Larue v. Friedman

Headnote

When Court of Equity wild Enjoin Pboceedings in Pbobate Coubt.— When the administrator of an estate, and other persons, enter into a conspiracy, and institute proceedings in a Probate Court to procure the sale of the property of the estate for their own benefit, upon fraudulent claims allowed by the administrator, a Court of Equity has jurisdiction to arrest the proceedings in the Probate Court, by injunction.

Idem.—In such case, if the proceedings are regular on their face, and the Probate Court has jurisdiction, the relief granted will be confined to an injunction, and the order of the Probate Court will not be set aside and annulled.

Appeal from the District Court, Third Judicial District, County of Alameda.

The complaint averred that James B. Larue died at the County of Alameda, on the 7th day of January, 1872, leaving a will wherein the plaintiffs were named executrix, and executors; that the will was, on the 27th of January, 1872, admitted to probate, and letters testamentary were issued to the plaintiffs; that the testator, at the time of his death, and he and his grantors for more than ten years prior thereto, had owned and been in the possession of block 148 in the town of Brooklyn, and a tract of one hundred and sixty acres also in Brooklyn; that one John C. McLemore, at one time in his life, claimed to have some parol agreement, by which he claimed to have some interest in said lands, as tenant in common or otherwise; that whatever interest McLemore might have had, had been vested in Larue long prior to McLemore’s death;’that McLemore died in the State of Tennessee, about the month of February, 1864, intestate, leaving no heirs, except John C. McLemore, Willie W. McLemore, Mary A. Walker, Robert B. Hays, and Josephine G. Hays; that, in June, 1870, all of said heirs executed to one Benjamin L. Jones a full power of

attorney, whereby they authorized him to settle and adjust all matters connected with the estate of said McLemore, deceased, to sell and convey all of said estate, and settle and adjust and pay and discharge all claims against the same; that, by virtue of said power, Jones sold and conveyed to James B. Larue, in his life time, all the right and title of the heirs of McLemore, in and to said property, for which Larue paid him the sum of thirty-five hundred dollars; that Jones, when he made the sale, undertook and promised for himself and the heirs, that if Larue would pay said sum for the title of the heirs whatever it might be; that out of the proceeds of the sale, and such other sales as might be made of the interests of the heirs, he, Jones, for the heirs, would pay all claims against the estate of McLemore, deceased, so that the liens of the creditors of McLemore on the land would be extinguished, and the title of the heirs vest in Larue; that Jones paid certain claims against the estate of McLemore at less than their face, the creditors accepting the sums paid in full satisfaction, and the claims were thereby extinguished; that Jones, after such payment, instead of canceling the claims, with, the fraudulent intent of enforcing a second payment, caused the claims to be assigned to himself, and thereafter assigned the same to the defendant, Friedman; that Friedman had full knowledge of all the facts, and confederated with Jones to enforce a second payment from Larue, and that Friedman paid no consideration for the assignment; that in December, 1870, letters of administration were issued out .of the Probate Court of San Francisco to defendant Benjamin, who qualified and entered upon the discharge of the duties of his trust; that Benjamin advertised for creditors to present their claims, and the only claims presented were those thus assigned to Friedman, and a certain other claim of Friedman for $28,-308 31, which had no foundation in fact and never existed, and was founded on the following facts: That in 1853, said Friedman purchased from M. G. Vallejo, his interest in certain lands for the agreed price of $13,000, paying $5,000 cash, his promissory note for $1,500, the remaining $6,500

to be paid upon certain contingencies then agreed upon; that Vallejo made a. conveyance to Friedman, and it was agreed verbally between Friedman and McLemore, that, if McLemore should refund to Friedman one half' said purchase-money, Friedman would convey to him said title to one half said property; that afterwards, in December, 1853, Friedman and McLemore entered into a written agreement, reciting above verbal agreement, and further providing that McLemore would pay said $6,500, after the happening of the contingencies in the first agreement set forth, and after the payment of the said sum of $13,000 by Friedman to Vallejo, and that Friedman would retain the title to the property until the payment by McLemore, and then convey one half to McLemore; that in May, 1854, Friedman gave Vallejo his promissory note for $7,148, payable on the 1st of June, 1855, in satisfaction of said conditional obligation for $6,500, and the conditional obligation was surrendered, and Friedman and McLemore then again agreed that Friedman would convey to McLemore one half of said property upon payment of said note by McLemore, when it fell due; that in June, 1854, Friedman and McLemore made another agreement in writing, whereby McLemore undertook to pay the said note when it should fall due, and Friedman agreed to hold the title to the property, and convey one half thereof to McLemore if McLemore made the payment, but if he did not, Friedman was to sell the property as in case of mortgage, and pursue such other legal remedy as might secure the payment of the note by McLemore; that in August, 1856, the note remaining unpaid, and Friedman retaining what title he had received from Vallejo, reconveyed to Vallejo said title to three fourths of said property, in full payment of said note, and that neither Vallejo nor Friedman ever had or acquired any title to the land, and Friedman never conveyed or tendered any conveyance of any portion of the land to McLemore, and McLemore never promised in writing to purchase any portion of the property.

The complaint then averred that defendant, Benjamin, colluding with Friedman and Jones, to defraud the plaint

iffs, had allowed said claims as claims against the estate of McLemore, and the allowance had been approved by the Probate Judge; that to procure money to pay the claims, Benjamin had procured from the Probate Court of San Francisco, an order to sell one third of the parcel of land first above described, and the whole of the other parcel; that under the order, Benjamin, on the 30th of December, 1871, as administrator, sold to Friedman the title of Mc-Lemore in the property, whereby the plaintiffs’ title was clouded; that the plaintiffs were not parties to the proceedings in the Probate Court, and had no knowledge of the proceedings until after the sale. There was a prayer that Benjamin be enjoined from making a conveyance, and that the claims be declared fraudulent, and no lien on the property. The defendants demurred to the complaint, and moved to strike out portions of it. The motion was denied, and the demurrer was overruled, and the defendants failing to answer, judgment was rendered against them by default, and they appealed.

The other facts are stated in the opinion.