Spector v. Miller

• Decision Date: 11 January 1962
• Citation: 18 Cal.Rptr. 426,199 Cal.App.2d 87
• Parties: Emma SPECTOR, Plaintiff and Appellant, v. Charles W. MILLER, Ethel C. Miller, Sara Selma Mandinach, Oscar Mandinach, Carolyn Brown and Sara Fox, Defendants and Respondents. Civ. 6385.
• Court: California Court of Appeals Court of Appeals

Page 426

18 Cal.Rptr. 426

199 Cal.App.2d 87

Emma SPECTOR, Plaintiff and Appellant, v. Charles W. MILLER, Ethel C. Miller, Sara Selma Mandinach, Oscar Mandinach, Carolyn Brown and Sara Fox, Defendants and Respondents.

Civ. 6385.

District Court of Appeal, Fourth District, California.

Jan. 11, 1962.

Tenney & Collins, Banning, for appellant.

Leonard A. Bock, Palm Springs, for respondent.

GRIFFIN, Presiding Justice.

Plaintiff and appellant Emma Spector brought this action against defendants and respondents Charles W. Miller and wife, Ethel C. Miller, on July 28, 1958, alleging generally that within four years last past defendants, plaintiff and six other persons, as purchasers, and one Marcus Pete, Jr., an Indian, as seller, entered into a contract for the joint purchase from seller of a parcel of described land in Palm Springs for a total price of $78,660.

An acting involving these parties, the Indian and others, was heretofore brought by Spector, seeking to compel the administratrix of the Indian's estate to specifically perform the contract as sale, to quiet title and for other general relief. This court held that since the contract for the sale of the land, by Pete, was made while he was an incompetent Indian, it was null and void and unenforceable as to him. The facts surrounding this transaction are fully set forth in Spector v. Pete, 157 Cal.App.2d 432, 321 P.2d 59 (hearing denied by the Supreme Court), petition for certiorari in Supreme Court of the United States denied, 358 U.S. 822, 79 S.Ct. 36, 3 L.Ed.2d 63, and petition for rehearing denied, 358 U.S. 938, 79 S.Ct. 310, 3 L.Ed.2d 311.

Plaintiff's complaint in the instant action then alleges that it was agreed between all the parties to this action that defendant Miller would act as trustee for all of the joint purchasers, including plaintiff, and accept conveyance of title to the realty and would reconvey certain described portions thereof to each set of purchasers; that in direct violation of their implied covenant of good faith and fair dealing, as parties to such joint agreement, defendants:

'* * * within four years last past, persuaded and caused said seller to convey separately to said Millers * * *'

and one Mira Lewis, plaintiff's portion of the realty which had been agreed to be conveyed by Miller, as trustee, to plaintiff. Damages were sought in the sum of $22,500 for breach of covenant.

On October 29, 1959, plaintiff filed an amended complaint against defendants, bringing in Sara Selma Mandinach and her husband and again alleging the above facts and setting up the claimed contract to sell, dated May 10, 1954. It alleged that Miller was to act as the trustee for all joint purchasers and accept title for them. It further described the property and then alleged that Mira Lewis was the agent of the defendants; that the property that belonged to plaintiff was conveyed to Mira Lewis in her capacity as agent and by her later conveyed to Sara Fox and Carolyn Brown and that the true name of Sara Fox was Sara Mandinach and that Carolyn Brown's true name was Ethel Miller; that the conduct of defendants was fraudulent and made with malicious intent of ousting plaintiff from her property and depriving her of it.

In the second cause of action, it is alleged that in addition thereto Mira Lewis, Sara Fox and Carolyn Brown were acting as agents for defendants Abe Adleman, Sara Selma Mandinach and Oscar Mandinach and defendants Miller; that all knew of this agreement alleged and of the Millers' obligation and duty in respect to said lands; and that they conspired on or about June 30, 1954 to convert plaintiff's property to their use in the manner indicated. It is then alleged that defendants concealed these facts from plaintiff and she did not discover them until October 1959 and could not have readily discovered them before that date.

A third cause of action, after incorporating the provisions of the other two causes of action, alleged certain of these defendants brought an unlawful detainer action to divest plaintiffs of her property which was originally agreed to be conveyed to her; that its value has greatly increased and defendants Miller have fended off said property since October 1955 and plaintiff lost the use of same, all to plaintiff's damages in the sum of $15,000.

The relief sought is general damages, exemplary damages and for an injunction enjoining the further prosecution of the Brown et al. v. Spector action.

A demurrer to the first amended complaint alleged that it failed to state a cause of action, was uncertain, that each cause of action was barred by the provisions of the Statute of Frauds and that there was a misjoinder of parties; that each cause of action was based upon an illegal and unenforceable contract with an American Indian; that the second, third and fourth claimed causes of action were added to the complaint by amendment without leave of court and after the Statute of Limitations had run as to each such cause of action; that if the first cause of action, or any them, was based upon the theory of a breach of a resulting or constructive trust, such cause of action was barred by Code of Civil Procedure, section 339, subdivision 1, and section 338, subdivision 4; that it was not certain whether the alleged causes of action were based on the contract of May 10, 1954 or of April 29, 1954, or some other writing or agreement; that the facts constituting the fraud were not pleaded and it is not shown why they were not discovered sooner; that the fourth cause of action was barred by the provisions of Code of Civil Procedure, section 338, subdivision 2. Apparently the demurrer was sustained in some respect.

On December 2, 1959, plaintiff filed a second amended complaint, alleging in more detail the claimed agency of defendants and stating that on April 29, 1954, defendants and plaintiff orally agreed and further entered into a written contract, as purchasers, with Pete, as seller, for the joint purchase of the property as described; that Miller, in violation of his duties as trustee, individually and in connection with the others, persuaded the seller to convey separately to Millers and Mira Lewis the property of plaintiff as heretofore stated and caused said property, originally intended to have been conveyed to plaintiff, to be conveyed through mesne conveyances to themselves as agents for plaintiff.

True copies of the written agreement of April 29 and May 10, 1954 are incorporated into the complaint by reference. It is then alleged, by reason of the agreements and said joint ventures, that defendants and plaintiff occupied a fiduciary relationship to one another and Miller was trustee for plaintiff; that plaintiff believed defendants would deal fairly with plaintiff in all things and defendants refused to convey to plaintiff any interest in the land; that plaintiff had no knowledge that her described land had been conveyed to Mira Lewis and others as agents for defendants Miller until October 1959 and defendant actively concealed said facts from plaintiff by the use of false names and by the use of said agents. Fraud, oppression and malicious intent are generally alleged.

In the second cause of action, as in all causes of action stated, the provisions of the first cause of action are incorporated therein. It is then alleged that plaintiff built buildings and made improvements on the property and was damaged by reason of the fraud perpetrated by defendants. The third cause of action alleged conspiracy of defendants, on or about June 30, 1954, to convert plaintiff's property to their own use as alleged in the first cause of action. The fourth cause of action involves the unlawful detainer action as heretofore related. The fifth cause of action recites the decision of Spector v. Pete, supra, 157 Cal.App.2d 432, 321 P.2d 59, rendered by this court on February 4, 1958 and plaintiff prays that plaintiff be declared to be the owner of the property originally agreed to be conveyed to plaintiff; that defendants hold title only in trust, as constructive trustees, and that they be required to execute a proper deed to plaintiff, or, in the alternative, plaintiff to obtain general and punitive damages. Plaintiff seeks to enjoin further proceedings of the action entitled Brown, et al. v. Spector.

The written agreement, dated April 29, 1954, was an offer of the 'undersigned' which included the Millers, Mandinachs and plaintiff to purchase from Marcus Pete certain described real property for $78,660, plus interest, taxes, etc., and it recited that buyers acknowledge and affirm that no representations or warranties as to title have been made by seller; that seller is an American Indian desirous of obtaining title to said land from the United States Government so as to enable him to convey to buyers; and that seller is unable to insure the buyers that title insurance can be obtained. Buyers acknowledge that sale was subject to the following leases: Sandoval, Fred and Blanche (expired July 31, 1958); Field, Stephen and Marianne (expired September 30, 1956); that buyers were all lessees who have made substantial improvements on this land and who hold valid leases which automatically terminate upon delivery of fee patent. It was there agreed and understood by buyers and seller that all advance lease rents were to be withheld from the down-payment and refunded to each lessee; that each prospective buyer was willing and able to deposit $1,000 in escrow upon approval of this offer by the area director; that this group of lessees were representing themselves without agent or broker and would personally handle all escrow details. This agreement was not signed by the Indian Pete. The next agreement, dated May 10, 1954, was directed to the Area Director, Bureau of Indian Affairs, and signed by the same parties, as well as by Marcus Pete. It provides:

'We, the undersigned proposed buyers of the allotment of Marcus Pete, P.S. 58, described...