Burling

This is an action against the trustees of the estate of William Sharon, deceased, to compel an accounting of the trust estate of W. C. Balston, deceased, of which estate said William Sharon was trustee in his lifetime, and which, it is alleged, has come into the hands of these defendants, as volunteers and with notice of the trust.

In the superior court a demurrer to the amended complaint was sustained without leave further to amend, and judgment thereupon entered in favor of defendants, from which plaintiffs appeal.

The principal ground of demurrer was, that the complaint did not state facts sufficient to constitute a cause of action, and, as we understand, this was the ground upon which it was sustained, and leave to amend refused. It is also the ground upon which the respondents have mainly relied in their oral and printed arguments *483 in this court. It is essential, therefore, to ascertain at the outset what the allegations of the complaint are. The great length of the complaint renders this task somewhat difficult, and the difficulty is enhanced by the manner in which it commingles allegations of fact with legal conclusions, matters of evidence, and inferences not always…

concurring.—I concur in the judgment of affirmance. I also concur in the conclusion that the deed from Ralston to Sharon did not create a trust in favor of Ralston’s creditors, and the only action which the Burlings had, if any, was- against Sharon personally. In this view it is not important whether or not the Burlings were creditors of Ralston. Upon the question of the statute of limitations and loches I adhere to my former opinion ( 39 Pac. Rep. 49 ), as follows:

“ Moreover, we think that the action is barred by the statute of limitations, and is stale from loches. Of course, the statutory period has run two or three times unless the case is saved by the clause of section 338 of the Code of Civil Procedure, which provides that in an action based upon alleged fraud, the statute does not commence to run until the discovery of the facts constituting the fraud. This action is founded upon the contract between the Burlings and William Sharon, made on December 24, 1875, which was an executed contract; and the statute commenced to run on that day, except so far as its running was delayed by a want of knowledge of the fraud by which said contract is alleged to have been procured. But…