Графични страници
PDF файл
ePub

was of land lying "within the city of Stockton," and that the only other description thereof in the assessment was: "Lots nine (9) and ten (10) block C in McCloud's addition." It is claimed by plaintiff. that this deed did not purport to convey the land described in the complaint and involved in this action, and we are of the opinion that this claim must be held good. It appears very clear that the deed did not, upon its face, refer to or purport to convey any of the land in controversy. That land lay wholly without the city of Stockton, while the deed was plain to the effect that the land assessed, sold and thereby conveyed was within said city. The remainder of the description is not such as to warrant the rejection of the words "lying and being within the said city of Stockton" as a superfluous recital, or the substitution of the word "without" for the word "within." There is absolutely nothing on the face of the description given in the deed from which it can be concluded that there is any error in such description, or that the same does not correctly describe property in the city of Stockton. It is entirely within the possibilities that there may be a "McCloud's addition to the city of Stockton" without the city, and a "McCloud's addition" within the city, and we cannot take judicial notice that this is not the case. Under the plain and explicit words of the deed, the only land assessed by the assessor, sold by the tax collector, and conveyed by the deed. was certain land lying within the city, and we are not at liberty, in plain disregard of these words, to construe the description as including only lands lying outside the city. To so do would be to include in the deed land not now affected thereby. It is. of course. not disputed that no right can be asserted under a tax deed, except as to such property as is described therein.

It is claimed that, admitting the description to have been insufficient, the deed should still have been admitted, for the purpose of allowing appellant to show other facts "to make certain the description of the land, or by way of estoppel," such as that the property in controversy was commonly known in the community in the way it was described in the deed; that there was only one McCloud's addition in the county: that the owner made the return to the assessor and is estopped; and that taxes of former years had been levied by the same description, and had been paid. In regard to this claim, it is sufficient to say that, if it be assumed that any such evidence would have been admissible, appellant did not offer the same, or even state to the court, in connection with his offer of the deed, his intention to so do, though one of the specific objections made to the deed was that it did not purport to convey any of the property described in the complaint, but only property within the city of Stockton. Appellant simply offered a deed which, upon its face, did not refer to any

of the land in controversy, and which, therefore, was not admissible, in the absence of other evidence showing its relevancy to the issues. In view of what we have said, the trial court did not err in excluding from evidence the deed from the tax collector to Ramsner. There was, of course, no error in refusing to admit the deed from Ramsner to plaintiff, for the deed from the tax collector being refused admission, there was nothing to show any title in Ramsner.

The judgment and order are affirmed.

[blocks in formation]

-EQUITY SUIT-MOTION.

Where a foreclosure decree was taken against plaintiffs for an excessive amount, by means of a fraudulent and collusive agreement between plaintiffs' attorney and the attorney for the holder of the mortgage, plaintiffs were entitled to maintain a separate suit in equity to vacate such judgment, though they had notice of its entry and of fraud in its procurement in time to have moved to set the same aside on affidavits, as authorized by Code Civ. Proc. § 473.

[Ed. Note.-For cases in point, see vol. 30. Cent. Dig. Judgment, $ 768-771.] 4. SAME RES JUDICATA.

Where the plaintiffs moved to set aside a judgment against them on the ground of want of authority in their attorneys to stipulate for judgment, the overruling of such motion was no bar to a subsequent suit in equity to vacate the judgment as entered under a fraudulent and collusive agreement between plaintiffs' attorney and the attorneys for the holders of the mortgage.

5. SAME-LACHES.

The period of limitation for actions for relief on the ground of fraud being three years from the discovery of the fraud, a suit to vacate a judgment for fraud brought less than two years after its commission was not barred by laches.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 863-866.]

6. SAME-CONDITIONS-ABILITY TO Refund. The ability of certain mortgagors to pay the amount found due on an accounting was not

a condition to their right to maintain a suit to vacate a foreclosure decree collusively and fraudulently entered for an amount largely in excess of that due.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, § S53.] McFarland, J., dissenting.

In Bank. Appeal from Superior Court, Riverside County; J. S. Noyes, Judge.

Suit by Francisco Estudillo and another against the Security Loan & Trust Company of Southern California and another. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

J. F. Conroy, for appellants. R. H. F. Variel and John G. North, for respondents.

BEATTY, C. J. The plaintiffs, who are husband and wife, mortgaged certain lands to secure an indebtedness to the defendant loan and trust company, a corporation. Under a judgment of foreclosure, entered upon their default, the mortgaged premises were sold to the corporation by its codefendant, Keefe, acting as special commissioner under the decree. The object of the present action is to obtain a decree vacating the foreclosure sale, canceling the certificates and deeds executed and recorded in pursuance of the sale, requiring the corporation to account for moneys received by it from the plaintiffs and from others to their use, which should have been credited upon the mortgage indebtedness, and for general relief. The grounds upon which this relief is claimed are, first, that the foreclosure decree was fraudulently obtained for an excessive amount; and, second, that the sale of the mortgaged premises was unfairly and illegally conducted by the commissioner acting in collusion with the mortgagee, for the purpose, and with the effect, of discouraging competition of bidders, and thereby enabling the mortgagee to become the purchaser at a price much below the actual value of the lands. The complaint was filed in December, 1900. The defendants first filed a general demurrer for want of facts. Afterwards, but before any action upon that demurrer, they filed, as of course, an amended demurrer, specifying more particularly their objections to the complaint for want of facts, and adding the special objection that several separate and distinct causes of action had been united and combined in the complaint without a separate statement. An order was subsequently entered in the cause in these terms: "It is ordered that the demurrer be sustained and ten (10) days given to amend the complaint." Plaintiffs declined to amend, and judgment was entered dismissing the action. From the judgment so entered plaintiffs appeal.

The first point urged in support of the appeal is that the judgment was erroneously entered because it appears that the only demurrer in the case has never been disposed of. The appellants contend that the amend

ed demurrer superseded the original, and that the order of the superior court is by its terms confined to the original, leaving the amended demurrer still standing as an obstacle to any final judgment. It is true the amended demurrer did supersede the original, and thereby completely disposed of it. The order of the court subsequently entered therefore had nothing to operate upon except the amended demurrer, and is to be construed as sustaining it. This is doing no violence to the terms of the order. A demurrer is none the less a demurrer because it has been amended, and the last amended demurrer in a case, being the only demurrer, is properly designated as "the demurrer." The entry of the judgment cannot be held to have been even irregular, so far as this objection is concerned.

The more serious objections to the judg ment remain to be considered, and among these the first in order and importance is the claim that the allegations of the complaint, if true, were sufficient to entitle the plaintiffs to a decree vacating the foreclosure judgment upon the ground that it was pro cured by fraud. Assuming the truth of what is alleged, there can be no doubt that the decree of foreclosure was procured by a fraud practiced upon the court of a character entitling the plaintiffs to the relief which they are seeking in this action, and the only question is whether their complaint does not also show that they are debarred from any relief in equity by the fact that they had a complete remedy by motion in the foreclosure suit-a proceeding which they took and in which they litigated unsuccessfully the same matters which they are endeavoring to relitigate here. The facts alleged are that plaintiffs borrowed of the loan and trust company $12,675 in May, 1892, giving their note for that principal sum, and also separate interest notes, payable semiannually for a period of three years. To secure the notes they mortgaged a tract of land containing 950 acres, which had been surveyed and platted into lots and blocks as an addition to the town of San Jacinto, in Riverside county. They received in cash only $1,874.44; the balance of the loan being retained by the loan and trust company to satisfy alleged prior liens upon the land. They have never had any account of the application of the moneys so retained, and charge that they were more than sufficient to satisfy the liens. Between the date of the loan and the 25th of October, 1898, plaintiffs paid all the interest notes, and, besides, there had been paid by them and by others for their account various sums, amounting in the aggregate to $9,600, which the corporation has appropriated, and for which it has failed to account. The suit to foreclose was commenced October 22, 1898, and as shown by the default judgment subsequently entered the corporation alleged an indebtedness of nearly $16,000, with interest

from May 1, 1898. The sum so claimed was, on any calculation, more than could have been due at that date, after deducting the payments alleged to have been made. These plaintiffs retained an attorney to defend the suit to foreclose, and communicated to him the facts constituting their defense. He interposed a demurrer to the complaint, which was subsequently overruled by his consent; time being allowed to answer. A week before the time to answer expired he signed and file in the action the following stipulation: "The defendant Francisco Estudillo, and Felicitas Estudillo, his wife, named in said action, having appeared therein by their attorney, Wilford M. Peck, and demurred to the plaintiff's complaint, and said demurrer having been overruled by the above-entitled court on the 8th day of February, 1899, by an order duly entered in the minutes of said court: Now, therefore, it is stipulated and agreed by and between the plaintiff represented by its undersigned attorney, duly au thorized thereto, and the said defendants

Francisco Estudillo and Felicitas Estudillo, his wife, by their said attorney duly authorized thereto, that said defendants waive the service of notice of overruling of said demurrer, and further waive the right to and refuse to further appear or answer in said action, and that the plaintiff shall be entitled to take judgment in accordance with the prayer of its complaint, or as may otherwise be ordered by the court on the hearing of said cause. Dated February 21, 1899. R. H. F. Variel. Attorney for Plaintiff. Wilford M. Peck. Attorney for said Defendants." the same day the cause was heard and judgment of foreclosure entered. The mortgage indebtedness according to the complaint and judgment amounted at that date to $18.464.98, to satisfy which and costs the lands were ordered sold. There was besides a personal judgment entered against these plaintiffs for $1.000 attorney's fee. According to the allegations of the complaint in this action, a much smaller sum remained unpaid on the mortgage debt than was found due by said judgment, and the mortgagee must be deemed to have known that it was taking judgment for an excessive amount upon the stipulation of an attorney who was sacrificing the interest of his clients in abandoning their valid defense to a large portion of the claim asserted against them. It is charged, and by the demurrer admitted, that the mortgagee knew prior to the date of the stipulation that said attorney had been instructed to file an answer for these plaintiffs, and that he had no authority to stipulate for a judgment by default. That the stipulation was collusive and fraudulent in fact and in intent is repeatedly charged, and is by the demurrer admitted. These facts so admitted constitute a fraud extrinsic and collateral to the issues in the cause which entitles the plaintiffs to relief in this action unless it

shall be held that their sole remedy was by motion in the foreclosure suit to vacate the judgment on the ground of surprise and excusable neglect. Code Civ. Proc. § 473.

The facts relevant to this question are that plaintiffs first learned of the stipulation and subsequent proceedings on the 14th of April, 1899, and immediately discharged their said attorney, and on the 19th of the same month filed a motion to set aside their default and vacate the judgment. This motion was overruled by the superior court June 14th. An appeal from that order was taken to this court, and was still pending when the present action was commenced in December, 1900. The grounds upon which that motion was based are not stated in the complaint, but counsel in their briefs make frequent reference to the report of our decision on the appeal from the order (Security Loan & Trust Company v. Estudillo, 134 Cal. 166, 66 Pac. 257), from which it appears that the whole question mooted was that of the authority of the attorney to make the stipulation. It does not appear from that decision that any question of fraud on the part of the loan and trust company was litigated or involved in that proceeding unless it was necessarily involved in the question as to the authority of the attorney to stipulate. But we are clearly of the opinion that in this case we cannot take notice of the record on that appeal. We are here confined to the facts alleged in this complaint, which merely shows that the motion to vacate was made and overruled. and that an appeal from the order was pending when this action was comfraudulent conduct of the defendant corporamenced. It is alleged that the frauds and

tion were discovered about the 10th of October. 1899, which was more than six months after the entry of the judgment. These alleged frauds consisted, in addition to what is above stated. in inducing the attorney to execute and deliver the stipulation for judg ment, and to conceal his unauthorized proceedings in the action, in ignoring the proper description of the lands in the foreclosure judgment, and causing them to be described in the decree and order of sale as nine parcels or tracts, which could not be identified by reference to the recorded map of the premises, in naming the defendant Keefe as commissioner to make the sale, when he was clerk in the office of the corporation's attorney, and in causing him to do and to omit to do various things in connection with the sale in disregard of the rights of these plaintiffs, all with the intent and purpose of enabling the corporation to deprive plaintiffs

of their lands.

If the right of plaintiffs to maintain this action depends upon their discovery of the frauds here alleged too late to make them the ground, or one of the grounds, of their motion to vacate the default judgment in the foreclosure suit, it must be held that their complaint does not state facts sufficient to

constitute a cause of action.

They allege it is true that the frauds of the corporation defendant were discovered about the 10th of October, 1899, but they also allege that they had notice of the judgment and the stipulation upon which it was entered in April, 1899. Necessarily they also knew before that date of their instructions to their attorney to make their defense in the action and of his betrayal of their cause. They knew that the judgment was for an excessive amount and that the corporation must have been aware of the fact when its complaint was filed. They knew how the land was described in the decree, and the manner in which it had been arbitrarily subdivided for the purposes of the sale. They knew that Keefe had been appointed commissioner to make the sale, and what his connection with the corporation's attorney and with the litigation was. In short, they knew all the facts which they now allege for the purpose of showing the fraud, except the fact that the corporation induced their attorney to enter into the stipulation, and to conceal his proceedings. That their attorney was induced by the corporation to consent to the default judgment was a fact necessarily to be inferred from the facts which they knew, and since they discovered his proceedings in time to make their motion, his attempted concealment, whether collusive or not, is a circumstance entirely immaterial here.

We must therefore treat this complaint as showing, not that the alleged frauds were first discovered in October, 1899, but as showing that they were known to plaintiffs at the time they gave notice of their motion to vacate the default judgment. So regarding it, the question presented for decision is whether a party against whom a judgment excessive in amount has been entered upon a fraudulent and collusive agreement between his attorney and the opposing party can maintain a separate suit in equity to vacate such judgment, or enjoin its enforcement when it appears that he had notice of its entry and the fraud in its procurement in ample time to have moved for relief under section 473 of the Code of Civil Procedure. Upon this question there seems to be a conflict of authority in other jurisdictions, and we have not been referred to any decision of this court in a case clearly calling for a determination of the precise point. The general principle that equity will not interfere to vacate or enjoin the execution of a judgment at law when the party aggrieved has a plain, speedy, and adequate remedy by motion to vacate the judgment or quash the execution, or by an appeal, is recognized and applied in many cases, but the question whether a summary motion to be supported by affidavits is an adequate remedy, and therefore exclusive, in a case such as this, has not been directly involved or decided in any of the cases that have come to this court, with the possible exception of California Beet

Sugar Co. v. Porter, 68 Cal. 370, 9 Pac. 313. That was a case very much like this, in which the superior court sustained a demurrer to the complaint, and where, on the appeal, respondent contended that the action was not maintainable because the plaintiff had a plain, speedy, and adequate remedy by motion. In response to this objection the court said: "It has been held in Bibend v. Kreutz, 20 Cal. 109, Ketchum v. Crippen, 37 Cal. 223, and Ede v. Hazen, 61 Cal. 360, that so long as the statutory remedy by mó tion to set aside a judgment exists, the assistance of a court of equity cannot be invoked. But none of those cases involved the question of judgment fraudulently taken against an injured party and executed by a sale of his property." Further on the opinion says: "It is a general rule that if relief be obtainable against mistakes or errors of law or fact committed in a judicial proceeding the statutory remedies for relief must be resorted to in the proceeding itself. But, as the Supreme Court of the United States says in U. S. v. Throckmorton, 98 U. S. 65, 66, 25 L. Ed. 93, 'there is an admitted exception to this general rule in cases where, by reason of some-thing done by the successful party to the suit, there was in fact no adversary trial or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise, or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff, or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat, or where the attorney regularly employed corruptly sells out his client's interest to the other side, these and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a suit may be sustained to set aside and annul the former judgment or decree and open the case for a new and a fair hearing.'" From all this it would seem that the judgment of reversal in that case was intended to be rested upon a distinction as to the remedy between cases of judgments obtained by fraud of the plaintiff, and judgments suffered by reason of surprise or excusable neglect on the part of the defendant. It is not, however, entirely clear from the report that the question was necessarily involved, though it may have been. But, even if what was said in that case should be regarded as obiter, it is still entitled to respect, and in the absence of direct authority upon the question ought to be followed if no good reason appears for laying down a different rule; and no such reason is suggested. On the contrary, it appears to me to be a salutary rule. The burden of proof rests upon no one more heavily than upon a plaintiff seeking relief upon the ground of fraud, and he ought not to be

unduly hampered as to the means of making proof. In support of a motion he is limited to ex parte affidavits of voluntary witnesses unless the court in its discretion permits a wider latitude. In a separate suit he may bring unwilling witnesses into court by subpoena, and he may take their depositions. The remedy is ampler and more efficacious, and the case is one which demands the amplest and most efficacious 'remedy. My conclusion is that the plaintiffs had the right to maintain this suit, notwithstanding they knew of the frauds alleged in ample time to have moved upon that ground.

But it is objected that they did move, and that their right to have the judgment vacated is res judicata. It does not, however, appear from this complaint that they moved upon the ground of the fraud here alleged, and the report of our decision on the appeal from the order denying the motion shows that it was made upon the ground of want of authority in their attorney to stipulate. The allegations of this complaint do not show that the order denying the motion to vacate is a bar to this action. In Black on Judgments it is said (section 321): "In an action to set aside a judgment on the ground of fraud, neither the judgment thus sought to be vacated nor an order refusing to set aside a default and permit an answer in that case can be set up as a bar to the action." From which it would seem to follow that in such a case as this the correct practice would be to move promptly under section 473 of the Code of Civil Procedure, and, if defeated in that proceeding. to commence a separate action for relief upon the ground of the plaintiff's fraud-a practice to be commended as convenient and expeditious in case the motion should be granted, and as affording the injured party all the advantage of a regular trial of the issue of fraud if the more summary proceeding proved ineffectual. This is the course which plaintiffs have taken, and, if the practice is admissible, they cannot be charged with lack of diligence. They moved promptly for relief in the foreclosure suit, and before that motion was finally decided they commenced this action.

There has been no laches. The period of limitation for actions for relief on the ground of fraud is three years from the discovery of the fraud. This action was commenced less than two years after its commission. The cases cited by respondent in which the complaint has been held bad for failure to show how and when the fraud was discovered, and why it was not sooner discovered, were all cases in which the action was conımenced more than the full period of limitation after the commission of the fraud. In such cases the doctrine of laches applies, but in a case like this the right to maintain the action is governed by the statute of limitations. Nor does the right to maintain the action depend upon the

readiness and ability of the plaintiffs to pay the amount that may be found due on an accounting. They are entitled to a correct determination of the amount of their indebtedness and to have the mortgaged premises sold only under a proper decree. What has been said in the cases of rescission cited by the respondent as to the necessity of averring readiness and ability to restore what has been received under the contract has no application to such cases as this.

It follows from what has been said that the judgment of the superior court must be reversed, but in view of the further proceedings involved in this conclusion it is proper to add that if, upon a trial of the issues, it shall be found that the attorney who represented these plaintiffs in the foreclosure suit had authority from them and acted in good faith in stipulating for judgment according to the prayer of the complaint, and that no fraud was practiced by the defendant corporation in procuring the entry of the decree, the plaintiff will have no right to demand that the sale and other subsequent proceedings be vacated; for, if the decree was not in accordance with the prayer of the complaint, the defendants therein had a remedy by appeal, and that remedy was exclusive, and if it was in accordance with the prayer of the complaint they cannot now object to a sale made in the mode authorized by their formal consent. In other words, our conclusion is that, if there was in fact no fraud in the procurement of the judgment, the plaintiffs have no right of action.

The judgment appealed from is reversed, and the cause remanded, with instructions to the superior court to overrule the demurrer with leave to the defendants to answer.

[blocks in formation]

MCFARLAND, J. (dissenting). I dissent, and adhere to the opinion delivered in department affirming the judgment. I think that the case clearly comes within the rule that equity cannot be invoked where there is a remedy at law. Appellants had an ample remedy for their alleged grievance by motion under section 473, Code Civ. Proc. They availed themselves of that remedy and were defeated; and they are now seeking to try all over again the matter there litigated. If their statements are true, they were the victims of the "surprise" which is made one of the grounds for relief in section 473; and it makes no difference that the surprise was the result of alleged fraud. Moreover, if the decision on the motion were no bar to the present action because of fraud involved, then in my opinion there is no sufficient averment in the complaint of facts constituting fraud. The mere averment that plaintiffs "procured" defendant's attorney to make the stipulation, etc., is insufficient.

« ПредишнаНапред »