Welch v. Alcott

California Court of Appeal Dec 19, 1923 No. Civ. No. 4010.Published

Before: Craig

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Holding. The court held that the judgment was unsupported by the findings because it included a $3,000 asset not found in the findings of fact, and that the trial court erred in ordering execution against the defendants in an equitable action for the distribution of trust funds.

Issues

Whether the trial court's judgment was supported by its findings of fact regarding the valuation of partnership assets.
Whether the trial court erred in ordering execution against the defendants in an equitable action involving the distribution of funds held by a trustee.

Disposition. modified

Quotations verified verbatim against the opinion

“As the record exists we have a simple case of conclusions of law and a judgment unsupported by the findings, in that an item of $3,000 appears in the former which is not to be found in the latter.”

“Under such circumstances the entire matter is within the jurisdiction of the court as one of equity to direct the trustee as to the distribution of the fund in its hands, and no order for execution against the property is warranted.”

[782]

CRAIG, J.

Appeal by defendants Edward H. Alcott and Title Insurance and Trust Company, a corporation, from judgment after a second trial between the parties following a reversal by the supreme court and order remanding “for a new trial upon the issues as to the Hendricks deal only.”

(Welch

Alcott,

185 Cal. 731, 762 [198 Pac. 626].)

The plaintiff and defendant Alcott were copartners until May 23, 1914, when an action for dissolution and accounting was instituted, and were engaged in establishing a town site and selling real estate embracing what is known as Niland, in Imperial County, and described as the southeast quarter (SE. 14) of section four (4), township eleven (11) south, range fourteen (14) east, San Bernardino meridian. The findings made at the former trial, as affirmed, recite that “the defendant Edward H. Alcott on the 13th day of March, 1914, granted and conveyed in trust to the defendant Title Insurance and Trust Company, a corporation, the said townsite hereinbefore described, the said defendant Title Insurance and Trust Company being therein named as trustee to carry out the provisions of a certain declaration of trust of the same date and being described as Trust No. 3152, and that the said defendant, Title Insurance and Trust Company, a corporation, did, on the 13th day of March, 1914, execute a declaration of trust described as said Trust 3152, whereby the said defendant Title Insurance and Trust Company undertook and agreed that the said townsite hereinbefore described should be improved, the cost of improvements paid out of a certain improvement fund therein provided for, and should hold the said town-site to sell the lots thereof at prices not less than those indicated in the schedule of selling prices attached to said declaration, and to receive amounts collected by the First National Bank of Brawley and to disburse all moneys coming into the hands of said trustee in the manner provided in said declaration.”

It was further found that of the personal property belonging to said partnership there was in the hands of said trustee, to the credit of the defendant Alcott, the sum of $5,158.19 in cash.

Welch v. Alcott

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CRAIG, J.

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