Becsey v. California Title Insurance & Trust Co.

WILBUR, C. J.

This is an action to recover the sum of $995. Plaintiff appeals from a judgment of nonsuit.

Plaintiff in this action alleged that her predecessor in' interest, Patrick Kyne, had deposited with the defendant $995 in trust to be invested in certain real estate in the city of San Francisco; that Patrick Kyne had demanded of the defendant that it secure for him a conveyance of the real property; that the defendant refused to do so and that the defendant without the knowledge or consent of the plaintiff had itself purchased the real property in question and sold the same to other parties without plaintiff’s knowledge or consent. The defendant denied the allegations of plaintiff’s complaint,.

It developed on the trial that instead of the plaintiff’s predecessor having entrusted the defendant with $995 with which to purchase for him certain real estate, he had made a contract himself with the Sunnyside Land Company for the purchase of two lots, one for $600 and the other for $400, in a tract of land the legal title to which had been conveyed by the Sunnyside Land Company to the defendant Trust Company prior to its contract with Patrick Kyne. The defendant held the property under a trust agreement by which all the moneys received from the sale of the land in question were to be paid to the mortgagee of the property until the mortgage was satisfied. Deeds were to be made by the defendant Trust Company to the purchasers when a certain percentage of the purchase price fixed by the Sunny-side Land Company had been paid, and then only upon condition that the mortgage covering that portion of the property had been released. The purchaser, Patrick Kyne, paid the entire purchase price of one lot and a considerable portion of the purchase price of the other lot so purchased by him from the Sunnyside Land Company. This money was paid in part to the Sunnyside Land Company and in part to the defendant. Whether paid to one or the other, it was paid in pursuance of the contract for the purchase of the land, and by the agreement between the Sunnyside

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Land Company and the defendant was to be applied to the payment of the first mortgage upon the land. It is obvious that the moneys paid to the defendant were paid to it and accepted by it in its capacity as agent of the vendor, the Sunnyside Land Company. Inasmuch as the money received by the defendant from Patrick Kyne was paid to it as the agent of the vendor of the land, it is clear that the plaintiff cannot recover the money from the agent, but that her recourse is against the vendor to whom the money was thus paid. It is clear that as soon as the money was paid by Patrick Kyne to the defendant for the Sunnyside Land Company or in pursuance of the relationship created between the Sunnyside Land Company and the defendant by the trust agreement under which the defendant held the title, the money immediately became the property of the Sunnyside Land Company to be applied in accordance with the agreement of that company contained in the trust agreement between it and the defendant and the other parties participating in the trust agreement. Assuming that the plaintiff made a