125 P. 253 | Cal. Ct. App. | 1912
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *187
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *188 This is an action to quiet title to certain two lots or parcels of land, in the city and county of San Francisco, under the provisions of the so-called McEnerney act. (Stats. 1906, p. 78.)
The action was commenced by Frances J. Graham and, while yet living, judgment passed in her favor. Subsequently the present plaintiff was substituted in her stead. Defendant Knoll appealed from the judgment and order denying her motion for a new trial. Subsequent to the appeal said defendant Knoll died and E. A. Leigh, the duly appointed, qualified and acting executor of her last will and testament, was substituted in her place and stead, and now prosecutes the appeal.
The complaint and affidavit were filed on July 26, 1909, and, on October 29, 1909, defendant Knoll filed a general and special demurrer which was overruled and, on November 15, 1909, she filed her answer.
The complaint appears to set forth, by proper averments, all the facts required to be stated by the McEnerney act, and we do not understand that its sufficiency is now questioned. Defendant denies the averments of the complaint "and for a further and separate and distinct ground of defense . . . and by way of cross-complaint defendant alleges: That this defendant is the owner of an estate in inheritance, to wit, an estate in fee simple absolute in and to that real property, situate, lying and being," etc. (describing parcel 2 of the *189 land mentioned in the complaint). She alleges that she "is the owner and seised in fee of and was at all times herein mentioned the owner and seised in fee of the above described real property and every part thereof." The answer or so-called cross-complaint was not accompanied by an affidavit as required by section 5 of the act to be filed by the plaintiff nor does it contain averments "fully and explicitly setting forth and showing the character of his (her) estate, right, title, interest or claim in and possession of the property," as is required to be stated by a plaintiff in his affidavit; it states that defendant has made no conveyance of said lot other than as explained in the cross-complaint and likewise avers no knowledge of any claim or interest adverse to defendant except as explained. Defendant's prayer is for a decree of the court "quieting the title of said defendant to said real property against said plaintiff and all persons claiming any interest in or lien upon said real property . . . and declaring said defendant to be the owner in fee simple of each and every, all and singular of said real property," and that the deed executed by defendant to plaintiff be declared void and ordering that it be canceled.
The point principally relied on by defendant is: "That the affidavit required to be filed at the time of filing the complaint, was and is fatally defective." The grounds of this contention are: 1. That the affidavit fails to identify any specific real property; 2. That it "fails to set forth and show, fully and explicitly, the derivation of the affiant's asserted title"; 3. That it fails to show in like manner "during what period the affiant's asserted title has existed." The affidavit states, among other things:
"1. That the character of plantiff's estate, right, title, interest or claim in, and possession of the real property described in the complaint in this action and herein referred to is as follows, to wit:
"That the plaintiff is the owner in fee simple absolute, and either by herself or by her tenants and agents, or persons holding under her, is in the actual and peaceable possession of all of that certain real property, situate in the city and county of San Francisco, state of California, and particularly described in the said complaint, to which reference is hereby made, and made a part of this affidavit. *190
"That the real property described as 'Parcel No. 1' and 'Parcel No. 2' was derived from the estate of her father, Joseph H. Cording, deceased, and from deeds from Mary S. Knoll, her mother, Alice Leigh, her sister and Frederick A. Cording, her brother.
"That all of said real property is inclosed by fences and buildings. Parcel 1 is inclosed by a fence, and parcel 2 is inclosed by fence and occupied by buildings, and is resided upon by affiant. That plaintiff and her grantors have been the owners in fee simple and in the actual and peaceable possession of the same and every part thereof for more than twenty years last past."
The objection that the particular description of the property should have appeared in the affidavit and that the omission was not cured by reference to the complaint made part of the affidavit, wherein, as well as in the summons, it was particularly described, we think without merit. The practice is quite common to make exhibits part of a complaint by reference thereto. Under the McEnerney act it is expressly provided that "the action shall be commenced by the filing of a verified complaint" (section 2); but "at the time of filing the complaint, the plaintiff shall file with the same his affidavit." (Section 5.) The complaint and affidavit are so closely related that we can see no reason why the reference here made to the complaint should not be held sufficient. The statute expressly requires the complaint to contain "a particular description of such real property," as also must the summons. The statute does not require the affidavit to contain a particular description of the property. It necessarily relates to the property and may properly, and perhaps should, embrace a description of it for identification. But we think this may be accomplished by reference to the complaint. The general rule is discussed in Santa Rosa Bank v. Paxton,
Much attention is given by appellant, in support of his testate's objections to the affidavit, to the alleged unique character of the McEnerney act, and cases which have arisen under it are cited to show that "scrupulous care should be exercised by the court when examining the sufficiency and regularity of proceedings taken under the act." And it is hence claimed that one who proceeds under a special statute, such as this is, must comply with the conditions necessary to his recovery under that statute, "and no recovery can be had unless the plaintiff alleges exactly those facts which the statute names as the basis for the right conferred." In short, though in its nature remedial, the act must be strictly construed.
On the other hand, respondent contends that, being remedial, it is to be liberally construed. Of the statute, Mr. Justice Lorigan, for the court in Lofstad v. Murasky,
But we have this situation here. Defendant Knoll appeared and answered and went to trial, without objection, by demurrer or answer, either to the jurisdiction of the person or subject matter. The issue of ownership between the respective parties was submitted and decided and the appeal is from the judgment on that issue. So far as appellant is concerned, the affidavit has performed its office and she has no cause to complain. The evidence fully and explicitly showed the facts which appellant claims should have more fully appeared in the affidavit.
Section 12 of the McEnerney act provides: "Except as herein otherwise provided, the provisions and rules of law relating to evidence, pleading, practice, new trials, and appeals applicable to other civil actions shall apply to the actions hereby authorized." Appellant appeared voluntarily and answered, which is equivalent to personal service of the summons and copy of the complaint. (Code Civ. Proc., sec. 416.) It was said, in the Potrero Nuevo case, supra, as applicable here: "Defaulting defendants are not adverse parties to other defendants when there is no joint relation *194
alleged between them, and a judgment against each is several and independent. . . . The rules of practice relating to appeals under the McEnerney act are those applicable to other civil actions (sec. 12)." It was held in Adams v. Hopkins,
It is contended that the judgment should be reversed because the court failed to find upon material issues raised by the cross-complaint. Section 11 of the McEnerney act provides: "The judgment shall ascertain and determine all estates, rights, titles, interests and claims in and to said property and every part thereof, whether the same be legal or equitable, present or future, vested or contingent." The finding of the court as to plaintiff's title, set out above, is abundantly supported by the evidence and so also the finding as to defendant's title, also given above. But it is urged that there should have been a specific finding negativing defendant's equitable interest claimed in the cross-complaint and also negativing the averments of fraud and undue influence. *195
It appeared that title to the property in question vested in defendant Knoll, the then wife of Joseph H. Cording, deceased, and mother of plaintiff's intestate, Mrs. Graham. By the decree of distribution, the property of the said Cording was distributed in accordance with his will, half to Mrs. Knoll, then Mrs. Cording, and the remaining half to her in trust, for the support, education and benefit of the three children, of whom Mrs. Graham was one. The will provided and the decree adjudged that Mrs. Cording should "have full and entire control and right of disposition of all and every part of said property, both real and personal, during her natural life, to sell and convey, lease, mortgage or hypothecate the same or any part thereof without an order of probate, or any other court, or any of the legal proceedings in, about or concerning such matters." It further appeared that, for reasons shown, Mrs. Knoll made a division of this remaining property among her children, conveying to Mrs. Graham the parcel in question, and in this deed the other children joined; this deed was delivered and placed in escrow with a bank in San Francisco under an agreement that it was to be recorded after the death of Mrs. Knoll. Thus far there is no conflict in the testimony. There was evidence that subsequently this deed was, by the written consent of Mrs. Knoll and her children, surrendered by the bank and recorded and is the deed on which plaintiff relies. It was in evidence that the deed was recorded because Mrs. Knoll was involved in some litigation and desired to place the title in Mrs. Graham. This deed was one of three deeds by which she undertook to convey this trust property directly to the beneficiaries. There was no evidence that any fraud was attempted to be practiced on her or that she acted under any undue influence. There was some evidence that Mrs. Graham agreed to furnish a home for her mother and she testified that she had kept that promise. The principal fact in controversy was whether the deed had been taken out of escrow and recorded by the direction and with the consent of Mrs. Knoll. And all these matters were brought out in support of her claim of title and to disprove Mrs. Graham's title. In fact, the real and only issue presented by the pleadings was that of ownership — both parties claiming a fee simple *196 absolute, and the relief sought by defendant was to quiet such title in her.
The court found title in Mrs. Graham and "that the defendant, Mary S. Knoll, has no right, title, interest or claim in or to said property described in said complaint, or any part thereof." It seems to us that the ultimate fact involved in the issue presented by the answer is here directly found upon and that no further finding was necessary. The death of Mrs. Knoll has been suggested since the cause was transferred to this court, which has terminated any life estate or interest she may have had in the property. If a question of rents, issues and profits should be suggested, suffice it to say that there is no evidence on which any finding could have been made. We do not think the point now urged would warrant a reversal of the judgment. The finding of ownership includes the probative facts. (Montecito Valley W. Co. v. Santa Barbara,
Section 4 of the McEnerney act directs that two certain memoranda be appended to the summons on the posting and publication thereof — first, the date of the first publication of summons, and, second, the names and addresses of such adverse claimants as are disclosed by the affidavit of plaintiff upon filing the complaint. The second requirement was omitted. The affidavit showed that the city and county of San Francisco claimed an adverse interest. The city and county of San Francisco appeared by answer and disclaimed any interest in the property. Conceding that appellant could take advantage of this omission, which we doubt (Adams v. Hopkins,
Discovering no prejudicial error in the proceedings, the judgment and order are affirmed.
Hart, J., and Burnett, J., concurred. *197