South San Bernardino Land & Improvement Co. v. San Bernardino National Bank

[246]

GRAY, C.

This is an action to enforce a trust and compel a conveyance. The plaintiff appeals from the judgment and from an order denying a new trial.

1. The substance of the complaint is that one Rosenthal and seven others bought certain lots of the rancho of San Bernardino, said Rosenthal and five others paying each one-tenth, and the other two each paying two-tenths of the purchase price of said lots. That the eight persons were to have proportionate interests in the land purchased equal to the amount paid by each of them. That they subsequently received a deed to the lots, xvhich deed failed to designate the interest conveyed to each of the grantees. That thereafter all the grantees named in said deed formed the corporation plaintiff, and all except Ros'enthal conveyed all their interest in the property to the plaintiff. That .Rosenthal conveyed an undivided one-tenth of said property to one Boggs, who subsequently conveyed the same to plaintiff. That thereafter defendant herein, in a suit against said Rosenthal and another, seized, sold, and bought in under execution all the right, title, and interest of said Rosenthal in and to said property and obtained a sheriff’s deed therefor. That defendant purchased said property with notice of plaintiff’s rights therein. That plaintiff had demanded a conveyance of defendant, which defendant had refused. Plaintiff prays that defendant be declared a trustee of the legal title for the benefit of plaintiff, and that defendant be compelled to convey to plaintiff.

2.

The first question to be determined is that raised by a general demurrer to the complaint: Does the complaint state a cause of action?

It appears from the facts set forth in the complaint, and recited above, that while Rosenthal paid but one-tenth of the purchase price of the property, there was conveyed to him by the deed an undivided one-eighth of said property. Having thereafter conveyed to the plaintiff corporation a one-tenth interest in the property, there -was still left some sort of title in him to an undivided one-fortieth of said property, and to this one-fortieth the defendant has succeeded. The question is, Do the facts stated in the complaint show that defendant holds this one-fortieth interest in trust for plaintiff? If this question is answered in the affirmative, then the complaint states a cause of action.