[3] One who takes property from a trustee in violation of the trust with knowledge of the trust holds the property subject to the trust as a constructive trustee. (Civ. Code, ยง 2243; Scott v. Symons, 191 Cal. 441, 453-454 [ 216 P. 604]; Lucas v. Associacao Protectora etc. Da Calif., 61 Cal.App.2d 344, 351-352 [ 143 P.2d 53]; 2 Scott on Trusts, ยง 291, p. 1605; Rest., Restitution, ยง 168; Id., Trusts, ยงยง 288-291.) [4] Since appellant testified that he had seen the joint venture agreement before he purchased the property the above stated rule is applicable to this transaction.
(See, also, Sherman v. S.K.D. Oil Co., 185 Cal. 534, 545 [ 197 P. 799].) This section has been considered applicable, for example, to actions based upon express and constructive trusts ( Scott v. Symons, 191 Cal. 441, 456 [ 216 P. 604]; Wrightson v. Dougherty, 5 Cal.2d 257, 264 [ 54 P.2d 13]), to actions for an accounting ( McArthur v. Blaisdell, 159 Cal. 604 [ 115 P. 52]; West v. Russell, 74 Cal. 544 [16 P. 392]), to an action in the nature of a creditor's bill against holders of watered stock ( Sherman v. S.K.D. Oil Co., supra), to an action to set aside deeds made under undue influence ( Trubody v. Trubody, 137 Cal. 172, 174 [ 69 P. 968]), and to a proceeding under section 708 of the Code of Civil Procedure to set aside a satisfaction and revive a judgment after an execution and sale made thereunder had been found void. ( Merguire v. O'Donnell, 139 Cal. 6, 9 [ 72 P. 337, 96 Am. St. Rep. 91].)
When it thus appears from the facts found that the statute has not run, there is no prejudicial error in a failure to find separately on the alleged bar of the statute. ( Woodham v. Cline, 130 Cal. 497, 498 [ 62 P. 822]; Scott v. Symons, 191 Cal. 441, 456 [ 216 P. 604]; Webster v. Mountain Monarch G.M. Co., 6 Cal.App.2d 450, 454 [ 44 P.2d 646]; 24 Cal. Jur., p. 944.) [4] "It is urged that the original contract was abrogated, or so materially modified, as to defeat all rights of respondent founded upon it.
A finding that plaintiff rescinded promptly upon becoming aware of defendant's fraud is necessarily implied from the findings and decision of the lower court. Where a finding omitted must be inferred from a consideration of the findings actually made, the appellate court will recognize the necessary inference and consider the finding in question as having in effect been made, and this is so with respect to laches. ( Scott v. Symons, 191 Cal. 441 [ 216 P. 604]; Stevinson v. San Joaquin etc. Co., 162 Cal. 141 [ 121 P. 398]; Suhr v. Lauterbach, supra.) In the Symons case, it is held that the trial court, having given judgment in favor of plaintiff, in effect found against unnecessary delays in instituting the action.
And laches abundantly appears from the evidence and facts found by the court. Inasmuch as appellant was put on notice of all the essential features of such a plea by the allegations of the intervention of a public use and the statute of limitations, it does not seem to be a harsh act to invoke the doctrine here for the first time to sustain the action of the court below. ( Garrity v. Miller, 204 Cal. 454 [ 268 P. 622]; Stevinson v. San Joaquin etc. Co., 162 Cal. 141 [ 121 P. 398]; Akley v. Bassett, 189 Cal. 625, 648 [ 209 P. 576]; Scott v. Symons, 191 Cal. 441, 457 [ 216 P. 604].) We therefore fully approve of the ruling of the court in this respect.
Instead, appellants maintain that this cause of action was properly based on a theory of liability that they describe as follows: "When a third party participates in a fiduciary's breach of trust, that third party is liable to the cestuis. Restatement of Trusts 201; Scott v. Symons (1923) 191 Cal.441; Lantz v. Stribling (1955) 130 C.A.2d 476; Probate Code 15003. Participation requires knowledge of the breach and receipt of trust property." They do not discuss the authorities they cite at all or provide any further legal argument, but merely argue that their allegations established that NMV had a fiduciary duty to them.
In the state of the record here, the judgment of the court in favor of plaintiffs, in effect, found against defendants on the defense of laches, and it was not necessary for the court to make a specific finding thereon. ( Kaye v. Jacobs, 122 Cal.App. 421, 430-431 [ 10 P.2d 186]; overruled on other grounds in Bumb v. Bennett, 51 Cal.2d 294, 300 [ 333 P.2d 23]; Scott v. Symons, 191 Cal. 441, 457 [ 216 P. 604]; Remiger v. Hassell, 216 Cal. 209, 211 [ 13 P.2d 737].) (5) Without any reference to the record, defendants urge that the court made no finding as to what plaintiffs received of value from defendants.
Code of Civil Procedure section 359 provides: "This title does not affect actions against directors or stockholders of a corporation, to recover a penalty or forfeiture imposed, or to enforce liability created by law; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created." [24] Although the four-year period of section 343 of the Code of Civil Procedure has been applied to the breach of the written provisions of an express trust (see Scott v. Symons (1923) 191 Cal. 441, 456 [ 216 P. 604]; Marston v. Kuhland (1907) 151 Cal. 102, 104 [ 90 P. 188]) and to an action to recover the assets of a corporation which have been illegally transferred (see Stewart v. Indian Creek Lumber Co. (1961) 192 Cal.App.2d 93, 97 [ 13 Cal.Rptr. 397]), there is no warrant for extending to four years the time within which to commence an action for damages for negligence or for fraud. Code of Civil Procedure section 343 provides: "An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued."
An action upon an express or resulting trust must be brought within the period of the statute of limitations. (See Laing v. Laubach, 233 Cal.App.2d 511, 518 [ 43 Cal.Rptr. 537]; Scott v. Symons, 191 Cal. 441 [ 216 P. 604]; Broder v. Conklin, 77 Cal. 330 [19 P. 513].) [5] A definite and certain promise is a strict requirement in an action in equity to enforce an oral agreement to make a will.
[16a] Plaintiff sets out the rule that an action upon an express or resulting trust must be brought within four years from the time the beneficiary has knowledge or notice of the repudiation of the trust. ( Scott v. Symons, 191 Cal. 441 [ 216 P. 604]; Broder v. Conklin, 77 Cal. 330, 339 [19 P. 513].) The complaint alleges that the defendant did not claim the property as his own until January 12, 1959, at which time he demanded that plaintiff vacate the property.