MINNIE M. BAINBRIDGE et al., Appellants, v. B. L. STONER et al., Respondents, 16 Cal. 2d 423

EDMONDS, J. The question which is presented by the appellants in this case concerns the sufficiency of their complaint to state a cause of action against the respondent B. L. Stoner. The superior court sustained his demurrer without leave to amend and subsequently entered a judgment dismissing the action as to him.

According to the allegations of the complaint, the action was brought by the appellants in behalf of themselves and •other minority stockholders of the Mark Twain Mining Company, a corporation, to have Stoner and others declared trustees of certain mining claims for the benefit of the corporation and its stockholders. The appellants also seek an accounting from them of the proceeds of ore and certain personal property which it is alleged they removed from the mine and sold.

They ask also that a temporary injunction issue to restrain the defendants from transferring or encumbering the real property, or removing any ore therefrom, pending the final determination of the case. The complaint alleges the following facts: In April, 1928, the corporation owned three mining claims worth over $50,000 and tools and equipment of a reasonable value of $15,000.

Stoner, who was then president of the corporation and one of its directors, and Claude Sharon, also named as a defendant, in order to secure for themselves the entire assets of the corporation, “connived a plan and scheme” to obtain those assets through judicial proceedings. Thereupon Stoner, acting through P. H. Howard, brought an action against the corporation for $6,600, and caused a judgment to be rendered in favor of Howard, the plaintiff in the suit, against the mining company.

After the rendition of this judgment, which was subsequently modified as to amount, Howard assigned it to Stoner, who levied execution upon the corporation’s real property. Stoner purchased the property at the execution sale for " about the amount of such judgment, $3,000 or less”, and took possession as owner.

During the year in which the property could have been redeemed, Stoner removed ore valued at about $55,000 and also disposed of equipment, machinery and tools belonging to the corporation as his own personal property and has not accounted to the corporation for it, and the amount so received by him has more than discharged any obligation of the corporation for the amount paid at the execution sale.

By other allegations the appellants charge that on the same day the sheriff executed and delivered a deed of the mining claims, no redemption having been made, Stoner conveyed one of these claims, the Chilano Quartz Mine, to Leslie Logan. According to the complaint, this deed, given without consideration, was executed and delivered at the request of the defendant Sharon, and the grantee holds title for Sharon. The appellants also assert that Stoner, Sharon and Logan claim to own the property of the mining company.

Concerning their right to bring this action, the appellants allege that at the time Howard sued the corporation, and at all times since, Stoner has dominated and controlled its officers and directors and that he and his associates own a majority of its stock.

The appellants sue “on behalf of themselves and all others similarly situated who shall come in and contribute to the expense of the action”, explaining that no demand has been made upon the corporation, its directors or officers, to institute proceedings against the defendants because the domination and control of the respondent Stoner makes such demand useless.

Pleading as to the time of bringing the action, the appellants say that any apparent delay in filing the complaint was caused by their lack of information concerning the circumstances of the transfer and misappropriation of the property of the mining company to the respondent Stoner, and by him to Logan. They made no discovery of the circumstances and conditions surrounding these acts until some time in the month of September, 1936.

Because of the facts alleged by them, the trusts sought to be established and enforced are, under the law, “of a continuing nature and character and essentially such, in relation to real property, as are cognizable in a court of equity and exempt from the operation of the statute of limitations”. The demurrer challenges the sufficiency of the complaint upon the general ground that it does not state facts sufficient to state a cause of action; also that the alleged cause of action is barred by laches and by sections 318, 337, 338 and 339 of the Code of Civil Procedure, which are statutes of limitation.

The appellants contend that the only questions presented by the demurrer are whether they are chargeable with laches and whether any statute of limitations bars a recovery. They say that their action is one to declare a trust and for an accounting, that such an action does not lapse while the trust continues and the statute does not begin to run until there is knowledge of a breach or the trust is terminated.

The respondent’s position is that where fraud is alleged and the facts pleaded show that the cause of action is barred by a statute of limitation, the complaint must include a statement of facts, showing why discovery of the fraud was not made at an earlier date.

He argues that as the appellants’ complaint pleads the commencement of the action by Howard against the corporation prior to June, 1928, the rendition of judgment against the corporation in 1928, the issuing of execution upon the judgment in 1930, the recording of an assignment of the judgment to Stoner, the conveyance of the property in 1931 by the sheriff’s recorded deed to Stoner, and the recorded conveyance to Logan, who took possession of a portion of the property in that year, the stockholders of the corporation had notice of the alleged fraudulent acts and the statute began to run at least as early as 1931 when the sheriff’s deed was delivered.

Considering the complaint as one to establish a trust, the respondent takes the position that if he secured the property as alleged, he became a constructive trustee and the statute of limitations commenced to run in his favor in 1931. One who is a director of a corporation acts in a fiduciary capacity, and the law does not allow him to secure any personal advantage as against the corporation or its stockholders. (Hobbs v. Tom Reed Gold Min. Co., 164 Cal. 497 [129 Pac. 781, 43 L. R. A. (N. S.) 1112]; Schnittger v. Old Home etc. Min. Co., 144 Cal. 603 [78 Pac. 9]; Farmers & Merchants Bank v.

Downey, 53 Cal. 466 [31 Am. Rep. 62]; Lowe v. Copeland, 125 Cal. Ápp. 315 [13 Pac. (2d) 522] ; Highland Park Inv. Co. v. List, 42 Cal. App. 752 [184 Pac. 48].) However, strictly speaking, the relationship is not one of trust, but of agency, although it has been held that a director must comply with the requirements of

section 2230 of the Civil Code relating to trustees. (Snediker v. Ayers, 146 Cal. 407 [80 Pac. 511]. See, also, Graves v. Mining Co., 81 Cal. 303 [22 Pac. 665].) But having no title to the property in his charge, Stoner was not an express trustee of it as a director or officer of the corporation. To create an express trust there must be an explicit declaration of trust followed by an actual conveyance or transfer of property to the trustee. (O’Neil v. Ross, 98 Cal. App. 306 [277 Pac. 123]; Nichols v. Emery, 109 Cal. 323 [41 Pac. 1089, 50 Am. St. Rep. 43].

Restatement, Trusts, sec. 2.) Nor did he become a resulting trustee when he acquired the title to the corporation’s property. That relationship arises only where one has, in good faith, acquired title to property belonging to another. Under such circumstances, the law implies an obligation on the part of the one in whom title has vested to hold the property for the benefit of the owner, and, eventually to convey to the owner. (Cummings v. Cummings, 55 Cal.

App. 433 [203 Pac. 452].) A resulting trust is created when, because of some invalidity such as lack of a definite purpose or legality, an express trust fails, or where property is purchased and title taken in the name of one person but the consideration is paid by another, or where after a trust is fully performed, there is property remaining in the hands of the trustee. It is one implied by law to carry out the intention of the parties and the trustee has no duties to perform, no trust to administer, and no purpose to carry out except the single one of holding or conveying to the beneficiary. (Fulton v.

Jansen, 99 Cal. 587 [34 Pac. 331]; Restatement, Trusts, sec. 404; Bogert on Trusts and Trustees, sec. 451.) The theory of a constructive trust was adopted by equity as a remedy to compel one to restore property to which he is not justly entitled, to another. The person holding the property may have acquired it through fraud, undue influence, breach of trust, or in any other improper manner and he is usually personally liable in damages for his acts.

But the one whose property has been taken from him is not relegated to a personal claim against the wrongdoer which might have to be shared with other creditors; he is given the right to a restoration of the property itself. The title holder is, therefore, said to be a constructive trustee holding title to the property for the benefit of the rightful owner, but lie is not charged with responsibility based upon either the actual or presumed intention of the parties. (Sec. 2224, Civ. Code; Burns v.

Ross, 190 Cal. 269 [212 Pac. 17] ; Restatement, Restitution, sec. 160.) According to the allegations of the appellants’ complaint, the respondent Stoner, while a director of the corporation, secretly planned and executed a project whereby he acquired title to the property of the corporation in defiance of the rights of the corporation and its stockholders. If in doing so he had acted in good faith and had used the corporation’s money to acquire property for it, to which he took title in his own name, he would be a resulting trustee of that property.

But as he acted in his own interests and in defiance of the rights of the corporation, for the purpose of acquiring title for himself, there was no presumed intention which would make him such a trustee, and he, therefore, became a constructive trustee for the corporation and its stockholders. No repudiation of a constructive trust is necessary to set the statute of limitations in motion. A cause of action in favor of the corporation and its stockholders arose when Stoner acquired the property of the corporation (Leviston v. Tonningsen, 212 Cal. 656 [299 Pac. 724]; Lezinsky v. Mason Malt W. D.

Co., 185 Cal. 240 [196 Pac. 884]) and the statute commenced to run against the appellants at least as soon as they knew, or should have known, what he had done. (Neilsen v. Neilsen, 216 Cal. 150 [13 Pac. (2d) 715]; Wills v. Pauly, 116 Cal. 575 [48 Pac. 709]. See Bogert on Trusts, p. 558; Restatement, Restitution, sec. 179.) This was more than three years before they commenced their action because the litigation resulting in the judgment against the corporation, the execution sale and the various transfers, gave all interested persons constructive notice of the president’s wrongdoing.

The action was, therefore, barred at the time the complaint was filed unless the rule should not be applied to an officer or director of a corporation when he deals with the corporate property. Under ordinary circumstances, a plaintiff may not invoke the aid of a court of equity for relief against fraud after the expiration of the period of limitation for such an action unless he affirmatively pleads that he did not discover the facts constituting the fraud until within three years prior to the date he filed his complaint. (Sec. 338, Code Civ.

Proc.) The word discovery as used in the statute is not synonymous with knowledge. And the court must determine, as a matter of law, when, under the facts pleaded, there was a discovery by the plaintiff, in the legal sense of that term. Consequently, an averment of lack of knowledge within the statutory period is not sufficient; a plaintiff must also show that he had no means of knowledge or notice which followed by inquiry would have shown the circumstances upon which the cause of action is founded. Moreover, he must also show when and how the facts concerning the fraud became known to him. (Lady Washington G.

Co. v. Wood, 113 Cal. 482 [45 Pac. 809]; Consolidated R. & P. Co. v. Scarborough, 216 Cal. 698 [16 Pac. (2d) 268]; Turner v. Liner, 31 Cal. App. (2d) 196 [87 Pac. (2d) 740].) This rule has been somewhat relaxed, so far as the requirement of allegations stating the circumstances which are relied upon by the plaintiff as excusing discovery of the fraud are concerned, in cases involving confidential relationship. (Rutherford v. Rideout Bank, 11 Cal. (2d) 479 [80 Pac. (2d) 978, 117 A. L. R. 383] ; Barron Estate Co. v. Woodruff Co., 163 Cal. 561 [126 Pac. 351, 42 L. R. A. (N. S.) 125]; Tarke v.

Bingham, 123 Cal. 163 [55 Pac. 759]; Lataillade v. Orena, 91 Cal. 565 [27 Pac. 924, 25 Am. St. Rep. 219].) But assuming that this exception is applicable to the present ease, the complaint, which is the third filed by the appellants, is entirely silent concerning the second essential of such a pleading, namely, the means by which they discovered that Stoner had acquired the corporation’s property.

No application was made to the court for leave to further amend, and in view of the previous opportunities which have been given, it must be presumed that the appellants have stated their cause as completely as they can. As so stated, it lacks an essential averment. However, in seeking to avoid the effect of the respondent’s demurrer, the appellants contend that it must be disregarded because he failed to specify the subdivision of the code

section which he relies upon as the applicable statute of limitation, as required by

section 458 of the Code of Civil Procedure. This

section provides: “In pleading the statute of limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of section- (giving the number of the

section and subdivision thereof, if it is so divided, relied upon) ...” But this section, by its express terms, does not apply to a demurrer. It specifies a substitute for pleading “the facts showing the defense”, and facts have no place in a demurrer. As stated in a very early case decided before the statute was enacted, where a defendant desires to take advantage of the plea of the statute of limitations by demurrer, “all the facts involved in a demurrer are those alleged in the pleading demurred to, and the demurrer merely raises a question of law as to the sufficiency of the facts to constitute a cause of action or a defense”. (Brennan v. Ford, 46 Cal. 7.) Later, the code

section was considered and its application restricted " to cases in which the statute [of limitations] is pleaded in the answer as an affirmative defense. It is in an answer, and not in a demurrer, that ‘facts showing the defense’ would be proper, and the provision that ‘the party pleading must establish on the trial the facts showing that the cause of action is barred’, clearly indicates that the

section has no reference to a demurrer to a complaint upon the ground that the facts alleged therein show that the cause of action is barred. In such a case it is sufficient to specify the statute as one of the grounds of the demurrer.” (Williams v. Bergin, 116 Cal. 56 [47 Pac. 877].) In the case of Spreckels v. Spreckels, 172 Cal. 775 [158 Pac. 537], a judgment which followed an order sustaining the defendant’s demurrer to the complaint upon the ground ‘' that the cause of action is barred by the statute of limitations” was affirmed. “The demurrer does not specify any

section of the statute,” said the court, “but that is not necessary when the question is raised by demurrer”. In the present case, respondent pleaded the bar of

section 338 of the Code of Civil Procedure. This sufficiently presented the issue of law concerning the bar of the statute of limitations to the facts stated in the plaintiff’s complaint and was properly sustained. The judgment is affirmed. Gibson, C. J., Skenk, J., and Traynor, J., concurred.