Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing 25 Cal. 154 at 163.
Appeal from the District Court, Third Judicial District, Alameda County.
The judgment in this case was rendered July 16th, 1863. A statement on motion for new trial was made and filed, and on the 16th day of November, 1863, an order was made denying a new trial. On the 4th day of March, 1864, an appeal was taken from the judgment and from the order denying a new trial. No statement on appeal was made, but the respondents' attorneys stipulated that the statement on motion for a new trial might be also used as the statement on appeal.
The other defendants were in possession as tenants of Williamson.
The Court below found as facts, that on the 31st day of December, 1857, Jose Domingo Peralta was the owner in fee simple of the land; that on the 14th day of May, 1858, plaintiff became the owner of an undivided one third of the same, and on the 6th of April, 1860, of an additional undivided one sixth; that on the 1st day of January, 1862, defendants entered upon the land and ousted and ejected plaintiff from the possession of the same; that defendant Williamson has not and never had any title to or right of possession to the land, or any portion thereof; and that Edson Adams is the owner of, and from December 31st, 1861, has been the owner of the other undivided one half of the land.
The action was commenced October 29th, 1862. March 18th, 1863, defendants, by leave of the Court, filed an amended answer, setting up title in defendant Williamson to an undivided one half of the land acquired by Peralta's deed, dated January 31st, 1863.
COUNSEL:
One tenant in common can only recover the possession of the whole premises as against a trespasser, or, more properly speaking, intruder, who enters without title or color of title; and the defendant Williamson, being neither a trespasser nor an intruder, but deraigning title from Cipriano Thurn, it is immaterial as between himself and plaintiff whether his claim of the title can be successfully assailed by Edson Adams or Jaynes, or not. If this position be incorrect, then the familiar maxim that in ejectment the plaintiff recovers upon the strength of his own title, and not upon the weakness of his adversary's, is reversed, because, while it appears that either Williamson, or Adams, or Jaynes, is entitled to the possession of one half of the demanded premises, and the plaintiff to the other half alone, yet the plaintiff shall have the whole, because Williamson's title is weaker than Adams' or Jaynes'. In short, the rule claimed by plaintiff's counsel permits one tenant in common in an action of ejectment to fish for his co-tenant, and, among several claimants, to ascertain by a judicial determination which is entitled to that position. (Collier v. Corbett , 15 Cal. 186; Stark v. Barrett , 15 Cal. 361; Touchard v. Crow , 20 Cal. 150.)
Fleming's mortgage created merely a lien upon the premises; the fee remained in Thurn. (Fogarty v. Sawyer , 17 Cal. 592; Lord v. Norris , 18 Cal. 487; Dutton v. Washauer , 21 Cal. 609.)
The question then is: What was the effect of Fleming's judgment upon the fee or equity of redemption of Peralta, he never having had his day in Court? It has been three times distinctly adjudicated by the former Supreme Court, that under such circumstances the fee or equity of redemption remains undisturbed. (Goodenow v. Ewer , 16 Cal. 467.)
In Boggs v. Hargrave , 16 Cal. 560, the mortgagor had parted with thefee, and the grantee was not made a party to the action.
The Court holds that the equity of redemption was not foreclosed; but the purchaser at the Sheriff's sale could not recover the purchase money, as it appeared that the deed from the mortgagor was executed before the commencement of the suit, and was recorded before the sale. (Burton v. Lies , 21 Cal. 87; Watson v. Spence, 30 Wend. 260; Whitney v. Higgins , 10 Cal. 550.)
The deed from Thurn to Peralta was acknowledged July 11th, 1860, and was delivered on that day. (Wyckoff v. Remsen, 11 Paige, 564.)
The foreclosure suit of Fleming v. Thurn and Adams, was commenced afterwards, to wit: January 22d, 1861.
The deed from Thurn to Peralta was recorded February 25th, 1861.
From that time it was notice to all subsequent purchasers. Fleming bought at the Sheriff's sale March 11th, 1861, and was a subsequent purchaser with notice; (Boggs v. Hargrave , 16 Cal. 560; ) and Peralta's deed has priority over such subsequent sale. (Jackson v. Dubois, 4 John. 216; Jackson v. Terry, 13 John. 471; Jackson v. Post, 9 Cow. 120; Jackson v. Post, 15 Wend. 588; Jackson v. Chamberlain, 8Wend. 620.)
W. W. Crane, Jr., for Appellants.
Patterson, Wallace & Stow, for Respondent.
The Court will not consider the sufficiency of the evidence to sustain the findings. (Lower v. Knox , 10 Cal. 481.)
This seems to us to dispose of the question whether defendant Williamson had title to an undivided moiety or not.
On the trial in the Court below, when plaintiff rested, he had shown title to an undivided half, and defendants appeared to be wrongdoers, who had entered (according to the averments of the complaint and the admissions made by the amended answer) October 1st, 1859, without title and as trespassers .
Upon that state of facts the rule is well settled, that as against defendants, plaintiff is entitled to recover and be restored to the possession of the whole. (Clark v. Huber , 20 Cal. 196; Collier v. Corbett , 15 Cal. 183.)
When this action was commenced, defendants had no title; neither were they tenants in common with plaintiff at that time nor when they ousted plaintiff in October, 1859; and thus they endeavor to escape plaintiff's recovery of damages and possession, by a pretended acquisition of title pendente lite, and by amending their answerby now acknowledging that the plaintiff has title to one half, and setting up title in themselves to the other half; an attitude which, in our judgment, does not particularly commend them to the equitable consideration of this Court.
Again: the learned counsel for appellants mistakes respondent's position in saying that he (respondent) " claims the other half, not because he owns it, but because one Edson Adams does, or in the event Adams fails, then because one Jaynes is the owner." We say respondent owns one half, and it follows that he has a right to the possession of the whole, unless defendants show a right to joint possession with plaintiff. Defendants pleaded such right. Plaintiff (by force of sections forty-six and sixty-five of the Practice Act) takes issue upon the plea, and avers that Adams or Jaynes is entitled to such joint possession with plaintiff, because the title is in Adams or Jaynes to the one half not owned by plaintiff; that defendants do not show any right to the possession under Adams or Jaynes, since it does not lie in the mouths of defendants to say plaintiff cannot recover the whole, because they are trespassers and wrongdoers as between themand Adams and Jaynes. In other words, plaintiff invokes the familiar rule: Nullus commodum capere potest de injuria sua propria.
JUDGES: Sawyer, J. Mr. Justice Shafter, having been of counsel, did not sit on the hearing of this case.
OPINION
SAWYER, Judge
Upon petition for rehearing the Court delivered the following opinion.
By the Court, Sawyer, J.
Counsel for respondent acquiesce in " the law as declared in the opinion of the Court," but think the opinion based on a misapprehension of the facts, and ask a rehearing.
Plaintiff proved title to an undivided half in himself, and to the other half in Thurn. Thurn mortgaged his half to Fleming, and then quitclaimed three undivided eighths only to Peralta, leaving one eighth in himself. The first misapprehension is supposed to consist in overlooking the fact that one eighth remained in Thurn, and that the foreclosure as to that eighth was valid without making Peralta a party. And it is said that the record in the foreclosure suit was relevant for the purpose of showing that the title to one eighth passed to Adams under the decree and sale in that suit, and that it was offered for the purpose of deraigning title to that eighth to Adams. There is, however, no such limitation as to the purpose for which the record was introduced, shown by the record. But the fact that the one eighth remaining in Thurn had passed to Adams was itself irrelevant to any issue in the case, consequently any testimony tending to prove that fact alone was irrelevant.
The material fact to show was, that the title to the three eighths, which had prima facie been shown to have passed to Peralta, and through him to Williamson, had been intercepted before it reached Williamson and passed to Adams or somebody else--it matters not to whom--and not to show what became of the one eighth to which Williamson had shown no apparent title. It was not necessary for the plaintiff to prove that Williamson did not own one half. That was an issue presented by defendant, and it devolved upon him to make a prima facie case, and not to the plaintiff to negative it. He had only given testimony tending to prove that he had acquired three eighths. It could only be relevant to show that these three eighths had passed to some other party. It did not matter whether the other eighth remained in Thurn, or passed to Adams, or to some other person. It was just as available to the plaintiff as a weapon of offense or defense remaining in Thurn, as if it had passed to Adams. It was enough for the plaintiff's purposes that defendant had shown no title to it in himself.
All the other points arising on this appeal argued in the petition, except the eighth and tenth, are but modifications of the same point, or are disposed of upon the same principles, and, so far as they are deemed to require notice, we shall consider them together.
It is supposed that the Court gave too little weight to the eleventh and twelfth findings, to the effect that Williamson and his co-defendants had no right or title whatever, etc.; and too much prominence to the finding that the title to one half was in Adams, which last finding, it is contended, is mere surplusage, and ought not to be considered at all.
The counsel are, we think, mistaken in this supposition also. We only considered the affirmative finding in favor of Adams in its relation to the finding against defendants, and to the evidence admitted under exception tending to support those findings. And it is difficult to separate them. The Court having found title to one half in plaintiff, and to the other half in Adams, the finding that the defendants had no title necessarily followed, for the title to the same half could not by any possibility be in Adams and in defendant at the same time. But concede, as plaintiff contends, the finding as to Adams to be surplusage--that it is out of the record--that the findings against defendants only remain, and the condition of the plaintiff is no better.
The question then stands thus: The plaintiff proves title to one undivided half in himself, and to the other half in Thurn, and rests. He has made a prima facie case. The defendants then, to maintain the affirmative of the issues presented by them, introduce deeds apparently deraigning title to them from Thurn to three eights. This is sufficient to protect their possession to the extent of three undivided eighths. The plaintiff must now rebut the defendants' proofs, and the only evidence that can have any possible relevancy to the issue is testimony to show that defendants never acquired those three undivided eighths, or if they did, that they had subsequently passed from defendants to somebody else. The title to those particular three eighths is now the only issue. On this issue the plaintiff offered the mortgage of Thurn to Fleming, and the proceedings of foreclosure, sale, etc., under it. If these proceedings were binding upon Peralta, they were relevant, because in that event the title was intercepted before it reached Williamson and nothing passed to him, and his evidence of title to the three eighths would be successfully overthrown. But if Peralta was not bound by the foreclosure, then his title was not affected, and the proceedings were irrelevant to the issue, because they did not prove, or tend in the slightest degree to prove, that the title to the three eights did not pass to Williamson. The Court held them to be relevant, and as there cannot be the slightest pretense that they were relevant for any other purpose whatever, the Court must necessarily have held the proceedings to be valid and to cut off the equity of redemption in Peralta. Having admitted the testimony against the objection and exception of the defendants, we must presume that the Court considered it and gave it weight. And giving it its proper weight as relevant to the issue, the Court necessarily found the eleventh and twelfth issues against the defendants, that they did not have and never did have any title to or right of possession in the land, etc. Any other finding would have been manifestly contrary to this evidence. It is true the Court might have disregarded this evidence entirely, and there might have been other testimony about which we know nothing, amply sufficient to sustain the finding. But here is testimony erroneously admitted, which, if considered at all, was sufficient of itself to sustain the finding on that point, and we are bound to presume that it was considered, for its effect as evidence was necessarily passed upon in the ruling upon its admissibility.
We held that the foreclosure proceedings did not affect the title of Peralta, who was not a party to the suit, and in the law thus laid down the counsel for respondents " cheerfully acquiesce." This point being admitted, it is clear to our minds, from the considerations just presented, that the record of those proceedings was irrelevant and inadmissible. If this judgment can be supported with such an error in the admission of testimony in the record, it would, in our judgment, be difficult to find a case where a judgment should be reversed for error in admitting irrelevant and improper testimony. The adoption of the rule insisted on by respondent in this case would certainly relieve counsel from a great deal of labor in taking objections and exceptions in the trial of cases, and the Court from further labor and perplexity in reviewing them. There may have been, it is true, sufficient testimony to sustain the finding without the objectional evidence. We do not know what other evidence was introduced. But there was error; " and the rule is that every error is prima facie an injury to the party against whom it is made; and it rests with the other party clearly to show, not that probably no hurt was done, but that none could have been, or was done by the error." (Jackson v. Feather River Water Company , 14 Cal. 25.) There is nothing before us which shows that no injury was, or that none could have been done.
Counsel are mistaken in supposing that " unless that issue (the issue as to title) was affirmatively found in favor of the appellants the judgment was not erroneous," because a negative finding on that point, or a failure to find affirmatively, may have been based upon testimony erroneously admitted, and in such case the judgment would be erroneous for the reason that the finding which supports it rests upon improper evidence.
The respondents now insist that the Court cannot consider on this appeal the error relied on, for the reason that the appellant assigned the same error in a motion for a new trial which was decided against him, and not having appealed from the order denying a new trial, he is concluded by that ruling. We think there is no force in this objection. An error of law in admitting or rejecting testimony is subject to be reviewed on appeal from the judgment when the ruling is made a part of the record by a bill of exceptions, or by a statement on appeal. It is true the same error may also be reviewed on appeal from an order denying a new trial. But the two modes are independent of each other. The appeal from the judgment does not depend upon the motion for new trial. The latter proceeding is subsequent to the judgment. An appeal from the judgment may be taken without waiting for the determination of a motion for new trial, or the two appeals may be, and usually are, prosecuted together. As to those errors which may be reviewed on either appeal, the remedy is concurrent, and the party may pursue either appeal and abandon the other. The late Supreme Court recognized this doctrine in several instances. (Hastings v. Halleck , 13 Cal. 207; Towdy v. Ellis , 22 Cal. 659.) The cases cited go beyond the requirements of the case now under consideration, for in this case the parties stipulated that the statement in the record " may be also used as the statement on appeal from the judgment," and the statement distinctly presents the error and sufficient testimony to give it point.
The counsel are right in assuming that none of the evidence is before this Court, except so far as is necessary to point the exception taken by defendant to the ruling of the Court in admitting testimony. And we did not in the former opinion, nor have we in this, considered the testimony, except so far as the tendency of the evidence to prove the issues served to illustrate the bearing of the supposed erroneous ruling upon the finding and judgment. Nor did we, as seems to be supposed, refer in our opinion to the opinion of the District Judge on the motion for new trial to aid our decision. It was referred to simply to show that conceding it to be before us, we had not overlooked that portion of the record, and that our reasoning was not obviated by anything appearing in that opinion.
The last point made, is, that Peralto took nothing from Thurn because his deed was only a technical quitclaim deed; and as Peralto had no estate before upon which the quitclaim deed could operate, nothing passed by it. An ordinary quitclaim deed, in this State, is sufficient to pass any estate the grantor has at the time of the execution of the deed. An action to recover the land can be maintained upon it, provided the grantor could have maintained the action. (Sullivan v. Davis , 4 Cal. 291; Downer v. Smith , 24 Cal. 114; see also Northrop v. Wright, 7 Hill, 489.)
An elaborate argument and petition for rehearing has also been filed on behalf of Edson Adams. We have searched the record in vain to find any party to the suit by that name. Adams was a witness, but he has no standing in Court which entitles him to be heard. We have, however, examined the argument, to see if it contained any suggestions worthy of consideration. We find no point, which could be considered on appeal from the judgment, not presented in respondent's petition and argument. The other questions discussed in Adams' petition relate to the evidence and facts of the case, which could only be considered on appeal from the order denying a new trial, and the appeal from that order is not before us.
After a careful consideration of the petition for rehearing, we are unable to perceive that any fact was misapprehended by us in our former opinion, or any principle of law misapplied.
The further examination of the case by the light of the argument in the petition for rehearing confirms us in the opinion that our former decision is correct.
Rehearing denied, and ordered that respondent have five days after filing this opinion to file stipulation mentioned in former order.