Isakoolian v. Issacoulian

McMURRAY, J. pro tem.* This is an appeal from a judgment of dismissal entered after an order sustaining a demurrer to a second amended complaint without leave to amend. The basis of the order sustaining demurrer was that the complaint failed to state a cause of action, as laches appeared on the face of the complaint. The second amended complaint, filed August 26, 1965, sought to establish a constructive trust on one-half of the proceeds from the sale of a one-half interest in certain real property.

The complaint alleges that in 3 946 plaintiff gave a one-half interest in his cleaning business to his brother, Deran Issacoulian; that pursuant to expansion plans plaintiff borrowed $4,000 to purchase the real property here involved after a failure to obtain promised money had occurred; that title to the real property was placed in the joint names of plaintiff and Deran; that a wholesale cleaning plant and business was established on the real property; that in 1947 Deran married defendant, Repega E. Issacoulian, Harant Issacoulian’s daughter; that about August 1947 certain creditors who had loaned money for expansion after Harant failed to do so, demanded repayment; that on or about August 1947, a third partner, Kalam, who had been taken into the business under an oral agreement, insisted on withdrawing from the partnership and demanded the return of his investment; that Deran [227]thereafter represented to plaintiff that Harant would loan $35,000 to the business to meet the demands of creditors and Kalam, but only upon condition that Deran was the sole owner of said business and said real property; that Deran further represented to plaintiff that if plaintiff would consent thereto, that even though the title to the real property would stand in the name of Deran on the record, nevertheless they would be equal owners of the real property after the repayment of the $35,000 to Harant; that in reliance upon said representations plaintiff transferred to Deran his interest in the wholesale business and also his interest in the real property; that thereafter Harant loaned the money as promised, the creditors were paid, and Kalam was bought out and his interest in the business went to Deran; that about April 1949 Deran sold a one-half interest in the real property to one Sterios for approximately $35,000, it being the distinct understanding that the remaining balance of approximately $30,000 owing to Harant would be paid therefrom in full, which was done; that on many occasions Deran reaffirmed that plaintiff was owner of one-half of his one-half interest in the real property; that during all of the times mentioned in the complaint plaintiff was continuously in joint possession of said real property with Deran; that at all times mentioned in the complaint plaintiff’s relations with Deran remained on a highly cordial basis and Deran continued at all times to acknowledge the trust; that on May 11, 1964, Deran died and defendant was appointed executrix of his will; that defendant sold the one-half interest in the real property, one-half of which at all times belonged to plaintiff and which at all times was so acknowledged by Deran; that the proceeds of the sale of this one-half interest totaled $42,000, all of which was distributed to defendant; that plaintiff demanded one-half of the proceeds, $21,000, but defendant refused and continues to refuse to deliver the amount demanded.