Clausen v. Meister

De Haven, J. The court below sustained the demurrer to the complaint in this action, and thereupon rendered judgment in favor of defendants. The plaintiff appeals, and the question for decision is, whether the ruling of the court upon the demurrer was correct.

The material facts shown by the complaint are: On March 1, 1882, plaintiff was induced by representations of the defendant Fredericka Meister, to the effect that [556]she was the owner of a certain unencumbered piece of land in Solano County, to loan her four thousand dollars upon her note secured by a mortgage upon said land, which note and mortgage are fully set out. It is further alleged that these representations were false, and made in the presence and with the approval of the other defendants; that the land was at that time, and still is, part of the estate of one Millard Meister, deceased, and was not only subject to a prior mortgage of four thousand five hundred dollars, but also to the payment of the debts of said estate and expenses of administration; and the said defendant Fredericka Meister was and is entitled upon the settlement and distribution of said estate to only one fourth thereof, and the other defendants to the remaining three fourths. At the date of the execution of plaintiff’s note and mortgage, the defendant Fredericka Meister was the executrix of said estate, and there had been presented and approved as a claim against said estate a certain note held by one Margaret Bolle for the sum of four thousand dollars and interest, and the said defendant Fredericka Meister, as executrix of said estate, paid that claim with the money loaned to her by plaintiff. It is further alleged that the plaintiff did not discover the fraud practiced upon him, in inducing him to make said loan upon the security of the note and mortgage of the defendant Fredericka Meister, until within three years before the commencement of this action. The plaintiff further alleged that, upon discovery of the falsity of the representations by which he was induced to loan his money, he informed the defendants of the fact, “ and offered said note and mortgage given him by Fredericka Meister, herein set forth, for cancellation, and requested them to subrogate him in place of Margaret Bolle, whose claim against the estate of said Millard Meister” had been paid with plaintiff’s money, “or to give plaintiff a new note secured by their interest as heirs to the estate of Millard Meister; yet they refused, and still refuse, to do so.” The complaint also states “that said note and mortgage herein set forth are worth[557]