Kent v. Snyder

Full title: MORRIS KENT and T. HEBRARD v. A. J. SNYDER, JOSEPH BROCKMAN, CHARLES…

Court: Supreme Court of California

Date published: Oct 1, 1866

30 Cal. 667 (Cal. 1866)

Opinion

30 Cal. 667 MORRIS KENT and T. HEBRARD v. A. J. SNYDER, JOSEPH BROCKMAN, CHARLES HEBRARD, DANIEL FRAZIER, and THE JEFFERSON GOLD AND SILVER MINING COMPANY Supreme Court of California October, 1866

[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]          30 Cal. 667 at 674.

         Original Opinion of October 1866, Reported at: 30 Cal. 667.

         JUDGES: Sawyer, J., on petition for rehearing.

         OPINION

          SAWYER, Judge

         By the Court, Sawyer, J., on petition for rehearing:

         In the fifth point of the petition for rehearing, the appellants insist, firstly, that their complaint discloses a trust in the nature of a security, and that parol testimony would be admissible to show that the conveyance, absolute on its face, was nevertheless intended as a security; secondly, that the interest conveyed is not an interest in land, and therefore not within the sixth section of the Statute of Frauds. Concede both points, for the purposes of the argument, and the defect in the complaint is not obviated. The appellants do not pretend that there was in fact a parol trust--that the trusts were not intended to be disclosed by the conveyance. On the contrary, they say that it was intended to put the entire agreement in writing. The deed of conveyance was to cover the entire ground, and be the evidence of the trusts as well as of the conveyance; but that the trusts were suppressed by the defendants, and the agreement is not the agreement entered into and designed to be put in writing. They rely upon a fraudulent suppression of a part of the agreement, and not upon a parol trust. It is sought to reform the instrument, and then enforce it as reformed. The fraud in suppressing a part of the contract is the entire gravamen of the action, and we are clearly of the opinion that the facts constituting the fraud are not sufficiently stated. The whole averment as to the fraud consists in stating that the name of the true party and the conditions and trusts are not expressed in the written contract set out, " but instead thereof, the said conditions were by the said defendants, A. J. Snyder and Daniel Frazier, fraudulently suppressed." Such a general averment of fraud does not disclose the facts which constitute the cause of action.

         It is unnecessary to again discuss the other points made in the petition for rehearing: our former opinion fully covers them.

         Rehearing denied.