Easton v. Geller

NOURSE, P. J.

Plaintiff sued to establish a trust and for an accounting. Demurrers to his amended complaint were sustained without leave to amend. Plaintiff then moved for leave to amend and tendered a proposed amendment. Leave was denied and judgment for defendants was entered. Plaintiff has appealed on a bill of exceptions.

The complaint alleged that on November 20, 1917, plaintiff, as legal owner, transferred to one O. F. Brant 997 shares of a total 1,000 shares of a Mexican corporation which held the legal title to 15,000 acres of land in Mexico worth $75 an acre, and which was encumbered for $370,000; that the mortgage was subject to foreclosure; that Brant agreed to

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manage the land, to rent it, and to sell the same for $75 an acre, pay the indebtedness, interest and advances made by him, and to pay over to plaintiff the balance; that in January, 1918, Brant sold 8,000 acres of the land and in October, 1921, sold the remaining 7,000 acres, paid off the mortgage and interest, and realized out of both sales and the rentals $538,460, which defendants received at times unknown to plaintiff. That each of the defendants had full knowledge of the alleged trust and received the proceeds thereof without giving any consideration therefor. That O. F. Brant died March 14, 1922, and defendant Title Insurance and Trust Company is the executor of his estate. That the said sum of $538,460 is in the possession of said title company, as executor of the estate of O. F. Brant, and also in the possession of said title company and of the defendants named as heirs of said estate.

This action was commenced on June 18, 1927.

Respondents defend the order sustaining the demurrer to the original complaint solely on the ground that the action is barred by section 343 of the Code of Civil Procedure. In this position we cannot but agree. The complaint alleges an express voluntary trust between plaintiff and deceased and an implied constructive trust on the part of the respondents. It fails to allege when or how the respondents came into possession—whether by deed in the lifetime of decedent or by will or descent at his death. In either case title must have passed more than four years before suit was brought. In the case of a constructive trust, such as we have here, the statute commences to run with the inception of the trust—i. e., the unlawful transfer by the trustee, or the succession upon the death of the trustee as the case may be.