Brush v. Big Bear Lake Tavern

MARKS, J.

This is an appeal from a judgment quieting the title of the Big Bear Lake Tavern, a corporation, in and to certain described real property on the banks of Big Bear Lake in San Bernardino County, and the title of Sandye Brush in other real property similarly situated.

Plaintiffs’ original complaint is not in the record. The amended complaint, and second amended complaint amending the second cause of action, are both before us.

The first cause of action of the amended complaint is the usual form of an action to quiet title. Defendants’ demurrer to this cause of action was overruled. Under date of January 11, 1938, counsel for plaintiffs filed a dismissal of this cause of action with prejudice. Therefore we need give this portion of the pleading no further consideration.

It is somewhat difficult to determine the exact nature of the cause or causes of action attempted to be stated in the second amended complaint amending the second cause of action, which for brevity we will refer to as the second amended complaint. In their amended complaint plaintiffs characterize it as an ‘ ‘ action to declare a trust, for an accounting and injunction, and for general declaratory relief, under Section 1060, C. C. P.” If plaintiffs were correct in thus describing the relief sought it is apparent that the specification of the demurrer under paragraph five of section 430 of the Code of Civil Procedure was properly sustained because several causes of action were improperly united and not separately stated in the single count of the pleading.

We have studied the amended complaint carefully, and while, owing to its uncertainties, it is difficult to analyze, we believe it attempts to set up four or more separate causes of action in its one count.

One of the causes of action sought to be alleged grows out of the use of the property belonging to the estate of the father of plaintiffs and Albert L. Brush who was the executor and trustee thereof, and, since January 31, 1895, the guardian of plaintiffs. It is alleged that in 1917 and 1918, Albert

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L. Brush took plaintiffs’ money from these estate funds and purchased ten acres of land on the shore of Big Bear Lake on which, with the funds of plaintiffs, was built the Big Bear Lake Tavern. Albert L. Brush caused the defendant corporation to be organized and this property conveyed to it. Plaintiffs seek to have a trust imposed on this property in their favor. Considerable uncertainty arises from the failure to define the extent of the interest in the tavern property acquired with plaintiffs’ money and the extent of the interest acquired with the money of others. Plaintiffs were issued 4,050 shares of the stock of the corporation. Inferences from allegations of the pleading would indicate they were minority stockholders.