273 P. 147 | Cal. Ct. App. | 1928
Action by the plaintiff to quiet title to lot 18, Factory Center Tract, in the county of Los Angeles. The plaintiff had judgment and the defendant William Lender appeals.
The plaintiff's title is based upon a conveyance from Alfred A. Burt, the record owner, the deed from Burt to the plaintiff being executed and delivered while the grantor Alfred A. Burt was in possession of the lot in question. The appellant's title is founded upon a deed from the tax collector of Los Angeles County.
The complaint sets out that the plaintiff, at the time of filing the complaint, and for a long time prior thereto had been and was the owner and in the possession of the premises referred to; that the defendants claim and assert an interest therein adverse to plaintiff, and that the claims of *729 the defendants, and each of them, were without right, etc. The complaint contains a prayer that the defendants be required to set forth their title if any; that the plaintiff have judgment as prayed for, etc. The court found that all the allegations of the complaint are true and correct in so far as the same relate to lot 18 in block 5, Factory Center Tract, as per map recorded in book 22, pages 18 and 19 of maps, in the office of the recorder of Los Angeles County, and also that all the allegations of the answer of the defendant William Lender are untrue, except that the defendant has paid taxes, including penalties and costs, on said lot 18, which with interest thereon then amounted to $45; and also that the said defendant William Lender had, in good faith, erected certain buildings partly on lot 18. The judgment required the plaintiff to pay to Lender the amount of taxes, together with interest on such amount at seven per cent per annum, paid by the defendant Lender, and also granted permission to the defendant Lender to remove any building that he had placed on lot 18, or partly on lot 18.
The cause is before us upon a bill of exceptions.
[1] The respondent makes the preliminary objection that the court cannot consider the insufficiency of the evidence to support the findings in this cause, for the reason that the specifications set forth in the bill of exceptions do not attack any of the findings. This objection appears to be well taken. The specifications set forth first: That the court abused its discretion in denying the defendant a continuance of the trial of the case for a week or ten days; and second: That the evidence does not support the decision in this, that in this character of a case the plaintiff was obliged to prove title in herself from a paramount source, it having been shown that defendant Lender was in actual possession of the said lands described in the action; that plaintiff failed to establish title and failed to show the necessary evidence to prove title in plaintiff. It was therefore error for the court to allow plaintiff to attack defendant's title; and third: That the decision is against law in that the court erred in overruling the defendant's objections to the sufficiency of the plaintiff's evidence to establish title in plaintiff. Fourth: That there was no evidence to show any invalidity of the defendant's title. *730
In Beeson v. Schloss,
[2] Notwithstanding the insufficiency of the specifications in that they do not attack the findings of the court or set forth wherein the evidence is insufficient to sustain the findings, we have examined the transcript and find that the testimony shows that at the time of the execution of the deed from Alfred A. Burt, Alfred A. Burt was in possession of the premises referred to, claiming to be the owner thereof, and occupied the position of an owner and grantor in possession. This was a sufficient source from which to deraign title by the plaintiff. (Rockey v.Vieux,
[5] The appellant also contends that the court erred in refusing a continuance of the trial of this cause on account of an injury suffered by his attorney. The bill of exceptions fails to show any request for a continuance, or any motion made for that purpose. The bill of exceptions contains only a certificate of a physician which is in the following words:
"June 1, 1926.
"This is to certify that Mr. J.J. McKenna, wife and daughter are confined to their home for an indefinite length of time, due to injuries received in an automobile accident.
"Signed: C.C. PHILLIPS, M.D.," "Attending Physician."
The bill of exceptions does not show that any request was made to the court for a continuance. The bill of exceptions does not show that the appellant sought to obtain other counsel, or whether he could or could not obtain counsel if a reasonable delay were granted. Upon motion for new trial, affidavits were presented to the trial court showing that the attorneys for the defendant named had met with an automobile accident and that certain counsel appeared for them out of courtesy. The affidavits, however, do not *733 disclose that anything additional could be presented, save and except the matters which we have considered.
The entire case being a matter of record, and the records being before the trial court, and it not appearing that any other or different conclusion could be reached than that which had been reached, the court very properly denied the motion for new trial.
There being no merit in appellant's contentions, the judgment is affirmed.
Shields, J., pro tem., and Hart, Acting P.J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on January 21, 1929.