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District Court of Appeal, Second District, Division 2, California.


Civ. 13384.

Decided: November 18, 1941

William Ellis Lady, of Los Angeles, for appellant. E. L. Overholt, of Los Angeles, for respondent Seib. Mier & Schaper, of Los Angeles, in pro. per.

Plaintiff appeals from a judgment of dismissal following order sustaining demurrer to third amended complaint without leave to amend.

In substance the third amended complaint alleges the following in the first count: One Elizabeth J. Herbst, now deceased, owned a house and lot in Los Angeles, and in January, 1931, executed a deed naming plaintiff as grantee and irrevocably delivered it to one Mitchell, who as notary had taken her acknowledgment of it, with instructions to hold it without recording and upon her death to deliver it to plaintiff. Plaintiff was alleged to have been an acquaintance of Mrs. Herbst who had “rendered and performed acts and deeds for her”. Mrs. Herbst died in October, 1932, leaving a will naming Mitchell as executor. The will was admitted to probate, he was appointed executor and acted as such until he died in August of 1936. Mitchell did not deliver the deed to plaintiff but treated it as property of the estate, collecting and depositing to the credit of the estate the sum of $1,632.29. In December, 1936, defendant Seib, a niece of Mrs. Herbst, was appointed as administratrix with will annexed of the Herbst estate and continued as such until August, 1939. She took over the real property and the past revenue therefrom and collected current income amounting to $957.58 up to the time when she conveyed the property to one Zillotto for a consideration of $2,400, making a total of $4,989.79 so received by Seib and out of which she paid the other two defendants, attorneys Mier and Schaper, some unknown amount in excess of $2,000. It is alleged that this plaintiff's attorney, while going through Mitchell's papers in June of 1939, discovered the deed and contacted plaintiff, who in August, 1939, demanded of defendants the money derived from the property. He proceeds upon the theory that the property had been held by Mitchell and that it is now held by the defendants as trustees for plaintiff, and that they refused to comply with such demand. The second cause of action is merely a common count for money had and received, in the same sum.

This suit was filed in September, 1939. Plaintiff does not offer further amendments but insists that the trial court erred in sustaining the demurrer and that it should have been overruled and that defendants be required to answer.

The third amended complaint, which was further amended after filing by interlineation, did not state facts sufficient to constitute a cause of action against defendants. It traced the real property and the earlier proceeds therefrom into the hands of defendant Seib at a time when she was acting in her representative capacity as administratrix with will annexed of the Herbst estate, but alleges that she received the property and income as trustee for plaintiff and not as administratrix. There is nothing in the complaint to indicate that this trusteeship was known to any person––certainly not to the court or to any of the parties to this action. There is no claim that defendant Seib so received the property in question with knowledge of any right or interest of plaintiff, or that she had any such knowledge prior to the time of plaintiff's demand in August, 1939, the same month in which her services as administratrix terminated. The complaint merely alleges that at the time of its filing defendants were in possession of the money derived from the use and sale of the property, having received the same without giving any consideration therefor. The complaint avoids any allegation concerning the means or process by which the money in question came into the hands of defendants. Absence of knowledge by defendants of any claim of plaintiff, coupled with the presumption that the money was disposed of pursuant to orders of the court made concerning the administration of the estate, whether in extinguishment of a just and legally established claim or of rights under the will, made it incumbent upon plaintiff to include some allegation sufficient properly to subject to his claim any money which it would appear from other allegations in the complaint defendants had received as innocent third persons and for value.

We need not discuss the case of Seib v. Mitchell, 10 Cal.App.2d 91, 52 P.2d 281, decided by this court and referred to by both parties in their briefs, except to observe that the establishment by this defendant Seib, who was plaintiff in that case, of her claim against the Herbst estate, in a suit wherein she was represented by the other two defendants in this case as her lawyers, in no way strengthens plaintiff's case, but gives independent support to our views as to the need for clear and unequivocal allegations in the complaint covering this matter. A court of equity is fully justified in demanding as a condition precedent to consideration by it of any case that the complaint shall be clear and sufficient and shall state ultimate facts which if true would be sufficient to prevail against presumptions set out in section 1963 of the Code of Civil Procedure and to entitle plaintiff to judgment. Plaintiff alleges that he accepted title to the property so that it related back to the time when Mrs. Herbst as grantor first handed the deed to Mitchell. This acceptance could operate retroactively by relation only if the rights of third persons have not intervened (Green v. Skinner, 185 Cal. 435, 197 P. 60), and when they have intervened it cannot operate so as to destroy them. Where a plaintiff purposely omits from his complaint certain ingredients essential to stating a clear and unequivocal cause of action, and where it appears from other allegations of the complaint that those elements if pleaded might be adverse to plaintiff, the trial court may properly demand that the ultimate facts upon which plaintiff relies to support his claim of right to recover shall be included in the complaint. Plaintiff's failure herein to respond to the court's demand in this regard must be held to be fatal to his right to proceed further on his first cause of action.

As to the second or common count, plaintiff seeks therein to recover on the same set of facts as are covered by the first count, and in view of our conclusions as to the first count it follows that the demurrer to the second count was properly sustained. Birch Ranch & Oil Co. v. Campbell, 43 Cal.App.2d 624, 111 P.2d 445; Orloff v. Metropolitan Trust Co., 17 Cal.2d 484, 110 P.2d 396.

Judgment affirmed.

SCOTT, Justice pro tem.

MOORE, P. J., and McCOMB, J., concurred.

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