209 P. 576 | Cal. | 1922
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *629 This action was commenced by the respondent, Josephine M. Akley, and several others, for the partition of 814 acres of land situated about fifteen miles from the city of Los Angeles, being a part of the Rancho La Puente, and to recover from the defendant Charles N. Bassett, who is the appellant here, their respective proportionate *630 shares of the rents, issues and profits of the alleged common property, received and retained by him.
The defendant appeals from an order of the trial court granting the motion of the plaintiff Josephine M. Akley to set aside the judgment theretofore entered against her and in favor of defendant Bassett, and entering another and different judgment, and from the judgment entered following such order.
The findings of fact and conclusions of law, as first made, the records, pleadings and files of the cause on which the motion below was considered, the "amended and corrected conclusions of law," on which the different judgment was based, and the judgment itself — all constituting the judgment-roll in the cause — are brought here on a stipulated and duly allowed bill of exceptions from which we have collated the pertinent facts.
By a deed dated October 11, 1870, and recorded March 27, 1873, William Workman and wife deeded the property in question to Joseph M. Workman "for and during the term of his natural life; and upon the decease of him," the said Joseph M. Workman, "unto his legal heirs, according to the laws of the state of California respecting descents and distributions, and their heirs and assigns to and for their sole use, benefit and behoof, in fee simple absolute forever; but not to the testamentary heirs and devisees of (Joseph M. Workman) in such manner as to contradict, impair, avoid or vary the . . . declared and limited remainder." Joseph M. Workman, who was the father of Josephine M. Akley, the respondent on this appeal, on March 1, 1895, by a grant deed conveyed the property here in question to O.T. Bassett, father of Charles N. Bassett, the appellant. Immediately after the delivery of said deed to O.T. Bassett, he commenced an action entitled Bassettversus Thornton et al., in the superior court of Los Angeles County, against the plaintiff here, and others, to quiet title to the land. The respondent was at that time a minor under the age of fourteen years. She had no guardian legally appointed, but her father and mother were both alive. A copy of the summons in the action of Bassett versus Thornton was delivered to the respondent personally, but none was served in her behalf, or at all, on any guardian, or on her father or mother, as required by section *631 411 of the Code of Civil Procedure relating to service of summons on a minor litigant. At no time did the respondent's father or mother or any guardian of her person or estate appear in said action in her behalf. It appears from the record that the court trying the cause made an order reciting that respondent and other defendants were minors, and appointing C.K. Holloway their guardian ad litem to appear and defend the action in their behalf.
Thereafter, on the twenty-fifth day of June, 1895, judgment was entered in Bassett versus Thornton, adjudging and decreeing that said O.T. Bassett was the owner in fee simple absolute of the land, and that none of the defendants to that action, including plaintiffs here, had any estate or interest therein. They were, by the terms of the judgment, forever barred from asserting any claim in or to the said lands and premises adverse to O.T. Bassett. No appeal was perfected from said judgment and in due time it became final. O.T. Bassett died intestate, January 1, 1898, leaving appellant surviving him as his sole heir at law. Such proceedings were thereupon had and taken for the administration of the estate of said O.T. Bassett that on the twentieth day of October, 1900, the land described in the complaint in this action was distributed to this appellant, who has not parted with the interest or title derived thereby. Joseph M. Workman, father of the respondent, died March 13, 1901.
When O.T. Bassett acquired the title to the land, by the deed from respondent's father, he entered into immediate possession and at once proceeded to develop the tract for subdivision and sale. He occupied, tilled and cultivated the land, dug wells, erected pumping plants for artificial irrigation of the soil, planted much of the tract to walnut trees, and to fruit trees of diversified kinds, and various crops, requiring artificial irrigation. The work of improvement was carried on openly and notoriously, and wide publicity was given thereto. Bassett also had prepared and filed for record a map designating the property as "Map of O.T. Bassett's Subdivision of the Workman Tract, being a part of the Rancho La Puente, etc.," with an indorsement thereon that he was the owner of the tract, and that the same was surveyed and subdivided at his request. Within three or four years after appellant succeeded *632 to the estate of his father he began to sell different parcels of the land, and has sold to innocent purchasers, for value, all but 285.45 acres of the tract. These purchasers have erected dwelling-houses on their respective holdings, and generally have gone forward with intensive improvement and development of the property. Such was the condition of affairs, and the relation of the parties (except that respondent Josephine M. Akley became of legal age January 13, 1901), when this action was commenced on the twenty-fourth day of June, 1918.
The original complaint is in the usual form for partition actions, and therein the respondent alleged that each of the plaintiffs and the defendants Charles N. Bassett and Ida L. Kelso were and had been since March 13, 1901, the date of the death of Joseph M. Workman, the owners in fee simple, and in possession, of the premises described, as tenants in common; that the defendant Charles N. Bassett had "collected, received, obtained and kept" all of the "rents, issues and profits" of said real property in an amount "in excess of the sum of one million dollars"; that said defendant Charles N. Bassett "has not resided in or been within the state of California since January 1, 1902, for periods of time aggregating four years"; and that he never appointed an agent upon whom process could be served. The complaint prayed that the, interests of the parties be ascertained, that all adverse claims be determined and that the property be partitioned according to the rights of the parties; that the defendant Charles N. Bassett be compelled to account for the amount of the rents, issues and profits "received from said real property," and that judgment be entered therefor against him.
On the sixth day of November, 1918, the defendant Charles N. Bassett filed his answer, the contents of which are not disclosed by the record, other than that it set up as defense the judgment in Bassett versus Thornton, obtained in 1895, and already referred to. Josephine M. Akley, whom we shall hereafter refer to as the respondent, thereupon filed an amendment to the complaint, alleging, in addition to the matters contained in the original pleading, certain facts tending to show that, as to her, the judgment in Bassett versus Thornton was wholly null and void, and not binding upon her, in that she was never served with *633 process in the action, and the court never obtained jurisdiction over her in said cause. She further pleaded facts purporting to excuse her delay in bringing the action; also her total lack of knowledge until May, 1917, of said action of Bassett versus Thornton, or of the judgment rendered therein, or of her interest in the property, or of any facts connected therewith sufficient to put her upon inquiry, or of any facts at all connected with said matters; also the circumstances under which she then acquired knowledge thereof and why she did not learn of the same sooner, and the acts and steps taken by her subsequent thereto, and the absence of the defendant Bassett from the state of California. It was further alleged that defendant Bassett had sold to "innocent purchasers for value" all of said land except 285.45 acres, and that in so far as such purchasers were concerned, the plaintiffs were not attempting to set aside said judgment, and waived, as to them, all right to the land they had bought. The prayer of the complaint was amended by requesting that the judgment in Bassett versus Thornton "be set aside and declared wholly null and void and of no effect whatsoever in so far as the plaintiff Josephine M. Akley is concerned," and that the defendant Charles N. Bassett be restrained from introducing said judgment in evidence against respondent, or claiming any rights thereunder as against her.
The defendant Bassett, whom we shall hereafter refer to as the appellant, demurred to the complaint as amended, specifying as grounds of demurrer a want of sufficient facts, uncertainty and ambiguity, the bar of certain sections of the Code of Civil Procedure, and that the laches of respondent precluded any right of recovery by the action. The demurrer was overruled and appellant filed his answer. He denied, among other matters, respondent's alleged ownership in the property and the invalidity of the judgment in Bassett versus Thornton, and set up a number of affirmative defenses. These are: the conveyance of the property to his father by deed from Joseph M. Workman and wife, and the subsequent facts relating to, the history of, and the judgment in Bassett versus Thornton, and the succession of the land to appellant through his father's estate; title to the land, as against certain of the plaintiffs other than the respondent, in O.T. Bassett, through mortgage foreclosure *634 proceedings, and purchase at such sale by said Bassett, November 11, 1895; claim of title by adverse and exclusive possession, supported by allegations of continuous occupancy, improvement, cultivation, and use of the land, the payment of all taxes, and absence of any claim on the part of the plaintiffs or any of them; estoppel of the plaintiffs, through acquiescence after knowledge of the possession of the land by appellant's father, O.T. Bassett, appellant's succession in interest thereto, and of the sale by him of various parcels of the land, and of extensive and expensive improvements of the same by the Bassetts, and by the purchasers at such sales, without assertion of any right at any time by the plaintiffs; estoppel of the plaintiffs by reason of an agreement entered into in Bassett versus Thornton, dismissing the appeal in that action, and the acceptance of the benefits by the parties thereto, including the respondent. The bar of various provisions of the statute of limitations is also pleaded by way of separate defense.
After the trial and submission of the issues thus presented, the court made its findings and conclusions of law. Judgment was entered that appellant is the owner in fee simple absolute of the land in question, and that none of the other parties to the land, including the respondent, have any right, title, interest or estate whatsoever therein. Respondent, Josephine M. Akley, alone, moved the court to vacate and set aside the judgment and to enter another and different judgment, under the provisions and procedure found in sections
[1] While the superior court has jurisdiction on a proper motion made under section
[2] As the foundation of her claim to an interest in the property in question, the respondent alleged, and the court found, that she succeeded to, and became the owner of, an undivided two-eighteenths interest in the land on the thirteenth day of March, 1901, upon, and by reason of, the death on that date, of her father, Joseph M. Workman, the grantee under the deed from William Workman. Appellant challenges this position, and asserts that under the rule in Shelley's case the deed, which is set out in full in the findings, should have a construction favorable to him. His contention is that the deed, if delivered before January 1, 1873, vested in Joseph M. Workman a fee simple absolute in the land, his heirs taking no estate or interest in the property during his life, leaving him free to dispose of it to appellant's father, as if the deed contained no words purporting to transfer to him less than the fee. There are two reasons why appellant's contention must fail. The first is that he attempts to place an improper construction upon the language of the deed from William Workman to *636 plaintiff's father, the material portions of which are as follows:
"The party of the first part, for and in consideration of the natural love and paternal affection by him borne toward the party of the second part, and for the worldly advantage and better maintenance and support of him, the party of the second part, and in provision for the lawful heirs of him, the party of the second part, hath given, granted, transferred, assigned and conveyed, and hereby doth give, grant, transfer, assign, convey and confirm unto the said party of the second part, withremainder as hereinafter specified and admitted the following described parcel of land: . . .
"To have and to hold the above granted and described premises with the appurtenances and the rents, issues and profits thereof unto the party of the second part, to and for his use and benefit, for and during the term of his natural life; andupon the decease of him, the party of the second part, unto hislegal heirs, according to the laws of the state of California respecting descents and distribution, and their heirs and assigns to and for their sole and only use, benefit and behoof,in fee simple absolute forever; but not to testamentary heirs and devisees of the party of the second part, in such manner as to contradict, impair, avoid or vary the hereby declared and limited remainder." The words italicized by us were underlined in the original deed.
The fundamental reason for the rule in Shelley's Case is so well stated, and the cases in which the use of apt language has taken deeds out of its application are so concisely reviewed, in Gordon v. Cadwalader,
The second answer to appellant's contention is that the rule in Shelley's Case was only in force in this state until January 1, 1873, when it was abolished by section
For another reason, however, it is necessary for us to consider the adjudication in Bassett versus Thornton, the effect of which was to declare O.T. Bassett the owner in fee simple absolute of the real property, and that the defendants to the action, including the respondent, had no estate or interest therein. Anticipating that the appellant would plead that judgment as a bar to her right to recover in this action, the respondent alleged that as to her, although she was nominally and to all intents a party to the action, the judgment therein was "wholly null and void, and of no force and effect whatsoever, and not binding upon" her, as she was not served with process, and the court never obtained any jurisdiction over her. The facts alleged by her in support of her contention, and found by the trial court to be true, are, briefly, these: On March 1, 1895, said action of Bassett versus Thornton was commenced in the superior court of Los Angeles County, respondent, among others, being a defendant. On March 2, 1895, there was delivered to her, in person, a copy of the complaint and summons in said action, but, although she was *638 at that time but little over twelve years of age, no copy of said summons and complaint were then, or at any time, served upon or delivered to either her father, or mother, or to any guardian of her person or estate, or to any of the persons designated in subdivision 3 of section 411 of the Code of Civil Procedure, which provides the manner in which summons may be served upon a minor under the age of fourteen years residing within the state. None of the persons designated in that section ever appeared in the action of Bassett versus Thornton on behalf of respondent or for themselves, and she was not served with process in said action, otherwise than by delivering to her personally a copy of the complaint and summons as before stated. During the pendency of the cause the court made an order purporting to appoint C.K. Holloway as guardian ad litem of respondent and two other minor defendants. An answer was thereupon filed in the action by the defendants, the three minors purporting to appear and join therein by their guardian ad litem. After evidence introduced, and submission of the cause, the court gave its decision and entered judgment, the effect of which, as already stated, was to declare the plaintiff Bassett the owner in fee of the property, the foundation for the judgment, as shown by the findings in the action, being the delivery of the deed from William Workman to Joseph M. Workman, followed by open, notorious, adverse possession in him for twenty-five years, and his subsequent conveyance to O.T. Bassett, appellant's father.
[3] Although the findings in the judgment-roll of Bassettversus Thornton contain a recital that respondent and the other minor defendants in the action "had been duly and regularly served with summons," the trial court in this cause, after finding the facts narrated above, further found, as alleged by the respondent, that the purported service was not sufficient to confer jurisdiction over respondent's person, or jurisdiction to appoint said C.K. Holloway as her guardian adlitem. Under the rules applying to the consideration of appeals on the judgment-roll alone, we are bound to accept the findings in the present case as establishing that there was no service of summons upon, or duly authorized appearance in Bassettversus Thornton on behalf of this respondent. The fact that the *639
record contains some evidence bearing upon such finding which is not in itself sufficient to support it cannot be considered. (Winterburn v. Chambers,
The respondent became of legal age January 13, 1901. The death of her father, at which time her remainder interest in the property vested, occurred March 13th of the same year. This action was not commenced until the twenty-fourth day of June, 1918, or more than seventeen years after the disability of nonage was removed, and after the respondent was in position to assert her claim to an interest in the land. In an endeavor to meet the claim of adverse possession, and title by prescription in appellant, and a defense based upon her own laches, respondent alleged, by way of an excuse for such a long period of inactivity, that until about one year before commencing this action, she did not know, nor was she ever informed of any fact that would lead her to suspect that she owned any right, title, interest or estate in the property, and did not know that the judgment in Bassett versus Thornton had been entered against her. Other facts purporting to explain the delayed discovery, and setting forth what respondent finally did in the way of initiating this action are pleaded. She also alleged the absence of appellant from the state for the greater portion of the seventeen-year period. These allegations, other than appellant's absence, were traversed by the appellant, who set forth the facts upon which he relied to establish title by prescription in himself, and to show laches on the part of respondent.
[6] In response to the issue of adverse possession the trial court found that O.T. Bassett, appellant's father, entered upon the land under claim of title founded upon the deed from William Workman to Joseph M. Workman, dated October 11, 1870, the deed from Joseph M. Workman and Josephine M. Workman, his wife, to O.T. Bassett, dated March 11, 1895, and the decree in Bassett versus Thornton quieting his title as against respondent and others, and that his successors in interest, including this appellant, entered upon said lands under claim of title deraigned through him. Therefore, as the appellant succeeded to the land under a claim founded on the title of his father, who had a deed which implied full ownership, and under the decree of distribution in the father's estate, his entry and claim rest upon color of title. (Owsley v. Matson,
Respondent takes the position that neither the possession, nor the acts of appellant or his immediate predecessor, before the death of her father in 1901., at which time her rights accrued, should have the effect of ousting her. It is true that the possession of respondent's father, the tenant for life, was not adverse to her as remainderman. [12] Such life tenant could not, by his dealings with the life estate, make his, or his grantee's possession, adverse to respondent, so as to start the statute of limitations against her during the life estate (Pryor v. Winter,
[13] The fact that the respondent did not become of age until January 13, 1901, does not make any difference in the consideration of the question before us. An infant can be ousted from his possession either by a stranger or a cotenant. The ouster sets the statute of limitations running in favor of the disseisor, but protection is given the infant by the provision of the statute that the adverse *644 holding must continue from that date until the expiration of five years from his attaining his majority. The sufficiency of the notice on the part of the disseisor, at the time it is given, is not to be diminished by anything occurring subsequent thereto. The knowledge that the infant would have had from the notice, if he had been capable of comprehending the same, is imputed to him as of the date of the notice as fully as if he were an adult, but the effect of such knowledge is suspended until his majority. (Winterburn v. Chambers, supra.)
What the appellant, and his predecessor in title, did by way of entering upon, and maintaining possession of the land, and in asserting complete and exclusive ownership, both before and after respondent's right of entry accrued in 1901, is comprehensively set forth in the trial court's findings, the substance of which we recited when stating the various separate defenses pleaded by appellant. We think it unnecessary to repeat those facts here, or to quote extensively from the findings. As an ultimate fact the court found that such ouster by, and possession in, appellant, and his predecessors in title, extending over a period of nearly twenty-five years, seventeen of which passed after the respondent was in position to assert her claim to an interest in the property, imparted constructive notice and knowledge to the respondent, and her coplaintiffs, of the adverse nature of appellant's claim. It also found that neither respondent, nor any of the other parties hereto, other than appellant, had been, or were seised, or possessed, of the land within five years before the commencement of the action. Its conclusion first adopted was that, by reason of the facts so found, and of such occupancy and possession by the appellant, all of said claimants, other than appellant, are barred from any recovery in this action, and that the appellant "has acquired title to said real property under the provisions of section
Respondent points out other findings, which she contends, are inconsistent with and entirely destroy the effect of the finding of prescriptive title in appellant. The first of these is that appellant is a resident of the state of Texas, and during the whole period of time since respondent's rights accrued, has only been in the state of California on infrequent visits, remaining here in the aggregate some three and a half years, and has never designated an agent in the state upon whom summons may be served. Other findings are that "this action is not barred by the provisions of section
[17] For another reason we think the first judgment entered in the court below was right. The trial court found that the respondent did not make her demand within a reasonable time and that, as a consequence, her cause of action was barred by her laches. This determination is unquestionably correct. The commencement of this action after such a lapse of time, irrespective of the statute of limitations, is, in our judgment, the presentation of a stale demand. (Casserly v. County of Alameda,
[21] Respondent has urged that the defense of laches should not be recognized in this case for the reason that the defense was not pleaded. In answer it is only necessary to say that "it is well settled that the defense of laches need not be pleaded, but when it appears from the evidence that the seeker of relief in equity has been guilty of laches the court will deny such relief sua sponte." (Stevinson v. San Joaquin etc. Co.,
Appellant seeks also to invoke the defense of estoppel against respondent, in that he alleged, and the court found, that after respondent became of age she received and accepted her share of certain proceeds arising out of an agreement of settlement and dismissal of an appeal taken in the case ofBassett v. Thornton. The finding on the point is so unsatisfactory on the essential elements entering into the application of the doctrine of estoppel that we may well consider the contention to be without support.
From the foregoing it must appear that the judgment and decree first entered by the trial court, to the effect that the plaintiffs in this action, including respondent, have not, and defendant, Ida Kelso, has not, nor has either or any of the *649 plaintiffs, or said Ida Kelso, any right, title or interest in the land and premises eventually concerned in the litigation, but that the appellant is the owner in fee simple of all of such properly, was right and was the only judgment and decree that can properly stand on the findings and proper conclusions of law. The lower court was in error when it granted the motion of the respondent to vacate and set it aside and to substitute the judgment finally entered in its place and stead.
[22] As an order reversing the order and judgment appealed from, without other direction, will leave the original conclusion of law and judgment in force, it is not necessary to make any order directing a new conclusion of law or the entry of another judgment. (Dahlberg v. Girsch,
The order vacating the original judgment and amending the conclusion of law upon which the same was based is reversed, as is the judgment entered in pursuance of said order.
Shaw, C. J., Wilbur, J., Lennon, J., Richards, J., pro tem., Myers, J., pro tem., and Lawlor, J., concurred.
Rehearing denied.
All the Justices present concurred.
Richards, J., pro tem., was acting.