Louise Pedroli in her individual and representative capacities interposed a demurrer to the complaint, and for demurrer alleged, first, that the complaint did not state facts sufficient to constitute a cause of action; second, that the cause of action, if any ever existed, was barred by the laches of the plaintiffs and under the doctrine of equitable estoppel; third, that the cause of action, if any ever existed, was barred by the statutes of limitations; fourth, that the cause of action was void under the statute of frauds. The principal contention in connection with the demurrer is that the same should have been sustained upon the ground of laches and under the doctrine of equitable estoppel.
Counsel for appellants assert that the trial court after argument filed no written opinion upon the overruling of the demurrer, but concede that the trial judge did say, from the bench, in overruling the demurrer "The question of the statute of limitations and also the question *Page 67 of laches can better be presented at the trial of this matter on the merits." It is argued that such may have been the reason for overruling the demurrer, but that it is no legal reason and does not excuse or justify the order overruling it. In this counsel are mistaken. A court in disposing of a demurrer to a bill in equity has a certain amount of judicial discretion to be exercised in furtherance of justice, and where the nature of the case is such as to make it probably more conducive to the cause of justice to decide such case only after answer and proof, it is within the discretion of the court to refuse to determine it on demurrer, though the demurrer may appear to be technically well taken. 10 R.C.L. 475.
It is well settled that a demurrer to a bill may be overruled with liberty to the defendant to insist upon the same defense by answer, if the allegations of the bill are such that the case ought not to be decided without answer being put in. Kansas v. Colorado, 185 U.S. 125, 22 S.Ct. 552, 46 L.Ed. 838. The trial court was evidently of the opinion that the case made by the complaint was a proper one for overruling the demurrer upon the ground of laches with liberty to the defendants to insist upon the same defense by answer. Sabre v. United Traction, etc., Co. (C.C.) 156 F. 79. Since the defendants set up laches as a defense and a trial was had, I am of opinion that this court should at least look to the evidence before determining whether the court abused its judicial discretion in refusing to determine the case on demurrer. Be this as it may, my associates take the view that conceding the charges of the complaint to be true, it is an absolute, certain and clear proposition that the complaint does not show equity, or, in other words, does not state facts sufficient to constitute a cause of action. I dissent from this conclusion.
It is contended that the demurrer should have been sustained and the action dismissed, under all authorities, and especially so under the decision in Kleinclaus v. Dutard, 147 Cal. 245,81 P. 516, claiming that no two cases so nearly parallel in point of facts and law can be found in the books. In this I am unable to agree. *Page 68 Conceding the correctness of the decision and the elementary principles of equity applied to the facts in the Dutard case, I make the same distinction in the two cases as was made by Justice Kerrigan in the case of Fleming v. Shay, 19 Cal.App. 276,125 P. 761. The learned justice pointed out that the authorities lay down the rule that when positive evidence exists, which proves that the defendant has all along recognized the plaintiff's rights, delay on the part of plaintiff in bringing the suit will be excused. 18 Am. Eng. Ency. of Law, 111. "The continued acknowledgment," reads 16 Cyc. 174, "by the defendant of plaintiff's right is generally sufficient to account for delay by plaintiff in bringing suit to enforce it."
The plaintiffs allege in their complaint in this case that Charles Pedroli, deceased, possessed, controlled, and managed the property described without objection of plaintiffs as agent and trustee, as though the same were the sole and separate property of Charles Pedroli, but not adversely to their interest therein or in derogation of their rights thereto, but at all times the said Charles Pedroli admitted and recognized the right of plaintiffs, and each of them, as such owners of said undivided interest in and to the property and the rents, issues, profits, and increase thereof.
Justice Kerrigan points out in Fleming v. Shay, supra:
"In the case of Peebles v. Reading, 8 Serg. R. (Pa.) 484, 494, it was held that fourteen years would not be a reasonable time to enforce a trust, unless the trust was kept up by declarations from time to time.
"A similar declaration to the one here was considered in the case of Kleinclaus v. Dutard * * *; but there it appeared that Dutard for thirty-five years had `dealt with all the property acquired as absolutely his own. He carried on a produce and commission business in his own name. He invested and reinvested the profits thereof in his own name in all kinds of property, in several different states, accumulating a great fortune. He never recognized any other person as having any interest therein.' For those and other reasons stated in the opinion, the court said that the complaint, taken *Page 69 as a whole, presented a case `where every act of the alleged trustee was openly and notoriously hostile to the claim of plaintiff'; that consequently no such relation between the parties was evidenced by the complaint as justified the plaintiff in disregarding those acts and relying upon any declaration of Dutard."
The distinction between the present complaint and the Dutard case is made plain when it is considered that the court in that case pointed out that the complaint taken as a whole, presented a case where every act of the alleged trustee was openly and notoriously hostile to the claim of plaintiff, whereas in the present complaint it is alleged and the demurrer admits that Charles Pedroli at all times admitted and recognized the rights of plaintiffs as owners of an undivided interest in and to the property and the rents, issues, profits, and increase thereof. If this allegation be true his representative after his death is bound by his admissions. Hovey v. Bradbury, 112 Cal. 620,44 P. 1077.
I concede the force in the argument that the plaintiffs' delay in commencing action, and particularly until after the death of Charles Pedroli, when much important evidence might be lost to defendants, is indicative of bad faith and renders the claim stale and inequitable. In view, however, that there is nothing in the present complaint inconsistent with the alleged acknowledgment by Charles Pedroli of plaintiffs' right and interest in the property at all times, and of the fact that the parties were brothers and sister and that plaintiffs reposed confidence and trust in Charles Pedroli (10 R.C.L. 402), I cannot agree that it clearly and affirmatively appears upon the face of the complaint that the cause of action is barred by laches.
I am of opinion that the demurrer was properly overruled.