10 P.2d 1022 | Cal. Ct. App. | 1932
This is an appeal from an order denying a motion for change of venue.
The complaint alleges that Lydia H. Barney died on January 6, 1927, leaving no issue, and that no administration has been had upon her estate; that plaintiff is the grandson of decedent and an heir at law; that defendants are granddaughters of decedent; that about a month prior to her death, decedent deeded certain real property in the city and *140 county of San Francisco and the county of San Mateo to appellants herein; that at said time decedent was mentally incapable of transacting business; that the consideration recited in the deed was grossly inadequate; and that the execution of the deed was induced by the fraudulent acts and representations of defendants (which are particularly set forth). It is prayed that the deed be annulled, that defendants be ordered to surrender the same, and that plaintiff have such other relief as may be just in the premises.
Section
"Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, as provided in this code:
"1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form, of such right or interest, and for injuries to real property."
It has been held that the foregoing section is very broad, and that it includes an action to declare a trust in real property. (Donohoe v. Rogers,
There are two cases in California which are very similar to the instant case, and both of these support the action of the trial court here. The first is Sloss v. De Toro,
"The question then is, did this action require thedetermination in any form, of a right or interest in real property? *141
"It seems to us that it did. The main purpose of the action evidently was to have an alleged fraudulent sale of land set aside, and the title revested in its former owners. This purpose could only be accomplished by showing, first, that the plaintiff had an estate or interest in the land, and second, that the defendants had wrongfully tried to deprive him of that interest. If the action had been ejectment or to quiet title, it would not more clearly have required a determination as to plaintiff's right or interest in the property."
The second case is that of Booker v. Aitken,
Appellants rely upon the case of Reid v. Kerr,
[1] While it may be true, as appellants contend, that the relief which might be granted under the complaint would *142 operate in personam, we are of the opinion that the actionwould determine, in some form, the right or interest ofplaintiff in the real property. The court would be called upon to determine whether or not plaintiff was an heir of the decedent grantor. [2] As such an heir he had the right, in the absence of administration, to attack the transfer. (9 Cal. Jur. 212.) Thus his interest was an issue. To say that the real property was not the subject of the action would be to indulge in a mere quibble. It is a direct attack upon the title.
Our conclusion is that the action comes within the provisions of the code section in question, and that the proper place of trial is the city and county of San Francisco.
The order is affirmed.
Nourse, P.J., and Sturtevant, J., concurred.