19 P.2d 852 | Cal. Ct. App. | 1933
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *306 This appeal is from a deficiency judgment rendered by the court on motion of Morris M. Ferguson, receiver, against the above-named defendants. This deficiency judgment is based upon a judgment theretofore rendered in a case brought by respondent, as distributee of and representing the heirs of Julius G. Weygandt, against the above-named appellants and others. By this last-named judgment it was adjudged that Alfred Larson was the record owner of certain lands in Placer County, California; that he held the title to said lands as trustee under a certain declaration of trust dated July 24, 1914; that the beneficiaries and interests in said lands were as follows: N.A. McFaul and the heirs and distributees of Julius G. Weygandt, an undivided 2/9 each; estate of Berdena Larson, an undivided 1/8; George A Tate, an undivided 1/8; Charles W. Spitley, an undivided 1/6, and William Milchrist, an undivided 5/36; that said interests were held subordinate to certain indebtedness owing by certain of said beneficiaries to said trust estate as follows: N.A. McFaul, $13,298.60; *307 Alfred Larson and estate of Berdena Larson, $8,135.91; George A. Tate, $5,243.75; William Milchrist, $5,610.39; Charles W. Spitley, $2,631.35, together with accrued interest.
It was further adjudged that defendant Larson was the record owner of certain lands in Yuba County, California, under a declaration of trust dated May 18, 1912, and held the title as trustee under said declaration; that the beneficiaries and interests of each in said lands are as follows: N.A. McFaul, Alfred Larson, heirs and distributees of V.S. Colbert, heirs and distributees of Julius G. Weygandt, and heirs and distributees of John Liebold, one-fifth each. It was further adjudged that the said trusts be dissolved; that M.M. Ferguson be appointed receiver and that Alfred Larson execute a deed conveying said land to said M.M. Ferguson as such receiver, the said receiver being given full power to handle and manage said lands, and to collect all indebtedness due the said trust estate from the beneficiaries or other persons owing money to said trust estate. Thereafter the said receiver, under the orders of the court, proceeded to wind up the affairs of said trust estate, and on January 28, 1931, filed a motion for a deficiency judgment against appellants, and on March 3, 1931, appellants, having filed objections to said motion, a hearing was had and judgment was rendered in favor of the receiver and against appellants for the several amounts of their indebtedness to the trust estate.
Appellants contend that the original judgment is void upon its face; that the suit in which that judgment was rendered was commenced in Los Angeles County while the land involved therein is situated in Yuba and Placer Counties, and that the purpose of said suit was to establish interests in said land. The complaint in said suit alleges that appellant Alfred Larson, as a trustee, in conjunction with appellant McFaul, has collected funds belonging to the trust, for which they have failed to account; that they threaten and intend to dispose of the property covered by the trust and to fail to account to the beneficiaries for the proceeds thereof, and a judgment is asked enjoining said appellants from disposing of said property and requiring an accounting from them; that said trust be dissolved and distribution of said property be made to the beneficiaries under said trust, and also that judgment be entered against *308 appellants for the amount found to be due upon said accounting.
[1] The nature of the action is to be determined from the complaint. (Miller Lux v. Kern Co. Land Co.,
[4] We are of the opinion that the nature of this action, as disclosed by the complaint, was not an action for the recovery of real property, nor of an estate or interest therein, nor for the determination in any form of such right or interest, but, on the contrary, was an action against Alfred Larson and McFaul to force them to an accounting and to restrain them from disposing of property embraced in the trust, and *309 that the Superior Court of Los Angeles County had jurisdiction of the action.
[5] Appellants next contend that the original judgment is void on its face because some of the beneficiaries under the trust were not made parties. They rely upon Mitau v. Roddan,
[6] Appellants contend that the appointment of M.M. Ferguson as receiver was in direct violation of law. Section
[8] The original judgment provided that the receiver was not to sue for or enforce the sums found to be owing to the trust estate from appellants until after the sale of all of the lands owned by the said estate, and that if after such sale it should develop the shares of each are less than their respective debts a personal judgment shall be rendered against them for the amount of such deficiency. There is ample evidence to support the deficiency judgment. The receiver had disposed of all the land owned by the trust estate, and the amount received did not pay off its debts. Consequently there was nothing to distribute to the beneficiaries, which left appellants owing the several amounts as set forth in the original judgment.
[9] Appellants claim that they had no notice of the proceedings of the receiver as to the petitions and orders for power to deed away the estate entrusted to him. In the case ofFree Gold Min. Co. v. Spiers,
[10] Appellants also complain that the receiver released Spitley, Tate and Milchrist from their indebtedness to the trust estate without receiving anything from them. The record is silent as to the circumstances under which this was done, or that it was done at all. Admitting that this *311 is true, it would in nowise release appellants from their indebtedness to the said estate. If the release of these parties was an unauthorized and wrongful act upon the part of the receiver, appellants have their remedy, but such action upon the part of the receiver affords no reason why appellants should not pay that which they justily owe the said trust estate.
[11] Appellant Youngren, as administratrix of the estate of Berdena Larson, claims that the judgment against her is erroneous in that it does not contain the qualifying words "in due course of administration". Section
Appellants raise some additional points in their brief which we deem unnecessary to discuss.
The judgment as modified is affirmed, the appellant Youngren as administratrix to recover her costs of appeal.
Knight, Acting P.J., and Cashin, J., concurred.
A petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 8, 1933.