Cummings v. Cummings

The plaintiff brought this action to quiet his title as against the defendant Frank M. Cummings to 320 acres of land situated in Stanislaus County.

The appeal is by the defendant from the judgment, on the judgment-roll alone, and, therefore, the findings, so far as this record discloses (and, indeed, as must be presumed), contains a full and complete history of the controversy between the parties. From the findings, consequently, the facts herein presented will be extracted, although it is

The complaint is in the usual form of a pleading designed to secure such relief.

The defendant answered, denying the material allegations of the. complaint and also filed a cross-complaint, alleging, among other things, that the plaintiff, on the thirty-first day of May, 1911, executed and delivered to the defendant a grant, bargain and sale deed of conveyance whereby he sold and transferred to the said defendant the property described in the complaint, said deed having been duly recorded in the office of the county recorder of Stanislaus County on the third day of June, 1911.

The plaintiff replied to the cross-complaint, traversing its material averments and alleging in substance: That-the property in dispute, at the time of the execution and delivery of the deed by plaintiff to the defendant, was owned in common by and in possession of the plaintiff, Thomas H. Wolfe and W. J. Hammonds; that upon the acquisition of the ownership of the property by plaintiff, Hammonds, and Wolfe from one H. C. Morris the title thereto was conveyed to plaintiff upon the agreement and understanding that he would, when requested by Hammonds and Wolfe, reconvey to them a two-thirds interest in the property; that plaintiff, reposing great faith and confidence in the defendant, his brother, and believing that he would faithfully execute the trust created in him and relying upon defendant’s promises to reconvey said premises when requested so to do, made conveyance to defendant of the land in question upon the express understanding and agreement that the defendant would hold the same in trust for said Hammonds, Wolfe, and plaintiff in equal proportions and reconvey the same to them upon their request.

The prayer of the answer to the cross-complaint is that the plaintiff and interveners be declared the equal owners of the land in question and that defendant be required to convey the same to them.

Hammonds and Wolfe, having first obtained the consent of the court so to do, filed a joint complaint in intervention. We need not reproduce here the averments of said complaint in intervention, inasmuch as the facts found by the court are substantially in accord with the facts pleaded

Annie E. Cummings, wife of the plaintiff, having first obtained permission from the court to intervene, filed a complaint in intervention, alleging that the property in controversy was acquired during the coverture of herself and the plaintiff; that it was community property; that it was transferred to the defendant by the plaintiff without any consideration; that she did not sign the instrument conveying said property to the defendant and had no knowledge of the purported conveyance by her husband to the defendant until the month of August, 1917.

To the complaint in intervention by Mrs. Cummings the defendant replied, denying the material allegations thereof and pleading laches as a bar to her right to the relief prayed for in her complaint in intervention.

The history of the controversy, as it is to be gleaned from the findings of fact, may be summarily given as follows: That some time prior to the tenth day of June, 1907, the plaintiff and the interveners, Hammonds and Wolfe, jointly entered into negotiations for the purchase of the real property described in the complaint. These negotiations culminated on the third day of August, 1907, by the purchase of said property by the plaintiff and the said interveners. Pending the negotiations for the purchase of the property, an agreement or understanding was had between the plaintiff and Wolfe and Hammonds that said Cummings and Wolfe were to pay for said land and that Hammonds was to conduct and complete said negotiations for the purchase thereof from H.

The court found “that said conveyance was made to said defendant without consideration, in trust for said interveners, W. J. Hammonds and Thomas TL Wolfe, and that said defendant accepted said conveyance tó be held by him in trust as aforesaid; that the plaintiff and defendant are brothers, and at the time of the conveyance of said property by the plaintiff to the defendant occupied the relation of great confidence to each other; that they had other dealings

As to the claim set forth by Mrs. Annie E. Cummings in her complaint in intervention, the court found that, while she did not sign or execute the conveyance of said property by James J. Cummings to Prank M. Cummings, she, nevertheless, had knowledge or the means of acquiring knowledge of said conveyance “and is now estopped from claiming any interest in said property.”

It further appears that all taxes levied against the property down to the date of the filing of the complaint in this action were paid by the plaintiff James J. Cummings and the intervener Annie E. Cummings; that since the institu

The conclusions of law and the judgment harmonize with the findings.

The plaintiff and the intervener, Annie E. Cummings, have not appealed.

The appellant, in supporting his appeal, finds what he conceives to be not only fatal inconsistencies between the pleadings of his adversaries, but like inconsistencies between said pleadings and the findings. As to the pleadings, he emphasizes the fact that, while the complaint alleges that the plaintiff is the owner of all the real property therein described, both the answer of plaintiff to the cross-complaint of defendant and the complaint in intervention of Hammonds and Wolfe allege that plaintiff and interveners were the owners in common of said property. As to the proposition that the findings are not supported by the pleadings just referred to the appellant in his brief declares: “The findings declare both that defendant holds in trust- one-third for plaintiff and two-thirds for Hammonds and Wolfe and that defendant holds in trust two-thirds for Hammonds and Wolfe and one-third in fee for defendant and also finds that the only agreement between plaintiff and Hammonds and Wolfe was that Hammonds would convey two-thirds to plaintiff and Wolfe and also that it was intended that the deed by plaintiff to defendant should grant and said deed did grant to defendant two-thirds in trust for Hammonds and Wolfe and one-third in fee fbr defendant.” It is further contended by appellant that the trust alleged in the pleadings of the plaintiff and interveners, Hammonds and Wolfe, is not the trust found by

[1] The criticisms thus directed against both the pleadings of the adversaries of the defendant and the findings are devoid of legal force. It is obviously wholly immaterial that the plaintiff in his complaint which, as we have seen, was for the quieting of his title to the land in dispute, therein claimed that he was the owner of all the land in controversy, and this would be true even if he had seriously claimed by answer or otherwise throughout the progress of the pleadings subsequent to his complaint that he was the sole owner of all said land. That fact could not have the effect legally of precluding other persons, not made parties defendant to his complaint, from intervening and setting forth any claim or claims they might have to the property. (Code Civ. Proc., sec. 387.) But it is reasonably inferable from all the pleadings that the plaintiff, in instituting the action to quiet title to the land as against the defendant, was not only acting for himself, but also for Ms co-owners of the land, Hammonds and Wolfe. He might have assumed that, having been authorized as an agent of Hammonds and Wolfe to convey the property to some third party as a matter of convenience, and having in the exercise of the authority thus conferred upon him conveyed it to his brother, the defendant herein, he was still authorized to secure a reconveyance of the land from his brother to him through his action to quiet title not only for his own benefit but also for the benefit of Hammonds and Wolfe. But, be that as it may, it is true that the real issues which were finally submitted to the court for decision were made by the plaintiff’s answer to the defendant’s cross-complaint, the two complaints in intervention filed by Hammonds and Wolfe and Mrs. Cummings and the answers thereto by the

[3] But the more serious question is as to the legal nature of the transaction between these parties litigant. Coneededly, the conveyance of the- property by the plaintiff to the defendant upon the conditions stated involved an

[4] It is contended by the appellant, however, that, assuming that the findings sufficiently show that a fiduciary or confidential relation existed between the plaintiff and the defendant, still it is not alleged in any of the pleadings of the plaintiff and the interveners that any such a relation existed. It may be conceded that there appears to be some force in this contention. The answer of the plaintiff to the defendant’s cross-complaint does not state facts clearly disclosing that a fiduciary or confidential relation existed prior to and at the time of the conveyance of the property to the defendant between the latter and the plaintiff. The complaint declares, as we have seen, that

[5] But it might be contended that, conceding that it is made to appear that such a relation existed between the plaintiff and the defendant, there is no showing of any such relation between the defendant and Hammonds and Wolfe. The answer to this contention, though, would be that the plaintiff, in investing the defendant with the trust, was, under express authority conferred by Hammonds and Wolfe, acting as the latter’s agent, and .that the very essence of the terms of the trust agreement was that the defendant would, upon demand made by the beneficiaries of the trust, reconvey the property, not alone to plaintiff, but also to Hammonds and Wolfe. In other words, the trust was vested in and accepted by the defendant upon the express promise upon his part that he would execute it according

In that case one Elizabeth L. Cook, being seriously ill and in great fear and peril of death and believing that she was about to die, conveyed to Tripp, the appellant in said case, certain of her real property, with oral instructions that, in the event of her death, he dispose of said property in certain designated ways and to certain designated individuals. The death of the grantor occurred shortly after the execution of the conveyance, and thereafter action was brought by one of the heirs of the deceased to set aside said conveyance and assignments of certain personal property and to have it declared that the defendant held the lands which were the subject of the conveyance and the personal property assigned in trust for the plaintiff and her co-heirs or for the estate of the deceased. The complaint in said action did not proceed upon the theory that fraud characterized the transaction culminating in the execution of the conveyance and the assignments by the deceased. It was contended in that case, as here, that since the trust was created orally the same could not be enforced, under the terms of section 852 of the Civil Code, supra. But the supreme court held with the plaintiff; and, as what is said therein has cogent -application to the facts of this case, we quote from the opinion therein in extenso as follows:

“The position of the appellant on this point is, that as there was no fraud in the procurement of the conveyances, the plaintiff can have no relief. But, assuming the absence of fraud (though, in view of the defendant’s relation to the grantor as her agent, this can hardly be assumed), it does not follow that equity cannot afford relief. The deeds, it is found, were made to the defendant simply as her agent,

and were therefore taken by him in trust for her; and though the trust was not expressed in writing, equity will not permit the defendant to convert the property to his own use, contrary to the intention of the parties and to the confidence reposed in him. ‘The doctrine is both novel and startling which restricts, in matters of fraud, its jurisdiction over the operation of written instruments to those cases where the fraud has been committed in their creation. If maintained, it will sweep away its heretofore admitted jurisdiction in an infinite variety of cases, of almost daily occurrence, where the fraud alleged consists in the use of instruments entered into upon a mutual confidence between the parties. Fraud vn their use is as much a ground for the interposition of equity a-s fraud in their creation. (Italics ours.) There is no distinction in the principle upon which the jurisdiction is asserted in the two cases. In both there is the same abuse of confidence, and from both the same injury results. ’ (Pierce v. Robinson, 13 Cal. 127 .) In the case cited the instrument involved was a deed absolute in its terms, shown by parol evidence to have been intended as a mortgage. But the principle applies equally to other cases; as, for example, to the cases involved in Hultz v. Wright, 16 Serg. & R. 345 [ 16 Am. Dec. 575 ], and Oliver v. Oliver, 4 Rawle, 144 [ 26 Am. Dec. 123 ] (cited in the principal case), and in Thompson v. White, 1 Dali. 447 [ 1 Am Dec. 252 , 1 L. Ed. 206 ]. In the last—which is a very instructive case—-the subject is fully discussed. Another example is that of the purchase of an outstanding title by a tenant in common, considered in Mandeville v. Solomon, 33 Cal. 43 , where it is said: ‘Where the circumstances of a transaction are such that the person who takes the title to property cannot be permitted to enjoy it, in whole or in part, without necessarily violating some principle of equity, a constructive trust will be raised for the party entitled in equity to its beneficial enjoyment, ’■—which is the same principle that, at law, governs the action for money had and received. This principle has not always been consistently applied by the courts; but in this state it has been held applicable to cases where there were fiduciary relations between the parties, as in this case (Alaniz v. Casenave, 91 Cal. 46 [ 27 Pac. 521 ]; Brison v. Brison, 75 Cal. 525 [ 7 Am. St. Rep. 189 , 17 Pac. 689 ]; Feeney v. Howard, 79 Cal. 525 [ 12 Am. St. Rep. 162 , 4 L. R. A. 826 ,

21 Pac. 984 ]); and the defendant comes directly within this restricted application of the doctrine. There is also another principle upon which the rule may be sustained, which is, that in such eases generally, and in this case especially, there is an entire failure of consideration. (Italics ours.) (Civ. Code, see. 1689, subd. 2 et seq.; Knight v. Tripp, 121 Cal. 674 , 681 [ 54 Pac. 267 ].)"

In Oliver v. Oliver, cited in the above case, it is said, referring generally to such transactions as are involved in this litigation: “When the fairness of the transaction is impeached, it is immaterial whether the party intended a fraud, at the time of the contract, or whether the fraud consists in the fraudulent use of the instrument.” Again, in the same case, referring to Thompson v. White, 1 Dall. 447 [ 1 Am. Dec. 252 , 1 L. Ed. 206 ], the court said: “The fraud consisted in Lawrence Salter obtaining conveyance of his wife’s estate under a solemn promise to make a settlement which he afterward neglected to do. It has never been doubted that he entered into the contract in good faith. In his last sickness he expressed uneasiness at leaving no will, because, as had" always been supposed, he thereby intended to comply with his promise. The fraud consisted in the fraudulent use which was attempted to-he made of the deed, in the exclusion under the general rule of law, of Mary Thompson, the sister of Mr. Salter, and to whom Lawrence Salter promised to assure the property.” (See, also, Lyon v. Huntingdon Bank, 14 Serg. & R. 283 .)

As stated above, it is conceived that upon the principles enunciated by the foregoing authorities, the proposition submitted here may justly be solved and determined. In truth, the decree in the case, at bar is amply supported by findings disclosing a case which should receive the positive sanction of a court of equity. Indeed, if it were true that there was no principle in equity upon which the decree here could be sustained under the findings supporting it, a handle would thus be furnished for a most regrettable commentary upon that branch of our jurisprudence which, out of consideration for the impotency of the stubborn or inelastic rules of law so to extend their remedial power, has justly given wider range than otherwise it would have to the application of the salutary maxim that “for every wrong • there is a remedy.”

The judgment is affirmed.

Burnett, J., and Finch, P. J., concurred.