32 Cal. 260 | Cal. | 1867
Lead Opinion
Action to set aside and cancel certain conveyances upon the ground that they are clouds upon the title of the plaintiff. The plaintiff had judgment in the Court below, and the defendants have brought the case here upon the judgment roll only.
The only points which we can reach, in view of the shape in which the case has come up, are those founded upon the Statute of Limitations, and even those can be reached only through a liberal disregard of technical obstacles.
We consider that the limitation of three years does not apply to an action of this character. It is true that the clouds in question have their inception in fraud ; but fraud is not a universal characteristic of the cause of action and cannot, therefore, be adopted as a test of the true nature of the action, when its position in the various categories presented by the Statute of Limitations comes to be considered. We so held in effect in Hager v. Schindler, 29 Cal. 60. The gravamen of the action is that the conveyances of which complaint is made, are clouds upon the title, and -for that reason, and that only, their cancellation is asked. The right of the plaintiff to his relief does not depend altogether upon the question whether they are tainted with fraud, but upon the fact that they are clouds. Conveyances not tainted with fraud may cloud the true title. Hence fraud is a falsé quantity when we come to assign an action of this character to its proper class under the Statute of Limitations. If fraud exists, it does so merely as a feature in the case, and not as a test of the true nature of the cause of action within the meaning of the statute."
Whether a cause of action of this character fulls under the bar of four years it is unnecessary to say. We held, in Hager v. Schindler, that in no event could the statute commence to
Counsel for the respondent are mistaken in saying that the action was commenced within three years after the execution of the deed. The transcript shows that it was not, and it is not suggested that the transcript, in that respect, is incorrect. Hence the question as to the limitation of three years is not in terms answered by the case of Hager v. Shindler, as counsel assume.
Judgment affirmed.
Concurrence Opinion
I was at first inclined to the opinion that this case fell under the fourth clause of the seventeenth section of the Statute of Limitations, under which “ an action for relief on the ground of fraud ” is barred in three years; but upon further reflection I think it does not. The deeds in question, it is true, had their origin in fraud. The first in order was made with intent to defraud a creditor. The creditor proceeded to obtain his judgment, sell the land and obtain a Sheriff’s deed, regardless of the deed made for the purpose of defrauding him. The fraudulent deed was void as to him—an absolute nullity—and for this reason was not in his way. After obtaining his Sheriff’s deed he was in a position to recover possession of the land, notwithstanding the fraudulent conveyance without first procuring its cancellation in equity. It was only necessary to prove the fraud when the fraudulent deed should be set up in the action at law to recover the possession. (Jackson v. Myers, 18 John. 426.) It might be inconvenient to be at all times ready to make the proof, but in contemplation of law the deed was, as to him, absolutely void. The creditor could protect himself against it at law, and there was no necessity for going into equity for a remedy. The only substantial remedy to him, requiring relief in equity, therefore is, that being upon the record, the void deed is a cloud upon the title of the cred
As to the creditor, the fraudulent conveyance was void. Notwithstanding this conveyance, therefore, so far as the rights of the creditor are concerned, the title never passed to the grantee of the debtor until the sale under execution and the making of the Sheriff’s deed under which plaintiff claims. Until that time, as to the creditor, the title must be regarded as remaining in the debtor; and his grantee, who participated in the fraud, must be regarded as being in possession with the debtor’s assent, and not adversely to the creditor, his right being subject to be divested by a sale under execution against his grantor in favor of the creditor defrauded. For this reason a right of action did not accrue to the purchaser under the execution sale as against either till the execution of the Sheriff’s deed. I think, therefore, that the action is not barred, and concur in the views expressed in the leading opinion and in the judgment.