The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1895-01-06
BURLINGS LOSE.
Their Claim Against the
Sharon Estate
is BARRED BY THE STATUTE
And the Supreme Court Makes
Other Adverse Comments.
NOT THE PROPER KIND OF ACTION
Close of an Eight-Year-Old Case
Involving RaIston's Ante.
Mortem Assignment.
is BARRED BY THE STATUTE
NOT THE PROPER KIND OF ACTION

The Supreme Court has decided that the
Superior Court was justified In sustaining
the demurrer of Frank G. Newlands ct al,
trustees of the estate of the late William
Sharon, to the suit broaght against them
by Leonide II. Burling ct al, executrix
and executor of the William Burling
estate, for an accounting.
The account desired was to be of the
alleged trust estate and property of Will
liam G. Raston, deceased. which was
averred to have been conveyed by him in
his lifetime to William Sharon and by
Sharon to the defendants. A decree was
sought finding that there be paid to the
plainti out of the said property the sum
of $500, 900 and interest.
The facts of the case were these: Will
liam c. Ralston was cashier of the Bank
of California from 1868 to 1873, and presi-
dent from that time till his death in 1876.
From 1869 to 1872 he engaged William
Burling, stockbroker. to negotiate loans
Burling living his individual notes for the
loans. and Ralston furnishing shares OF
the stock Of the bank and other cOllaterals
as securities for the money borrowed.
James D. Burling, and through the agency
of the firm loans were negotiated until
Ralston's death.
On August 26, 1875, the said bank failed.
and on the next day Ralston died by
drowning. At that time there were out
andiDg notes of William Burling for
loans negotiated in the amount of about
S155, 600, and there were notes OF Burling
q Burning given for loans so negotiated in
ha Of n
Before his death and on the day OF his
death Ralston executed a conveyance of
all OF his property to Sharon, in trust ito
such purposes and uses as the said Will
liam Sharon may, in his Judgment, decree
best for our joint and several interests"
On December "a, 1875. the Burling firm
made contract with Sharon, under when
they paid him S200,00 and assigned 10 him
all claims against the estate of Ralston
| upon his outstanding Otes; and Sharon,
| by this contract, undertook to assume all
| Indebtedness upon said notes and relieve
said Burling 81 Burling from all liability
| arising from The same.
1t was claimed that the Burlings were in
| duced to pay Sharon 5000, 900 by his repre-
| sensations to them that the shares OF bank
| stock held by them as security for their
said notes were illegally overissued stock
| and worthless; that other collaterals held
| by them were owned by strangers; that
| would be holden for the whole amount of
said outstanding notes without recourse to
security; that ID. o. Mills and all other
officers and employees of said bank con-
firmed the truth of said representa- t1ons.
Relying on these representations of Shhr-
on the BurlinRs entered into the contract
and paid Sharon the 100000
Sharon was subsequently sued for an
accounting or this money, suit In which
wholesale accusations OF fraud were made.
Burlng died and in due course Leonide
II. Burlng and Benjamin Benlng, the
plaintiffs. were appointed administrators.
AS certain proporll0nate part of the
| 100000 as paid by William Burling and
| The balance by Burling 81 Burling, the
| plaintiffs sued for the prOpOrtiOnate part
| and interest, which they alleged TO be due
Williams estate. In June, 1882, James
Burling became insolvent, and in June,
| 1885, Benjamin was appointed his assignee
| Consequently Benjamin represented both
parties in the suit against Sharon's estate.
The suit was commenced in October,
| 1886, eleven months after SharOn's death
and eleven years after the transaction
! upon which the suit was founded. De-
| PENDANTS demurred 10 the complaint on
general and on several special grounds.
! Their demurrer was sustained by the court
below and Judgment rendered for defend
ants. From this decision an appeal was
| taken.
The Supreme Court decides that the
| lower courts decision WIS a correct one.
! The court remarks: "In our opinion, if.
upon the facts alleged, the Burlings had
any cause OF action at all, their remedy
was personal action against William
| Sharon to recover damages for deceit in
! procuring their payment to him Of the
| $780, 000 in the manner as alleged, or upon
| an assumpsit to refund the money i'm
| piled from a Iescission of the contract
| under which it was paid for fraud BY
| Sharon in obtaining It, But this is not
| such an action. No claim is made against
the personal representatives of William
| Sharon, deceased, or against his estate"
The plaintiffs claimed that the convey
aDce from Ralston to William Sharon was
a dead of trust for the benefit of Ralston's
creditors. and that the Burlings were
heneficiaries under SUCH deed of trust.
| Respecting this the court says: "Assum-
| ing that there was such a trust estate, it
does not appear that at the time of its
creation the Burlings were creditors of
Ralston." But, in addition to this, the
| Supreme Court decides that the whole &C
ton is barred by the statute of limitations
and is stale from laches.
I'm the case at bar sufficient facts are
not stated 10 show that tie alleged fraud
| could not, with requisite diligence, have
| been sooner discovered. There was great
opportunity for discovering the fraud, IL
any such existed, before the contest he.
tween the Burlings and William Sharon
was made. That contest was not made in
a hurry.
Moreover. apart from the question of
strict statutory limitation, the claim of
appellants is too stale to be enforced in
court of equity"
On these grounds the court decides the
demurrer to have been pronarIv sustainad