80 Cal. 570 | Cal. | 1889
The complaint in this case alleges, in substance, that an action for partition of certain real
The defendant paid one hundred dollars of the amount, and this action is to recover the balance of nine hundred dollars.
The court below overruled a demurrer to the complaint, and the defendant failing to answer, judgment was entered against it, and it appeals.
The demurrer should have been sustained. The contract was a fraud, not only upon the court, whose duty it was to pass upon and confirm or set aside the sale, but upon the parties in the action of partition. It was the plain duty of the plaintiff’s assignor, if she knew of any valid reason why the sale should have been set aside or not confirmed, to make it known to the court and her co-defendants.
It is contended by the respondent that this was nothing more than the payment of a sum of money by way of a compromise of litigation, and that such contracts have been upheld. We do not so construe the agreement. It was a promise to pay a consideration for the concealment of a fact from the court and the parties material to the rights of said parties, and which it was her duty
The judgment is reversed, with instructions to the court below to sustain the demurrer to the complaint.
Fox, J., and Patekson, J., concurred.