98 P. 190 | Cal. | 1908
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *499
This is an action in ejectment commenced in the district court of the twentieth judicial district of California, July 11, 1879. It appears from the complaint and the verification thereto, made by Mrs. Winifred C. Tarpey, that plaintiff Cassin was her lessee for a term of five years, terminating upon the first day of October, 1883, and that the action was prosecuted by the lessee on behalf of Mrs. Tarpey and for the establishment of her title. The defendant answered by denial, and for an equitable defense pleaded certain circumstances of fraud alleged to have been perpetrated upon him by Matthew Tarpey, predecessor in interest to the title of Winifred C. Tarpey. These matters will be found set forth in the three appeals in the case of Nicholson v.Tarpey,
Seemingly, under the mistaken idea that this equitable defense could not be successfully interposed in a legal action of ejectment (Meeker v. Dalton,
Since it would have been permissible for defendant to have offered his equitable defense and to have sought equitable relief in the original ejectment suit, this case is no different from the situation which would have resulted had the issues inNicholson v. Tarpey been here tried. It would have been proper for the court to have disposed of the equitable matters first without a jury, and upon the final disposition of them, if their disposition were adverse to Nicholson, to proceed to the hearing of the legal controversy. The present action may therefore be regarded as one wherein Nicholson has interposed an equitable cross-complaint seeking affirmative relief upon the ground of fraud, and has been refused relief because of his neglect to commence his action within the time limited by the statute. *501
In 1901 this action came on for hearing. The trial court called in Winifred C. Tarpey and her children as parties plaintiff, and it being made to appear that John Tarpey had succeeded to all the right, title, and interest of Winifred C. Tarpey and her children, John Tarpey was ordered to appear as substituted plaintiff for them. He made such appearance and filed a complaint, setting forth the history of the action of Nicholson v. Tarpey and the final dismissal of it by plaintiff, and his own title, and with the usual allegations appropriate to an action of ejectment prayed judgment for the possession of the premises and the rental value during the occupancy of defendant. To this complaint Nicholson answered by denials and by pleading title in himself by adverse possession. He also set up all the matters of equitable consideration alleged in his answer to Cassin's complaint and in his own complaint in Nicholson v. Tarpey. The trial court first took evidence upon this equitable defense and found that Tarpey had committed no fraud, that there was a written agreement between the parties for the conveyance of a piece of land containing 191.14 acres, that on the twenty-ninth day of October, 1868, the full purchase price was paid by Nicholson for this land, and that Matthew Tarpey executed a deed in full conformity with the written agreement without intending or contriving or designing to mislead, deceive, overreach, swindle, or defraud defendant, and without in fact misleading, deceiving, overreaching, swindling, or defrauding the defendant; that Tarpey did convey all the property which he had ever agreed to convey or had ever represented that he would convey.
Proceeding next to the trial of the legal issues, a jury was impaneled. Plaintiff made proof of the legal title. The court, however, refused to admit most of the evidence offered by the defendant, upon the ground that he was "equitably estopped" and instructed the jury to return a verdict for the plaintiff, which it did, fixing the rental value of the property during the time of its detention at $1,778.12. Judgment followed for plaintiff, and from that judgment and from the order denying a motion for a new trial defendant appeals.
Appellants' first complaint is of the ruling of the court in admitting John Tarpey as plaintiff in the action under an order substituting him as plaintiff for Winifred Tarpey and *502
her children, who, it is asserted, never appeared in the action. Herein various contentions are raised, as that the original action was by the termor for possession for a limited term of years and that that term had long expired before trial; that the action was thus one contemplated by section
It is to be remembered that defendant Nicholson had pleaded title by adverse possession to Cassin's complaint, alleging such possession to have been continuous from the year 1867. He entered the same plea to the complaint of John Tarpey. All evidence under this plea was ruled out upon trial before the jury, upon the ground, as has been stated, that the defendant *504 was equitably estopped. Upon this the record discloses the following: Objection was made to a question asked of defendant Nicholson. The court requested the defendant's counsel to state the purpose of the testimony. He responded, "It is for the purpose of showing our ownership and title to the land in dispute and of our right to the possession of it. It is for the purpose of giving support to the plea of the statute of limitations and to our title by prescription, and also for the purposes, generally, of showing our title to the land and our right to the possession of the land.
"Mr. Delmas: Then, I am prepared to argue that question, if your Honor please. No evidence of that kind is admissible in this case, and the defendant is estopped from introducing it; estopped by his pleadings and by his own conduct.
"The Court: I think, gentlemen, that the rule of equitable estoppel will have to apply in this case. The objection will be sustained."
Counsel for appellants then, amongst other specific offers, made the following: —
"Now, I offer to prove that the defendant Murdock Nicholson from the month of June, 1867, to July 11, 1879, was in the actual, continuous, exclusive, hostile and adverse possession of the lands in dispute, holding and claiming the same against Michael Cassin, the plaintiff, and against the world. I further offer to prove that Murdock Nicholson, the defendant in this case, during this period subjected the premises and lands in dispute to his will and dominion and exercised acts of ownership over the same. I further offer to prove that during this period just named, and the whole of it, he used the premises in dispute for fuel; also for fencing and timber; also for wood; also for pasture and also for the ordinary use of the occupant; and also for the uses that lands contiguous to these lands were used, and in the usual way of land surrounding these lands."
To each and all of these offers the plaintiff objected upon the grounds above stated, and the court sustained the objection.
Wherein an equitable estoppel had arisen against the defendant so as to prevent him from proving, if he was able to do so, his prescriptive title antedating the commencement of the action, is not made plain. It is true that in the trial of *505
the equitable defense the court found as above indicated, but those findings and that determination could not be used to prevent the defendant from introducing all pertinent evidence upon the subject of the legal title which he claimed. Thus, in his legal defense, defendant was entitled to show before the jury under his plea that he had entered into possession under a written instrument and had continued to hold that possession under claim of right and in hostility to all the world, — to show all the facts and circumstances which were at the initiation of his possession. He was entitled to establish the written agreement between himself and Tarpey; that that agreement had been fully executed and, upon proof of its destruction, he was entitled to show by parol the contents of the agreement. The fact that in making this proof the testimony would go to the asserted fraud of Tarpey, against the existence of which fraud the court, in determining the equitable issues, had found adversely to defendant, could not deprive him of the right to present the same facts and circumstances to the jury, not as seeking at their hands any equitable relief, but as showing, if his evidence was believed, the circumstances of his entry, that it was in good faith and that it was under a written instrument. Defendant had pleaded adverse possession under section
The only other foundation for this ruling of equitable estoppel is based upon the doctrine that a vendee is estopped from denying his vendor's title, as a tenant is estopped from denying his landlord's title. This doctrine was never applied between vendor and vendee with the strictness which, upon good reason, obtains in the case of landlord and tenant. As early as 1822 its application to the vendee was doubted by Chief Justice Marshall(Blight's Lessee v. Rochester, 7. Wheat. U.S. 534). He says: "The propriety of applying the doctrines between lessor and lessee to a vendor and vendee may well be doubted. The vendee acquires the title of the vendor. The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title, unless he should be called upon in consequence of some covenant or warranty in his deed. The property having become, by the sale, the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this; nor is either the letter or spirit of the contract violated by it. The only controversy which ought to arise between him and the vendor respects the payment of the purchase money. How far he may be bound by this, by law, or by the obligations of good faith, is a question depending on all the circumstances of the case, and in deciding it, all these circumstances are examinable. If the vendor has actually made a conveyance, his title is extinguished, in law as well as equity, and it will not be pretended that he can maintain an ejectment. If he has sold, but has not conveyed, the contract of sale binds him to convey, unless it be conditional. If, after such contract, he brings an ejectment for the land, he violates his own contract, unless the condition be broken by the vendee; and if it be, the vendor ought to show it." Since then, the rule and doctrine which Chief Justice Marshall expressed as being the true one has received universal recognition. It *507
still is true that a vendee in possession under an executory contract of sale, is estopped from denying the vendor's title, for the same reasons that would apply in the case of a tenant. But whenever, so far as the vendee is concerned, the contract is executed, from the time of its execution the vendee may assert his adverse possession and title against the world, including his vendor. "It is a rule of law now uncontroverted, that where the vendee under a contract or agreement to purchase land has executed or performed the agreement on his part, by full payment of the purchase money, his possession from that time becomes adverse to that of the vendor, having gone into possession primarily under the agreement." (Ambrose v. Huntington,
For the reasons above given, and under section
No other matters call for special attention.
For the foregoing reason the judgment and order are reversed and the cause remanded.
Lorigan, J., and Beatty, C.J., concurred.
Hearing in Bank denied. *508