85 Cal. 177 | Cal. | 1890
This appeal is from a final judgment for defendant on general demurrer to the complaint, and the questions for decision relate to the sufficiency of the complaint as against a general demurrer.
A. S. More, having commenced the action in his lifetime, died pending a demurrer to his complaint. After substitution of his administrator, Thomas R. More, as plaintiff, the demurrer was sustained, and the administrator filed an amended complaint, a general demurrer to which was also sustained; and it is the sufficiency of this amended complaint which is in question here.
After averring the death of the original plaintiff and the substitution of the administrator, the amended complaint proceeds as follows: —
“ 2. That heretofore, to wit, on the seventh day of April, 1888, Alexander S. More, deceased, was the owner in fee-simple and in the possession of several tracts of land lying and being in the county of Ventura, and state of California, and particularly described in an instrument executed between the original plaintiff in this action and defendant on the day and year aforesaid, and acknowledged by the said Alexander S. More, deceased, on the day and year aforesaid, and by the said defendant on the ninth day of April, 1888, and recorded in the recorder’s office of Ventura County, state of California, on the day and year last aforesaid, at ten minutes past eleven o’clock, A. m., of said day, a copy of which said instrument in writing, marked ‘Exhibit A,’ is here annexed and made a part of this complaint.
“ Plaintiff alleges, upon his information and belief, that
“4. The plaintiff further states that by the terms of said instrument in writing between the said Alexander S. More, deceased, and the defendant, of date April 7, 1888, it was provided that the said Alexander S. More should pay to the defendant the additional sum of ten thousand dollars, which the party of the first part hereby agreed to. pay to the party of the second part without interest; and the plaintiff alleges, on his information and belief, that there was not, prior to the execution of said instrument, at the time, or since then, the slightest consideration for that part of the agreement; that he has never received from the defendant or any other person a single farthing as a consideration for that portion of the agreement, and the only consideration for that specific portion of said agreement was as follows: The said Isadore Dreyfus had an option in writing, dated the fifth day of November, A. D. 1887, to purchase the said several tracts of land within one year from the date of said option, for the sum of one hundred and three thousand dollars, and the defendant was to have and receive from the said Alexander S. More the said sum of ten thousand
“5. The plaintiff further states, upon his information and belief, that appurtenant to said tracts of land are certain valuable water rights, viz., the Sespe Creek, Fish Slough, and the Ho jo or Dudley Canon; and that the several tracts of land and water rights appurtenant to as aforesaid are very valuable, being of far greater value than the amounts due the defendant, and that the defendant can suffer no loss or injury if the sale of the said several tracts of land is delayed, while the estate of said Alexander S. More would suffer irreparable injury if the sale heretofore advertised should take place, as said estate would be without remedy at law if the defendant were permitted to sell the same.
“ And the plaintiff further alleges that the defendant has been in possession of the said several tracts of land and water rights since the execution of said instrument; has rented the same to several parties, who have paid said defendant rent for the same, or are now indebted to him for rent of said several tracts of land and the water rights aforesaid, and that said defendant has rendered no account of said rents to the estate of Alexander S. More, or given plaintiff any information concerning the same, and that plaintiff is in ignorance of the amounts of said rents and profits.
“ 6. The plaintiff further alleges that, disregarding the plaintiff’s rights in the premises, the defendant has
“ 7. And for a further cause of action, the said plaintiff alleges that at and prior to the date of the execution and delivery of the instrument of writing theretofore referred to, copy of which is hereto annexed and marked ‘Exhibit A,’ as this plaintiff is informed and believes, the said Alexander S. More was incapable of executing said alleged instrument; that the said Alexander S. More attained his legal majority in the mouth of June, 1887; that prior thereto, and thereafter, the said Alexander S. More was of infirm health, and was physically and mentally diseased, so that when he became of age lawfully to contract debts and make agreements he was incapable of making lawful contracts by reason thereof; that the agreement and mortgage made to Isadore Dreyfus on the fifth day of November, 1887, was unlawful and void; that therein the said Alexander S. More was incapable of giving bis consent thereto, by reason of said physical incapacity; that this plaintiff is informed and believes, and on that information and belief alleges, that said Alexander S. More, by reason of his physical and mental condition, and not having proper control of himself and capacity to act in a reasonable and proper manner, contracted habits of inebriety that further and seriously affected his mental condition, so that he became and was still further incapacitated to make any lawful agreement or execute any conveyance; that while in this condition
“ And this plaintiff further alleges that since the beginning of this action the said Alexander S. More has departed this life, and that this plaintiff is the administrator of his estate, as heretofore set forth; that the said property so described in said instrument of writing is a part of the estate of said Alexander S. More, deceased, and that the plaintiff herein, as such administrator, is entitled to the possession and administration of said estate; that the debts named in and payments required to be made by the said instrument of writing were incurred during the incapacity of said Alexander S. More, and that great and irreparable damage will be done to the estate of said More if the said Calkins be allowed to proceed to sell said property under the provisions of said void instrument of writing.
“Wherefore the plaintiff demands judgment,—1. That the defendant render an account of the rents and profits of the said several tracts of land and the wáter rights appurtenant thereto received by the said defendant since the seventh day of April, 1888; 2. That the said sum.
Exhibit A, annexed to the complaint, omitting the description of the lands and other property conveyed and assigned, is as follows:—
“Alexander S. More to J. W. Calkins.
“This indenture, made the seventh day of April, 1888, between Alexander S. More, of the city and county of Santa Barbara, state of California, the party of the first part, and J. W. Calkins, of said city, the party of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of fifteen thousand dollars to him in hand paid, the receipt whereof is hereby acknowledged, and in consideration of the agreements and covenants herein entered into by the party of the second part, does by these presents grant, bargain, and convey unto the said party of the second part [here follows description of lands, water-ditches, and contracts],
“To have and to hold the aforesaid lands, rights, easements, contracts, claims, demands, and other property hereby conveyed, assigned, or transferred to the party of
“The party of the second part is hereby empowered and authorized to sell and convey, assign and transfer, lease, mortgage, or hypothecate, any of the aforesaid lands, tenements, and hereditaments, water and ditch rights, and easements or other property hereby conveyed or assigned, or any part thereof or interest therein, and to sell and transfer or hypothecate the aforesaid contracts, or either of them, or any interest therein; and any sales of any of said lands, rights, easements, or other property may be made by the party of the second part at such price and upon such terms as to cash or on credit as he, the said party of the second part, may deem advisable. And the party of the second part is further empowered and authorized to institute and prosecute or defend such suits and actions or other proceedings at law as may be by him deemed advisable to protect or secure the rights and interests of the parties hereto, or either of them, in any of the lands or other property herein, described, and particularly the rights and interests of the party of the first part, in and to the waters of Sespe Creek and Fish Slough, and the water claims and ditch rights herein-above mentioned, and the party of the second part may compromise any of said suits, actions, or proceedings upon such terms as he may deem most advisable, and he may join the party of the first part as a party to any of said suits, actions, or proceedings, and the expenses of such suits, actions, or proceedings paid by the party of the second part shall be deemed a disbursement for the benefit of the party of tlie first part thereto, and the payment thereof, with ten per cent interest thereon from the time of disbursement, shall be deemed to be secured by these presents. The party of the second part and his successors shall, during the continuance of these trusts, have the sole possession, control, and management of all
“And the said party of the second part shall (in the event that Isadore Dreyfus does not exercise his option to purchase the aforesaid property under said contract entered between him and the party of the first part the fifth day of November, 1887, and does not become the purchaser of the same) proceed with all diligence to sell, under the powers hereinabove expressed, the aforesaid lands, water rights, and other rights, easements, and other property, as a whole or in parcels, as he, the said party of the second part, or his successors in trust, may deem most advisable, and out of the proceeds of such sales, and the rents, issues, profits, and proceeds of said lands, contracts, and other property, the party of the second part, or his successor or successors in trust, shall pay,—1. The reasonable expenses of the management of said lands and property and of the execution of these trusts; 2. To the said J. W. Calkins the sum of fifteen thousand dollars, with interest thereon at the rate of ten per cent per annum, together with the additional sum of ten thousand dollars, which the party of the first part hereby agrees to pay the party of the second part, without interest, also the amount which may be paid out by the party of the second part in satisfaction of the mortgage executed to Isadore Dreyfus, and hereinafter mentioned; and the amount of money paid out in the course of the execution of these trusts and the powers hereby conferred, and for the payment of such taxes and other liens as may be levied on or be imposed upon any of the aforesaid property during the continuance of these trusts (except taxes and assessments upon this deed of trust, or the debts or other obligations hereby secured), with interest at the rate of ten per cent per annum upon all sums paid out as aforesaid (with the exception as to taxes and assessments above specified), and the residue, if any, of the proceeds of said lands, contracts, or other
“In witness whereof, the parties have hereunto set their hands and seals the day and year first above written.
[seal.] “Alexander S. More,
[seal.] “J. W. Calkins.”
Whether the instrument is merely a mortgage with power of sale, or a deed of trust conveying the legal title, I think the amended complaint states a cause of action for an accounting before a sale of the property by the defendant, and for a temporary injunction against the sale pending the accounting.
In Jones on Mortgages it is said: “ When the accounts between the parties are complicated, and the balance due under the mortgage is uncertain, a sale may sometimes be enjoined until the equities between the parties, which should affect the amount due under the mortgage, are settled and the balance due can be ascertained.” (Sec. 1813.) The power of a court of equity over sales under powers in mortgages and trust deeds is exemplified to a considerable extent in the case of Van Bergen v. Demarest, 4 Johns. Ch. 37, wherein an injunction was granted at suit of an infant heir of the mortgagor, on the ground that the amount due was in dispute, and upon the hearing the sale was subjected to the following restrictions: 1. That the amount due should be computed by a master; 2. That the master be associated with the mortgagee in making sale; 3. That further notice of the sale should be given; and 4. That only so much should be sold as the master deemed sufficient, in case a part could be sold without prejudice. In Cole v. Savage, Clarke Ch. 361, a sale was enjoined on the ground that the mortgagee, in his notice of sale, claimed more than was due.
The complaint in this case shows that a considerable portion of the demand of defendant, for the payment of which he has advertised for sale all the property described in the instrument, is unliquidated and uncertain; and that ten thousand dollars of the liquidated portion of his claim is disputed by the plaintiff on the ground that it is unsupported by any consideration whatever. It also avers that the value of all the property greatly exceeds the amount of the just and lawful indebtedness of the plaintiff to the defendant. The fact that it appears upon the face of the instrument that payment for all loans and advances, and compensation for all services, with extraordinary interest, is provided for, exclusive of the promise to pay ten thousand dollars without interest, tends to corroborate the averment that there was no consideration for the promise to pay the ten thousand dollars. But for the presumption that there is a consideration for every promise in writing, there would appear to be no consideration for the promise to pay the ten thousand dollars without interest. But this presumption is disputable, and the plaintiff has disputed it in this case. In addition to this, the extraordinary and almost unlimited power granted by the instrument invites scrutiny as to the honesty and fairness of the transaction, and tends to induce a court of equity to restrict the execution of it to such mode as may do justice to the grantee with the least detriment or inconvenience to the grantor.
2. I think the demurrer to the second cause of action attempted to be stated in the complaint, based upon sections 38 and 39 of the Civil Code, was properly sustained. That A. S. More was “ entirely without understanding ” is not directly or indirectly, definitely or indefinitely, stated in the complaint, and therefore the instrument executed by him was not void.
Conceding, for the purpose in band, that it is stated in the second count- that A. S. More was “of unsound mind,” though “not entirely without understanding,” yet it is not stated that the plaintiff or his intestate ever restored or offered to restore, paid or offered to pay, to defendant the money (fifty-eight thousand dollars) loaned to and paid for the plaintiff’s intestate under the con- -• tract; nor is it stated that the plaintiff is ready'or willing to restore anything of value received from defendant under the contract; therefore, upon the facts stated, the contract should not be rescinded. (Civ. Code, sec. 1691.)
I think the judgment should be reversed, and the cause remanded, with instruction to the court below to overrule the demurrer to the first count of the complaint.
Belcher, C. C., and Foote, C., concurred.
For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded, with instructions to the court below to overrule the demurrer to the first count of the complaint.