Todhunter v. Armstrong

BELCHER, C. Plaintiffs commenced this action in January, 1896, to recover possession of a tract of land in Glenn county, called the “Willows Rancho,” alleging that they were the owners of the said land in fee, and entitled to the possession thereof, and that defendant in September, 1895, entered into and took possession of the said land without any right thereto, and without the consent of plaintiffs, and had wrongfully withheld the possession thereof from the plaintiffs. Defendant answered, and filed a lengthy cross-complaint, in which he set up facts which it is claimed entitled him to retain possession of the said property. The following facts, among others, are alleged in the cross-complaint: Long before February 1891, and up to the time of his death, in January, 1893, W. B. Todhunter, the father of plaintiffs, was the owner of the land described in the complaint, and other lands situate in Yolo and Sacramento counties, and also a large amount of personal property. He had employed defendant for many years, and there existed between them great confidence and trust. He resided in Yolo county, and in February, 1891, entered into an agreement with defendant, by which it was mutually agreed that defendant should remove to and take full charge of the said Willows rancho. He was to take with him certain horses, harness, wagons and farming implements, of the value of $535, which he then owned, and was to use the same, together with such implements and teams as Todhunter should furnish, in the cultivation and improvement of said land; to employ all necessary help, and furnish board for the men employed; to purchase such machinery and articles as might be needed, from time to time, on the rancho; and to sell the surplus produce, and [29]out of the proceeds defray expenses, and upon final settlement turn over the residue to Todhunter or his heirs. For his services and the use of his said property defendant was to retain out of the proceeds of the sales for himself $50 per month, and fifty cents a day for the board of each person employed on the ranch and boarded by him, and upon final settlement was to be paid $535, the value of the property furnished by him, and a small sum due from Todhunter to him at the time the agreement was made. No time was fixed when said venture should terminate, but it was understood and mutually agreed that defendant was to remain in possession of said property and have a lien thereon until he was settled with and paid. Under this agreement the defendant, on February 20, 1891, took possession of the said property, and continued in possession thereof until Todhunter died; and after his death the agreement was maintained by his heirs and representatives until this suit was brought. Both Todhunter and defendant performed all the conditions of the said agreement to be by them respectively performed, but no complete accounting or settlement was had between them prior to his death, or has since been had between the representatives of his. estate and defendant. In September, 1893, the plaintiff George T. Todhunter was duly appointed by the superior court of Yolo county administrator with the will annexed of his father’s estate; and in June, 1894, as such administrator, he filed in court an account of his administration, to which he attached a statement of the account of the defendant, theretofore rendered to him for allowance and payment, and asked to have the same heard and considered by the court in connection with his said account. Thereafter the matter came on regularly for trial before the court, and was submitted for decision, and “the court duly made and filed its decision, whereby there was found to be due and owing from the estate to the said Armstrong the sum of $1,732 for transactions had under said agreement between” certain dates named, and no part of this sum had been paid. In September, 1895, George F. Todhunter, as such administrator, procured and induced the court to make and enter of record its decree and judgment, distributing the estate of said decedent to his heirs and devisees, and discharging said administrator. The distribution was made in accordance with a written agreement made and entered into by all the