Unkel v. Robinson

LORIGAN, J.

The complaint in this action alleged that defendant had, between the months of May and November, 1905, fraudulently procured from plaintiff various sums of money aggregating $4,020, which she had used in purchasing a house and lot in the city of Los Angeles, and that such fraud was not discovered by plaintiff until about November 1, 1905. The prayer was that it be declared that defendant held said real property as a trust for plaintiff for the amount of said $4,020; that said property be sold and that the said amount so fraudulently procured from plaintiff be paid to him from the proceeds of such sale.

A demurrer to the complaint on the ground, among others, that it appeared on the face thereof that the action was barred by the statute of limitations, was sustained, and plaintiff declining to amend, judgment was entered for defendant, from which plaintiff appeals.

The only point involved here is the bar of the statute of limitations. Appellant’s cause of action is based on section 2224 of the Civil Code, which declares that “one who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust or other wrongful act is, unless he has some other and better right thereto, an involuntary trustee of the thing for the benefit of the person who would otherwise have had it.”

[650]

The periods prescribed for the commencement of actions other than those for the recovery of real property (Code Civ. Proc., sec. 335), are as follows: “See. 338. Within three years: ... 4. An action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” The superior court held that the cause of action alleged in the complaint was barred by said subdivision 4 of this section.

The claim of appellant is that the purpose of this action is to establish a constructive trust, and is controlled by section 343 of the said Code of Civil Procedure which provides that “an action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.” True, the appellant is seeking to establish a constructive trust, but such a trust may arise under various circumstances which may embrace no element of fraud in fact, or even technical fraud within the law. Here the constructive trust which appellant endeavors to have established is based on fraud as the substantive cause of action, and how section 343 can apply, and why subdivision 4 of section 338 does not, appellant has not undertaken to point out in his brief. He contents himself by declaring that it is an action to establish a constructive trust, that section 343 applies, and cites a number of cases as sustaining his declaration; eases such as