Hanly v. Kelly

Appeal by the plaintiff from a judgment in the Superior Court of the City and County of San Francisco. Hunt, J.

Action to declare and enforce a trust as against the defendants James Kelly and Mary Kelly, his wife. The third amended complaint of the plaintiff sets forth; That on the nineteenth day of March, 1873, at said City and County of San Francisco, in an action in the Nineteenth District Court, the plaintiff recovered a judgment against the defendant, James Kelly, which judgment conclusively established that on or about September, 1865, at said City and County of San Francisco, the plaintiff, through his wife, deposited with said defendant, James Kelly, through the wife of the latter, six hundred dollars, in lawful money of the United States, being money of said plaintiff, which money the said defendant James Kelly personally received, to be held and safely kept by him in trust for said plaintiff until the same should be thereafter demanded of him hy said plaintiff, and upon such demand to be returned and paid over to said plaintiff; that such demand was made by said plaintiff upon said defendant James Kelly, on the twenty-first day of May, 1872; that said defendant James Kelly had never returned or paid over to said plaintiff said sum of money or any part thereof, and that there was then due from said defendant James Kelly to said plaintiff, on account of said trust money and interest thereon, the sum of six hundred and thirty-four dollars and eighty-two cents, together with the sum of seventy-nine dollars and seventy-five cents for said plaintiff's costs, and disbursements in that action. That no part of said trust money, nor of any interest thereon, nor of the above-mentioned costs and disbursements has ever been paid by the said James Kelly to plaintiff. That, whilst said trust money has been so as aforesaid in the hands of the said James Kelly, he, the said James Kelly, has invested the same and its proceeds (with two hundred and seventy-five dollars money of the said James Kelly),in the purchase of a certain lot of land (here follows a description of the land); and that said James Kelly has taken the deed of conveyance of said lot in the sole name of himself, the said James Kelly, which deed has been duly recorded in the Recorder’s office, and is now of record therein; and that since the execution and recording of said deed, he, the said James Kelly, has executed and acknowledged before a Notary Public, so as to entitle the same to be recorded, and has since caused to be recorded in the same Recorder’s office, an instrument of writing, purporting to be a “ declaration of homestead.” That hy the placing of said “ declaration of homestead,” by the said James Kelly, on file in said Recorder’s office, the said defendant Mary Kelly, who was then and is now the wife James Kelly, has become and claims to be interested in said lot of land is a necessary party to this action, but has no interest whatever in said lot, otherwise than under and by virtue of said “declaration of homestead.” That the said James Kelly holds and is in the possession and enjoyment of the said lot of land and improvements thereon. That there is now due from said James Kelly to this plaintiff the whole amount of said trust money, with interest thereon, at the rate of seven per cent, per annum, from the date of said demand, to wit, from said twenty-first day of May, 1872, to the present time, together with said sum of seventy-nine dollars and seventy-five cents, the above-mentioned costs and disbursements. Wherefore, said plaintiff prays that the said James Kelly be, by this honorable Court, adjudged, decreed, and declared to have been from the time of his purchase of said lot of land, and to be now a trustee of such proportion of the title thereof, for the use and benefit of this plaintiff, as said trust money and the interest accrued thereon, bears to the whole purchase money of said lot; and that it be adjudged, decreed, and declared that this plaintiff has an interest in said lot and a lien thereon, to the extent and for the repayment to this plaintiff of the amount of said trust money and all interest now due or which shall hereafter become due thereon, together with said plaintiff’s costs and disbursements aforesaid, and of this action; that said “ declaration of homestead” be adjudged and declared of no force or effect as against this plaintiff and his interest in and lien upon said lot of land, for and on account of said trust money, interest thereon, and costs aforesaid; and that by the order, direction, and decree of this honorable Court, said lot of land, with the improvements thereon, be sold by the Sheriff of said city and county, and the amount of said trust money, together with all interest which shall then be due thereon, at the rate aforesaid; and said plaintiff’s costs and disbursements aforesaid, be thereupon paid by said Sheriff to this plaintiff out of the proceeds of such sale, and that said plaintiff have such further and other remedy and relief in the premises as shall be consistent with law and equity.