Elliott v. Clark

HALL, J.

Plaintiff, as administrator of the estate of Ada M. Hudson, deceased, brought this action against Charlotte K. Clark, as special administratrix of the estate of George Hudson, deceased, to obtain a decree that certain real property, the legal title to which was in said George Hudson at the time of his death, was acquired and held by him in trust for Ada M. Hudson, and for her estate since her death, and for an accounting of the rents, issues and profits of said property. Defendant demurred to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and defendant now urges that the court erred in so doing, and we think this contention must be sustained.

The real point of the demurrer is that the complaint upon its face shows such laches on the part of plaintiff and his intestate as to bar any right of action upon the matters set forth as plaintiff’s cause of action. That this defense may be raised by general demurrer to the complaint where the laches is apparent upon the face of the complaint is well settled in this state.

(Kleinclaus

v.

Dutard,

147 Cal. 245, [81 Pac. 516];

Bell

v.

Hudson,

73 Cal. 285, [2 Am. St. Rep. 791, 4 Pac. 791].)

This action was commenced on the sixteenth day of June, 1899. It is alleged in the complaint that Ada M. Hudson and George Hudson intermarried on the twenty-first day of December, 1853, and continued to be husband and wife until the death of Ada M. Hudson, which occurred on the seventeenth day of May, 1897. George Hudson died March 12, 1898. It is further alleged that prior to the said marriage Ada M. Hudson did deliver to George Hudson the sum of about four thousand dollars to be invested for her by him. That he did, on the twenty-first day of November, 1853,

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purchase a certain piece of real estate, and as a part of the purchase price thereof paid the said $4,000, but took the title thereto in his own name. That he thereafter sold said property for $13,000, and, with the consent of the said wife, invested the proceeds in real estate, and thereafter in various ways invested her money so that when he died he held in his own name several described pieces of real property. It is alleged: “That as a portion of the consideration for the conveyance to him of all of said real property so owned by him at the time of his death, the said George Hudson did pay and deliver the said moneys, and the accumulations thereof, of said Ada M. Hudson so delivered to him by said Ada M. Hudson in trust to invest the same for her use and benefit.” In other words, it is charged that a portion of the property held by George Hudson, at the time of his death, was purchased with proceeds arising from the $4,000 delivered to him by Ada M. Hudson in 1853.