84 P. 283 | Cal. Ct. App. | 1906
Action to declare a certain instrument a deed of trust executed to secure an indebtedness, and for an order of sale. Judgment for defendants upon the pleadings, from which plaintiff appeals.
The complaint avers certain unpaid indebtedness due plaintiff from one Amy Robsart Shaver contracted during the last illness of the latter; that after the same was contracted, to wit, on February 3, 1903, said Shaver conveyed the premises described by deed to defendant Helen Byron Griffiths, upon an express trust "that out of the proceeds of the said property the said Helen Byron Griffiths should pay all the expenses incurred by the said Amy Robsart Shaver during her sickness"; that on February 9th following said grantor died, leaving no estate; that thereafter, by proceedings regularly had in the superior court of Riverside county, upon the complaint of defendant Morrison, guardian of the minor children of said decedent, to which proceedings plaintiff was not a party, such property was declared to be held in trust by said Griffiths for said children; and under order of court a special commissioner conveyed the same to said guardian defendant, who, it is alleged, took such conveyance with notice of the trust in favor of the creditors. Plaintiff, therefore, prays that a trust be declared in favor of plaintiff for the amount of his claim, and that the premises be sold in satisfaction thereof. An answer was filed by defendants, denying the trust, the indebtedness, and notice of the trust by the guardian; and payment of a sum in satisfaction of plaintiff's claim was alleged.
It is claimed, upon the authority of Hibernia Savings etc.Soc. v. Thornton,
The position of counsel for respondent that the claim should be presented against the estate as a condition precedent to the action cannot be maintained, as the action is not sought against the estate, or any property belonging thereto. It affirmatively appears from the complaint that the proceeds were to be applied in a certain direction, which of necessity gives authority for a sale that such proceeds might be produced; hence no interest in the specific property was retained. And it further appears from the complaint that any excess has been determined the property of the defendant minors; so, under no condition can the estate of the grantor be affected by the judgment. Hence, no presentation of the claim was necessary.
We are of opinion that the court erred in granting judgment upon the pleadings, and the judgment is reversed and cause remanded for further proceedings.
Gray, P. J., and Smith, J., concurred.