Burt v. Wilson

By the Court,

Shafter, J. This action was brought by Walker, in his lifetime, to compel the execution of a trust, or, alternatively, to enforce a vendor’s lien.

The complaint alleges that on or about the 6th of January, 1862, Walker and J. C. Wilson were partners in business, and were about closing up their partnership affairs; that the firm was embarrassed with debts and that some of the creditors had commenced attachment suits against the firm ; that by-reason of the dissipated habits of Walker, and with a view to a more speedy liquidation of their debts, Walker executed to Wilson a deed, absolute on its face and expressing a consideration of seventeen thousand dollars, of a certain ranch, the same being the individual property of Walker; that the deed was, in fact,, a trust, and was made solely for the purpose of enabling Wilson to raise money, by mortgaging the premises, to pay off the debts of the firm; and that, on the day of the execution of the deed, he borrowed several large sums for the benefit of the firm and secured the payment thereof by mortgages on the premises so conveyed to him by Walker. That Walker also, and by the same deed, conveyed to Wilson his interest in certain ditches belonging to the firm, for the purpose aforesaid, and that said ditches were included in the said mortgages. That the possession of the. ranch remained with Walker after the deed, as before, and that he participated as before in the management of the ditch property. That Wilson, in his lifetime, never denied the trust; but, on the contrary, always admitted it. That the defendant, E. P. Wilson, his administrator and one of his heirs at law, admitted the trust in his answer first filed, but which he after-wards withdrew by the Court’s leave. That the grantor and [637]grantee were intimate friends, and that the deed was given under a misapprehension as. to its legal effect. Under this aspect of the complaint the plaintiff prays that the administrator may be decreed to execute the trust by reconveying the property, subject to the aforesaid mortgages.

In a supplemental complaint, filed by leave of the Court and by the consent of the defendants, it is alleged as a further cause of action, that the aforesaid conveyance was in pursuance of a sale for the sum of seventeen thousand dollars, expressed in the deed; that the money is due and unpaid; that a claim for that amount was presented in due form to Wilson’s administrator for allowance, June 21st, 1864, together with the evidence in support of a vendor’s lien on the property embraced in the deed, and that the claim was rejected by the administrator on that day. On these allegations the plaintiff claims judgment for the seventeen thousand dollars and interest thereon from the date óf the deed, and that the land conveyed may be sold and the avails applied to the liquidation of the debt and for other relief.