Opinion
As Modified on Denial of Rehearing April 17, 1963.
For Opinion on Hearing, see 35 Cal.Rptr. 289, 387 P.2d 1.
DiGiorgio & Davis; Thomas R. Davis, Bakersfield, for appellants.
Mack, Bianco, King & Ehyerabide; Henry C. Mack, Jr., Bakersfield, for respondents.
STONE, Justice.
This appeal is from a judgment quieting title to a 3 1/2 foot strip of land between the subdivision lots of plaintiffs-respondents and defendants-appellants. Plaintiffs owned Lots 52 and 53 in Tract 1404 in the County of Kern. Their home was located on Lot 53 and in 1952 they erected a cement block wall or fence along what they assumed to be the north line of that lot. They also constructed a bathing house or dressing room on the northwest corner of Lot 53, which formed an extension of the wall. Before erecting the wall and bath house, plaintiff Horace F. French looked for the corner stakes between Lots 53 and 52. He was unable to locate them, so, as he testified, 'we just guessed at the property line. * * * I wasn't too much concerned because I owned the lot next to me.'
Some four years later plaintiffs sold Lot 52 to defendant. The transaction was handled by a real estate agent, and plaintiffs at no time prior to the sale discussed the property with defendants. The deed described the property according to the official map of the subdivision tract on file in the office of the county recorder. Approximately a year after the conveyance it was discovered that the wall and bath house were approximately 3 1/2 feet over the line and on Lot 52. Plaintiffs urge that the judgment quieting title in them to the strip of land between the north edge of the wall and the north line of Lot 53 should be affirmed upon two grounds: first, because plaintiffs conveyed Lot 52 to defendants by reference to the fence as the boundary line and not according to the map of Tract 1404 referred to in the deed; second, because under the doctrine of agreed boundaries that fence was fixed as the line between Lots 52 and 53.
There are no findings of fact to support the judgment on either theory. Insofar as the issue of title is concerned, the findings merely recite that the allegations of plaintiffs' first amended complaint are true. An examination of the amended complaint reveals allegations that plaintiffs became the owners of both Lots 52 and 53 in 1950; that they erected a cement block wall and bathing house on the property; that thereafter 'plaintiffs sold that property immediately to the north, described as Lot 52, Tract 1404,' to defendants; that 'subsequent to the above mentioned sale of Lot 52, Tract 1404, to the defendants, it was discovered that the heretofore described cement block wall extended three and one half (3 1/2) feet onto Lot 52, Tract 1404, said lot being that transferred to defendants.' The concluding paragraph is couched in terms customarily used in the final averment of a quiet title complaint, to wit: 'That the said defendants claim and assert an interest in the said three-and-one-half-foot strip adverse to plaintiffs, and that the claims of said defendants are without any right whatever and that the said defendants have not, nor has either of them, any estate, right, title, or interest whatever in said land or premises, or any part thereof.'
In our view the foregoing pleadings of the amended complaint are ineffective when considered as findings. There is an allegation that the deed by which plaintiffs conveyed the lot to defendants described the property as Lot 52 of Tract 1404. The only allegation that could be construed as a finding that plaintiffs did not convey Lot 52 according to the description in the deed is the last general allegation that defendants' claim is without right, title, or interest. However, we deem this paragraph to be a conclusionary statement, rather than a finding of fact; at best it would be the ultimate finding. If it be considered an ultimate finding, nevertheless there must be findings to support the material issues that were resolved to reach this ultimate finding. Yet there is no specific finding that plaintiffs conveyed Lot 52 to defendants according to the monuments on the ground, not by the description in the deed. Nor is there a finding, express or implied, to support plaintiffs' contention that the parties agreed that the wall was the true boundary between Lots 52 and 53.
Plaintiffs assert that the ultimate finding is sufficient because from it the other necessary findings can be implied. Assuming, but not deciding, that plaintiffs are correct in this contention, the judgment cannot stand because there is no evidence to support such implied findings.
The record reflects no discussion of the boundary line of Lot 52, between plaintiffs and defendants, at any time prior to the conveyance. All transactions were handled through a real estate agent, and the record reflects that the only references to a description of the property at the time of conveyance were the deposit receipt and the deed. Both documents describe the property as Lot 52 Tract 1404 as recorded in Book 6, Page 137 of Maps, Official Records of the County of Kern.
Plaintiff Horace F. French testified:
'Q. But you figured you weren't selling them a full lot?
'A. I was selling them a full lot if the fence is on the lot line; if it isn't I sell them up to the fence.
'Q. Did you ever tell anybody that?
'A. No, sir.'
In Security-First Nat. Bank v. Leatart, 75 Cal.App.2d 211, at 215, 170 P.2d 687, at 689, it was said:
'The legal effect of a deed delivered to a grantee is to vest title in him free Under the circumstances surrounding the conveyance in this case, the trial court erred by admitting parol evidence in derogation of the deed. The Supreme Court recently held, in Laux v. Freed, 53 Cal.2d 512, at page 523, 2 Cal.Rptr. 265, at page 271, 348 P.2d 873, at page 879:
'* * * if the language of a deed is plain, certain and unambiguous, neither parol evidence nor surrounding facts and circumstances will be considered to add to, detract from, or vary its terms or to determine the estate conveyed. (Citations.)'
(See also Pinsky v. Sloat, 130 Cal.App.2d 579, 588, 279 P.2d 584.)
The description in the deed before us reads:
'The following described real property in the State of California, County of Kern, Lot 52 Tract 1404 as Recorded in Book 6, Page 137 of Maps, Official Records of said County and State.'
Thus the conveyance of real property here is defined in terms that are clear, certain and unambiguous, and the rule of Laux v. Freed is applicable.
That parol evidence surrounding the circumstances of the conveyance was admitted without objection, is immaterial since the parol evidence rule is not a rule of evidence, but is a rule of substantive law. (Lifton v. Harshman, 80 Cal.App.2d 422, 432, 182 P.2d 222; Estate of Gaines, 15 Cal.2d 255, 264, 100 P.2d 1055.)
'Parol evidence, though admitted without objection, must be ignored as of no legal import, and its incompetency to vary a written contract is a matter of law.' (Pinsky v. Sloat, supra, 130 Cal.App.2d p. 589, 279 P.2d p. 590.)
Plaintiffs' second contention, namely, that the wall and bath house constituted an agreed boundary, is also lacking in evidentiary support. The requirements of proof necessary to establish title by agreed boundary are summarized in Ernie v. Trinity Lutheran Church, 51 Cal.2d 702, at page 707, 336 P.2d 525, at page 528, at follows:
'The doctrine requires that there be an uncertainty as to the true boundary line, an agreement between the coterminous owners fixing the line, and acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position.' (See also Mello v. Weaver, 36 Cal.2d 456, 459, 224 P.2d 691; Martin v. Lopes, 28 Cal.2d 618, 622-627, 170 P.2d 881.)
In applying the foregoing language to the facts of the present case, we find that the essential element to establish an agreed boundary, that of uncertainty as to the true line, is absent. No doubt concerning the line was expressed by anyone until a building contractor discovered the error a year after the conveyance was made. Since discovery of the error also revealed the true line, there could be no uncertainty within the rationale of the agreed boundary doctrine.
The argument is made that after the true line was discovered the parties by parol agreement accepted the wall in the place thereof. Conceding arguendo that such an agreement can be implied from the evidence, it cannot be considered in determining title to the strip of land because it would be an attempt to convey the 3 1/2-foot strip from defendants to plaintiffs by means of a parol agreement. The Supreme Court held that a parol agreement constitutes an ineffective conveyance of real property, in Mello v. Weaver, supra, wherein it was said, at page 459, 224 P.2d at page 692:
'Mere agreement to locate a boundary known to be different from that called for by the deeds is insufficient, since such an agreement would be tantamount to a conveyance by parol, an unrecognized The judgment is reversed.
CONLEY, P.J., and RALPH M. BROWN, J., concur.