Hughes v. Heffner

STURTEVANT, J.

The plaintiff commenced an action in equity against Elias A. Heffner, Minnie E. Heffner, his wife, and Harry Ashton as trustee of the estate of Elias A. Heffner, bankrupt. Both Elias A. Heffner and Minnie E. Heffner appeared and demurred. Their demurrers were overruled and each answered. The record shows no pleading or appearance by Harry Ashton as trustee of the estate of Elias A. Heffner, bankrupt. The Heffners will hereinafter be called the defendants. After a trial in the superior court, findings were made in favor of the plaintiff and a judgment based thereon was entered in her favor. The Heffners filed a notice of appeal which recites that they appealed from the order overruling their demurrers and from the judgment in favor of the plaintiff. They have brotight up only the judgment roll.

The orders overruling their demurrers were not appealable (Code Civ. Proc., sec. 963), and need not be further discussed. Their demurrers were both general and special, but after the orders made overruling them the defendants answered and thereby they waived all objections except that the plaintiff’s complaint did not state facts sufficient to constitute a cause of action.

(Lynch

v.

Gagnon,

96 Cal. App. 512, 516 [274 Pac. 584].) We will not pause therefore to discuss the objections presented by the special demurrers.

On this appeal the first point made by the defendants is that the complaint does not state facts sufficient to constitute a cause of action. We think there is no merit in the point. The plaintiff alleged the following facts. On the 3d day of September, 1937, Elias A. Heffner was adjudged a

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bankrupt and Harry Ashton was appointed trustee of his estate and plaintiff was granted permission by the United States District Court to sue said trustee. Elias A. and Minnie E. Heffner are husband and wife. On April 8, 1921, plaintiff and defendants entered into an agreement to purchase the property known as 626 South Vermont Avenue, Los Angeles, California, for $28,000, of which sum the Heffners were to pay $8,000 and the plaintiff $20,000, and in consideration of the plaintiff investing said sum the Heffners agreed to give the plaintiff an option to purchase their interest for $8,000 plus interest at the rate of 7 per cent per annum from April 8, 1921, and that the plaintiff could accept said option at any time and that time was not of the essence of the option. A contract of purchase was made with G. Allen, the seller. The defendants executed and acknowledged said option. The plaintiff in due time paid the said sum of $20,000. That is the defendants, as the agents of the plaintiff, made the payments out of the plaintiff’s funds. Later the plaintiff also paid for improvements, additions, and repairs the sum of $3,625. Except for said option the plaintiff would not have invested in said property. The $8,000 contributed by the defendants was the separate property of Minnie E. Heffner. On March 14, 1924, the seller executed a deed conveying the title to the Heffners. On February 21,1936, Elias A. Heffner conveyed all of his interest to Minnie E. Heffner as her separate property. The legal title to said property is now vested in her but she is holding in trust for the use and benefit of the plaintiff the latter’s $20,000 interest. In 1935 the plaintiff in an action then pending sought an accounting against the defendants, as her trustees and agents, of the management of her properties and funds from January 15, 1921, until September 15, 1932. In the action last named, on September 29, 1936, a judgment was awarded against the defendants and in favor of the plaintiff revoking their powers and ascertaining and determining that the defendants were indebted to the plaintiff in the sum of $57,162.91 for moneys had and received, together with interest in the further sum of $15,338.52. The court further found that the trusteeship continued from January 15, 1921, to September 15, 1932. Continuing, the court, in said action, found and determined that the delay in making said accounting was brought about by the acts of these defendants. On September 30, 1936,