Martin v. Parsons, 49 Cal. 94

Martin v. Parsons

49 Cal. 94 | Cal. | 1874

By the Court, Crockett, J.

The Court below erred in striking out the amended cross-complaint. The action is to quiet the plaintiffs title to a lot purchased by him at a sale made under a decree to enforce the lien for a delinquent tax. It is not claimed by the defendant that the proceedings culminating in the sale were not regular on their face; and the plaintiff contends that the case comes within the ruling in Reeve v. Kennedy *99(43 Cal. 643), and Stokes v. Geddes (46 Cal. 17); Jones v. Gillis (45 Id. 541), and other kindred cases. In these cases we held that if the proceedings to enforce the lien were regular on their face, and the property was sold to a bona fide purchaser, without notice of any latent vice in the proceeding, the title of the purchaser could not be impeached by proof aliunde that the decree was obtained by fraud, or for any other reason, ought not to have been rendered. But in this case the cross-complaint alleges that the Court never acquired jurisdiction in the tax case, for the reason that neither the defendants, who were the owners of the property, nor the real estate itself, were ever served with any summons or notice of the pendency of the action, and never appeared therein; and that the plaintiff was then the Court Commissioner, and drafted the decree in said cause, “and inserted therein the false statement that the defendant in said tax case and all owners and claimants of the said real estate had been summoned to answer the complaint in said tax case; whereas, in truth and in fact, neither the said real estate nor any defendant in said tax case, nor any other person or thing, had ever been by any means summoned in said tax suit.” The complaint then avers that these recitals were inserted in the decree by the plaintiff, without having any evidence of the service of a summons, and that no proof of the service of any summons was made or filed in the cause; that the Judge, being deceived by the false recitals in the decree, signed it, and ordered it to be entered as the judgment of the Court; that the defendants had no knowledge or notice of the pendency of the action or of any of the proceedings therein; that no notice of the time or place of sale was ever given; that the plaintiff has no title, except what he derived under the Sheriff’s deed; that the lot was worth eighteen hundred and fifty dollars; but was struck off to the plaintiff for fifty-three dollars and seventy-six cents; that before the sale, plaintiff being Court Commissioner, had entered into a special partnership with D. EL Alexander, for the purpose of buying lands at tax sales, on speculation; that before the time for redemption had expired, the defendants called on the plaintiff for the purpose *100of redeeming the lot, but were informed by him that the time for redemption had expired, and that no redemption could be made; that relying on this representation they made no further effort to redeem, until after the time for redemption had expired. The prayer of the cross-complaint is that the defendants be adjudged to be the owners of the property, and that the plaintiff be enjoined from claiming any interest therein; that the judgment, sale and Sheriff’s deed be declared fraudulent and void; that the plaintiff be required, on such terms as may be just, to convey his title to the defendants, and to surrender the possession, and for general relief. It will be observed that fraud in fact is not, by direct averment, imputed to the plaintiff; but, if the allegations of the cross-complaint are true, he has, through his own laches or neglect (to give it the mildest name), obtained an unconscionable advantage over the defendants, against which a Court of equity will afford the appropriate relief. Whether the false recitals were inserted in the decree through fraud, or merely from the negligence or mistake of the plaintiff, is immaterial. It was through his fault that the decree was obtained without a service of process, and it would be against good conscience to allow him to profit by his own wrong. In such a case it is not necessary to vacate the judgment, but only to restrain the plaintiff from setting it up as an estopped, to perpetuate the wrong resulting from his own misconduct. This is a familiar ground for the interposition of a Court of equity. While it may be true that a Court of equity will not vacate the judgment under such circumstances, it is clear that it will interfere to prevent the use of it as an instrument of injustice by the author of the wrong. (Barnesly v. Powel, 1 Ves. Sr. 119, 286; McMillan v. Reynolds, 11 Cal. 372; Galatian v. Erwin, Hopk. Ch. 48; Dobson v. Pierce, 12 N. Y. 164; The Bridgeport Bank v. Eldridge, 28 Conn. 556; Murray v. Dake, 46 Cal. 645.)

It would be a reproach to our jurisprudence if a Court of equity could afford no relief in such a case as that stated in the cross-complaint.

Order and judgment reversed, and a new trial ordered, *101with, a direction to the Court below to vacate the order striking out the cross-complaint.

Mr. Justice McKinstry did not express an opinion.