37 Cal. 389 | Cal. | 1869
Lead Opinion
The record is in such a condition as to impose upon the Court and counsel much unnecessary labor in reviewing the case. There was a general decision for the defendants, without any express finding of facts, and it is impossible to ascertain from the record upon which one of the several issues the decision turned—whether upon prior possession, or title under the Van Hess Ordinance, or the effect of the judgment in Mahoney v. Wilson. Counsel are under no legal or perhaps professional obligation to prepare findings; but it is apparent that, if the facts in this case had been expressly found, the points on appeal would have been narrowed, and a conclusion might be reached without examining all the points now presented.
The defendants introduced in evidence the judgment roll and papers in the case of Mahoney v. Wilson et al., the action having been commenced in 1857 and the judgment rendered in 1859. The defendants were the tenants óf Mann, through whom the present plaintiff claims. Mann, though not sued, defended the action, and his title was put in issue. The plaintiff objected to the admission of the judgment in evidence, on the ground that it did not bind Mann, and also because Mann subsequently acquired a title to the premises, which was not in issue in that case—that is, title under the Van Hess Ordinance.
It was decided at an early day in this Court, that the provision of the thirteenth section of the Practice Act that “ any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff,” was not applicable to actions of ejectment, (Garner v. Marshal, 9 Cal. 270,) and that construction has prevailed to the present time. But it is readily seen that in all cases in which the defendant is holding under a lease and the lessor’s title is in issue, it is proper, if not necessary, that the latter should have an opportunity to participate in the defense, for no one is as competent to present and defend his title as he. The landlord having been in possession and having transferred it to the tenant, ought not to be deprived of the possession at the expiration
Is not the position of the landlord who defends the action against his tenant quite similar to that of the holder of a non-ncgotiable chose in action who sues in the name of the legal holder, but for his own use ? Such actions were of frequent occurrence in many of the States previous to the adoption of the provision that actions should be brought in the name of the real party in interest. The assignor was the nominal party, but the person for whose use the action was brought was the real party, and as to him the judgment was an “instrument of evidence.”
Ainslie v. The Mayor of New York, 1 Barb. 169, upon which great reliance is placed by the plaintiff, cannot be regarded as authority here, without overthrowing all the cases in this Court, which concede to the landlord, after notice from the
The position that a judgment will not estop or preclude a party against whom it is rendered from relying upon a title acquired subsequently to the rendition of the judgment, or a title not in issue in that action, is too clear and well settled to require argument. But, although the party holding such after acquired title may offer it in evidence, the holding and production of it in evidence will not preclude the party in whose favor the judgment was rendered from producing the judgment also in evidence. The after acquired title is not necessarily the better title, and the relative strength of it, and that upon which the judgment was based, is to be tested, not upon the question of the admissibility of either, but in the same manner as that of any other conflicting titles.
The newly acquired title relied upon by the plaintiff is title acquired under the Van Bess Ordinance and the confirmatory Act of the Legislature. The plaintiff claims that this title accrued after the suit of Mahoney v. Wilson was determined. But it is not necessary to go to that length, for’if he did not hold the title at the time the issue of fact was joined in that action-, or if acquired intermediate that time and the rendition of the judgment, it was not set up by supplemental answer, and it was unaffected by the judgment, for the very sufficient reason that it was not involved in the action. It is enough for the plaintiff to show that the alleged newly acquired title was not in issue in the action, without showing that it was acquired after the judgment.
Did the plaintiff acquire the title under the ordinance ? It was found as a fact in Mahoney v. Wilson “ that on or about the 1st day of June, 1853, the plaintiff and one David Mahoney entered upon the land described in the complaint-in this action, and inclosed the same with a substantial fence, and occupied and continued to occupy the land in dispute, and had the quiet occupancy and exclusive possession of the same until on or about the 1st day of July, 1853,” when the plaintiff’s grantor entered and ousted the Mahoneys from the possession of the premises. The second section of the ordinance (Stats. 1858, p. 52) grants the lands “to the parties in the actual possession thereof, by themselves or tenants, on or before the 1st day of January, 1855; * * * provided such possession has been continued up to the time of the introduction of this ordinance in the Common Council, or, if interrupted by an intruder or trespasser, has been or may be recovered by legal process.” The judgment in Mahoney v. Wilson being admissible in this action, as we hold, the finding is conclusive evidence of the actual possession of the defendants at the time stated, and of the interruption of such possession by the plaintiff; and the judgment conclusively determines that such possession- might he recovered
At the trial the plaintiff moved the Court to be allowed to prove a prima facie title under the Van Hess Ordinance, and if the defendants should offer evidence tending to show an older possession, within the proviso of the Van Hess Ordinance, that then he should be allowed to disprove “ the case so made, or show an older possession by way of rebuttal; ” and the Court thereupon ruled that he must introduce all his evidence as to the title and possession before resting. We do not understand that the Court ruled that it would, or, in fact, did refuse to permit the plaintiff “ to disprove the case so made,” but only held that evidence to show an older possession than such as the defendants might prove was not admissible by way of rebuttal. The ruling was correct, we think, in any aspect in which it may be viewed. The proposed evidence was clearly evidence in chief. Possession, as we have already remarked, does not constitute title under the ordinance, but title passes by virtue of the grant contained in the ordinance. The title given to . any parcel of land did not vest in two persons consecutively, and it cannot be said that one person acquired a better or an older title than another under the ordinance. The one having the requisite possession took the title, and the adverse claimant took nothing. The proposed evidence of prior possession— accompanied of course by evidence of interruption by a trespasser or intruder, to be of any value under the ordinance —would directly tend to show that the plaintiff acquired the title, and it was, therefore, evidence in chief. It would not tend to controvert or disprove the fact that, at a given time thereafter, the defendants were in the actual possession.
Concurrence Opinion
When the landlord appears upon the record to have taken upon himself the defense for his own interest of an action for the recovery of land, either in his own name or in the name of the tenant, I do not see why the judgment should not be binding upon him as an instrument of evidence, or why he is not estopped as to the matters in issue and determined in the same manner and to the same extent as he would be if a defendant in the action. In such case he is not only substantially the party to the action, hut he appears so to be by the record itself. I think, however, it would be dangerous to extend the rule to cases where there is nothing in the record of the action tending to show that the landlord took the defense of the action upon himself. The parties to be estopped ought certainly to be indicated by the record itself. Any other rule would be exceedingly loose, unreliable and unsatisfactory, and would lead to great abuses. The only difficulty I have in this case is as to whether it sufficiently appears in the record in connection with the other evidence, that the landlord did assume the defense in the former action of Mahoney v. Wilson. An affidavit was filed in that action in behalf of Mann, stating that he was one of the owners of the lands occupied by the defendants, and was their landlord; that he had retained counsel to intervene and defend the suit; that there was collusion between the defendants and plaintiff; that they had neglected to notify him of service of process; that no process had been served on said Mann, or returned, but that plaintiff was about to enter judgment; that said Mann had a good defense —but, being absent, his counsel were not then able to intervene and answer; and upon such affidavit, his counsel procured a stay of proceedings to enable Mann to properly intervene. Afterward a defense was made by the same counsel who made the application for Mann, but in the names of the tenants themselves. I am inclined to think that it is sufficiently manifest from this portion of the record, supported