202 P. 479 | Cal. Ct. App. | 1921
The opinion of the trial judge, which is set out in respondents' brief, seems to us to be a clear and satisfactory exposition of the facts and of the legal principles involved in the case, and we hereby adopt it, as follows:
"This is an action to vacate a judgment of this Court heretofore rendered by Judge McSorley and entered on January 24, 1910. The facts upon which plaintiffs seek relief are in substance as follows:
"On March 29, 1895, one Robert Reed Jenkins was the owner of 1350 acres of agricultural land in Calaveras County, one lot in Camp Seco, and four lots in the city of Stockton. Upon that day he executed a gift deed whereby he apparently attempted to convey all of this property to his wife, Julia. The deed refers to the land conveyed as 'containing 1350 acres.' Jenkins was the owner of the south half (1/2), the fractional northwest quarter (1/4) and the fractional southwest quarter (1/4) of the northeast quarter of Section 16, but in the deed to his wife the word 'of' was interpolated after the words 'the south half (1/2),' which had the effect of eliminating from the description the south half, and the north one-half of the north-west quarter of the section. Of the property thus omitted from the description in the deed, the defendant Etta Hardisty claims to be the owner of about 235 acres by virtue of a conveyance from her mother, Julia A. Jenkins, bearing date Jan. 18, 1896; and as to the remaining 125 acres of the omitted property, it appears that on said Jan. 18, 1896, for a valuable consideration the said Julia A. Jenkins executed a deed therefor to Hiram Tyrer, who entered into possession under said deed and thereafter, on June 5, 1905, executed a deed of the property to one Frank Sanborn. *630 The latter, for a valuable consideration, on Sept. 15, 1909, executed a conveyance of the property to W. S. Dennis, one of the defendants in this action. The following month the attorneys for Dennis discovered that the description in the deed from Jenkins to his wife did not include the property that had been purchased by Dennis, which seems to have been the first discovery made by any one that the word 'of' had been interpolated in the deed.
"At the request of Dennis, Mrs. Etta Hardisty procured Letters of Administration upon the estate of her father, Robert Reed Jenkins, to be issued to her, and on Jan. 10, 1910, Dennis commenced an action in this Court against Mrs. Hardisty, as such administratrix to reform the gift deed from Robert Reed Jenkins to his wife Julia A. Jenkins, upon the ground of the mutual mistake of Jenkins, his wife, and the scrivener who drew the deed, said mistake being the insertion of the word 'of' heretofore referred to. By said action Dennis also attempted to obtain a decree quieting title upon the ground of his predecessor's adverse possession for more than five years. Mrs. Hardisty as administratrix filed an answer consenting to a judgment in favor of Dennis in said action. All of the expenses of Mrs. Hardisty and her attorney in procuring letters and appearing in said action were paid by Sanborn, the grantor of Dennis. Judge McSorley took evidence in said action, and by his decree not only adjudged the reformation of said deed by striking out the word 'of' but as welt found and decreed that Dennis and his predecessors had been in the actual, open and continuous occupation of the land, and paid all taxes levied and assessed thereon ever since the execution of the deed to Julia A. Jenkins.
"The defendant, Etta Hardisty, and the three plaintiffs in this action are the surviving children of Robert Reed Jenkins and his heirs at law, the wife, Julia A. Jenkins, having died Feb. 5, 1907. For nearly fifteen years it was assumed by all of these persons that by the deed of conveyance from Robert Reed Jenkins the whole of his property had been vested in his wife Julia A., and it was not until the rendition of the judgment by Judge McSorley that the plaintiffs discovered the error in the description, whereupon they commenced this action to vacate and annul that judgment. *631
"While it is claimed by the Plaintiffs that the judgment heretofore rendered was made in pursuance of a conspiracy to cheat and defraud plaintiffs, and while the said acts complained of may be such as to constitute legal and actionable fraud, yet it is but fair to the defendants to say that there is not a particle of evidence to indicate that they were intentionally endeavoring at any time to wrong or defraud any person, but on the contrary they were acting from honest motives in an attempt to correct the paper title of the property of the defendant Dennis.
"Consideration will be first had of the plaintiffs' asserted cause of action against the defendant Dennis.
[1] "The rule is well established that in order for the plaintiffs to prevail in an action of this character, they must show not only that the former judgment was procured by fraud, but also that they had a substantial defense to the action in which the judgment was rendered, for equity will not annul a judgment if it is a correct and just determination of the rights of the parties thereto. See Reed v. Bank of Ukiah,
"The facts in this case in reference to the error in the deed are quite similar to those appearing in Hart v. Walton,
"The statement often made that 'Courts of equity will not aid voluntary conveyances,' cannot be accepted as an inflexible rule, for like most others it is subject to exceptions. Thus inDawson v. Dawson,
"The case presented before Judge McSorley was radically different from that of Enos v. Stewart upon which plaintiffs rely, and there can be little question but that Dennis stood upon an equity superior to that of the heirs of Robert Reed Jenkins who are the plaintiffs in this action. Dennis paid full value for the land, and his predecessors in interest, including Julia Jenkins, had been, for over fourteen years, in the open, notorious actual and continuous possession of the same, and paid all the taxes thereon. Plaintiffs' claim *633 to the property is not founded upon any consideration, and was never asserted during the fourteen years mentioned.
"Consideration now will be had of this action as it affects the 235 acre tract claimed by Mrs. Hardisty.
"The first question that arises is as to whether, even assuming the legality in every respect of the judgment rendered by Judge McSorley, can it be urged by Mrs. Hardisty in bar of the claim now made by these plaintiffs against her?
"In 23 Cyc. at page 1237, it is said, 'To constitute a judgment an estoppel, there must be an identity of parties as well as the subject matter; that is, it is necessary that the parties as between whom the judgment is claimed to be an estoppel must have been parties to the action in which it was rendered, in the same capacities and in the same antagonistic relation, or else they must be in privity with the parties in such former action.' However, in City of El Reno v.Cleveland-Trinidad Paving Co., 25 Okl. 648 [27 L. R. A. (N. S.) 650,
[3] "It may be assumed, that if the judgment rendered before Judge McSorley was regular and unimpeachable, then these plaintiffs cannot now in an action against Mrs. Hardisty, question the fact, that there was an error in the deed caused by mutual mistake as alleged, but as the 235 acre tract of land was not involved in the former action, nor any person claiming it under the conveyance to Julia A. Jenkins made a party thereto, no opportunity was there afforded to these plaintiffs represented by an administratrix to obtain a judicial determination as to whether Mrs. Hardisty was entitled to a reformation of the deed to perfect her title to the 235 acres. Indeed the defendants in the former action may have not denied the error in the deed as alleged, but they did not thereby confess that Mrs. Hardisty was entitled to a reformation to clear her title, nor could that question have been involved without placing Mrs. Hardisty in the anomalous position of individually suing herself as administratrix. Furthermore, upon general equitable principles a party ought not to be permitted to urge in bar of an action, a judgment that she has confessed *634 to as an administratrix and defendant in a former action. Believing as I do that the decree of Judge McSorley was not an adjudication of any claims to the 235 acre tract, it follows that under the pleading and evidence before the Court Mrs. Hardisty has shown no legal claim to property, for as she cannot rely upon the former decree, it was incumbent upon her by proper pleading and legal evidence to show that there was a mutual mistake in the execution of the deed and that she had a superior equity to that of plaintiffs to the property, or that she had acquired ownership by five years' adverse possession, but in both these particulars she has failed. Certain statements of counsel made during the trial, together with certain evidence, lead to the inference that Mrs. Hardisty may be able to produce evidence that she has acquired title by adverse possession, and that the deed under which she claims was acquired by virtue of a division and settlement of the estate of Julia A. Jenkins among her children. Under such circumstances justice and equity seem to dictate that the rights of Mrs. Hardisty shall not be finally cast without an opportunity to amend her pleadings and produce further evidence.
[4] "In this connection it may not be amiss to notice the claim made by the plaintiffs, that the statute of limitations cannot run against them as heirs of their father, Robert Reed Jenkins. In support of this contention they rely upon the case of Blair v. Hazzard,
"It is obvious here that neither Dennis, Mrs. Hardisty or their predecessors, ever asserted any title as heirs, devisees or grantees of any heirs or devisees under the estate of Robert Reed Jenkins, but that since the execution of the deed by Jenkins they or their predecessors have asserted their claim of title in opposition to that of Jenkins or his estate.
"The prayer for the annulment of the decree made by Judge McSorley will be denied, and within twenty days after notice hereof, the defendant Mrs. Hardisty is allowed to amend her answer and plead title by adverse possession and any equitable right she may have."
It appears that, after said opinion was rendered, the defendant, Mrs. Hardisty, filed an amended answer, and the action as to her is still pending in the superior court. For the reasons stated in said opinion it was proper to award judgment in favor of defendant Dennis and to continue the cause for further hearing as to defendant Hardisty. (Sec.
Several specific objections to the judgment are urged by appellants, but they are substantially covered by the opinion of the trial judge, and it seems hardly necessary to make any further suggestions.
To conclude, we are entirely satisfied that the judgment is supportable upon the two grounds mentioned by the trial court: First, that the matter was res adjudicata, and, second, that respondent Dennis acquired a prescriptive title. We may add that, in our opinion, it would be a just inference from the evidence received that it was the intention of the grantor in said deed to convey the entire 1,350 acres, including the land in controversy. As to this last consideration we may state that at the oral argument herein said deed was exhibited and its appearance would indicate that *636 the word "of" was interpolated or inadvertently used without any intention on the part of the grantor to qualify the extent of the property conveyed. The deed itself in connection with the practical construction placed upon it by the parties in interest and their acquiescence therein for so many years leaves scarcely any doubt that no mistake was made in the judicial determination of the intention of the grantor.
We find no merit in the appeal and the judgment is affirmed.
Prewett, J., pro tem., and Finch, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 19, 1921.
All the Justices concurred.
Lawlor, J., was absent, and Richards, J., pro tem., was acting.