Mulcahey v. Dow , 131 Cal. 73 ( 1900 )

I dissent. The purpose of the proceeding is not to disturb this action of the probate court at all; that court had jurisdiction of the matter in question, and upon the testimony and showing before it the decree of distribution could not well have been different from the one entered. The question here is whether a party who has succeeded in obtaining a thing through fraud can be compelled to yield it to whom it properly belongs and who would not have been deprived of it excepting through such fraud. Our code lays down the general rule in such cases in the following language: "One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is unless he has some other and better right thereto, an involuntary trustee of the thing gained for the benefit of the person who would otherwise have had it." (Civ. Code, sec. 2234) It is alleged in the complaint that the plaintiffs were prevented from appearing and presenting their claims by the fraudulent conduct of Elizabeth Waters, who willfully and intentionally represented to the court that she was the sole and only heir, when she knew the plaintiffs were also heirs of the deceased husband and entitled to a share of his estate.

In Story's, Equity Jurisprudence it is said: "In general, it may be stated that in all cases where, by accident, or mistake, or fraud, or otherwise, a party has an unfair advantage in proceedings in a court of law, which must necessarily make that court an instrument of injustice, and it is therefore against conscience that he should use that advantage, a court of equity will interfere and restrain him from using the advantage which he has thus improperly gained." (Story's Equity Jurisprudence, sec. 885.) To the same effect the rule is stated in Pomeroy's Equity Jurisprudence, section 1053. (Moore v. Crawford, 130 U.S. 128.) In Wickersham v. Comerford, 96 Cal. 439, it was claimed by defendant, as here, that the facts stated in the complaint did not constitute fraud of which the plaintiff was entitled to complain. The justice, in writing the opinion in that case, says: "The complaint charges a willful suppression of a material truth, and a suggestion of a falsehood by defendant, with intent to deceive and mislead the court, to the prejudice of the creditors of the estate, and avers that such suppression and suggestion had the intended effect, to the injury of the plaintiff, who was one of such creditors. I think this constituted fraud." In Wingerter v. Wingerter, 71 Cal. 105, the defendant had been the administrator upon the estate of his deceased brother, who died in Los Angeles county. The plaintiff was the son of that deceased brother, but resided in the state of Missouri. The defendant, as such administrator, induced the plaintiff, as heir of his deceased father, through false representations, to convey to him, the defendant, his interest in the estate, and afterward procured the interest to be distributed to him by the probate court. Held, that the defendant was an involuntary trustee for the plaintiff of the property so fraudulently obtained, and that the plaintiff was entitled to the relief sought, to wit, the recovery of the property. (See, also, Lataillade v. Orena,91 Cal. 576⁴; Dunlap v. Steere, 92 Cal. 347⁵;Bergin v. Haight, 99 Cal. 52-56; Curtis v. Schell, 129 Cal. 208, where the question is fully discussed.)

The complaint in this case states a cause of action entitling the plaintiffs to the relief asked, and the evidence at least tended to support the material allegations of the complaint. This was sufficient to prevent a nonsuit. (De Ro v. Cordes, 4 Cal. 117; Cravens v. Dewey, 13 Cal. 40; McKee v. Greene, 31 Cal. 418.)

⁴ 25 Am. St. Rep. 219.

⁵ 27 Am. St. Rep. 143.