94 P. 252 | Cal. Ct. App. | 1907
Action to recover the amount alleged to be due from the estate of William Hartman, deceased, on a claim presented to defendant executor and disallowed by him.
By the first cause of action set forth in the complaint it is alleged: That on October 2, 1903, said Hartman received from Edward Hart and Laura Hart $1,280, as the purchase price of certain described land, which then belonged to plaintiff and which had been conveyed to him by said Hartman on July 21, 1896, by grant deed of that date, and which said sum said Hartman received in trust for plaintiff to be delivered *251 on demand; that no part of the same was paid by said Hartman in his lifetime, and the whole thereof was held by him in his lifetime in trust for plaintiff, and has ever since his death been so held by his executor, the defendant herein; that Hartman died February 8, 1904, and defendant, on February 29, 1904, became and is now the executor of his last will; that demand for the payment of said claim has been made upon said executor and payment thereof has been and still is refused. The claim as presented to the executor is set forth and is for the principal sum of $1,280 and $57.60 interest, the principal sum being "obtained from the sale of real property belonging to and conveyed to said J. J. Simpson (plaintiff) as per conveyance, a copy of which is hereto attached."
As a second cause of action it is alleged: That on July 21, 1894, plaintiff and Hartman entered into an agreement whereby plaintiff was to furnish materials and perform the work for the improvement of the premises referred to in the first cause of action, and that Hartman then and there agreed, in consideration of plaintiff having made said improvements, to convey said land to plaintiff and place the deed therefor in escrow to be delivered to plaintiff upon the death of said Hartman; that plaintiff pursuant to said agreement entered into possession of the land and made said improvements, furnishing the material therefor, all at a cost of $1,280; that in performance of said agreement on his part said Hartman, on July 21, 1896, conveyed said land to plaintiff by grant deed, "and that such deed was so executed and delivered in escrow and unrecorded at the time of the conveyance of said realty to the said Edward and Laura Hart as hereinafter set forth"; that on October 2, 1903, said Hartman conveyed the said land to said Harts and received therefor the sum of $1,280; that said deed was received by the said Harts without any "knowledge or notice of plaintiff's said deed in escrow . . . and thereby said deed in escrow became null and void and valueless as a conveyance of the aforesaid property"; that thereby plaintiff became damaged in the sum of $1,600. Averments follow as to the death of Hartman, appointment of defendant as executor and presentation of the claim hereinbefore mentioned. The prayer is for judgment for $1,280 and interest from October 2, 1905. (Should be 1903.) *252
The answer contains specific denials of most of the averments of the complaint and for a separate defense pleads that on May 23, 1903, upon the petition of plaintiff, he was duly declared and adjudged a bankrupt, and that on June 11, 1903, a trustee of his estate was duly appointed and duly qualified as such trustee; "that if said Simpson, at the time he was adjudged a bankrupt, as aforesaid, had any title to the land described in the complaint in this action, the said trustee . . . became vested by operation of law, with such title, and said Simpson became thereby devested, and has ever since continued devested of such title; and that therefore said plaintiff cannot have or maintain this action against said defendant."
The cause was tried by the court, a jury having been waived, and the court found: That at the time said land was conveyed to said Edward and Laura Hart (October 2, 1903), it did not belong to plaintiff, and that the $1,280 received by Hartman from the Harts was not held in trust for plaintiff by Hartman, during his lifetime, nor since his death by the executor of his estate and no money is due or owing to plaintiff from defendant as said executor. The court finds the facts as to the conveyance by Hartman to plaintiff and the deposit in escrow of the deed "to hold said deed until the death of said Hartman and then to deliver it to the said plaintiff." The facts as to the conveyance to the Harts by Hartman are found to be as alleged in the complaint. The court then finds the facts of plaintiff's bankruptcy as alleged in the answer, and "that therefore said plaintiff cannot maintain this action against said defendant." Defendant had judgment accordingly that plaintiff take nothing by the action. The appeal is from this judgment.
If, by reason of his bankruptcy, plaintiff cannot maintain the action, it becomes unnecessary to consider any other of the various questions that arose in the course of the trial. The only claim made by plaintiff is based upon his alleged title to the land, and the only claim presented to defendant for payment was for money received by Hartman for the sale of land alleged to belong to plaintiff by virtue of Hartman's deed to him in 1896. By section 70 of the act establishing a uniform system of bankruptcy throughout the United States (30 Stats. at Large, 565; U.S. Comp. Stats. 1901, vol. 3, p. 3451), it is provided: "The trustee of the estate of a bankrupt, *253
upon his appointment and qualification, . . . shall . . . be vested by operation of law with the title of the bankrupt, as of the date he was adjudged bankrupt . . . to all property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him." The investiture of title in the trustee takes place, without a deed of conveyance, by operation of law, as of the date the petitioner was adjudicated to be a bankrupt. (In re Engle, 105 Fed. 893.) A bankrupt cannot maintain a suit in his own name in relation to his property, not exempt, pending bankruptcy proceedings after the appointment of a trustee. (Loveland on Bankruptcy, 3d ed., p. 435, citing Pickens v. Dent, 106 Fed. 653, [45 C. C. A. 522]; affirmed sub nom. Pickens v. Roy,
The remaining question would seem to be, Was the interest of plaintiff in the land property which could be transferred? If the Hartman deed, as claimed by plaintiff, was placed in escrow beyond the grantor's power to recall it, and with instructions to hold it until his death and thereupon to deliver it to the grantee named in the deed, the grantor to have no other or further interest in the land than to enjoy the use of it until his death, the title vested immediately in the grantee and the depositary became a trustee of the grantee. (Bury v. Young,
Every species of property, except a mere possibility, not coupled with any interest, may be transferred. (Civ. Code, secs. 1044, 1045; Fudickar v. East Riverside Irr. Dist.,
Plaintiff contends that because he was adjudged a bankrupt on May 23, 1903, and Hartman sold the property October 2, 1903, plaintiff's right to the proceeds of the sale is property acquired after the adjudication and belonged to him. The sufficient answer to this claim is that the proceeds of this sale came from the land to which plaintiff's title, upon his own theory, vested in him long prior to May 23, 1903, and was in him when he was adjudicated a bankrupt; and when Hartman sold the property in October, 1903, the title had already, by virtue of the decree of adjudication and by operation of law, vested in the trustee.
It is urged that the action was properly commenced by plaintiff and should not abate because of his bankruptcy. (Citing Giselman v. Starr,
In the Giselman case the facts warranted the court in holding that both of these tests were fully met, and that by the judgment, whatever it might be, the defendant would be saved *255
"from further harassment or vexation at the hands of the claimants to the same demand." In Woodsum v. Cole,
Plaintiff claims error in allowing defendant to plead plaintiff's bankruptcy by way of amendment to the answer. This amendment was offered after both parties had rested but before the cause was submitted. There had been some evidence admitted relating to the bankruptcy to show that plaintiff had not included the property in question or any interest in it in his schedule, but the adjudication had not been pleaded in bar of the action. The amendment was to accomplish this object, and, we think, it was within the discretion of the court to allow it.
It appears from the bill of exceptions "that after the trial of the above-entitled case and before entry of judgment therein the plaintiff duly made, served and filed" a notice of motion to amend his complaint. The proposed amendment introduced the following new issue: that in consideration of the improvements made by plaintiff upon the said land, "the said Hartman then and there agreed to devise and bequeath the above-described realty to plaintiff, and fix it so that the plaintiff should have the same upon the death of the said William Hartman." This amendment was utterly inconsistent with the cause of action counted upon and with the claim presented against the estate. It was not error to refuse the amendment.
The judgment is affirmed.
Hart, J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 24, 1908. *257