Hannah v. Canty

The purpose of this action was to declare a trust in certain lands in favor of plaintiff and incidentally that an accounting should be had between the parties to the action. The nature of the litigation is discussed in the opinion of the district court of appeal in Hannah v. Canty, 1 Cal.App. 225, [81 P. 1035], given upon the sustaining of the order of the lower court denying a motion for change of place of trial. At the trial plaintiff was successful, and defendants appeal from the judgment and from an order denying their motion to set aside and vacate said judgment.

The court found that in 1890 plaintiff and D.J. Canty entered into an agreement whereby Hannah undertook to find, examine, and select certain valuable timber lands and Canty promised to furnish the purchase price for such properties together with the necessary expenses of acquiring title to them; that there was also a mutual agreement that after deducting the purchase price, and amounts paid for expenses and for taxes on the land by Canty, together with interest at an agreed rate, the sums realized from the sales or issues of the property should be equally divided between the plaintiff and D.J. Canty; that in pursuance of this agreement Hannah bought certain valuable timber lands in Tulare County, D.J. Canty advancing the purchase price and necessary expenses; that title to this property was taken in the name of D.J. Canty; and that on January 2, 1892, D.J. Canty executed and delivered to plaintiff a certain instrument in writing which is set out in full in the findings. By this writing Canty acknowledged and declared that J.A. Hannah was entitled to one-half of the selling price, rents, issues, and profits of 701.12 acres of land in Tulare County, which is particularly described, after first deducting from said selling price, rents, issues, profits, and proceeds, together with interest at twelve per cent per annum, certain enumerated sums advanced at given dates and all taxes on said lands paid by Canty, with interest at the same rate. This instrument, as the court found, was never acknowledged so as to entitle it to be recorded. The writing, according *Page 765 to the findings, truly described the land purchased under the original agreement and correctly specified the sums furnished by Canty thereunder. The court also found as follows:

"That afterwards the said D.J. Canty executed a deed purporting to convey said lands to his brother, J.M. Canty, and thereafter the said J.M. Canty, by said D.J. Canty as his attorney in fact, executed a deed purporting to convey said lands to the defendant, Laura A. Canty.

"That whatever interest, if any, was acquired by said J.M. Canty, and said Laura A. Canty, or either of them, under the said deeds or either of them, was acquired without valuable consideration, and with full notice and knowledge of the said rights of plaintiff in the said lands."