Learned v. Welton

California Supreme Court Oct 15, 1870 No. No. 2,549Published

Before: Being, Cbockett, Crockett, Expressed, Khodes, Obockett, Tbis, Tekple, Temple

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Holding. A conveyance of trust property by only one of two acting trustees is insufficient to pass legal title. Consequently, an answer alleging that a plaintiff's title is derived solely from such a defective deed states a valid defense to an action to quiet title.

Issues

Whether a deed executed by only one of two acting trustees is sufficient to pass legal title to trust property.
Whether an answer alleging that a plaintiff's title is based on a deed executed by only one of two trustees is sufficient to withstand a demurrer in an action to quiet title.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“it is clear that the conveyance by one of' the trustees, while the other trustee was acting as such, did not pass the legal title to the premises.”

“The cases cited by the defendants, show that a conveyance under such circumstances is not well executed, unless both trustees unite in the conveyance.”

“The answer shows that he does not hold the legal estate, and the demurrer, therefore, should have been overruled.”

Synopsis

Appeal from tbe District Court of tbe Twelfth District, City and County of San Francisco.

Plaintiff demurred to tbe answer on tbe ground that tbe defence set up was insufficient in law, because tbe deed to Brown, wbicb was set out in tbe answer, was a good and valid deed, and transferred to bim all tbe title and possession of Elizabeth S. Welton and her husband, Merit Welton, to tbe real estate therein named.

Tbe Court below sustained tbe demurrer, and tbe defendants Merit Welton, Lamson Welton and Amy Welton, appealed.

. Tbe other facts are stated in tbe opinion.

It required tbe concurrence of both trustees, joining in tbe execution of tbe deed to make it valid, either as an execution of tbe power, or as a conveyance of tbe legal estate. (Ridgeley v. Johnson, 11 Barb. N. Y. 527; Van Rensselaer v. Akin, 22 Wend. 549; Sinclair v. Jackson, 8 Cow. 553, 583; Wilburn. Almy, 12 How. U. S. 180; Tiff & Bull, on Trusts, 539; Willis on Trustees, 136; Story’s Eq. Jur. Sec. 1280.)

Tbe controversy as between tbe appellants and respondent was passed upon, and adjudicated by this Court in tbe case of Welton v. Palmer, 39 Cal. 456, and is therefore res adjudicada. (Soule and Page v. Dawes, 14 Id. 247.]

Khodes, O. J., delivered the opinion-of the-Court, Wallace, J., apd Sdbague, J., concurring:

Action to quiet title. The answer of Merit Welton, Lamson Welton and Amy Welton alleges that the premises, together with other lands, were conveyed to two trustees, in trust for Elizabeth S. Welton, and that the trustees accepted the trust; that one of the trustees, together with Mrs. Welton and her husband, executed a deed of the premises to George Brown, but that Mrs. Welton did not acknowledge the deed; that the other trustee never executed nor authorized the execution of the deed; that the defendants claim title as the heirs of Mrs. Welton, now deceased; and that the plaintiff derives his claim of title under the deed to George Brown, and in no other manner. The demurrer to the answer was- sustained.

In Welton v. Palmer (39 Cal. 456), we assumed that the' deed to George Brown was void, and this because it was so alleged in the complaint. But whether void or not, it is clear that the conveyance by one of' the trustees, while the other trustee was acting as such, did not pass the legal title to the premises. The cases cited by the defendants, show that a conveyance under such circumstances is not well executed, unless both trustees unite in the conveyance. The basis of the complaint is, that the plaintiff is the owner in fee of the premises. The answer shows that he does not hold the legal estate, and the demurrer, therefore, should have been overruled.

Judgment as to Merit Welton, Lamson Welton and Amy Welton reversed, and cause remanded, with directions to overrule the demurrer to their answer.

Tekple, J., expressed no opinion. Mr. Justice Obockett, being disqualified, did not sit in this case. Taylor v. Welton [No. 2,550]. — Upon the authority of Learned v. Welton [No. 2,549] judgment as to Merit Wei-[351]ton, Lamson Welton and Amy Welton, reversed and canse remanded, with directions to overrule, tbe demurrer to tbeir answer.

Temple, J., expressed no opinion. Mr. Justice Crockett, being disqualified, did not- sit in this case. Butler v. Welton [No. 2,551]. — Upon tbe authority of Learned v. Welton [No. 2,549] tbe judgment as to Merit Welton, Lamson Welton and Amy Welton, reversed and 'cause remanded, witb directions to overrule tbe demurrer to tbe answer,.

Temple, J., expressed no opinion. Mr. Justice Cbockett, being disqualified, did not sit in tbis case.

Learned v. Welton

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