Miller v. Struven

RICHARDS, J.

This appeal is from a judgment in favor of the plaintiffs in an action for damages for the conversion of personal property. The amended complaint briefly alleges that the plaintiffs’ predecessor, the Mercantile Trust Company of San Francisco, at all times mentioned therein prior to October 11, 1918, was the owner and entitled to the possession of certain specific personal property and that the defendant, on or prior to the last-named date, converted said property to his own use, to the plaintiffs’ damage in the sum of four thousand dollars. The defendant, in his amended answer to said complaint, denies each and all of these averments, and for a further defense sets up the statute of limitations and also laches and estoppel in bar of the plaintiffs’ action. The trial court found the facts to be as alleged in the plaintiffs’ complaint, except as to the value of the property, and also found against the defendant upon his several pleas in bar. Judgment was thereupon rendered for the sum of fifteen hundred dollars, with interest from October 13-, 1915, and for costs.

The facts out of which this litigation arose are somewhat complicated but are in the main undisputed and would seem to be as follows: Prior to the year 1912, and for some time thereafter, the J. F. Bradley Company, a corporation, was the owner of certain real estate and the improvements thereon, situate in the city and county of San Francisco, which was in use by said corporation as a soap factory. On February 3, 1912, said corporation executed its deed of trust by the terms of which it conveyed said real estate to certain trustees to secure the payment of a promissory note of said corporation to one Morris Windt. On the twelfth day of March, 1914, said Morris Windt assigned and transferred said promissory note to Hugh McCahill and at the same time, and in conjunction with said trustees, executed a document substituting Mary Miller as the trustee in said deed of trust for the prior trustees named in said trust deed. The J. F. Bradley Company having defaulted in the payment of said note the payee thereof directed the said sub

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stituted trustee to sell the property described in said trust deed in order to the payment and satisfaction of said note, which the said trustee proceeded to do, with the effect that on April 17, 1914, she sold and conveyed the property described in said trust deed to said Hugh MeCahill for the sum of two thousand dollars. Thereafter, and on April 21, 1914, said Hugh MeCahill conveyed the property by the same description to J. J. Thompson. On August 18, 1914, said J. J. Thompson and Sahra Thompson, his wife, made and executed their promissory note to Berthold Struven for the sum of six thousand dollars and on said date also made and executed their deed of trust conveying said real estate to certain trustees to secure said note. On August 24, 1914, said J. J. Thompson and wife conveyed said described property to the Chicago Soap Company, a corporation.' On October 13, 1915, one Geo. L. Miller and the Chicago Soap Company joined in a personal property mortgage to Berthold Struven of the property described in the complaint in this action, describing the same as being personal property contained in the premises of the Chicago Soap Company theretofore described in the conveyance from J. J. Thompson and wife to the Chicago Soap Company above referred to. In this chattel mortgage Geo. L. Miller is designated as the president of the Chicago Soap Company. On February 16, 1916, said Berthold Struven commenced an action for the foreclosure of said chattel mortgage against the Chicago Soap Company and Geo. L. Miller, in which the said property set forth therein was described and designated as personal property and a sale thereof as such was prayed for. The parties defendant in said action defaulted, and thereafter, and on April 27, 1916, a judgment of foreclosure and of the sale of said property as personal property was duly given and made and the said property was thereafter sold thereunder to said Berthold Struven.