Dieckmann v. Merkh

CHIPMAN, P. J.

It appears from the complaint that plaintiffs and defendant, Marie E. Merkh, are the children of Johann D. Dieckmann, who died on April 12, 1910, in the city and county of San Francisco; that on February 10, 19.10, he was the owner of the premises^ in question and, on that day, executed and delivered to defendant, Marie E. Merkh, a deed conveying said property to her; that it was agreed between Johann and his daughter, Marie, at the time, that she should hold the title to said land during his life and at his death “to divide said land and premises in equal shares between herself and said plaintiffs ’ ’; that, though frequently requested to convey to plaintiffs their share of said property,

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defendant, Marie, refused and still refuses to convey the same; that defendant, Albert G. Merkh, is the husband of'Marie and claims some interest in the land but without right. The prayer is for judgment that defendant, Marie, be compelled to execute a conveyance to each of plaintiffs of a one-fourth interest in said land.

A demurrer to the complaint was interposed for insufficient facts; also on the ground of misjoinder of parties defendant; also that the complaint is uncertain for the reason that it cannot be ascertained therefrom whether the agreement pleaded was oral or in writing. The demurrer was overruled and defendants answered admitting the facts set out in the complaint except as to the alleged agreement, which are denied. By way of cross-complaint, defendant, Marie, alleges ownership of the'land; avers that plaintiffs, without right, claim some interest therein and asks that her title be quieted.

It appears from the transcript that the cause was brought to trial July 14, 1911, and findings and judgment entered July 28, 1911. On July 19, 1911, plaintiffs served notice of a motion to amend the complaint which was heard and allowed on July 21, 1911, and on that day an amended complaint was filed and, on July 24, 1911, defendants filed their answer to said amended complaint, four days before findings and judgment were entered and filed. The amendment to the complaint is found in paragraph 4 and is as follows:

“That on February tenth, 1910, said Johann D. Dieckmann was and for more than one month prior thereto he had been sick in body and feeble in mind; he was then sixty-eight years of age, and at the time of the execution and delivery of said deed he had and reposed in his said daughter Marie K Merkh implicit confidence and trust. For the purpose and with the intention and desire of dividing equally between his.said children (the plaintiffs and defendant Marie E. Merkh) and upon the advice and solicitation of defendant Marie E. Merkh, said Johann D. Dieckmann executed and delivered said deed to defendant Marie E. Merkh, only because he did then and there rely upon and believe the statements and assurances of said Marie E. Merkh that she would hold said real property in trust as aforesaid and convey an undivided one-fourth interest in said property to each of said plaintiffs herein with