156 P. 45 | Cal. | 1916
Lead Opinion
This action was begun by the plaintiff as administrator with the will annexed of the estate of George Locke, deceased, to recover possession of a lot of land in the city of Los Angeles, together with damages for the withholding of possession by the defendants. The defendants named in the complaint are the trustees and the pastor of the Brooklyn Heights Congregational Church, an unincorporated religious association. They answered asserting, among other defenses, the right to occupy the premises under a lease and option of purchase from one George Rheinschild to the defendants' predecessors as trustees of the church.
After the filing of the answer, Rheinschild (whose claim was based on sales for nonpayment of street improvement bonds) intervened to unite with defendants in resisting plaintiff's claim. He alleged, in addition to matters contained in the answer of defendants, that he was the owner in fee and entitled to possession of the property described in the complaint. He set up the pendency of another action brought by the present plaintiff against himself and one Fishburn as defendants. Rheinschild's complaint in intervention was filed in March, 1908. He died in September, 1911. By supplemental answer, filed in June, 1912, the executrix of his will alleged that the action of Lantz v. Fishburn and Rheinschild, the pendency of which had been set up in the complaint in intervention, had been finally decided by the district court of appeal for the second appellate district, which court had directed the trial court to enter judgment that Rheinschild held title to the lot in question, subject only to the right of plaintiff to redeem within the time allowed by law. It was further alleged that the superior court had, pursuant to the mandate of the court of appeal, entered its judgment finally adjudging the title to said lot to be in Rheinschild, his heirs and legal representatives, "with only the right in the estate of Locke to redeem from the effect of said sales."
In the present action, the court found that Locke, up to the time of his death, was the owner of the land; that his estate *247 had since his death owned the land subject to the sales above mentioned; that the defendants in April, 1902, wrongfully entered upon the land and ousted plaintiff therefrom and have ever since withheld possession from him, to his damage in the sum of $106. It is further found that the sales of said lot to Rheinschild, made in the year 1907, were valid but that no valid deed had been issued upon said sales.
The judgment was that the lot is owned in fee by the estate of Locke, subject to the sales made July 9, 1907, to George Rheinschild, that plaintiff as administrator is entitled to, and do, recover the possession, and that the plaintiff have and recover from the defendants the sum of $106 and costs.
The defendants and the intervener appeal from this judgment, and from an order denying their motion for a new trial.
The respondent objects to the consideration of the bill of exceptions on the ground that the bill was not served within the time allowed by law. Service was actually made within an extension of time granted by the court below, but it is claimed that the order granting this extension was in conflict with a rule of court providing that the court could not extend the time for a period which, including the time covered by the stipulation, would exceed thirty days. The rule did not deprive the court of power to make a valid order within the limitations of section
It was conceded that on June 18, 1885, the title to the lot was in George Locke. The controversy between the parties was over the effect of the street improvement proceedings under which Rheinschild claimed. The improvements were ordered in 1893. There were two proceedings, including work upon two streets. In each ease a bond was issued in *248
1894. On default in the payment of the bonds, sales were made on the eighth day of July, 1907. These steps had all been taken prior to the judgment reviewed by the court of appeal in the action of Lantz, Administrator, v. Fishburn and Rheinschild.
The opinion of that court is reported in 17 Cal.App., at page 583, (
At that time there had been no deed to the purchaser under the sales, and much of the argument in the briefs is directed to the question whether the deeds subsequently made were issued in compliance with the provisions of the statute. The court found against their validity. But we do not find it necessary to go into this inquiry. We are satisfied that the matter adjudged in the former action was sufficient to require a finding here against the plaintiff's claim, irrespective of the defect, if there was a defect, in the giving of the deeds. The issues in the action of Lantz v. Fishburn and Rheinschild
involved an adjudication of the nature, validity, and extent of the claims of the respective parties to ownership of the land. That action resulted in a judgment which declared and adjudged that Rheinschild held the title to the property, subject only to the right of plaintiff to redeem within the time allowed by law. As will be seen from its citation of the case of Duff v.Randall,
The respondent urges that his action was one of ejectment, in which the right of possession merely was involved. But the judgment under review undertook to determine title, a part of the judgment declaring that the property was owned in fee by the estate of George Locke, subject to the sales made. Furthermore, the plaintiff's asserted right of possession rested solely upon the title claimed by him to be vested in his testator. If the title was not vested in Locke's estate, but on the contrary was vested in Rheinschild, there was no foundation for the conclusion that the plaintiff was entitled *250
to possession. The owner of property is entitled to its possession (Civ. Code, sec.
The judgment and the order denying a new trial are reversed.
Concurrence Opinion
Hearing in Bank denied.
