Mortimer v. Acquisition and Improvement District No. 36

YORK, P. J. The instant action by the State Building and Loan Commissioner in liquidation of the California Mutual Building and Loan Association against the Acquisition and Improvement District No. 36 of San Diego and others, including Howard Claman, sued as Howard Clayman, and the county of San Diego, which was sued as Doe Corporation One, is for the recovery of certain coupons detached from specific bonds and for declaratory relief as to the respective rights of ownership and possession thereof by the parties hereto.

It appears from the complaint that defendant district long prior to the institution of the instant suit had issued bonds under the Acquisition and Improvement Act of 1925, and that a number of these bonds by mesne transfers from the original holders came into the possession and ownership of the California Mutual Building and Loan Association with all coupons attached; that while in the possession of said association, the coupons here involved were detached from the bonds and found their way into the hands of defendant Claman; that subsequently these bonds with all coupons, attached and detached, were sold by the said association back to the Improvement District for 15 cents on the dollar; that because the association was unable to deliver the detached or missing coupons, the district withheld from the entire purchase price of the bonds, the agreed purchase price of said missing coupons, to wit: $1,204.24, and retained that sum awaiting due presentment and surrender of, the coupons and demand for payment by their holder; that said association was taken over in liquidation by the plaintiff State Building and Loan Commissioner on behalf of the State of California, and subsequently a controversy developed between plaintiff and defendant Claman as to who was the rightful owner and possessor of the coupons, whereupon the instant action was brought praying that the court determine the rightful owner of the coupons and that judgment be made declaring and defining the respective rights and interests of the parties in and to the said coupons and the fund of $1,204.24 held by defendant district. The action was defended by the county of San Diego, which answered the complaint admitting that defendant district “now has and holds the sum of $1204.24 awaiting judicial determination of the proper payee.”

Prior to trial, the court denied the motion of the county of San Diego to amend its answer to include as an additional [406]affirmative defense the bar of the statute of limitations. In opposition to said motion, defendant Glaman filed an affidavit in which he averred that the county was estopped from asserting such defense for the reason that relying upon the answer of the county theretofore filed in the action and the allegations contained therein, he had entered into an agreement with the plaintiff whereby he paid the latter $200 for an assignment dated October 17, 1944, of all of plaintiff’s right, title and interest in and to the said coupons.