Edward v. Kierulff

MELVIN, J.

This action was brought against the exeeutors of the will of John Nightingale, deceased. The heirs of said Nightingale were also made parties defendant. The original complaint was filed March 12, 1913. In due course an amended complaint was filed. Defendants demurred to

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this pleading and their demurrer was sustained, and plaintiff refusing to amend within the time allowed by the court, judgment was accordingly entered in favor of defendants. The appeal is from this judgment.

By the amended complaint it is alleged that John Nightingale died about March 20, 1912, and the usual formal matters relating to the probate of the will and the proceedings thereunder are set forth. It is alleged that prior to 1870 plaintiff was the owner of certain lands in the city and county of San Francisco, among which were the parcels designated as “blocks Nos. 991 and 992 of Outside Lands;” that for certain reasons title to plaintiff’s property was held for him by a trustee who was one of his kinsmen; that Nightingale and others owned similar outside lands separately and as tenants in common; and that prior to. the year 1870, such owners, including plaintiff and Mr. Nightingale, agreed to a partition of their properties by lot so that segregated title in fee might be placed by proper conveyances in the names of the respective owners according to their interests. There are further allegations to the effect that John Nightingale, knowing that plaintiff was entitled to receive a conveyance on demand, in fee, of an undivided half interest in blocks Nos. 991 and 992, requested plaintiff to convey said interest to said Nightingale; that on December 17, 1870, plaintiff made, executed, and delivered his deed of conveyance as requested, and that said conveyance was made pursuant to an agreement which was later reduced to writing as follows:

“San Francisco, Dec. 19, 1872.

“Mr. Edward Ewald.

“The deed received by me from you dated 17 December, 1870, to the one undivided half of blocks numbers 991 and 992 of Outside Lands is given in trust to hold for me and for the object of partition, and when such partition is had you will be entitled to receive from me in an equal amount of land segregated and of equal value.