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167 Cal. 35

138 P 728

Rogers v. Schlotterback

California Supreme Court

Decided January 15, 1914

California Supreme Court · decided 1914-01-15

<p>Will—Contract to Make—Parol Evidence—'Sufficiency to Support Findings.—In this action to enforce an alleged contract in the nature of an agreement to make a will in favor of the plaintiff, the evidence supports a finding of such contract, resting in parol and made in 1851, whereby the sole surviving parent of the plaintiff surrendered the plaintiff, when a child, to the grantor, and ancestor of the defendants, upon the understanding that he and his wife would receive the plaintiff into their family and raise him as their child, and that “he should heir and share equally” with their own daughter.</p> <p>Id.—Interpretation of Contract—Extent of Promisee’s Bights.— The language of such agreement implies an undertaking on the part of the promisor and his wife that on their deaths they will divide their property equally between the plaintiff and their natural child, no other child having been born to them.</p> <p>Id.—Specific Performance—Oral Contract to Make Devise.—Upon the death of the promisor such oral contract may be specifically •enforced in favor of the promisee, who has performed his part thereof; the recent amendments to sections 1624 of the Civil Code and 1973 of the Code of Civil Procedure, adopted long after the contract was fully executed on the part of. the promisee and whatever rights he had thereunder were vested, having no application.</p> <p>Id.—Manner of Enforcing Contract—Decreeing Property Held in Trust.—Such a contract will be enforced not by ordering a will to be made, but by regarding the property in the hands of the heirs, devisees, .assignees, or representatives of the deceased promisor, as impressed with a trust in favor of the plaintiff, and by compelling the defendants, who must of course belong to some one of these classes of persons, to make such a disposition of the property as" will carry out the intent of the agreement. And where the promisor had, in violation of his agreement, conveyed his property to his only natural child and his granddaughter, the decree should direct them to convey to -the plaintiff according to their respective rights, that is, both must share equally in the loss.</p> <p>Id.—Statute of Limitations—Time of Accrual of Action.—-When the promisor conveyed part of his property to his daughter and granddaughter in violation of his agreement, the promisee’s right of action in respect thereto did not accrue until the promisor died without making the agreed disposition of Ms property, so that an aetion brought upon the death of the promisor is not barred by the statute of limitations, although the conveyance was made many years before.</p> <p>Id.—Parties in Action to Enforce Contract—Joining Administrator and Heir.—If the promisee commences an action to set aside the conveyance, but dies before the case comes to trial, the action may be continued by Ms administrator, who is also his heir, in both his representative and individual capacity.</p> <p>Id.—Judgment—When Should Eun for Plaintiff in Representative Capacity.—A money judgment, recovered in such action, should run in favor of the plaintiff in his representative capacity as administrator.</p> <p>.Id.—Decree of Distribution — Conclusiveness Against Promisee Under Contract to Make Devise.—Where the promisor conveyed all his real property in his lifetime and at his death left an estate consisting solely of money, the decree of distribution in the matter of his estate is not conclusive upon the right of the promisee under the agreement of the promisor to make him heir.</p> <p>Id.—Claim Against Estate—Whether Promisee Must Present.— The promisee is not required, as a condition precedent to suing to set aside the conveyance, to present Ms claim against the estate of the deceased promisor.</p> <p>Id.—Oral Contract to Make Will—-Declarations to Prove.—In such action not only is it competent to show what was said by the parties at or about the time the agreement was entered into, but declarations confirming the agreement or statements as to its import by the promisor and his wife, who agreed to it, made during their lives, are admissible.</p> <p>[d.—Appeal—Failure to Argue Points in Brief.—Where alleged errors are not argued by an appellant in his brief, the appellate court is justified in disregarding them.</p>

Relies on Elmendorf v. Taylor

Good law ✅— No negative treatment on recordhow we know

Decided 1914-01-15

How this case has been cited

Cited by 69 later decisions — most recently January 1986 · most notably 53 Cal. 2d 567 - Brewer v. Simpson (1960), Brown v. Superior Court (1949)

4 federal appellate · 65 state decisions

13019141920193019401950196019701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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SHAW, J., dissenting.

¶1 I dissent. I am of the opinion that, so far as the land conveyed to Mrs. Carter and Mrs. Sehlotterback is concerned, the action is barred by the statute of limitations and by laches.

¶2 It appears that the deed to them was recorded on December 7,1895, and that James Taylor Rogers was very soon afterward apprised of its contents. His right, if any, was one arising upon the contract made in. 1851. It then became and ever since has been a vested right, and, consequently, a right which was under the protection of the courts in case it was violated or endangered. The conclusion that the action is not barred is predicated upon the proposition that no cause of action accrued in his favor until the death of William H. Rogers, on December 26, 1906, except, perhaps, an action to obtain a decree protecting him against a future conveyance by the grantees to an innocent purchaser for value. Van Duyne v. Vreeland, 12 N. J. E. 142, is cited as authority for this possible action.

¶3 I am by no means certain that even the accrual of an action of that character would not be sufficient to uphold the doctrine that the present action is barred. But the decision cited goes much further than that. It holds that a deed such as that executed to Mrs. Carter and Mrs. Sehlotterbaek, if executed, as is here claimed, for the purpose of preventing an equal share in. the estate from going to James Taylor Rogers upon the death of William H. Rogers, would be an actual and positive fraud, “a fraud upon the agreement” anciently made, and that it gives the claimant under such agreement an immediate right of action to obtain a decree declaring that such deed is “a fraud upon the agreement,” and adjudging that the grantee shall “hold the land subject to that agreement,” and that, upon the death of the grantor, such grantee shall convey to the claimant the share to which *58 he would be entitled under the agreement. This would be, in substance, a decree that, instead of the absolute estate in remainder which the grantee would take by the terms of the deed, he should hold his interest in the land in trust for the benefit of such claimant, to the extent of the claimant’s prospective interests, and practically annulling the deed as a conveyance of the absolute estate in remainder. Such an action could have been maintained by James Taylor Rogers, immediately after the execution of the deed in 1895. It would have been an action, 'for relief on the ground of fraud, and it would have been barred in three years from the time the fraud was discovered or from the time when, by due inquiry, it might have been discovered. (Code Civ. Proc., sec. 338.) Such an action was a remedy fully adequate to secure to him substantially the same relief as he seeks by the present action. It would have been based on the same facts, and, if he had succeeded, it would have established those facts, as well as his rights under them. The present action should therefore be held to be barred on the same principle as that upon which it is held in equity that a suit is barred if it is based on the same facts and - rights as would be necessary to sustain an action at law which is barred, although the relief sought in equity is not precisely the same as that which might be obtained at law. (Elmendorf v. Taylor, 10 Wheat. (23 U. S.) 152, [6 L. Ed. 289] ; People v. Everest, 4 Hill (N. Y.) 71; Reeves v. Dougherty, 5 Yerg. (Tenn.) 222, [27 Am. Dec. 496] ; Hambert v. Trinity Church, 24 Wend. (N. Y.) 593; Wood on Limitations, sec. 58 and notes.)

¶4 •The making of this deed was a clear repudiation by the grantor of the obligation of the agreement of 1851 and of any trust created thereby in the property conveyed, as well as of all claim of James Taylor Rogers to take an interest therein at the grantor’s death. The latter’s knowledge of the deed put him on inquiry as to its alleged fraudulent purpose and charged him with notice thereof. His neglect to begin any action concerning his claim during the ensuing eleven years of the life of the grantor, and until after the grantor’s death had deprived the grantees of the grantor’s testimony on the subject of the ancient agreement, and it should, upon familiar principles of equity jurisprudence, be sufficient to characterize the present action as a stale demand barred by his laches in failing to pursue the remedy at all times open to him.

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