178 P. 525 | Cal. | 1919
This is an action in partition. The property sought to be partitioned is the following described real estate situate in the county of Ventura, state of California:
"All that tract of land known as the Broome Estate Ranch, consisting of the larger part of the Rancho Guadalasca, comprising two thousand acres more or less; the land called the 'Conejo Tract,' adjoining the Rancho Guadalasca on the east, comprising about six hundred sixty-three acres, and that part of the Rancho La Colonia which is situated between the county road known as the Hueneme Road, and the northwesterly boundary of said Rancho Guadalasca, comprising about four hundred sixty-three acres, together with the buildings and other improvements thereon."
This description is quoted from the complaint, at the time of the filing of which a summons was issued containing the same description, and a lis pendens also containing it, filed in the office of the county recorder of Ventura County. The defendant, Frances Broome, now appellant, demurred to the complaint on general grounds and specifically on the ground that its description of the property is not "proper, legal, sufficient or adequate." The demurrer being overruled, the court found on the issues of the cause in favor of the plaintiff, Thornhill Francis Broome, and decreed that the property should be partitioned between the parties to the action according to their respective interests therein. There are two appeals, one from the interlocutory decree of partition and from an order denying a new trial, and the other from the order appointing a receiver. The appeals have been consolidated into one, and its four main questions are (1) whether the court had jurisdiction to hear and determine the cause, *640 appellant contending in this behalf that neither the complaint nor the lis pendens adequately described the property; (2) whether the trial court erred in finding that the services rendered by plaintiff's counsel were for the common benefit of all the parties to the action; (3) whether the decree of partial distribution entered in the estate of William Francis Broome, deceased, whereunder the plaintiff and the nonappealing defendants, Montague Watson Broome and Amy Lillian Broome, claim as tenants in common an interest in the land subjected to partition can be availed of as muniment of title; and, finally, (4) whether the court erred in failing to find upon the issue that the action was prematurely instituted presented by an allegation of the answer to the effect that the partial decree of distribution of the estate of the testator to the parties to the action had not become final before the date of the filing of the complaint in the action.
The third ground of the appeal may be dismissed with the observation that, as shown by the record, the decree of partial distribution in the estate of Richard Broome having become final prior to the commencement of this action, fixed and determined the rights of the distributees thereunder, subject only to defeasance as the result of fraud (Rountree v.Montague,
Now, then, is it not obvious that all of the foregoing makes a much ado about nothing? While the allegations of the answer involving the claim of fraud are extensive, they are not altogether free from equivocation and embrace but few farfetched facts which neither singly nor collectively suffice to make a satisfactory showing of fraud which had for its purpose the deluding and deceiving of the defendant, Frances Broome, into sleeping upon whatever right she may have had for a revocation of the decree of partial distribution. The stipulation of April 21, 1910, which was signed in person by the defendant Frances Broome and which, while purporting to be a compromise of the differences of all of the parties interested in the estate, reserved unto said Frances Broome the right to appeal from the final decree of distribution which might be entered in said estate was, as evidenced by its very terms, entered into primarily for the purpose of initiating and stimulating proceedings looking to an early and final distribution of the estate of deceased, and neither expressly nor by necessary implication is there anything to be found in the stipulation which gave the defendant Frances Broome any *644 assurance that the proceeding for partial distribution would not be instituted prior to an application for final distribution. Nor can we conceive how the defendant Frances Broome because of anything contained in the stipulation could have been misled and deceived into foregoing her undoubted right, notwithstanding the stipulation, to appeal from the decree of partial distribution.
The alleged fact that Frances Broome was in no manner made a party to the proceedings for the resubmission of the several petitions for partial distribution, including her own, and which ultimately resulted in the decree complained of, is emphasized as an evidence of the fraud alleged to have been perpetrated in the procurement of the decree, but in response to this it need only be noted that the record is barren of any evidence, or even suggestion, that she did not have notice of that proceeding or that it was instituted and consummated without her knowledge.
In so far as is concerned the knowledge of the defendant Frances Broome of the petitions for partial distribution and the proceedings had thereon from their very inception until the making and entry of the decree, it will be noted further that the decree itself recites that all of the parties were represented in court by their respective counsel, and that due notice of the hearing of the petitions had been given to all of the parties interested, and in this behalf it will be further noted, that the answer of the defendant Frances Broome does not allege that the notices required by law of the pendency of the petitions and of the proceedings had thereunder were not given. In the absence of an allegation and a showing to the contrary, the presumption that the notices required by law were given must prevail. Moreover, upon this phase of the case, the record shows that the notice required by law on the hearing of all the petitions for partial distribution was given, and, in addition, the record contains much evidence to the effect that the defendant Frances Broome was in court on every occasion when there was any hearing in reference to the estate of William Richard Broome, deceased. In short, the evidence, direct and presumptive, upon this phase of the case, preponderates in favor of the finding of the trial court in this action that the defendant Frances Broome had "notice of all matters pending which culminated in the making of said decree of partial distribution," and that she was not in "any *645 manner imposed upon or misled in connection with the obtaining of said decree of partial distribution or in connection with a reliance upon the finality and conclusiveness of the same, or imposed upon or misled at all." This view compels the conclusion that the decree of partial distribution constituted a sufficient muniment of title and disposes of the further contention that the action was prematurely brought. A determination of the latter question involved but a conclusion of law unnecessary, immaterial, and improper, therefore, to be found as a fact.
It is apparently conceded that the finding of the trial court relative to the allowance of attorneys' fees is not supported by the evidence, but in any event the finding of attorneys' fees had no proper place in the interlocutory decree, and therefore the judgment must be modified in that particular, leaving the subject of fees and costs to be determined by the final findings and judgment. (Code Civ. Proc., sec. 796;Harrington v. Goldsmith,
Concerning the sufficiency of the description of the property sought to be partitioned to confer jurisdiction upon the court below to hear and determine the action, it is the contention of appellant, concisely stated, that the description of the land contained in the complaint, summons and lis pendens in a suit in partition must so describe the land sought to be partitioned as to render possible its location by a competent surveyor without the aid of extrinsic evidence. This contention is, in effect, rested largely upon the assumption that the statutory direction (Code Civ. Proc., secs. 755, 756), that the summons in partition shall contain "a description of the property sought to be partitioned," and the lis pendens "a description of the property to be affected thereby," calls for more particularity in the description of the property to be partitioned than is ordinarily required in other and different actions involving the title to the real property. No good purpose would be subserved by following the refinements of reasoning which permeate an elaborate and admirable brief presented in support of this contention, and we think it will suffice to say that, having in mind the language of the code sections under consideration, certainly no greater or less effect need be accorded descriptive words in the pleadings and preliminary process and proceedings in partition than that required to be accorded *646
to descriptions and descriptive phrases in other actions involving the title to real property. "There is, indeed, authority for the position that the description in a complaint in partition may properly be less precise than elsewhere." (30 Cyc. 218.) Ordinarily, only reasonable certainty in description of property sought to be partitioned is required in the pleadings and proceedings in an action in partition, and this is primarily for the purpose of showing that the property is within the jurisdiction of the court so as to permit the defendant, if need be, to properly traverse the plaintiff's title, and enable the court to definitely determine and define the mode and extent of the partition to be made; and finally, to aid the commissioners upon an interlocutory decree to ascertain the estate ordered to be distributed in keeping with the terms of the partition. Consequently, only such a general description in limine is required as will lead to an identification of the property upon which the partition prayed for, if granted, will operate. (Sumner v. Hill,
The appeal from the order appointing a receiver is founded in the contention that the trial court was without jurisdiction to entertain the action at all. This appeal is, therefore, disposed of by our conclusion previously stated concerning the jurisdiction of the trial court. *648
The decree appealed from is modified by striking therefrom the allowance of attorneys' fees, and, as so modified, the decree and the order appointing a receiver will stand affirmed.
Wilbur, J., and Melvin, J., concurred.
Hearing in Bank denied.
All the Justices concurred.