101 Cal. 673, 15393, Seculovich v. Morton

Docket Nº:15393
Citation:101 Cal. 673, 36 P. 387
Opinion Judge:PATERSON, Judge
Party Name:PETER T. SECULOVICH, Appellant, v. SAMUEL P. MORTON, Respondent
Attorney:Moses G. Cobb, for Appellant. A. C. Freeman, for Respondent.
Judge Panel:JUDGES: Paterson, J. Garoutte, J., and Harrison, J., concurred.
Case Date:March 24, 1894
Court:Supreme Court of California

Page 673

101 Cal. 673

36 P. 387



SAMUEL P. MORTON, Respondent

No. 15393

Supreme Court of California

March 24, 1894

Page 674

[Copyrighted Material Omitted] Page 675

Department One

Appeal from a judgment of the Superior Court of the City and County of San Francisco.


Moses G. Cobb, for Appellant.

Where real property is purchased and the conveyance of the legal title is taken in the name of one person, while the consideration is paid by another, a trust arises in favor of the person paying the purchase price, and the holder of the legal title becomes a trustee for him. (Civ. Code, sec. 853; 2 Pomeroy's Equity Jurisprudence, sec. 1037, and cases.) The facts out of which the trust arises may be proved by parol. (Boyles v. Baxter , 22 Cal. 575; Millard v. Hathaway , 27 Cal. 119; Sandfoss v. Jones , 35 Cal. 481; Roberts v. Ware , 40 Cal. 637.) Possession of the trustee is possession of the cestui que trust, and the statute of limitations does not run. As between them, no length of time is a bar so long as the trustee does not repudiate the trust. (Edwards v. University, 1 Dev. & B. Eq., 325; McKethan v. Murcheson , 73 N.C. 483; 30 Am. Dec. 170; Farnam v. Brooks, 9 Pick. 212; Provost v. Gratz, 6 Wheat. 481; Chicago etc. R. R. Co. v. Hay , 119 Ill. 493; Kane v. Bloodgood, 7 Johns. Ch. 90; 11 Am. Dec. 417; Dow v. Jewell , 18 N.H. 349; 45 Am. Dec. 371; Schroeder v. Johns , 29 Cal. 274; Miles v. Thorne , 38 Cal. 335; 99 Am. Dec. 384; Ponce v. McElroy , 47 Cal. 155; Wood on Limitations, sec. 413.) Under our statute a stale equity is not a ground of demurrer. (Code Civ. Proc., secs. 307, 430 et seq.; Cook v. De la Guerra , 24 Cal. 239; Cordier v. Schloss , 12 Cal. 147; Kimball v. Lohmas , 31 Cal. 159; Bowen v. Aubrey , 22 Cal. 566.) The defendant having departed from the state, after the cause of action accrued, assuming that no demand upon him was necessary, the statute is in abeyance while he remains absent. (Code Civ. Proc., sec. 351; Hunt v. Sansane , 110 U.S. 151.)

A. C. Freeman, for Respondent.

The trust was a resulting one, and the oral agreement to convey to plaintiff, whether the infant was bound by it or not, did not change the character of the trust. (Bayles v. Baxter , 22 Cal. 575.) An action to enforce such a trust is within the statute of limitations, and the demurrer was rightly sustained on that ground. (Perry on Trusts...

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