemus was duly appointed administrator of the estate of said Horace P. Janes, deceased, in and by the Probate Court of said city and county. On the 10 th of January, 1863, Polhemus filed in said Court an inventory of the property of said estate, after the same had been appraised, in which inventory there was set down as personal estate the interest of said Horace P. Janes, deceased, in the aforesaid covenant of February 9th, 1856, said interest being appraised at fifty dollars. On the 2nd of February, 1863, upon petition made, the Probate Court directed the administrator to sell all of the personal property of said estate at public auction. Under this order the administrator, on the 18th of May, 1864, made a sale at public auction of all the right, title, and interest of the estate of said Horace P. Janes, deceased, in and to the said cov
The Court below found, as a fact, that the defendant Throckmorton, in making the negotiation with and in taking the deed from Stone, “ acted for himself individually, with the intention to acquire the property for himself, and at the same time to extinguish all possible liability of his on account of and under the said agreement of February 9th, 1856. That his purchase was openly made, and was well known at the time, and that he made the purchase for his own benefit; and from thence hitherto he has had the actual, exclusive, open, notorious, and continuous possession of said property, claiming the same adversely to all the world, which has all along been of general notoriety.” That the only sales made by the defendant of the property was a sale made to the United States Government, in 1867, of “Lime Point,” so-called, and a sale of about eight hundred and eighty acres of the Saucelito ranch made to J. P. Thompson and others, in the year 1868, the aggregate of the two sales amounting to the sum of $390,000; and that at the time of the commencement of this action about sixteen thousand acres of the Saucelito ranch remained unsold and undisposed of.
The Court below further found, as a fact, that “ after the delivery of the sheriff’s deed to said Edward F. Stone, in December, 1863, all parties claiming under the said William A. Richardson abandoned all efforts and attempts to prevent the consummation of the sale of the Saucelito ranch property, and with reference to the Albion ranch and the San Diego property, the same were regarded as of no considerable value ”; but this finding is in direct conflict with the record evidence, which shows, as already stated, that long after the making of the sheriff’s deed, to wit, on the 12tli of December, 1864, the defendant Throckmorton,
The plaintiff Lucy H. Janes is the widow of Horace P. Janes, deceased, and on the 5th of March, 1875, was duly appointed guardian of the other plaintiffs, who are minor children of herself and the said Horace P. Janes.
On the 22d of May, 1875, plaintiffs commenced the present action against the defendant Throckmorton, for the purpose of
Several defenses are relied upon to defeat the action. It is contended, on behalf of the defendant, first, that the covenant of February 9th, 1856, was a personal covenant purely, providing for no interest in real estate, and that no trust respecting the lands thereby arose; second, that conceding that the covenant of February 9th, 1856, gave an interest in real estate, and that defendant held the property in trust to the extent therein mentioned, still that by the deed from Stone he got a perfect title, discharged of all trust, and further, that in no event can he, under the pleadings in this case, be charged with any trust in respect to the conveyance from Stone; third, that if the action could be maintained at all, it could only be by the administrator of the estate of Horace P. Janes, deceased, and that in no event can his heirs maintain it; and fourth, that the action is barred by the Statute of Limitations. We will consider the defenses in the order in which they have been stated.
1. The deed and covenant of February 9th, 1856, were parts of the same transaction, and must be considered together, in the light of the circumstances that are shown to have existed at the time. Thus considered, it appears that William A. Bichardson was then the owner of a large amount of land which was heavily incumbered. In order to pay his debts, and to save a homestead for himself and something for his children, if possible, he entered into the arrangement with the defendant Throckmorton culminating in the execution of the deed and covenant. By the deed, the legal title to all the property was conveyed to Throckmorton, not, as said in the brief of defendant’s counsel, absolutely and without conditions, but upon the conditions and for the purposes stated in the contemporaneous covenant—in substance, as we construe the covenant, as follows: That Throck
In other words, he assumed no personal liability for Bichardson’s debts, but was to devote to the matter his services and time, in consideration of which he was to retain four-fifths of all the moneys and four-fifths of all the land (except the homestead) he could save, after discharging the indebtedness of William A. Bichardson. That Throckmorton, in accepting the conveyance of the lands upon the conditions and for the purposes stated in the covenant, assumed trust relations with the beneficiaries, and, to the extent of the rights reserved to them by the covenant, thereupon became their trustee, we think very clear. In Seymour v. Freer, 8 Wall. 202—a case very similar in principle to the present—the Supreme Court of the United States said: “A trust is where there are rights, titles, and interests in property distinct from the legal ownership. In such cases, the legal title, in the eye of the law, carries with it, to the holder, absolute dominion ,• but behind it lie beneficial rights
But the doctrine of equitable conversion is invoked by the defendant; and, it is said, that as to the beneficiaries, the land, under the agreement, became personal estate, and their interest personal property. Dodge v. Pond, 23 N. Y. 69; Lynn v. Gephart, 27 Md. 547, and 2 Story’s Eq. Juris. § 1214, are cited by defendant’s counsel in support of this position. In Lynn v. Gephart, the Court cites the section from Story, which reads thus: “ The inclination of courts of equity upon this branch of jurisprudence is not generally to change the quality of the property, unless there is some clear intention or act by which a definite character, either as money or as land, has been unequivocally fixed upon it throughout ”; and adds, that “ if this intention do not clearly appear, the property retains its original character.”
Dodge v. Pond was a case where a testamentary disposition was involved; and it was held, that where a testator authorizes his executors to sell real estate, and it is apparent from the general provisions of the will that he intended such estate to he sold, the doctrine of equitable conversion applies, although the power of sale is not in terms imperative.
In White v. Howard, 46 N. Y. 162, the Court says: “To constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of and obligatory upon the trustees to sell it in any event. Such conversion
The most that can be claimed here is, that Throckmorton had the discretion to sell all of the land; but so far from its being obligatory upon him to do so, it was manifestly contemplated that a portion of it might be saved from sale. What, then, was the character of the interest of Stephen Richardson and Mariana Torres under the covenant ? That it was an interest in the lands, we entertain no doubt. Contingent, it is true—contingent on the exercise of Throckmorton’s discretion to sell all of the land, and upon the sufficiency of the lands to pay the debts. But it was none the less an interest in the lands. In Biggs v. Bickett, 12 Ohio St. 49, Biggs had conveyed his lands in fee to Hammond, for the purpose of holding them, charged with the payment of B.’s debts, and after the expiration of one year from the date of the deed, upon the request of any one of the creditors who were named in the deed, Hammond was to proceed to sell so much of the land as should be necessary to pay the creditors, and that upon the payment of the debts, the lands, or the residue thereof, should be reconveyed to Biggs. In that case, the trustee had the power to sell all of the land in order to pay the debts, and all of it might have been required for that purpose ; in which case, there would of course have been none to reconvey to Biggs. Biggs died before any of the land was sold;
In the brief of counsel for defendant, it is said that “ it is a fair test of the quality of this interest whether or not, if (say) on the day prior to Janes’s death, a judgment creditor of his could have sold it as real property on execution, and conveyed it to a purchaser.” If that be a test, we think there is no doubt that it could have been so levied on and sold. (Kennedy v. Nunan, 52 Cal. 326; Freeman on Executions, § 188; Leroy v. Dunkerly, 54 Cal. 552.)
2. Holding,,as we do, that defendant became a trustee under the deed and covenant of February 9th, 1856, for Stephen Bichardson and Mariana Torres, to the extent of the rights thereby reserved to them, and that their interest thereunder was an interest in the lands, it becomes necessary to inquire, next, what effect, if any, upon the rights of their successor in interest— Horace P. Janes—was had by the sheriff’s sale to Stone, under the decree of foreclosure of the Bicketson mortgage, the negotiation between defendant and Stone, the deed from Stone to defendant, the purported sale of the Janes interest under the order of the Probate Court, and its purported transfer by Stone to defendant.
It must be borne in mind that, at the time of the conveyance of the property to Throckmorton, and of the execution of the covenant, on the 9th of February, 1856, the Bicketson mortgage was about to be foreclosed, and the Black mortgage had already been foreclosed and been ripened into a decree. It was for the very purpose of discharging these liens and the other indebtedness of William A. Bichardson, and of saving some part of the property, if possible, that the lands were conveyed to Throckmorton with the power to sell, etc. Throckmorton accepted the trust upon the conditions already stated. It was his duty to use his best exertions to sell the lands and discharge the liens. This he did, but failed prior to the time of the sale under the foreclosure of the Bicketson mortgage. Nor did he cease his efforts then. After the sheriff’s certificate of sale had been
The objection that the plaintiffs should have alleged in their complaint the Stone transaction, and have asked that the title conveyed by him to defendant be decreed to be held in trust for plaintiffs, we think not well taken. Defendant, in effecting the settlement with Stone, aqd in taking the conveyance from him, did not commit a breach of his trust, but, on the contrary, was, as we have shown, acting in the line of his duty as trustee. The title he thus obtained, upon well-settled principles, inured to the benefit of his cestuis que trust, to the extent, of their interests. The defense now asserted, by way of answer, that by that deed defendant obtained the title discharged of all trust, cannot be sustained by a court of equity. Nor were the plaintiffs bound to anticipate that such a defense would be made. It was sufficient for them to have alleged the original trust, which they did. That existing, the law declares the effect of the conveyance in question. To this it may be added, that the plaintiffs’ reply to this defense is, under our system, pleaded by operation of law. ( Curtis v. Sprague, 49 Cal. 301.)
Having determined that, under the agreement, Stephen Rich
3. Are plaintiffs the proper parties to bring this action ? On the part of the defendant, it is argued that the administrator of the estate of Janes alone can bring it. On the other side, it is contended that an administrator has no power except such as is expressly conferred by statute, and that the statute nowhere confers upon him the power to bring a suit to enforce a trust or compel a conveyance of land. In Chapman v. Hollister, 42 Cal. 463, it is said : “ On the death of the ancestor, his title to real estate passes to the heir or devisee, subject, however, to the right of possession of the executor or administrator for the payment of debts. (Probate Act, §§ 114, 194; Becket v. Selover, 7 Cal. 215; Meeks v. Hahn, 20 id. 627; Matter of Estate of Woodworth, 31 id. 604.)”
That the administrator is entitled to the possession of all the property of the estate, real and personal, during the administration, and can maintain an action for the recovery of the possession of all such property, is not denied by counsel for plaintiffs ; but he urges, and we think correctly, that the statute does not confer upon him the power to compel a conveyance of the title to the property to himself.
The present action is brought to establish a trust, and to compel defendant to convey the legal title to real estate to the plaintiffs as heirs at law of Janes. On his death, his title, then an equity, passed to the heirs, as was held in the cases last cited; and unless it can be maintained, which we think cannot be done, that the administrator is entitled under our statutes to have the title to the property conveyed to him, it would seem clear that he is not the proper party to bring this action.
Section 1698 of the Code of Civil Procedure answers the objection in behalf of the creditors of the estate of Janes. It is as follows: “ The final settlement of the estate, as in this chapter provided, shall not prevent a subsequent issue of letters testamentary or of administration, or of administration with the will annexed, if other property of the estate be discovered, or if it become necessary or proper, for any cause, that letters should be again issued.”
4. There only remains to consider the defense of the Statute of Limitations. That this defense cannot avail the defendant, in view of the fact that the record fails to show that defendant’s adverse holding was ever made known to either of the plaintiffs, or to the administrator of the estate of Janes, is clear. In Oliver v. Piatt, 3 How. 411, the Supreme Court of the United States said: “ Time begins to run against a trust only from the time when it is openly disavowed by the trustee, who insists upon adverse right and interest, which is fully and unequivocally made known to the cestui que trust.” In Hearst v. Pujol, 44 Cal. 235, it is said: “ But as between trustee and cestui que trust, in the case of an express trust, the Statute of Limitations does not begin to run until the trustee repudiates the trust by clear and unequivocal acts or words, and claims thenceforth to hold the estate as his own, not subject to any trust, and such repudiation and claim are brought to the knowledge of the cestui que trust. (Perry on Trusts, §§ 863, 864.)”
Section 190 of the old Probate Act has no application to a case like the present, where no sale of real estate was attempted and none made.
Judgment and order reversed, and cause remanded for a new trial.
Morrison, C. J., and McKee, J., concurred.