Wight v. Rohlffs

LANGDON, J.

This is an action to enforce a creditor’s claim against an estate, and to obtain an accounting. The action was twice tried, and the evidence on the main issues is conflicting and not wholly satisfactory, but we have reached the conclusion that it is sufficient to sustain the judgment.

In 1917 plaintiff and the decedent, Patrick Cahill, were the owners of an olive grove of some 82 acres in San Joaquin County, which they intended to subdivide and sell at a profit. Both parties had invested money in the enterprise, plaintiff’s contribution amounting to about $4,600, the investment of Cahill being considerably larger. The property was encumbered by a first deed of trust for $20,000 and a second mortgage for $2,800. Plaintiff was partly incapacitated and Cahill was left in charge of the management and sale of the property. The foundation of the present action is an instrument executed by Patrick Cahill on December 9, 1918, reading as follows:

“I hold in trust for Wilder Wight one-third of the Cherokee Olive Farm, the description of which is the South 82.70 acres of the Southeast Quarter of Section 24, Township 3 North, Range 6 East, M. D. B. & M., in San Joaquin County, California, subject to a loan secured by a Deed of Trust to the Portuguese American Bank of San Francisco, California, for $20,000, and subject to a second mortgage to the Bank of Italy of Stockton, California, for $2,800, and subject to an accounting between us.

“Dec. 9, 1918.

“Patrick Cahill.”

[622]

Various parts of the tract were sold from time to time until in 1925 the encumbrances were fully discharged and the remaining parcel was clear. This parcel was sold in 1929. Plaintiff had no knowledge of the sale until 1931, when Cahill died. His creditor’s claim was thereafter made for an accounting of his share of the profits, based upon a one-third interest in the property. This was rejected, and the action was brought. The first trial resulted in judgment for defendant, but a motion for new trial was granted, and on the retrial, judgment went for plaintiff. Defendant appealed.

Although some question was raised in the lower court as to the authenticity of the trust instrument, it was not successfully challenged, and the finding of the trial court that it was executed and delivered by the decedent, at its date, December 9, 1918, must stand. It necessarily follows that the estate of the decedent was bound to account to plaintiff for one-third of the profits of the venture.