Larue v. Friedman, 49 Cal. 278

Larue v. Friedman

49 Cal. 278 | Cal. | 1874

By the Court, Wallace, C. J.:

The allegations of the complaint are sufficient to support the decree rendered upon the overruling of the demurrer, and the refusal of the defendants to answer, .in so far as it enjoined the proceedings under the order of the Probate Court.

*284The proceedings had in the Probate Court, by which a sale of McLemore’s alleged interest in the premises was ordered, were set on foot for the mere purpose of carrying out a fraud upon the part of the defendants. There was no indebtedness in fact from McLemore to Friedman, by reason of the transactions between the latter and Vallejo. As to the other claims allowed by the administrator in favor of Friedman, the latter is the assignee of Jones without consideration. Jones was agent for the heirs of McLemore, and sold their title or claim of title to Larue, under the agreement between the latter and himself, that the money paid by Larue should go to extinguish the claims now set up as the foundation of the proceedings in the Probate Court, under which the defendants now threaten to sell the land sold to Larue. Instead of extinguishing these claims J ones purchased them in for himself at a heavy discount, assigned them without consideration to the defendant. Friedman and the two latter are now endeavoring to obtain, through the instrumentality of the probate proceedings, a sale of the same land for their own benefit. The jurisdiction of a Court of Equity to arrest such proceedings as constituting a fraud is clear. (Hager v. Shindler, 27 Cal. 47.)

In one respect, however, the decree, as entered, is erroneous. It adjudges in terms that the order made in the Probate Court be “annulled and set aside.” This was no doubt the result of mere inadvertence. The complaint did not ask for relief of that character, and if it had done so, the relief could not have been properly awarded in this action. It is not suggested that there was any want of jurisdiction in the Probate Court to enter the order. The proceedings in that Court would appear to have been regular in all respects. It is only because its enforcement against the premises described in the complaint would, under the circumstances, be inequitable, that the sale to be made thereunder is arrested and the parties enjoined from further proceedings respecting it. But the order itself as entered in the Probate Court remains unaffected by the decree in this cause.

The decree is therefore reversed without costs, and the *285Court below directed to modify the decree in the respect indicated. Remittitur forthwith.

Neither Mr. Justice Rhodes nor Mr. Justice Niles expressed an opinion.