White v. Allatt

California Supreme Court Dec 22, 1890 No. No. 13772Published

Before: Gibson

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Holding. A trustee of an express trust who holds notes and a mortgage in their own name for the benefit of an estate may maintain a foreclosure action without joining the beneficiaries as parties. Allegations in a complaint that are immaterial or redundant do not render the pleading fatally ambiguous or uncertain.

Issues

Whether a trustee of an express trust may maintain a foreclosure action without joining the beneficiaries as parties.
Whether a complaint is fatally ambiguous or uncertain due to inconsistent descriptions of the plaintiff's representative capacity.
Whether an averment regarding attorney's fees is necessary to sustain a judgment in a foreclosure action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“By taking the notes and mortgage in his own name, for the benefit of the estate of the decedent above named, he became the trustee of an express trust, and, as such, may maintain this suit, without joining with him the persons for whose benefit”

“The counsel fees stipulated to be paid were not the cause of action, but, like the costs, a mere incident to it, and may be fixed by the chancellor, at his discretion, not exceeding the amount stipulated.”

Synopsis

Foreclosure of Mortgage — Notes Payable to Trustee of Estate— Pleading — Immaterial Allegation — Support of Judgment. — In an action to foreclose a mortgage given to secure the payment of certain promissory notes, where it appears that the notes set out in the complaint were made payable to the mortgagee as trustee of the estate of a deceased person, an averment, in the complaint, that plaintiff is the owner of the notes and mortgage as trustee of the heirs of said decedent, is immaterial and redundant, and must be disregarded; and a judgment in favor of the mortgagee as trustee of the estate of the decedent is sus- ■ tained by the pleadings.

Id. — Parties —Trustee of Express Trust. —Where notes and a mortgage to secure them are taken by a trustee in his own name for the benefit of the estate of a decedent, he becomes the trustee of an express trust, and, as such, may sue to foreclose the mortgage, without joining with him the persons for whose benefit the action is prosecuted.

Id. —Attorney’s Fees —Note not Due — Ambiguity — Construction of Pleading. — It appearing that when the action was commenced one of the notes described in the complaint and secured by the mortgage was not yet due, an averment respecting what are reasonable attorney’s fees for the foreclosure of the mortgage is not ambiguous or uncertain, but the amount demanded must be held to relate to the foreclosure as to the notes due, and not to all of the notes set up in the complaint.

Id. — Reasonable Attorney’s Feb —Pleading —Discretion of Court. — In an action to foreclose a mortgage, where the mortgage stipulates for a reasonable attorney’s fee in ease of foreclosure, an averment as to what would be a reasonable fee is unnecessary, as such fee is a mere incident to the action, and the amount to be fixed is within the discretion, of the court.

Pleading—Demurrer — Ambiguity and Uncertainty.—A demurrer to a complaint, on the ground of ambiguity and uncertainty in the conjunctive, cannot be sustained if the complaint is either ambiguous or uncertain, hut not both.

Gibson, C. This action was brought to foreclose a mortgage. The demurrer to the complaint was overruled, and upon defendants’ failure to answer, judgment was rendered against them. From that judgment they bring this appeal, and claim, — 1. That the demurrer should have been sustained, upon the grounds that the complaint does not state facts sufficient to constitute a cause of action, and that it is ambiguous and uncertain; and 2. That the judgment is not sustained by the pleadings.

1. It is urged that the facts are insufficient, for the reason that the plaintiff sues as trustee for seven designated persons, described as “ heirs at law of B. F. White, deceased,” and there is no allegation that he is a trustee, for any purpose, for any of the beneficiaries, or that the notes in suit were made, in his name, for their benefit, and therefore the persons named as beneficiaries are the real parties in interest, and not the plaintiff.

The complaint alleges that the three notes set out in it were made and delivered to the plaintiff, by the defendants, together with the mortgage in suit to secure their payment, and that the plaintiff is the owner and bolder of the notes and mortgage as trustee for the beneficiaries, “ all the heirs at law of B. F. White, deceased,” while the notes themselves show that they were made to the plaintiff “ as trustee of the estate of B. F. White, deceased.”

These two allegations are said to be inconsistent with each other, because the identity of the plaintiff, as trustee [247]for seven particular persons described as heirs at law of B. F. White, deceased, is different from that of trustee of the estate of the same decedent. But this inconsistency is more apparent than real. It is true that in the latter capacity, if he were trustee of the whole estate, he would not only represent the heirs, but the legatees, devisees, and creditors, if any, as well; while in the first-mentioned capacity, he would simply represent the persons named as beneficiaries. This makes it appear that the first allegation is more extensive in scope than the second, and that it is not repugnant to the latter. The notes sued on are, however, the principal contract, to which the mortgage is but an incident; and as it clearly appears, from the notes themselves, that they were made to the plaintiff for the benefit of u the estate of B. F. White,” deceased, he must be regarded as a trustee for that estate. These facts are material and controlling, in view of which, the averment of ownership of the notes and mortgage as trustee of the heirs of said decedent becomes immaterial and redundant matter, and, as such, must be disregarded.

White v. Allatt

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