Thе issues in this case are raised by four pleadings; a complaint seeking partition and alleging that the plaintiff is the owner of a three-fourths interest in 80 acres of land that the defendant, i.e., a trustee of a testamentary trust, is the owner of a one-fourth interest therein; an answer denying the plaintiff’s ownership; а first amended cross-complaint seeking to impose a constructive trust upon the plaintiff’s alleged three-fourths interest in favor of the defendant and quieting the latter’s title thereto; and an answer to this cross-complaint denying the material allegations thereof and asserting as special defenses the statute of limitations, laches, res judicata, and lack of consideration.
The plaintiff and cross-defendant, who is the respondent *427 herein, 1 moved for an order striking the defendant’s first amended cross-complaint and for a summary judgment. This motion was granted. Thereupon the defendant and cross-complainant, who is the appellant herein, appeаled from that order. Following this the court entered an interlocutory judgment in partition. In due course the defendant appealed from this judgment. Both matters now are pending before this court.
The defendant contends that the interlocutory judgment was entered while the court lacked jurisdiction to enter the same because of the prior appeal from the order granting the plaintiff’s motion to strike and for a summary judgment. The latter contends that the order in question is not appeal-able and that the trial court retained jurisdiction to proceed. The order in question was not appealаble and the attempted appeal therefrom should be dismissed.
(Martelli
v.
Pollock,
Voluminous affidavits were filed in connection with the subject motion. The plaintiff claims that he is the owner of a three-fourths interest in an 80-acre parcеl of land, which formerly consisted of three one-fourth interests separately owned by Marie Lamb, John Metcalf, and Albert Metcalf; that he acquired these interests at a tax sale; and that his title thereto has been adjudicated as against the former owners and their successors in interest. This claim is estаblished by uncontradicted proof in the form of a final judgment against one of the former owners and the successors in interest of the other two. The judgment against the latter was affirmed on
*428
appeal by this court.
(Metcalf
v.
Hecker,
By his cross-complaint the defendant, in his capacity as trustee of a testamentary trust, contends that the plaintiff holds this three-fourths interest as a constructive trustee for the testamentary trust, and claims that an issue of fact exists in this regard. It must be noted, however, that the defendant’s brief on appeal is not confined to a clear-cut presentation of this contention; argues many issues not material to the instant lawsuit; attacks the legal title of the plaintiff which is conclusively established by the judgments heretofore considered, e.g., claims (1) the John Metcalf interest never was acquired by the plaintiff at a tax sale, (2) the latter’s rights are based on adverse possession about which there is a pending issue of fact and, (3) the existence of fraud, deceit and misconduct which render his title defective; confuses the issues raised by the amended cross-complaint; and appears to believe that the claims of the former owners can be re-litigated in this action at his behest because he was not a party to the former judgments, although he is not in privity with their title.
The one-fourth interest in the subject property now vested in the defendant as trustee originally was owned by the plaintiff’s wife, Anna Hecker. Upon her death, by testamentary disposition, it became an asset of a testamentary trust declared by the decree distributing her estate and naming the plaintiff trustee thereof. This undivided one-fourth interest and each of the remaining three undivided one-fourth interests in that property were assessed separately, for tax purposes, to their respective owners. The taxes levied against each of these interests became delinquent. In 1944, the interests owned by Marie Lamb, John Metcalf, and Albert Met-calf were sold at tax sale to the plaintiff. At this time he was the duly appointed, qualified and acting trustee of the aforesaid trust in the estate of his deceased wife. However, his purchase at the tax sale was made by him in his individual caрacity. Neither trust funds nor credit were used in making the same. Although the defendant contends to the contrary, the interest of the trust estate was not sold at this tax sale; was not purchased by the plaintiff; and there is no triable issue of fact to the contrary. The complaint and the judgment in the instant matter are prеdicated upon the fact that the defendant, as the present trustee of the subject trust, is the owner of the one-fourth interest originally distributed out of the Anna Hecker estate.
*429 Although, as heretofore noted, the defendant presents a kaleidoscopic array of issues incident to the transaction resulting in the acquisition of the three one-fourth interests, the only issues germane to the defendant’s claim thereto, as described by the pleadings in the present action, are those raised by the cross-complainant’s constructive trust cause of action and the plaintiff’s answer thereto.
A wrongdoer acquiring title to property through fraud, undue influence, breach of trust, or other improper manner may be declared a constructive trustee thereof for the benefit of the rightful owner. (Civ. Code, § 2224;
Bainbridge
v.
Stoner,
The plaintiff contends that the action to declare him a constructive trustee of the interests which he purchased at the 1944 delinquent tax sale is barred by the statute of limitations; specifically pleads the provisions of sections 318, 338 subdivision 4 and 343 as such a bar; by affidavit supporting his motion for a summary judgment properly presents facts which establish the applicability thereof; and contends that there is no triable issue of fact foreclosing the application of these facts. The statutory provisions in question respectively prescribe five, three and four-year periods of limitation. The acquisition by tax sale occurred in 1944. The instant action was commenced in 1958. Obviously it hаd not been commenced before the aforesaid periods had expired. An application of either of the foregoing sections to the instant case, as hereinafter noted, would bar the causes of action set forth in the defendant’s cross-complaint. For this reason it is unnecеssary that we determine which of the three sections is applicable to the pertinent undisputed facts shown by the plaintiff’s affidavit in support of his motion for a summary judgment.
Where the gist of an action is fraud, regardless of its form, the three-year period prescribed by section 338 subdivision 4 of the Code of Civil Proсedure applies, but does not commence to run until the aggrieved party knows or should know of that fraud.
(Turner
v.
Milstein,
Even though it be assumed that the contention made by the defendant against the plaintiff, respecting the latter’s acquisition of the three one-fourth interests at the 1944 delinquent tax sale, encompassеs a breach of duty equivalent to a fraud, 2 the existence of an issue of fact respecting the time when the Anna Hecker trust knew of this fraud is not developed by the affidavits filed in connection with the motion for a summary judgment. In 1949 the three beneficiaries of that trust filed an objection to a report and аccounting by the plaintiff as trustee in which it was alleged that he “individually . . . had a three-fourths interest in” the subject 80-acre parcel “put up for tax sale and purchased the same.” In the following year the plaintiff resigned as trustee. At the hearing upon the contest respecting the previously'filed acсount, evidence was introduced which advised the court that the plaintiff claimed a one-fourth interest in the 80-acre parcel as trustee and a three-fourths interest “for himself” which he had purchased at a tax sale. The court settled the report and account in question; appointed а new trustee ; directed the plaintiff to render a supplemental report and account ; and ordered him to turn over to his successor '‘ all assets of said Trust Estate of which he may be possessed.” Thereafter, such a report and account was filed; was contested; and, with certain exceptions, was approved by an order which described the property remaining in the trust and directed that the plaintiff be discharged as trustee. The property so described included the one-fourth interest but did not include the three-fourths interest in the 80-acre parcel which is the subject of the instant actiоn.
The defendant claims that he personally had no knowledge of the plaintiff’s alleged wrongful acquisition of the subject three-fourths interest until the instant complaint had been filed and, for this reason, the statutory period prescribed by section 338 subdivision 4, if it applies, did not commence to run against the action alleged in his cross-complaint until that time. His trustee predecessor in in *431 terest, the court that administered the trust, and the beneficiary thereof, all had notice of the facts which form the basis of the alleged constructive trust cause of action in question in 1950, if not before that time, and the defendant’s рersonal lack of knowledge respecting the same did not toll the running of the statutory period after that date.
Furthermore, constructive notice of any wrongdoing by the plaintiff, to all persons interested, was given by the public nature of the tax sale; the acquisition of the three one-fourth interests in the individual name of the plaintiff; the recordation of the tax deeds showing such; the consideration given thereto in the trust estate proceedings; and the plaintiff’s refusal to list the same as an asset of the trust estate.
(Bainbridge
v.
Stoner, supra,
It is appropriate to note, also, that a cause of action to declare a constructive trust in favor of the rightful owner of property acquired by another through fraud arises at the time of acquisition by the latter, and no repudiation of the law-imposed constructive trust is necessary to set the statute of limitations in motion.
(Baintridge
v.
Stoner, supra,
The defendant also claims that section 318 of the Code of Civil Procedure is the only statute of limitations applicable to the instant case; that the five year period therein prescribed bars an action for the recovery of real property or its possession only when the party seeking such has not been seised or in possessiоn thereof during that five-year period; that, as the trust estate was a tenant in common with the plaintiff of the subject 80-acre parcel, it has been seised and in possession of the plaintiff’s three-fourths interest therein; and, therefore, the constructive trust action is not barred. In support of his position, the defendant cites the decisions in
Goodnow
v.
Parker,
The cross-complainant’s quiet title cause of action adds no factual issues to those raised by the constructive trust action; is dependent upon recovery under the constructive trust theory; and has no effect upon the statute of limitations issues heretofore cоnsidered.
(Leeper
v.
Beltrami,
No triable issue of fact is presented which forecloses an application as a matter of law of the bar of the statutes of limitations pleaded in defense of the alleged causes of action set forth in the cross-complaint. Where, upon motion for a summary judgment, a dеfendant’s or cross-defendant’s affidavit establishes a complete defense to the action set forth in the complaint or cross-complaint and the plaintiff’s or cross-complainant’s affidavit in reply does not show a triable issue of fact with respect to that defense, “no amount of fаctual conflicts upon other aspects of the ease could affect the result,” and the motion for a summary judgment should be granted.
(Martelli
v.
Pollock, supra,
The plaintiff urges additional grounds in support of the judgment, but our conclusion with respect to the adequacy of the defense of the statute of limitations renders a сonsideration thereof unnecessary.
The judgment is affirmed. The attempted appeal from the order granting the motion for summary judgment is dismissed.
Griffin, P. J., and Brown (G.), J., concurred.
A petition for a rehearing was denied April 16, 1963, *433 and appellant’s petition for a hearing by the Supreme Court was denied May 22, 1963.
Notes
Sinee this appeal, the plaintiff in the action, Frederick Henry Heeker, died, and the executor of his estate has been substituted as plaintiff and respondent herein. However, for purposes of clarity, in this opinion Frederick Henry Heeker will be referred to as the plaintiff.
"In its generic sense, constructive fraud comprises all acts, omissions and concealments involving a breach of legal or equitable duty, trust, or confidence, and resulting in damage to another.”
(Estate of Arbuckle,