125 Cal. 664 | Cal. | 1899
Action to quiet title. Judgment for plaintiff. Motion for new trial denied. This appeal is from the judgment and order. On July 24, 1893, and prior thereto, one L. Frank Ciar was the owner and seised in fee of the lands in controversy; and was then in insolvent circumstances and owed, among others, one Adolph Sommer the sum of four thousand eight hundred dollars, besides interest. On said date the said L. Frank Ciar made a bargain and sale deed of said lands to his brother, Leo II. Ciar. On September 11, 1893, said Sommer assigned the indebtedness so due him from L. Frank Ciar to defendant Leggett, and on September 21, 1893, Leggett commenced an action in the proper court against said L. Frank Ciar and had a writ of attachment issue, which said writ was levied upon the said lands September 22, 1893. On the following day, September 23d, the deed made by said L. Frank Ciar to his brother, Leo H., was placed on record in the county where the lands are situated. October 15, 1894, said Leo H. Ciar made a quitclaim deed of said lands to plaintiff, and on the 25th of the same month said Leggett recovered judgment against said L. Frank Ciar. On December 17, 1894, the defendant Leggett purchased the said premises at execution sale under his said judgment, the same having been sold as the property of said L. Frank Ciar. The defendants, other than Leggett, made default. Leggett, by his answer and cross-complaint, denied the execution, delivery, and consideration of the deed from L. Frank Ciar to Leo H. Ciar and of the deed from Leo H. Ciar to plaintiff, and asked the court to set aside the
It is further claimed that the evidence is insufficient to support the finding that the deed made to Leo H. Ciar was delivered. The witness Butts testified that at the request of and as agent of Leo he prepared the deed and sent it to L. Frank Ciar at Boston, to be executed and returned to him. That the deed was executed and returned to witness, and that he received it and took possession of it for Leo. The witness Leo H. Ciar says that he employed Butts as his attorney to get the deed for him. We think the evidence (which is not contradicted) amply sufficient to support the finding. The deed having been made for a valuable consideration and delivered to the grantee, the law presumes that the grantee rightfully acquired the title to the property. The burden was therefore upon the defendant, after such consideration and delivery is established, to prove a fraudulent intent on the part of the grantor, and that the grantee was in some way a party to such fraud by purchasing with knowledge of such fraudulent intent or under such circumstances as should put him on inquiry as to the fraud on the part of the grantor. (Jones v. Simpson, 116 U. S. 614; Ross v. Wellman, 102 Cal. 4.) The court found that at the time of the making of the conveyance from L. Frank Clar to Leo EL, that Leo was not privy to or a participator in any fraud whatsoever,
As was said by this court in Levy v. Scott, 115 Cal. 41: “It is quite true that evidences of fraud are not left lying patent in the sunlight; that fraud itself is always concealed, and that the truth is to be discovered more often from circumstances, from the interests of the parties, from the irregularities of the transaction, coupled with injury worked to an innocent party, than from direct and primary evidence of the fraudulent contrivance itself, nevertheless, the evidence of these matters, facts, and circumstances, taken together, must amount to proof of fraud, and not to a mere suspicion thereof, for the presumption of the law, except where confidential relations are involved, is always in favor of the fair dealing of the parties.”
If we are correct in what has been said, the finding as to the intent of L. Frank Ciar in making the deed to his brother Leo is not material, and it is not necessary to discuss it. It is claimed that the finding that the deed from Leo H. Ciar to plaintiff was for a valuable consideration was outside the issues, contrary to the admissions in the pleadings, and that the said deed was in fact a mortgage given as security only. The technical argument is urged that the plaintiff, in denying the cross-complaint, literally denied “that the deed was wholly voluntary and without any consideration whatever,” and that such denial was virtually an admission of the allegation of the cross-complaint as to want of consideration. If counsel had urged the objection in the court below, it would probably have resulted in an amendment to the answer to the cross-complaint in furtherance of justice, and in order that the ease might he tried
Considerable space is taken up in appellants’ brief in the attempt to show that the finding that plaintiff was in possession of the lands at the time of the commencement of the action is not supported by the evidence. The evidence is sufficient, but the finding is wholly immaterial. The owner of land does not have to be in possession in order to enable him to maintain an action to quiet title. (Code Civ. Proc., sec. 738; People v. Center, 66 Cal. 555; Brusie v. Gates, 80 Cal. 463.) Many technical objections are made to the rulings upon the admission or rejection of evidence. The first one argued is the ruling of the court in sustaining plaintiff’s objection to the defendants’ question asked of the witness Leo H. Ciar, to wit: “What statement did you make to Mr. Butts at the time you told him to get the deed? How did you tell him? Did you give him any instructions about getting it?”
The court sustained the objection upon the ground that the
We advise that the judgment and order be affirmed.
Gray, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
McFarland, J., Henshaw, J., Temple, J.
Hearing in Bank denied.