66 P. 571 | Cal. | 1901
This suit was brought against the defendant Mary E. Marshall, as administratrix of Samuel J. Marshall, deceased, to quiet the plaintiff's title to the land described in the complaint, against an instrument purporting to be a deed from the plaintiff to Mary Loftis, his wife (the grantor of the deceased), and against the claims of the defendants generally. The other defendants are Margaret Marshall, the only child of the deceased, a minor, and Mary E. Marshall, in her personal capacity. The plaintiff had judgment, from which the defendants appeal. The facts of the case, as alleged in the complaint and as found, are as follows: The deed referred to, of date January 23, 1892, was signed by the plaintiff, then owner of the land in question, by the fraudulent procurement of his wife and her son, George D. Marshall. The plaintiff was at the time in a drunken condition, and wholly incapacitated from attending to business, and was induced to sign the deed by representations made to him by them that it was a letter to one Horrigan, and by the belief to that effect thus engendered. The deed was witnessed by George D. Marshall, and was proved and recorded. *396 Afterwards, Mrs. Loftis, in consideration of love and affection, made a deed of the land to the deceased, Samuel J. Marshall, also her son, who took with full notice of the fraud. Samuel J. Marshall died September 21, 1894, and his administratrix — who was appointed in October, 1894 — took possession of the premises. The sufficiency of the evidence to support the findings is not disputed.
The defendants, besides other matters, pleaded, in bar of the action, the judgment in a former suit brought by the plaintiff against Mary Loftis, Mary E. Marshall, and Michael Maloney to recover the possession of the land now in question, and on the trial the judgment roll was offered in evidence, but, on objection being made to it, excluded, and this ruling, it is contended, was erroneous. This contention presents the principal question in the case.
The position of the appellants in this regard is, that, under the allegations of the complaint, the plaintiff's deed to his wife was not merely voidable, but void, and hence that the plaintiff's action is based upon and puts in issue the legal title, thus presenting the same issue as in the former case. This contention is perhaps correct, in so far as it assumes that upon the facts alleged in the complaint the deed in question was wholly void. (Hartshorn v. Day, 19 How. 223; 1 Story's Equity Jurisprudence, sec. 60; Newell on Ejectment, 649; Bump's Kerr on Fraud and Mistake, 48; Devlin on Deeds, sec. 228.) But assuming this to be the case, we are nevertheless of the opinion that the judgment could not operate as an estoppel against the plaintiff, and that the roll was rightly excluded.
This is sufficiently obvious with regard to the defendant Mary E. Marshall, in her personal capacity. As to her, all that was adjudicated in the ejectment suit was, that the plaintiff should take nothing by his action, and all that was necessarily included in the judgment, or necessary thereto, was the fact, which is admitted, that she was not in possession. Whether the plaintiff was seised or not could therefore make no difference in the result. The question of title, so far as she was concerned, was not involved. (Code Civ. Proc., secs. 1908, 1909; Freeman on Judgments secs. 256 et seq.)
It is claimed, however, that the judgment in favor of Maloney inured to the benefit of the administratrix, the ground of the contention being that he was in possession as *397 her tenant, and that he was represented in the action by an attorney employed by her, but not otherwise; though it is not claimed that she appeared openly in the case, or that the plaintiff knew of her participation in the defense.
The authorities cited in support of this position are Valentinev. Mahoney,
The court did not err in overruling the demurrer of the defendants. It is alleged that the plaintiff, "in pursuance of the . . . . conspiracy and the . . . . fraudulent and deceitful acts of . . . . Mary Loftis and George D. Marshall, was kept in ignorance of the . . . . grant (or deed) until the . . . . day of October, 1894." This, we think, was a sufficient allegation of the discovery of the fraud within three years before the commencement of the action. It was unnecessary to allege ignorance of the subsequent deed from Mrs. Loftis to Samuel J. Marshall, or ignorance of the recording. Nor do we think the allegation was material. On the theory of the appellants — which we have assumed to be correct — the deed was void, and the plaintiff, except as against an adverse possession of five years, could maintain his action at any time.
We advise that the judgment be affirmed.
Haynes, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
Harrison, J., Garoutte, J., Van Dyke, J.
Hearing in Bank denied.
Beatty, C.J., dissented from the order denying a hearing in Bank.