43 Cal. 83 | Cal. | 1872
Lead Opinion
By the Court,
This appeal is brought from a judgment by which it was determined that a deed made to the defendant James Bay by the Sheriff of the County of Los Angeles of an undivided three eighths of the island of Santa Catalina, formerly owned by the defendant James if. Bay, and sold by said Sheriff under a judgment rendered against the latter in favor of Benjamin Wood, was null and void as against Lick, who claims to have acquired the said three eighths interest of the defendant James H. Bay through another deed made by the Sheriff of said county, by which he conveyed said three eighths to Walter Hawkshurst upon a Sheriff’s sale under a judgment which the latter obtained against the defendant James H. Bay. It is conceded that the title to these three eighths is vested in Lick, but it is claimed that he cannot maintain this action to remove the cloud which, as he alleges, is cast upon his title by the existence of the Sheriff’s deed to James Bay. The case, it is to be-observed, is not brought under the provisions of Section 254 of the code, nor is it averred that Lick was at the commencement of the action in possession of the island or of any part thereof either by himself or his tenant.
It appears that the defendant James Bay, who holds the Sheriff’s deed, under the Wood sale, is the son of his codefendant James H. Bay, and the complaint sets out the fact that Hawkshurst brought an action against the defendant James H. Bay to recover the sum of money due to the former from the latter, and avers that in that action a writ of attachment was issued in the usual form against the property of the latter, and was levied upon his interest in the island, being the three eighths in controversy, so as to create a lien
It further appears by the averments of the complaint that Benjamin Wood recovered another judgment against James H. Eay, under which an execution was issued to the said Sheriff, and that said interest of James H. Eay was sold to J. B. Crockett, who received a certificate of sale thereof, and subsequently and before the expiration of six months thereafter Crockett sold and assigned this certificate to the defendant James Eay for a sum of money paid in hand, and that the Sheriff subsequently executed a deed of conveyance upon said certificate, which deed ran to the defendant James Eay as assignee of the certificate. The complaint avers that the money which was the consideration of the assignment of the Sheriff’s, certificate to the defendant James Eay, was advanced by his father and codefendant James H. Eay, and that the defendant James Eay took and held the assignment of the certificate of sale in trust for his father, and subsequently received and now holds the Sheriff’s deed thereon, also in trust for his father, and that the transaction should be held to amount to a mere redemption made by the defendant James H. Eay himself from the sale under the Wood judgment, and that therefore the Sheriff’s deed running to James Eay should be set aside and avoided as being a cloud upon the title of Lick.
The evidence is not set forth in the record, nor is any point made here by the appellants, except the point that these facts do not enable Lick to maintain the action to cancel the Sheriff’s deed to James Eay as a cloud upon his own title. Unquestionably, if the complaint be true, and it must be
Singularly enough, however, the defendants point to the admitted superiority of Lick’s title in connection with the conceded worthlessness of their own as a reason why Lick should not obtain any relief in this action. They claim that their own title does not even amount to a cloud upon that of Lick, who, as they therefore claim, has no right to resort to this proceeding to remove it as a cloud.
While it is conceded that a party in the position of Lick has the right to maintain an action to remove a cloud from his own title without awaiting its active assertion by suit, it is contended that the Sheriff’s deed to James Bay is not such an one as amounts to a cloud.
It is settled by a long line of decisions in this Court that if the title against which relief is prayed be of such a character as that, if asserted by action and put in evidence, it wou,ld drive the other party to the production of his own title in order to establish a defense, it constitutes a cloud which the latter has the right to call upon the Court to remove and dissipate. If, on the other hand, the title be void on its face; if it be a nullity—a mere felo de se, when produced, so that an action based upon it will “fall of its own weight,” as has been said, then the title of the party
We think that the apparent title held by James Bay to the three eighths of the island is not only a cloud upon the true title of Lick, but one, of a remarkably formidable character, and which he is entitled to remove by the judgment of the Court.
Judgment affirmed.
Dissenting Opinion
dissenting:
This action cannot, in my opinion, be maintained. A Court of equity, as I understand the rule, will order a deed to be delivered up to be canceled, which was fraudulent or invalid at its execution—which, at its inception, had some inherent defect in its character which rendóred it void or voidable; but a deed will not be ordered to be canceled which, at its execution, was valid and free from fraud, unless it be a mortgage, or some instrument that may be satisfied or defeated by payment, the performance of a condition, or the like. I, therefore, dissent from the opinion of Mr. Justice Wallace, and from the judgment.
Mr. Justice Crockett, being disqualified, did not participate in the foregoing decision.