Neustadt v. Skernswell

WOOD (Fred B.), J. The main question is whether or not this action, commenced October 31, 1950, is barred by the statute of limitations.*

Plaintiff seeks his alleged share of a sum of money which represents the proceeds of the sale of real property which stood in the name of defendant Skernswell but in which plaintiff claims to have had a one-half interest.

The sale was conducted pursuant to an interlocutory decree in a suit for the partition of said real property which plaintiff brought against defendant Skernswell in 1940. After said sale, the interlocutory decree -was reversed upon appeal. (Neusted v. Skernswell (May 29, 1945), 69 Cal.App.2d 361 [159 P.2d 49]. The remittitur went down July 31, 1945.) Later, in September, 1949, the partition suit was dismissed for lack of prosecution, the dismissal being affirmed upon appeal. (Neustadt v. Skernswell (August 31, 1950), 99 Cal.App.2d 293 [221 P.2d 694].)

The trial court has correctly found that the cause of action pleaded by the plaintiff herein is predicated upon the cause of action set forth in the partition suit. Plaintiff does not challenge that finding.

[165]Accordingly, we start with the premise that plaintiff’s cause of action, if any he has, arose at least as early as the date of the filing of the partition suit, May 29, 1940, 10 years and five months prior to the filing of the present action. Plaintiff has advanced four theories for the tolling of the statute.

The referee and receiver appointed by the court to conduct the sale deposited the down payment with a bank, in his name as referee and receiver. The remainder of the purchase price was paid in escrow to a title company, which still holds it.

As to the latter amount, plaintiff claims section 348 of the Code of Civil Procedure applies, which declares there is no limitation to an action “brought to recover money or other property deposited with any bank, banker, trust company, building and. loan association, or savings and loan society.” But this is not such an action, even if we assume that the title company in question is the kind of financial institution which comes within the purview of section 348. This is an action to declare a resulting trust or for the partitioning of funds held by the title company as a mere stakeholder. It is not an action to recover money or other property deposited with a bank, within the meaning of section 348. (See Bell v. Bank of California, 153 Cal. 234, 242 [94 P. 889].) Indeed, the title company is not even a party to this action.