160 P. 1072 | Cal. | 1916
Plaintiff, as assignee of the heirs of Christina E. Romer, brought a suit in equity to avoid the effect of a deed by which the defendant Chester Spencer, as administrator of the said Christina E. Romer's estate, sought to *591 convey certain real property of the said estate to one Emma M. Hunter. Respondents Charles A. and Louise Callow Boege and George Vandenberg are claimants to the title of Emma M. Hunter under subsequent conveyances. All of the said respondents demurred to plaintiff's amended complaint. Their demurrers were sustained and, plaintiff declining to amend, judgment was entered accordingly against him and in favor of the three respondents. This judgment was that plaintiff take nothing as against respondents; that respondents be awarded costs; and that as to them the action be dismissed. The defendant Chester Spencer filed a demurrer to the amended complaint but the record reveals no action thereon by the court. Answers were filed by German-American Bank, Frank L. Eastman, and Minnie H. Eastman. The bank asserted a lien upon the property as mortgagee of Emma M. Hunter, and the Eastmans based their claim of interest in the property upon a mortgage in their favor by the Boeges.
Plaintiff has appealed from the judgment and respondents have moved to dismiss the appeal upon the ground that no final judgment has been entered, and that therefore the attempted appeal is not from an appealable judgment.
We are of the opinion that the motion to dismiss the appeal should be denied. Respondents insist that, since no judgment will be regarded as final unless all necessary issues of law and fact have been determined and the case completely disposed of (citing Freeman on Judgments, 4th ed., sec. 34), plaintiff can have no right of appeal until all of the defendants shall have suffered some sort of judgment against them or in their favor. There is no question of the correctness of the rule announced by Judge Freeman, but it does not apply to this case. Appellant cites Stockton Combined Harvester etc. Works v. GlensFalls Ins. Co.,
The court has power to render a several judgment by default against one of two joint tort-feasors and allow the action to proceed against the other. (Cole v. Roebling Construction Co.,
The judgment in the case at bar in favor of respondents is not inextricably connected with the claims of the mortgagees nor with the asserted delinquencies of Chester Spencer. If plaintiff has failed in his attempt to set aside the deeds to the respondents, the Boeges and Vandenberg, it makes no difference who assert rights as mortgagees of their interest. It is our opinion, therefore, that the judgment entered after default of plaintiff (who declined to amend his complaint after the sustaining of the demurrer by the court), is a final judgment, *594 from which an appeal will lie, and that the motion of respondents to dismiss the appeal herein should be denied.
We now come to the discussion of the demurrers. The plaintiff's bill is very elaborate. It contains three counts, in which plaintiff, as representative of the heirs of Christina E. Romer, deceased, attacks the validity of the title of respondents to certain land in Orange County acquired by proceedings taken in accordance with sections 1597-1607, inclusive, of the Code of Civil Procedure. It is averred that Chester Spencer, assuming to act as administrator of the estate of Romer, executed the conveyance of said property to Emma M. Hunter. In the first count the death of Mrs. Romer in New York in 1910 is pleaded. It is further averred that she left the property here in dispute and that it was of her separate estate; that for more than two years prior to her death she had been mentally incompetent; that plaintiff has for many years resided in New York and never has lived in California; that proceedings were had in Orange County resulting in the making of an order by the court purporting to appoint Chester Spencer administrator of the estate of Christina E. Romer; that the proceedings and order were void because (1) the petition for letters of administration was not signed by Spencer or his attorney, and because (2) the notice of hearing recited that William H. Romer, the husband of Christina E. Romer, had applied for the issuance of letters to himself, whereas, in truth, he had asked that letters be issued to Chester Spencer; that plaintiff and his assignors had no actual notice of the proceeding; that Chester Spencer assumed to qualify and act as administrator; that thereafter an order was made by the court directing the administrator to convey the land to Mrs. Hunter; and that respondents claim title as successors of said grantee.
The second count contains averments of a conspiracy between Spencer, his attorney, and Emma M. Hunter to present a petition to the court praying for an order authorizing the administrator to convey the land to said Emma M. Hunter, and that pursuant to said conspiracy Mrs. Hunter filed such a petition setting forth certain untrue allegations, among them being a false statement that Mrs. Romer had contracted to sell the property to her. Other facts are alleged which need not be set out in detail, and it is averred that the administrator entered his appearance, waived notice, and joined in the *595 fraudulent petition. It is alleged that plaintiff was ignorant of the conspiracy and of the fraudulent acts done and committed in furtherance thereof until a few days prior to the commencement of the action, and that he had no knowledge of the application for a conveyance until the same time, antedating the filing of his bill in equity by a few days.
The third count pleads that defendants had knowledge sufficient to put prudent persons upon inquiry regarding the correctness of the proceedings in probate and the authority of the administrator to execute the conveyance; that actual knowledge of the facts might have been acquired by defendants by the exercise of due diligence on their part; that the alleged copy of the contract of sale which was attached to Hunter's petition was of a document calculated to arouse suspicion regarding its genuineness in the mind of any person who might read it; that no original nor purported original contract was produced; that F.C. Spencer acted as attorney for both the administrator and Hunter; that no appraisement of the property was had at the time of the hearing of the petition; and that if such appraisal had been made, it would have convinced the court that Mrs. Hunter obtained an unconscionable advantage by the enforcement of the supposed contract.
The demurrers were properly sustained. One great fault of the bill is that it lacks equity in this, namely, that plaintiff attacks the appointment of Spencer as administrator, but pleads that such appointment was upon the recommendation of William H. Romer, one of the heirs at law, and one of his assignors. But there are other reasons why the demurrer should have been sustained.
This action is a collateral attack upon the title of respondents. It is not denied that deceased was a nonresident of California; that she died intestate; that William H. Romer was her surviving husband who had the right to nominate an administrator of her estate; and that the court did appoint his nominee. In such an attack as this the plaintiff is in no position to take advantage of informalities in the issuance of letters. The appointment of Spencer is attacked because the petition for letters was not signed by the "applicant" but by his nominator, William H. Romer, and because the notice stated that Romer had prayed for issuance of letters to himself. But the jurisdiction is pleaded, and the issuance of *596
letters to Chester Spencer is alleged as well as facts showing that he acted in the capacity of administrator under the direction of the court. As against collateral attack, these facts, set up by the pleading itself, are conclusive of Spencer's due authority. (Ganahl v. Soher,
In any view of the case there was not sufficient allegation of the purchase by Mr. and Mrs. Boege with knowledge, actual or constructive, of the fraud. The same may be said with reference to the averments concerning George Vandenberg. The learned judge of the superior court who tried the case, in rendering his decision, spoke of this phase of the pleading in part as follows:
"There is absolutely nothing alleged in the complaint to show that the Boeges acted in anything except the utmost good faith in this transaction, or that there was anything within their knowledge to put them upon inquiry as to the alleged fraudulent conspiracy. Presumably before purchasing they caused an examination to be made into the title of the property which they contemplated buying; if so, they found an apparently valid decree directing the administrator to convey this property to Emma M. Hunter in specific performance of the contract under which she claimed that right; the record disclosed absolutely nothing to indicate that there had been a fraud practiced on the court. To be sure, the record showed that Chester Spencer, as administrator, joined with Emma M. Hunter in her petition for specific performance instead of taking the attitude of an adversary, but he might with *597 propriety have made the application himself (sec. 1598, Code Civ. Proc.), or, if he believed it to be for the best interest of the estate, he might with no seeming impropriety join in the petition for specific performance. If again there was no adversary position between Emma M. Hunter and the administrator in this matter, the mere fact that F.C. Spencer acted as attorney for both in what appeared to be a friendly proceeding was not indicative of any fraud, however questionable it may have been as a matter of legal ethics. In any event, an examination of the record would show that all of these matters were before the probate court at the time the petition for specific performance was heard, and the decree of that court was an adjudication of the regularity of the proceeding and all matters antecedent thereto. Under these circumstances, the Boeges must be held to be purchasers for value in good faith, and without notice of any infirmity of title of Emma M. Hunter, their grantor."
No other matters discussed in the briefs require comment.
The motion to dismiss the appeal is denied. The judgment is affirmed.
Henshaw, J., Lorigan, J., Shaw, J., Sloss, J., Lawlor, J., and Angellotti, C. J., concurred.
Rehearing denied.