Smith v. Smith

Harrison, J. This action was commenced in Tuolumne County, against the defendant, who was then a resident of the county of Merced. After the service of the summons upon the defendant, and at the time of his demurring to the complaint, he filed an affidavit of merits, and demanded, in writing, that the place of trial of the action be changed from Tuolumne County to Merced County, upon the ground that Merced was the proper county for the trial of the action, and supported his motion by an affidavit that at the time of the commencement of the action he was, and had been for many years prior thereto, a resident of the county of Merced. The motion was denied, and the defendant has appealed from the order denying the same.

It is alleged in the complaint that in July, 1876, one D. G-. Smith, under whom the plaintiffs claim, was the owner and in possession of certain real estate in Tuolumne County, and certain estate in Merced County, and certain personal property consisting of upwards of twenty-six thousand sheep, together with horses, wagons, harnesses, and camp equipage, and was at the same time indebted to the defendant in the sum of thirty-one thousand dollars, and to other persons in the further sum of thirty-three thousand dollars; and that “ for the purpose of securing the payment of said indebtedness,” it was agreed between said D. G. Smith and the defendant that said D. G. Smith “ should deed by conveyance absolute on its face, but which in fact should be a mortgage, all his right, title, and interest in and to all of said [574]real and personal property, to the defendant, who was to carry on the business of said D. G. Smith, to wit, that of sheep-raising, and pay from the proceeds of said business all the indebtedness of said D. Gr. Smith, and when said indebtedness had been fully paid and discharged by the defendant, he was to reconvey all of said property, real and personal, and the increase thereof, to said D. G. Smith ”; that, “ in furtherance of and in accordance with said agreement, and with the purpose and intent of complying with its terms and securing the payment of said indebtedness, said D. G. Smith executed and delivered to the defendant conveyances absolute on their face, but which were in fact mortgages conveying all the aforesaid real and personal property to the defendant, and said property was then delivered to the defendant, and that the defendant has ever since been in possession thereof, and has had the use and received the proceeds and increase thereof, for the purpose of complying with the terms of said agreement.”

The complaint further alleges that “ the defendant has received from said property, and from the proceeds and increase thereof, large sums of money which greatly exceed all that was necessary to carry on said business and pay the expenses thereof, and also to pay all the indebtedness of said D. G. Smith”; that the defendant, ever since said conveyance to him, “ has had and now retains the sole and exclusive use, possession, and benefit of all of said property, and of all the proceeds and increase thereof.” Upon this complaint, the plaintiffs pray for a judgment against the defendant, that it be decreed that the absolute conveances aforesaid were and are mortgages, and that the indebtedness which they were given to secure has been fully paid, and the defendant convey said real and personal estate, together with the proceeds and increase thereof, to the plaintiffs, and that the defendant account to the plaintiffs for all of said real estate, and the rents, issues, and profits thereof, and all