Welton v. Cook, 61 Cal. 481

Welton v. Cook

61 Cal. 481 | Cal. | 1882

The Court:

In 1864, one Learned commenced an action against the plaintiffs herein and others, claiming to be the owner of the premises in controversy, alleging that the defendants therein (among whom were the plaintiffs here) claimed an interest in the premises adverse to him, and asked that his title be quieted. Learned filed a notice of the pendency of the action. The defendants in that action answered, alleging themselves to be the owners in fee, and prayed that the title be quieted as against their adversary, but they did not file any notice of the pendency of the action. Learned had judgment as prayed for, but on appeal this Court reversed the judgment and directed a judgment to be entered for the defendants as prayed for by them. Judgment was accordingly entered May 6,1874.

*486Pending that action, to wit, May 7,1866, Learned conveyed the premises to Marcus M. Cook, defendant here. The deed contained a covenant of warranty “against all claims of John K. Moore and Merritt Welton et al.” Merritt Welton was one of the defendants in that action.

The action now before us, commenced August 12,1875, was brought to quiet, the title of the plaintiffs to the premises, the plaintiffs alleging themselves to be the owners in fee, and defendants claim an interest adverse to them. The defendant M. M. Cook answers, claiming that he is the owner, and asks that his title be quieted. The defendant P. A. Cook claims as incumbrancer of his co-defendant.

The Court below found the facts as above stated, and also the following: That after the judgment in the former suit, a writ for the possession of the premises was issued, and was executed by the Sheriff on the ninth day of May, 1874, by placing the Weltons in possession of the lot in controversy; and the Court also found that the defendant M. M. Cook went into possession of the premises on the seventh of May, 1866, the date of his deed from Learned, under that deed; that he neither has nor claims any title except such as he obtained by that deed or such as he may have acquired by the statute of limitations, and that he had held the possession adversely from the date of his entry under the deed to the date of the findings, December 11, 1879. The conclusion of law drawn by the Court was that plaintiff’s cause of action was barred by the statute of limitations, and judgment was accordingly rendered for defendants.

The defendant M. M. Cook claims that he is unaffected by the Us pendens filed by the plaintiff (his grantor) in the former suit, and that as the defendants therein filed no Us pendens giving notice of the affimative relief asked by them, he is not bound by the judgment in their favor. By the Us pendens filed by the plaintiff (Learned) in that action, his grantee (Cook, defendant here) had notice that while he, Learned, claimed to be the rightful owner of the premises, the defendants, Weltons, claimed an interest therein adverse to him, and that the Court was asked to adjudicate upon the respective claims; and admitting (which we do not) that in such case the Weltons were bound to file a notice of their *487claim for affirmative relief, as Cook had notice that an equitable action was pending, the judgment of the Court that Learned had no title was binding upon him; and as he entered under the deed from Learned, pending the litigation, claiming no other right than such as the deed conferred upon him, he is as much bound by the judgment that Learned was not the' owner as Learned himself would have been. The first opinion filed in Corwin v. Bensley, 43 Cal. 260, is not an adjudication upon this point, because a rehearing was granted, and in the judgment on rehearing the effect of the lis pendens filed by Corwin was expressly omitted from determination. It may be observed that this action was brought within two years from the date of the judgment in the former action.

Judgment reversed and cause remanded for a new trial