Milliken v. Valencia

KNIGHT, J.,

pro

tem.

This is an appeal by defendants from a judgment quieting title in plaintiff in and to certain tracts of land situate in Riverside County. The complaint alleges ownership in plaintiff, and further alleges that the

[17]

defendant Frank P. Wilson, as sheriff of Riverside County, levied an execution on said property, issued in an action wherein Alvina Valencia, one of the defendants herein, obtained a money judgment against Phillip Milliken, a brother of plaintiff herein. The answers of the defendants Wilson and Valencia on information and belief denied plaintiff’s title, and on information and belief alleged that said Phillip Milliken was the owner of an undivided one-half interest in said property. In support of his complaint plaintiff offered proof showing beyond question that he was the owner of the legal title to said property.

[1]

Defendants then attempted to prove a state of circumstances which they claimed would show that plaintiff, Henry Milliken, held an undivided one-half interest in said property in trust for his brother, Phillip Milliken. Plaintiff objected to this character of testimony upon the ground that defendants had not pleaded a trust or any other equitable interest, and that they were therefore precluded from offering such proof. The court properly sustained the objection.

(Robinson

v.

Muir,

151 Cal. 118, [90 Pac. 521].) Thereupon defendants asked leave to amend their respective answers so as to set forth such trust relation, but their application was denied by the court upon the ground that the allowance of such amendments would be adding an entirely new issue to the case. Notwithstanding the ruling of the court, much conflicting testimony of an asserted trust relation was injected into the record.

Appellants now contend that the court erred in disallowing defendants’ proposed amendments, and that it “erroneously found that Henry and not Phillip was the owner of the properties in question, and in holding that Phillip had no interest therein subject to execution levy when the levy here in question was made.”