Kyle v. Craig

Citations

• 125 Cal. 107
• 57 P. 791
• 1899 Cal. LEXIS 809

Syllabus

<p>Action to Bnfoece Teust—Demubeee to Complaint—Sepaeate Counts as to Real and Pebsonal Pbopeety—A complaint in an action to enforce a trust in real and personal property is not demurrable on the ground that the facts concerning the trust as to the real estate, and as to the personal property, are separately set forth in two counts for one cause of action. No such ground of demurrer is specified in section 430 of the Code of Civil Procedure; and no ground of demurrer not specified in that section can be considered.</p> <p>Id.—Motion to Compel Election.—The defendant is not prejudiced by the arrangement of such complaint in two counts, where the facts as to the trust are fully set out; and the defendant cannot, by motion, compel the plaintiff to elect to proceed either upon the trust as to the real estate, or upon that as to the personal property.</p> <p>Id.—Sufficiency of Cause of Action—Donation in View of Death —Recobd of TJndelivebed Deed—Refusal of Retbansfeb.— A complaint showing that the plaintiff, in expectation- of immediate death, assigned to the defendant, who was his trusted sister, certain savings bank deposits, and further executed and acknowledged a deed of certain real estate to the defendant, which was never delivered; that the assignment and deed were made with the understanding that, after plaintiff’s death, the property should be disposed of by the defendant according to certain instructions given by the plaintiff; that there was no consideration for the transfer; that the defendant, without authority or knowledge of the plaintiff, obtained possession of the deed, and recorded it; and that, upon the recovery of the plaintiff, defendant refused to retransfer the real or personal property to plaintiff upon demand therefor, and claimed to own the entire property, states a cause of action to enforce a trust, both as to the real and as to the personal property.</p> <p>Id.—Ambiguity—Failure to Set Out Instructions—The complaint is not demurrable for am