86 P. 909 | Cal. Ct. App. | 1906
Action to quiet title. The complaint contains the averments usual in this class of actions, all of which are denied in the answer. In addition to such denials, the answer contains affirmative allegations, reciting that on the eleventh day of January, 1901, appellant commenced an action in the superior court of Modoc county, against P. A. Dorris and C. J. Dorris, a copartnership styled P. A. Dorris Bro., upon a promissory note executed to appellant by said partnership, for the principal sum of $2,780, and interest thereon, which action was then pending and undetermined. That appellant, in the event that he obtained judgment in said action, which had then been pending more than two years and nine months, intended to and would institute another *578
action to set aside the transfer of the property in dispute to plaintiffs, on the ground that at the time such transfer was made, said property belonged to, and was owned by said partnership, and the members thereof, who procured the execution of said transfer to plaintiffs for the purpose of hindering, delaying and defrauding the creditors of said firm. The facts which might render such transfer fraudulent were not stated, nor was there any attempt to show that an action to set it aside would rest on a substantial, or even plausible basis. There was no positive statement that the partnership, or any individual member thereof, ever owned any part of the land, nor was there any averment tending, in the remotest degree, to show that the debt, evidenced by the promissory note sued upon, accrued before the transfer was made, or that appellant was or could be in a position to bring an action to set it aside. (First Nat. Bank v. Eastman,
The only issue, therefore, was whether respondent's claim of ownership was well founded when tested in the crucible of appellant's admitted assertion of right. The court, however, not only found on such issue, but also found that the transfer to plaintiffs was not fraudulent, and adds specific findings reciting certain facts and circumstances preceding and attending the execution of such transfer. Appellant assails the sufficiency of the evidence to support the findings, but as they all relate to the main issue of title, and the validity of the transfer to plaintiffs, which was not properly an issue in the case, nothing will be lost if we proceed to an analysis of the evidence without more particular mention of the objections urged.
The title to more than two thousand eight hundred acres of land is here involved, and the evidence shows without conflict that neither P. A. nor C. J. Dorris, nor the firm of which they were members, ever had any apparent, tangible, legal or equitable right or title, to more than three hundred and twenty acres thereof. Title to the bulk of this large area was acquired through letters patent issued in 1881 and 1882 by the state of California to Jerome Churchill, the immediate grantor of the plaintiffs. The greater portion of the remainder was conveyed to said Churchill prior to the year 1885, by parties who held under patents from the general government. P. A. and C. J. Dorris acquired title to three hundred and twenty acres of the land in dispute, through patents from the last-mentioned source, but conveyed the same to Churchill in 1882, for a stated consideration of $7,013. It will thus be seen that plaintiff's grantor acquired title to most of the land from primary sources, and that he held and possessed all of it for many years before the deed to plaintiffs was executed.
On June 29, 1900, Churchill, as party of the first part, and P. A. and C. J. Dorris, of the firm of P. A. Dorris Bro., as parties of the second part, entered into an agreement, the preamble of which recites that the parties thereto had for years past had unsettled accounts, and that the second parties were indebted to the first party in a large sum of money, and *580 that they mutually desired to effect a full and final settlement of all business matters between them. It was further recited in said preamble that the said second parties thereto-fore had a "contingent interest in certain property in the possession, and owned and controlled" by the party of the first part, and that in an agreement entered in 1898, the first party agreed to sell, and the second parties to buy, certain real estate for the sum of $30,000, payable on a date mentioned, and that the latter desired to be relieved from the obligation thus assumed. Following these preliminary recitals the second parties agreed to "release, remise and convey" to said party of the first part, all claim, right, title and interest held by them, in or to all property, real, personal and mixed, to which said second parties had theretofore made any claim, contingent or otherwise, and particularly all claims accruing under the agreement of 1898. Thereupon, the party of the first part agreed to release the second parties from all claims, demands and indebtedness of every kind and nature, and all parties mutually agreed that this would constitute a full settlement of all demands between them.
On the same day the said second parties executed a quitclaim deed to the lands here in question to Churchill, and the latter conveyed the same to plaintiffs for a stated consideration of ten dollars. Churchill testified that he had been dealing with P. A. and C. J. Dorris, as partners, for twenty-five years, and that at the time of the settlement they owed him about $350,000. He further stated that in the settlement he took all of their property, consisting of six thousand cattle, six hundred horses, and certain ranches in Modoc and Siskiyou counties, of the aggregate value of about $218,000. His testimony was corroborated by his son, and plaintiff P. S. Dorris testified as to the annoyance and detriment suffered by reason of claims against the land made by creditors of P. A. and C. J. Dorris. This was all the evidence presented by respondent, and appellant offered no evidence whatever. The mere statement of the evidence is sufficient to demonstrate that the finding in favor of respondents' title and against appellant's claim must be upheld. And assuming that the case was tried upon the theory that the fraudulent nature of the transfer to plaintiffs was in issue, we think the finding against appellant on this point is fully sustained by the evidence. *581
Indeed, we think there is no evidence to the contrary. Fraud is odious and is never presumed. The parties seeking to annul any contract, and particularly a transfer of real property, on that ground, must fully and clearly plead and prove the facts constituting legal fraud, actual or constructive. (Bell v. Thompson,
The answer leaves us perplexed and doubtful as to the nature of the pleading and proof upon which his assault on the transfers will be made, and perplexity gives way to bewilderment when appellant, though afforded an opportunity, submitted his case without affording any enlightenment on this point.
It is next contended that an action to quiet title cannot lie against appellant's asserted right, and that the court should have deferred the trial of this cause until the suit which appellant had brought, and the one he intended to bring, had both been determined. Waiving the fact that the answer admits that appellant was claiming an estate and interest in the land adverse to appellants, it seems quite clear to us that this contention cannot be sustained. (Code Civ. Proc., sec.
It is enough to say that the injunction is merely ancillary to the principal relief, and if it was unnecessary to make the relief to which respondent was entitled effectual, it could not injure appellant. (Kittle v. Bellegarde,
The judgment and order are affirmed.
Buckles, J., and Chipman, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 12, 1906. *583
