Hanly v. Kelly

The Court: The demurrer to the third amended complaint was properly sustained. The allegation with reference to the investment of the trust moneys, by defendant James Kelly, in the lot of land described, is: “That whilst said trust money has been so as aforesaid in the hands of the said James Kelly, he, the said James Kelly, has invested the same,” etc. For aught that appears, the investment was made with full knowledge on the part of plaintiff before the action was brought to recover the amount deposited, with interest, which resulted in the judgment at law, and facts are alleged showing that plaintiff had complete information with respect to the amount and condition of the trust fund. Under such circumstances, plaintiff must be held to have elected his remedy at law, and to be estopped from pursuing in equity the fund into the homestead. (See 2 Story’s Eq. Juris. 1097; Dash v. Van Kleeck, 7 Johns. 497; S. C., 5 Am. Dec. 291; Wells, Fargo & Co. v. Robinson, 13 Cal. 141.) Judgment affirmed.