South v. Wishard

• Decision Date: 03 March 1954
• Citation: 267 P.2d 827,123 Cal. App. 2d 642
• Court: California Court of Appeals
• Parties: SOUTH v. WISHARD et ux. Civ. 4655.

Page 827

267 P.2d 827

123 Cal.App.2d 642

SOUTH v. WISHARD et ux.

Civ. 4655.

District Court of Appeal, Fourth District, California.

March 3, 1954.

Hearing Denied April 28, 1954.

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

James V. Paige, Los Angeles, for defendant and appellant.

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

GRIFFIN, Justice.

Plaintiff and appellant brought this action to quiet title to and establish a trust in certain oil rights, and for an accounting. The original complaint alleged that plaintiff was the owner of a 1/6 interest of all oil, gas and other hydrocarbon substances saved and produced from certain described parcels of land in Fresno County, which rights were commonly known as landowner's royalty; that defendants H. A. Wishard, Stella Wishard, his wife, and Maudine Brown, claim and assert an interest therein adverse to plaintiff and that their claims 'in said land or premises * * *' or 'said oil', etc., 'produced therefrom' are without right.

As a second cause of action plaintiff incorporates the same allegations above mentioned, and in addition he alleges that on May 19, 1933, one Sumpf was one of the owners of the above-described property and of the so-called overriding royalty interest above stated; that on May 19, 1933, defendant Wishard (an attorney) orally agreed with plaintiff (an attorney) to attend to drafting an agreement for him with Sumpf, to organize a corporation. As a consideration therefor plaintiff was to receive a 1/16 interest in all oil, etc. produced from the described premises; that such services were performed, but Wishard took an assignment of the 1/16 interest in his own name and has received large payments of money by virtue thereof; that accordingly defendant Wishard holds such interest and the proceeds in trust for plaintiff, all totaling the value of $234,000. It is then alleged that plaintiff did not discover these facts until five months prior to the date of filing his complaint. It was prayed that plaintiff be decreed the owner of same and for an accounting; that defendants be required to set forth the nature of their claims and that title be quieted in plaintiff.

It is conceded that at all times mentioned Wishard and his wife were and are residents of Los Angeles County, and that the defendant Brown was and is a resident of Fresno County.

Upon filing an affidavit setting out these facts, as well as many claimed reasons why no cause of action was stated against defendants and the claim that defendant Brown was not a necessary or proper party to the action, the Wishards moved for change of place of trial of Los Angeles County as being the proper place for the trial of the cause. General demurrers of the Wishards were filed and a time for hearing the motion was fixed. Four days before the motion was heard plaintiff filed a first amended complaint. It contained two causes of action. It alleged generally the same quiet title action against defendant Brown as alleged in the first cause of action in the original complaint. As a second cause of action plaintiff incorporates the provisions of the first cause of action and similarly alleges the facts pertaining to the claimed trust, with some elaboration. The hearing on the first motion was put off calendar. On September 4, 1951, defendants Wishard filed another motion for change of venue supported by similar affidavits and points and authorities.

Apparently both motions were argued and submitted, and on September 25, 1951, were denied. Defendants Wishard, on November 21, filed a notice of appeal from the order denying the motion. It is their claim that this application was made, relying upon the holding in Hagan v. Gilbert, 83 Cal.App.2d 570, 189 P.2d 548, but that they subsequently found that Monogram Co. of California v. Kingsley, 38 Cal.2d 28, 237 P.2d 265, overruled this authority and they accordingly abandoned their application. The record shows that the appeal was dismissed by this court on motion of plaintiff. Demurrers to the first amended complaint were filed by the respective parties. Apparently, on July 2, 1952, the demurrers were sustained and plaintiff was given ten days to amend. Thereafter, plaintiff filed a second amended complaint. In the first cause of action he alleges that defendant Brown resided in Fresno County; that the Wishards had full knowledge of the facts alleged in the second and third causes of action hereinafter stated; that a breach of trust arose by which the Wishards received a 1/16 interest in the oil, gas, etc., produced from the described land; and that each of the defendants asserts an interest therein adverse to plaintiff.

In the second cause of action directed against the defendants Wishard only, after incorporating the provisions of the first cause of action, he alleges that Sumpf and his wife were owners of an overriding royalty interest in and to all oil, gas, etc. produced and saved from the described real property, and then plaintiff relates in detail, a friendly and confidential relationship between plaintiff and the Wishards since 1933, as lawyers in the same office. It is alleged that one Caine came to plaintiff's office in 1933, and advised plaintiff that Sumpf desired to organize a corporation and that Caine had agreed with Sumpf to obtain a lawyer to organize it at no expense to Sumpf but, as a consideration therefor Sumpf agreed to assign to Caine a 2/16 interest in and to the oil, gas, etc. produced from said lands and that plaintiff was to receive one-half of Caine's interest for such legal services performed; that in the absence of plaintiff from the office Wishard volunteered to and did draw the necessary instruments and in addition, drew up, without plaintiff's knowledge, an assignment of the 1/16 interest running in his individual favor; that Wishard concealed this fact from plaintiff and represented to plaintiff that the parties had abandoned the formation of the corporation and that accordingly, based upon these facts, the Wishards held said interest in trust for plaintiff; that Wishard repudiated such trust and that defendant Brown claimed some interest in such assigned royalty by virtue of an agreement in writing executed in 1933, by which Wishard assigned a small interest therein to her; that subsequently Wishard likewise told her such assigned interest was worthless and not to record it because all matters pertaining to the incorporation had been abandoned, when in truth and in fact such representations were false and untrue; that Wishard has, ever since 1938, been receiving large sums of money from said transaction, based on the 1/16 royalty interest involved, and that plaintiff did not discover the true facts until 1951.

As a third cause of action against the Wishards only, plaintiff incorporates the provisions of the other causes of action and alleges that Wishard acted as agent for plaintiff and in violation of his trust divested him of said 1/16 interest.

As a fourth cause of action, similar allegations are made by reference to the previous causes of action, and plaintiff alleges that defendants Wishard, by reason of their wrongful acts, have fraudulently enriched themselves at the expense of plaintiff, in the sum of $234,000, and in equity and good conscience they are not entitled to any part of the royalty described or its proceeds.

The prayer is that plaintiff be decreed the owner of and entitled to the proceeds of the 1/16 interest in and to the oil, gas, etc. produced and saved from the real property described; that the court decree that defendants Wishard and Brown convey their respective interests to plaintiff; that the Wishards account to plaintiff for the money received by them; that all defendants be required to set forth the nature of their claims to said royalty interest and the proceeds thereof, and that it be decreed that defendants have no estate therein and that defendants be enjoined from asserting any claim thereto, or in the alternative that Wishards pay the value thereof to plaintiff. A copy of the assignment by Sumpf to Wishard, executed on May 19, 1933, was attached to the complaint.

On September 8, 1952, the Wishards moved for change of place of trial, in which it is alleged that they are residents of Los Angeles County and that defendant Brown, although named only in the first cause of action, and although a resident of Fresno County, was improperly joined as a defendant solely for the purpose of having the action tried in Fresno County, and that accordingly her residence should not be considered in determining the proper place of trial, and that said motion would be made upon the records, papers, pleadings and other documents then on file in the case, the affidavits of defendants, and the record of the Department of Interior of the United States, of which the court is required to take judicial knowledge.

In defendant Wishard's affidavit these general statements are reiterated. In addition it is alleged, and proof was submitted, that the records of the land department conclusively show that the lands described in the first cause of action are public lands of the United States; that on July 2, 1910, the President withdrew said lands from public entry and made them a part of the Petroleum Reservation No. 2; that they were subsequently opened for public entry for the purpose of prospecting thereon for oil and gas under the provisions of the Act of Congress approved February 25, 1920, 41 Stat. 437, 30 U.S.C.A. § 181 et seq., and that said documents disclose that on January 30, 1929, the Secretary of the Interior granted an oil and gas prospecting permit to Lena Getchel; that she assigned said permit to Petroleum Security Company, retaining an overriding royalty, and that she subsequently assigned to Sumpf an interest therein; that by a duly recorded instrument Sumpf assigned to Wishard 'an undivided 1/16 interest in all of' the royalty interest acquired by her.

...