South v. Wishard

Decision Date27 November 1956
Citation303 P.2d 805,146 Cal.App.2d 276
CourtCalifornia Court of Appeals Court of Appeals
PartiesN. Lindsay SOUTH, Plaintiff and Appellant, v. H. A. WISHARD, also known as Harry A. Wishard, Stella Wishard, his wife, Maudine Brown, et al., Defendants. H. A. Wishard, also known as Harry A. Wishard, and Stella Wishard, his wife, Respondents. Civ. 21668.

Lawrence W. Young, James C. Janjigian, Fresno, for appellant.

J. E. Simpson, Los Angeles, for respondents.

SHINN, Presiding Justice.

Plaintiff South appeals from a judgment of dismissal as to defendants Harry A. Wishard and Stella Wishard, his wife, following the sustaining of their demurrer to plaintiff's second amended complaint without leave to amend. The property in litigation consists of overriding oil and gas royalties from wells in Fresno County and sums derived therefrom. Plaintiff alleges that he is the owner of 1/16th of 100% of production from the land, which royalty interest stands in the name of Harry A. Wishard, who holds the same for the use and benefit of plaintiff as trustee of a constructive trust. The complaint also names as a defendant Maudine Brown, who filed an answer alleging she claims an interest in the property adverse to the plaintiff. The record to be considered consists of the complaint, the demurrer of defendants Wishard and certain records of the U. S. General Land Office, copies of which were lodged with the trisl court on the hearing of the demurrers. These are records of which the court takes judicial notice. They show that fee title to the land is in the United States and that the rights to royalties flow from a government oil and gas lease. The complaint is to be read as if it incorporated all the pertinent facts which were shown by the land office records. Livermore v. Beal, 18 Cal.App.2d 535, 64 P.2d 987. It is shown by those records that the government issued a propecting permit to Lena S. Gatchel and later a lease of the land to her assignee, Petroleum Securities Corporation, reserving a 7 1/2% overriding royalty in the primary (discovery) acreage and a 2% royalty in the secondary acreage. Gatchel assigned one-half of her royalty to Sumpf and he assigned to Wishard 'an undivided one-sixteenth interest in all of my royalty interest as set out in the assignment above described.' (This would not be 1/16th of 100% of production as alleged by plaintiff, but 1/16th of 3 3/4%, or a .2343 plus percentage of the whole.)

The complaint contains four causes of action. The first is against the Wishards and Brown to quiet title to the royalty interest. The second is against the Wishards alone. It realleges ownership by plaintiff of the royalty interest but also allege that legal title thereto was taken in the name of Harry A. Wishard in violation of an agreement to take the same in the name and for the use and benefit of plaintiff. The theory of this cause of action is that Wishard took title as trustee of a constructive trust by reason of his fraud and breach of agreement. This cause of action alleges the existence of a confidential relationship between plaintiff and Wishard, the making of allegedly false representations by Wishard, his condealment of the fact that he had acquired the royalty interest and other facts which plaintiff relies upon as excusing his long delay in bringing the action. Other facts are alleged respecting plaintiff's discovery of the fact that Wishard had taken title to the royalties in violation of the claimed agreement. The third and fourth causes of action incorporate the allegations of the second and add an allegation that Wishard took title as plaintiff's agent and an allegation that the Wishards have been unjustly enriched through the receipt of large sums as royalties.

The contentions of the defendants are (1) the holder of an equitable title cannot successfully sue to quiet title against the holder of the legal title; (2) the appeal should be dismissed upon the ground that the judgment in favor of the Wishards will not be appealable until judgment is rendered for or against Brown; (3) title to the leased land is in the United States and the government is an indispensable party; (4) the second, third and fourth causes of action do not allege sufficient facts to establish a constructive trust and (5) all causes of action are barred by the statute of limitations and laches.

The demurrer to the first cause of action was properly sustained. It was no broader than the second and the two must be regarded as a single cause of action. Ephraim v. Metropolitan Trust Co., 28 Cal.2d 824, 172 P.2d 501; South v. Wishard, 123 Cal.App.2d 642, 267 P.2d 827. While it is alleged that plaintiff is the owner of the royalty interest, that general allegation is controlled by the allegations of the second cause of action. Plaintiff is seeking to establish an equitable title. His claim of equitable ownership will not sustain an action to quiet title against the holders of the legal title. It was so held in South v. Wishard, supra, 123 Cal.App.2d 642, 267 P.2d 827 (a former appeal in the same case). The first cause of action is insufficient as against the Wishards or Brown.

The material allegations of the second cause of action are: Plaintiff and Wishard were attorneys and friends of many years standing. They had their offices in the same suite and enjoyed an intimate business and social relationship. At all times mentioned in the complaint plaintiff believed implicitly in the integrity and truthfulness of Wishard and reposed in him great trust and confidence. Plaintiff had a client named Caine who informed him that he had acquired 2/16ths of 100% royalty interest from one Sumpf in consideration of his agreement to organize at his own expense and for Sumpf's benefit a California corporation. Caine proposed that plaintiff organize the corporation and as compensation agreed to assign to him 1/16th of 100% of production from operations on the land under lease. Plaintiff communicated these facts to Wishard, telling him that he, plaintiff, might not be present when Caine and Sumpf came to the office but wished the matter to be taken care of for him and Wishard agreed that if they came while plaintiff was absent he, Wishard, would render the services and take an assignment of royalties in the name of and for plaintiff. Wishard, in plaintiff's absence, and without his knowledge, rendered the services and took an assignment of royalties from Sumpf in his own name. All this occurred in May 1933. In the summer of 1933 plaintiff inquired of Wishard what had been done in the Caine-Sumpf matter and Wishard told him that the parties had abandoned the plan of forming a corporation and that nothing had been done. Plaintiff believed that statement and having complete faith in the integrity and truthfulness of Wishard made no further inquiry until much later. In 1938 oil was discovered on the property. In 1939 Maudine Brown appeared on the scene claiming a royalty interest under an alleged assignment from Wishard in 1933. Her claim was disputed by Wishard. He told her the Caine-Sumpf plan had been abandoned, that any assignment from Sumpf was worthless and advised her not to record it. At the request of Wishard plaintiff made the same representations to Brown. In 1951 plaintiff had a conversation with his nephew which caused him to make inquiry as the result of which he learned that Wishard had been receiving royalties in large amounts since January 1938. The present action was commenced June 15, 1951.

Defendants contend that although the judgment of dismissal is final as to them it will not be appealable until the issues have been finally determined as between plaintiff and Brown. We think the defendants have answered their own argument. They mention the general rule that there can be but one judgment in a case and then add 'the only exception to this rule is that separate judgments may be entered as to several defendants where the issues are separate and several as to them.' Plaintiff seeks to quiet title to the royalty interest as against the Wishards and Brown. He seeks an accounting and recovery of the royalties received by Wishard and no money judgment against Brown. Section 579 of the Code of Civil Procedure reads: 'In an action against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.' It was decided in Rocca v. Steinmetz, 189 Cal. 426, 208 P. 964, that this section authorizes judgment to be entered in favor of some of the defendants while the action proceeds as to others, where a separate and several judgment may be rendered. The judgment is final as to the causes of action for the recovery of money from the Wishards. They saw fit to have that judgment entered. An entirely different cause of action remains involving none of the issues that have been decided. The judgment is appealable. Stafford v. Yerge, 139 Cal.App.2d 851, 294 P.2d 721; Aetna Cas. etc. Co. v. Pacific Gas & Elec. Co., 41 Cal.2d 785, 264 P.2d 5, 41 A.L.R.2d 1037; Beresford v. Pacific Gas & Elec. Co., 113 Cal.App.2d 622, 248 P.2d 773; Howe v. Key System Transit Co., 198 Cal. 525, 246 P. 39; Young v. Superior Court, 16 Cal.2d 211, 105 P.2d 363.

Another point urged by defendants is that the action involves title to real property owned by the United States and that the government was an indispensable party. Livermore v. Beal, supra, 18 Cal.App.2d 535, 64 P.2d 987, is claimed to be directly in point. That was a case in which it was attempted to quiet the plaintiff's title to an interest in government land without naming the government as a defendant. Here plaintiff does not seek to quiet title to an interest in land but to enforce a claimed constructive trust in the royalties received and to be received under a government lease. Such a...

To continue reading

Request your trial
24 cases
  • Tinsley v. Palo Alto Unified School Dist.
    • United States
    • California Court of Appeals Court of Appeals
    • April 13, 1979
    ...Electric Supply Co. v. Mount Diablo Unified School Dist. (1960) 187 Cal.App.2d 418, 421-422, 9 Cal.Rptr. 864; South v. Wishard (1956) 146 Cal.App.2d 276, 281-282, 303 P.2d 805; Stafford v. Yerge (1956) 139 Cal.App.2d 851, 853-854, 294 P.2d 721; Huntoon v. Southern T. & C. Bank (1930) 107 Ca......
  • Rosenaur v. Scherer
    • United States
    • California Court of Appeals Court of Appeals
    • March 6, 2001
    ...of the contents of such records. (See Stevenson v. Baum (1998) 65 Cal.App.4th 159, 165-166, 75 Cal. Rptr.2d 904; South v. Wishard (1956) 146 Cal.App.2d 276, 286, 303 P.2d 805 ["Land office records, like other public records, constitute constructive notice of the facts recorded therein"].) A......
  • Taylor v. United States (In re Taylor)
    • United States
    • U.S. District Court — Eastern District of California
    • September 28, 2011
    ...U.S. 364...............................................................................................................9 South v. Wishard 146 Cal. App. 2d 276 (1956).................................................................................... 14 Tennessee Student Assistance Corp v Ho......
  • Marriage of Nicolaides, In re
    • United States
    • California Court of Appeals Court of Appeals
    • May 16, 1974
    ...or omitted to do something which detrimentally altered his position With respect to the claim or right asserted. (South v. Wishard, 146 Cal.App.2d 276, 288--289, 303 P.2d 805; Nevarez v. Nevarez, 202 Cal.App.2d 596, 603, 21 Cal.Rptr. 70.) The defense cannot be maintained on the basis of a p......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT