Stewart v. Thelan

DRAPER, P. J.

The sole question here presented is whether the bar of the statute of limitations appears upon the face of the complaint. After sustaining of demurrer to their amended complaint, plaintiffs elected not to avail themselves of leave to amend further. They appeal from the ensuing judgment of dismissal.

Plaintiffs treat the complaint as one to establish that a deed absolute in form is in fact a mortgage, and to compel reconveyance upon the ground that profits of the mortgaged property have worked a redemption. Although the pleading

[563]

is subject to other constructions, less favorable to plaintiffs, we accept their view.

The complaint alleges that: In 1934, plaintiffs’ intestates mortgaged timber lands to one Muir, the father of defendant, to secure payment of a note for $13,000. In 1938, the note was past due. The intestates deeded to Muir, who surrendered the note and orally agreed to go upon the land, remove and sell tanbark and timber, account annually for the value thereof, and, when such proceeds amounted to $20,000 plus interest at 3 per cent per year and taxes, to reconvey the land. Thereafter, Muir accounted to plaintiffs or their intestates in 1939, 1940 and 1941 for tanbark and timber sold, reducing the amount due him to $15,656.39. In 1942, 1943 and 1944, he rendered no statement and gave no credit, “although demand therefore was made in each of those years.” Muir died in 1944, and defendant, his daughter, took the property under decree of distribution. She has ever since had possession, and has removed tanbark and timber therefrom. Plaintiffs believe the amounts received by her from such products far exceed $20,000. "[A] lthough repeated and continual demands have been made,” defendant “has neglected and/or refused” to render statements. Beginning in 1945, two relatives acting in behalf of plaintiffs “made verbal demands by telephone” for such statements, and were invariably told by defendant that “ ‘she didn’t know anything about it, that her husband handled her business affairs.’ ” Written demands for accounting were made upon defendant May 29, 1951, and June 15, 1954, but defendant did not reply. Sometimes “after the year 1956,” one of plaintiffs called on defendant’s husband, and was then told that “no statement or accounting was due and/or owing.” This action was filed June 23, 1959.