175 P. 705 | Cal. Ct. App. | 1918
This is an action to quiet title. The defendants had judgment in the trial court and the plaintiffs have appealed. The appellants have brought up the judgment-roll and a bill of exceptions. From the record before us, it appears that the dispute arose over the location of a boundary line; the plaintiffs filed a complaint in the ordinary form of an action to quiet title; the defendants appeared separately and filed separate answers and at the same time filed cross-complaints; the plaintiffs answered the cross-complaints, and, among other defenses, they pleaded the statute of limitations (Code Civ. Proc., sec. 338, subd. 4). The case was tried on the issues made by the above-mentioned pleadings. The trial court made findings which included a finding that the plaintiffs were estopped, and one that the defendants were not barred by the statute of limitations. The finding on estoppel is in the general words that the plaintiffs are estopped, but no facts are set forth, and it appears on the face of the finding that the same is a conclusion of law out of place. As the sole question that is in dispute is the location of the boundary line between the plaintiffs and the defendants, it is patent that a judgment for or against the plaintiffs is, conversely, a judgment against or for the defendants. In such a case a cross-complaint is unnecessary. (Wilson v. Madison,
The plaintiffs commenced this action by filing their complaint on March 24, 1914.
It is clear from the foregoing statement of facts that all of the parties considered that a measurement was necessary. It likewise appears that a measurement was had. In the case ofYoung v. Blakeman,
Silva v. Azevedo,
The pleadings put in issue the mutual mistake of the parties in framing and executing their deeds, and there was no error on the part of the trial court in receiving parol evidence (Code Civ. Proc., sec. 1856, subd. 1; Capelli v. Dondero,
The trial court treated the cross-complaint as such and awarded relief accordingly, and it is necessary to modify its judgment. This can be done by striking from the judgment all matter commencing with the words, "Now therefore" (where those words first appear in the judgment), and down to and including the words "parties respectively," where those two words last appear in the judgment and inserting instead the following:
"Now therefore, it is by the court ordered, adjudged and decreed that the plaintiffs are not the owners of or seised in fee simple of all that certain piece or parcel of land situate, lying and being in the county of Contra Costa, state of California, and more particularly described in paragraph (5) five of the plaintiffs' second amended complaint." As so modified, the judgment should be affirmed and it is so ordered.
Lennon, P. J., and Beasly, J., pro tem., concurred.