Opinion
Hearing Granted by Supreme Court Aug. 5, 1927.
Appeal from Superior Court, Los Angeles County; John M. York, Judge.
Suit by James C. Whitworth and others against Michael M. Fernandez and certain fictitious defendants. From a judgment for plaintiffs, named defendant appeals. Reversed. COUNSEL
J. H. De La Monte and Walter W. Little, both of Los Angeles, for appellant.
C. L. Kilgore, of Los Angeles, for respondents.
OPINION
CRAIG, J.
The plaintiffs and respondents instituted this proceeding against the appellant and several fictitious defendants for the purpose of quieting title to real property situated in the city of Los Angeles and described in the complaint as all of lot 13 of the Whitworth tract, and those portions of the Preuss road on the west and Pico street on the south within the present fence lines, which lies south of a line described by metes and bounds, and all of lot 13 of said tract and that portion of the Preuss road on the west lying within the present fence lines and such street line. The plaintiffs alleged that they and their predecessors in interest had been in actual, open, notorious, exclusive, and adverse possession of all of said lot 13, including the land embraced within the present fence lines, continuously for a period of 20 years next preceding the commencement of their action, and that they had paid all of the taxes of every kind and nature levied or assessed thereon continuously for a period of 5 years last past immediately preceding the filing of the complaint.
Defendant, Fernandez, by answer and cross-complaint denied the foregoing allegations upon the ground of lack of knowledge or information sufficient to enable him to answer as to ownership of portions of lot 13, and denied the payment of taxes on the whole of said land, or any part of it, for a period of 5 years, or that the plaintiffs or their predecessors in interest had been in actual, open, notorious, exclusive, or adverse possession thereof. The defendant affirmatively alleged that by a good and sufficient deed of conveyance from Christopher Greve and Emily Greve, dated February 15, 1915, he acquired title to, and that he had ever since been the owner and entitled to possession of, lands in the Rancho de las Aguas, consisting (1) of those portions of lot No. 1 lying north of Pico street, not included in tract No. 470, or in that portion of lot No. 1 theretofore deeded by Greve to Joseph Whitworth, defendant’s parcel being the easterly 42.1 feet of lot No. 13 described in the complaint; and (2) a parcel consisting of a portion of lot No. 13 described and claimed by the plaintiffs, and commencing at the northeasterly corner thereof, which also was described by metes and bounds. By cross-complaint Fernandez alleged that these two parcels had been owned continuously by Christopher Greve and himself for a period of 35 years, and prayed a decree quieting title thereto. An answer to the cross-complaint was interposed, which, among other things, alleged that the deed of February 15, 1915, was one of quitclaim only, and conveyed no right, title, or interest in the lands therein described to the cross-complainant.
The land in controversy consists of a strip 42.1 feet wide on Pico street, and extending northerly therefrom a distance of 298.32 feet. No evidence appears to have been offered concerning the second parcel described by the defendant, and it therefore should not have been made the subject of a finding on behalf of the plaintiffs. The case was tried by the court, and findings and judgment were rendered in favor of the plaintiffs. It was found that on the 15th day of February, 1915, Christopher Greve and Emily Greve, his wife, executed to Michael M. Fernandez their quitclaim deed, and that the same was recorded on the 11th day of July, 1916, in the office of the county recorder of Los Angeles county, but that no consideration was received by the Greves for the execution and delivery of the deed, and that it was made pursuant to an oral agreement by the terms of which Fernandez was to endeavor to secure a settlement from the Whitworths without filing an action at law or in equity, and that the Greves were to receive one-half of any sum which might be received by Fernandez in such settlement, and, further, "that by reason of said agreement Fernandez became a trustee for and in favor of Christopher Greve and Emily Greve, his wife." Evidence was received over objections of the defendants tending to show that in 1922 Emily Greve and the heirs of Christopher Greve executed to the respondents a quitclaim deed of the land in question, which the court found to be a fact.
The defendant appeals from the judgment upon the alleged grounds that the uncontradicted evidence shows plaintiffs’ land under their purchase from Greve to have been 42.1 feet westerly from the line upon which the judgment awarded them was erroneously based; that defendant’s property lay between the "three acres, more or less," belonging to the Whitworths and the westerly line of the lands of Greve, their common grantor; that the plaintiffs had paid no taxes upon appellant’s 42.1 feet, except as hereinafter noted; and that the latter’s line had never been disputed.
The respondents’ first claim to the strip of land in dispute is that of adverse possession. Without stating the evidence in detail it is sufficient to say that the finding of the court to the effect that they had been in actual possession for a period of 20 years has sufficient support in the record to be sustained. The appellant has record title to the same property, and it is essential to the respondents’ success in maintaining their claim that they prove payment by them of the taxes for a period of at least five consecutive years during the time that they had possession.
It appears that in 1883 the Greves conveyed to respondents certain lands lying westerly of and adjacent to the westerly line of the 42.1 feet in controversy, but that for a period of about 30 years they occupied and cultivated all of the land lying between their westerly line and the easterly line of said strip. Public records, including the tax assessments, described the respondents’ property as "three acres," or, at times, "three acres, more or less." In 1910 a map of a new tract embracing Greve’s easterly lands, and known as lot A, tract 470, was recorded. The tax records show that all of the lands lying easterly of respondents’ "three acres" were assessed to Greve from 1901 to 1911, and that he paid the taxes thereon, and that from 1911 to the date of the filing of this suit the strip of 42.1 feet lying between said "three acres, more or less," and tract 470 was assessed to, and the taxes thereon were paid by, Christopher Greve or his surviving widow. We are unable to find in the record evidence tending to show that the respondents paid taxes upon the strip of land in controversy, except during the years 1916, 1917, and 1918, when they had also been theretofore paid by the Greves. Therefore respondents failed to sustain their allegations of adverse possession, and the findings of the court in that behalf are unsupported by the evidence. They contend that appellant’s quitclaim deed of 1915 was without consideration, and conveyed no right, title, or interest in the property therein described.
That the deed was only one of quitclaim does not militate against the validity. "A quitclaim deed is as efficient to transfer title as a grant, bargain and sale deed. Graff v. Middleton, 43 Cal. 341, 344; Myers v. City of Oceanside, 7 Cal.App. 87, 93 P. 686." Biaggi v. Ramont, 189 Cal. 675, 209 P. 892. But it is argued that the plaintiffs were entitled to the decree sought upon another theory. If the deed to Fernandez in 1915 was intended by the parties to convey only the legal title, reserving, by reason of the terms of an oral agreement, the equitable ownership in the Greves and thus creating a trust in their favor, by which Fernandez became the trustee, it is insisted that the Greves could have maintained this action, and that the quitclaim deed of Emily Greve and the heirs of Christopher Greve to the Whitworths executed May 27, 1922, served to transfer all of the interest of the grantors to the grantees; hence, that through the last-named deed respondents became the owners of the property in question, even though they had not acquired title to it through adverse possession. This claim is squarely condemned by numerous decisions in this state, which have definitely established the rule to be that the owner of an equitable interest cannot maintain a suit to quiet title against the owner of the record title. Aalwyn’s Law Inst. v. Martin, 173 Cal. 21, 159 P. 158; Buchner v. Malloy, 155 Cal. 253, 100 P. 687; Robinson v. Muir, 151 Cal. 118, 90 P. 521; Chase v. Cameron, 133 Cal. 231, 65 P. 460 (declaring that the rule above stated is elementary); McDonald v. McCoy, 121 Cal. 55, 53 P. 421; Burris v. Adams, 96 Cal. 664, 31 P. 565; Tuffree v. Polhemus, 108 Cal. 670, 41 P. 806; Harrigan v. Mowry, 84 Cal. 456, 22 P. 658, 24 P. 48; Von Drachenfels v. Doolittle, 77 Cal. 295, 19 P. 518; Castro v. Barry, 79 Cal. 443, 21 P. 946; Spottswood v. Spottswood, 4 Cal.App. 711, 89 P. 362; De Leonis v. Hammel, 1 Cal.App. 390, 82 P. 349.
In Harrigan v. Mowry, supra, it was held that an action to quiet title will not lie in favor of the owner of the equitable interest for whom the legal title is held in trust, because the legal title of the trustee is not adverse to the equitable title of the beneficiary. It was further said that if the holder of the equitable interest "was entitled to a conveyance of the legal title, and that defendant wrongfully refused to convey it," a suit to quiet title under section 738 of the Code of Civil Procedure is not proper nor even permissible. We cannot hold the instant case to be within the exception to the rule upheld in De Leonis v. Hammel, supra, and Cummings v. Cummings, 55 Cal.App. 433, 203 P. 452, which permits an action to quiet title to be maintained by the holder of the equitable title against the legal title owner where the complaint alleges facts on which a plaintiff’s equitable claim is based and where general relief is demanded; for the record before us shows that neither in the complaint nor in the answer to the cross-complaint was any attempt made to state the existence of an oral agreement accompanying the execution of the quitclaim deed to Fernandez, which alone provided a foundation for the court’s finding that the last-named deed conveyed no legal title, and that Fernandez became a trustee for Christopher and Emily Greve. The objections which were made to the introduction of testimony concerning this oral agreement should have been sustained, since under the pleadings that evidence was irrelevant. In cases of this nature our decisions have consistently adhered to the rule that an action to quiet title is not the proper remedy, but that such equities as the plaintiff may possess are properly protected and enforced in an action for the declaration of a trust and to compel a conveyance.
Respondents most earnestly urge that the judgment of the trial court should be sustained upon the theory that the original deed from the Greves to the Whitworths in 1883 was uncertain; that there was an uncertainty as to the easterly boundary line of the land granted; and that the parties mutually agreed upon the fence as the correct line. There are several reasons why the respondents cannot prevail through this course of reasoning. There is no allegation in the complaint nor in the answer to the cross-complaint of uncertainty as to the boundary line or that the parties, because of such uncertainty or otherwise, agreed upon this particular fence as the correct line. Even assuming that in a suit to quiet title the relief sought might properly be granted without pleading the facts constituting the true source of title, where its origin is otherwise alleged, respondents’ case on appeal upon this theory is fatally defective for the reason that the facts relied upon are not found by the trial court. According to the findings, respondents’ title is based upon the deed of 1883, followed by adverse possession and the payment of taxes. There is no finding of uncertainty as to the boundary line, and nothing to the effect that the parties recognized such uncertainty or believed that it existed, and consequently came together and stipulated to an acceptance of a boundary line. If the findings that respondents derived their title from the Greves through the deed of 1883 and through subsequent adverse possession be discarded as unsupported by the evidence, which they must be, and if the findings concerning the respondents having received title through the quitclaim deed of 1922 be also disregarded because the grantors had no title to convey, having previously granted their legal interest to Fernandez, and that a suit to quiet title cannot be maintained by the owner of the equitable title against the holder of the legal title, there remains no finding upon which judgment for the respondents can be predicated. We then have a judgment without a finding to support it.
The proposition that respondents are the owners of this land because of an agreement as to the boundary line made to settle an uncertainty existing as to its true location involves different facts than those otherwise found by the court. It reveals a source of title wholly distinguishable from adverse possession and the payment of taxes, for the latter presupposes a grant to the present owner or his predecessors, while the former results from the application of the doctrine of estoppel. Clapp v. Churchill, 164 Cal. 741, 130 P. 1061.
In deciding this phase of the case, the judgment cannot be upheld upon the principle that, although no finding is made supporting the judgment, if the evidence was such that had a finding been made it must have supplied that support, the judgment will not be reversed, for here there is such evidence to indicate that the description contained in the deed was definite and certain, and but little tending to the conclusion that any uncertainty exists in it. Under such circumstances the lack of any finding is fatal. The description in the deed in question reads:
"All that certain lot and parcel of land, situate, lying and being in the Rodeo de las Aguas, county of Los Angeles, state of California, and bounded and particular described as follows, to wit: Beginning at the southwest corner of the land now owned by Jas. A. Whitworth and being one of the corners of lot number two (2) of the Rancho de las Aguas as recorded on page 572 book one (1) of the Miscellaneous Records of Los Angeles county; thence following the north line of lot number two (2) east 6.76 chains; thence south 4.52 chains to the north side of county road; thence north 76° 54′ W. along north side of county road 7.94 chains to a stake, thence N. 2° 21′ east 4.48 chains to the place of beginning, containing three (3) acres of land more or less."
Considering this language alone, we find no ambiguity. However, respondents insist that the point of beginning is uncertain. In his brief their counsel has expressly stated that "the only question and uncertainty in the deed therefore is as to the easterly boundary line," but during the trial he stipulated that the easterly boundary line as described in the deed is 42 feet westerly from the fence and row of trees alleged by respondents to indicate the true line. This stipulation, regarded in connection with the definiteness of the other three lines, would seem without further inquiry to preclude the claim as to uncertainty in the easterly boundary line. The witness Wheeler, as surveyor, called by the defendant, testified that he located the point of beginning as designated in the deed. To do so he used the county surveyor’s official map, as well as the description in the deed, and also the notes in the county surveyor’s office. From the latter he found a reference to a certain stone in Pico street, which he located, and, using it as a basis of calculation, was enabled to arrive at the southwest corner of the Whitworth land. From there on the witness apparently found no difficulty in measuring according to the deed and in establishing all the boundary lines of the property conveyed. This witness’ testimony, if true, would be sufficient to establish the fact that the boundary line in question was free from doubt. Hartung v. Witte, 59 Wis. 285, 18 N.W. 175. There was other evidence tending to the same conclusion. Upon the question as to whether or not Christopher Greve and the respondents’ predecessor agreed upon the fence and row of trees as the true boundary line between their properties, there is also some conflict, although one witness testified directly that Greve told him that such an agreement had been made. But since a clear conflict exists in the evidence as to whether or not there was in fact any uncertainty in the line in question, as to whether the parties actually entered into an agreement as to such line, and, also, if they did, as to whether or not they made the agreement arbitrarily or because they believed that there was a doubt on the subject (and upon the latter point the evidence is most meager), without a finding upon these facts the judgment cannot be sustained upon the doctrine of an agreed boundary line based upon actual or supposed doubt as to its location.
We conclude that the findings and judgment below are not supported by the evidence. As to the strip of 42.1 feet, the judgment should have been for the defendant. As to the other portion, no evidence having been introduced, neither party was entitled to judgment.
The judgment is reversed.
We concur: WORKS, P. J.; THOMPSON, J.