El maleficio (English: The Curse) is a Mexican telenovela directed by Raúl Araiza produced by Ernesto Alonso for Televisa in 1983.[1][2] The telenovela was so successful in 1983 that a sequel was made under the title of El maleficio 2: Los enviados del infierno in 1986.[3][4]
Maleficio
Definition: Ex maleficio means "by malfeasance" in Latin. It is used to describe something that was done wrongfully or illegally. It can also be used as an adjective to describe something that is tortious, meaning it causes harm or injury to someone else.
The complaint demands (1) voiding of the transfer of the assets as fraudulent; (2) an accounting by the defendants; (3) judgment for the fair market value of the assets involved; (4) that the defendant Bertha Collier be declared a trustee ex maleficio and that all funds deposited in her name be declared funds belonging to the trustee and that she be restrained and enjoined from withdrawing them; (5) that defendants pay plaintiff's costs and attorneys' fees, and (6) "such other and further relief as is just".
In the instant case, in addition to a money judgment for the fair market value of the merchandise involved, plaintiff trustee seeks to have defendants account for all of the merchandise obtained by them from or through the bankrupt; to have Bertha Collier declared a trustee ex maleficio; to have all of the funds deposited in her name impressed with the trust, and to have her enjoined from withdrawing any funds from the bank accounts involved.
With regard to the prayer that defendants be compelled to account for the merchandise obtained by them, if the complaint alleges facts indicating that the issue formerly was one within the exclusive jurisdiction of equity or that it is too complex a question to be tried before a jury, it must be viewed as akin to an equitable bill for an accounting, 3 Moore's Federal Practice, p. 3012, and, under the decisions noted supra, the prayer for money judgment merely would involve incidental relief. Historically, suits for an accounting originated in the old common law action of account-render. The common law action, however, because of the narrowness of its scope and the difficulty of its application, early gave much ground to the more flexible remedy in equity. 2 Pomeroy, Equitable Remedies, (2d Ed.1919) sec. 2353. A common instance of an accounting of a strictly equitable nature is that sought by a cestui que trust from a trustee; and this is so in connection with constructive trusts. See Lile, Bills for Account, 8 Va.L.Rev. 181, 183; Pomeroy, op.cit. supra, Sec. 2358; Rivoli Drug Co. v. Lynch, 9 Cir., 50 F.2d 536, 538. In Buffum v. Barceloux Co., supra, Justice Cardozo applied the doctrine to the case of a fraudulent transferee of shares who had reconveyed to another. The court declared 289 U.S. at page 236, 53 S.Ct. at page 542, 77 L. Ed. 1140, that the fraudulent grantee could be held as a trustee ex maleficio for the value of the shares and reiterated the rule that "The trustee who misapplies the subject-matter of a trust becomes accountable at once for the proceeds or the value". In the instant case, plaintiff also seeks an accounting from allegedly fraudulent transferees and demands expressly that Bertha Collier be declared a trustee ex maleficio. It would appear, therefore, that plaintiff's remedy, in this respect, is one formerly cognizable in equity. This being so, it is unnecessary to decide whether the transactions alleged herein were so complex as to render a trial by jury impracticable, although the observation may be made that an examination of the pleadings and requests for admissions of fact appears to indicate that a trial court would not be in error in so finding.
In addition to an accounting, as indicated previously, plaintiff seeks to have Bertha Collier declared a trustee ex maleficio and to have the court enjoin her from withdrawing any of the funds deposited in her name. These additional prayers for relief strengthen the conclusion already reached that, in its essence, the complaint states a case formerly cognizable in equity and the money judgment demanded can be viewed merely as incidental to the equitable relief sought.
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