Opinion
As Modified on Denial of Rehearing June 13, 1929
Hearing Granted by Supreme Court July 8, 1929
Appeal from Superior Court, San Diego County; S.M. Marsh, Judge.
Suit by Albert Vail, as administrator of the estate of Annie H. Vail, deceased, against G.H. Jones and others. Judgment for defendants, and plaintiff appeals. Modified. COUNSEL
Crouch & Sanders, of San Diego, for appellant.
Herbert C. Kelly, of San Diego, for respondents.
OPINION
HOUSER, J.
One of the purposes of the suit upon which the appeal herein is predicated was to vacate a judgment rendered in a former action in which title was quieted as to certain real property. Primarily the basis for the vacation of such judgment was that the complaint and the copy of the summons therein were never served on Annie H. Vail, who was one of the defendants in the action. In that regard the judgment contains the recital that each of the defendants therein (including Annie H. Vail) had been "duly, regularly and personally served with process. ***"
In the instant case, with reference to the issue as to whether service of process in the former action had been made on Annie H. Vail, the trial court found that "in truth and in fact the said A.A. Crosbie did not serve the said Annie H. Vail with the said summons or with a copy thereof, or with the said complaint or with a copy thereof, on the said 25th day of July, 1923, or at any other time; that it is not true that the said Annie H. Vail was never served with said summons or with the said complaint by any other person. *** The court finds that said Annie H. Vail was in fact served with summons attached to a copy of the complaint in said action. ***"
The evidence relating to such finding showed that, although process was never served on Annie H. Vail, personally, a copy of the complaint and the summons in the action had been left by the constable with the son and the daughter of Annie H. Vail at the home occupied by all of them as one household, and that each of such persons had made statements which tended to show that a copy of the summons and the complaint in question in some manner had come into the personal possession of Annie H. Vail and that she was fully informed of the fact that "an action had been started to quiet title." No evidence was introduced to the effect that in rendering judgment in the former suit the trial court had before it any affidavit of service of the summons and the complaint therein other than the erroneous, but unintentionally false, affidavit of the constable that he had served the required process on Annie H. Vail personally.
At the outset, it should be noted that by the provisions of section 411 of the Code of Civil Procedure a "summons must be served by delivering a copy thereof *** to the defendant personally," and that unless made by the sheriff, proof of the service of summons and complaint must be by the affidavit of the person making it. Section 415, Code Civ.Proc. Section 670 of the Code of Civil Procedure provides that "in case the complaint is not answered by any defendant, the summons, with the affidavit or proof of service" shall constitute a part of the judgment roll. Although, as illustrated in the case of Hahn v. Kelly, 34 Cal. 391, 407 (94 Am.Dec. 742), the fact that service was not made by the constable is merely argumentative of the conclusion that service was not made by some other person, and the recital in the judgment that the defendant "was in fact served with the summons attached to the complaint in said action" is presumptive of service in accordance with statutory requirements (In re Eichhoff, 101 Cal. 600, 36 P. 11; Crouch v. H.L. Miller & Co., 169 Cal. 341, 146 P. 880; Bank of Commerce & Trust Co. v. Kenney, 175 Cal. 59, 165 P. 8), nevertheless, in consideration of the provisions of the statutes to which reference has been had herein, this court is constrained to hold that, inasmuch as the record herein purports to disclose the entire evidence upon which the recital in the judgment was based and that such evidence is insufficient to support the finding of due and legal service, the presumption which ordinarily would obtain must be disregarded. Houghton v. Tibbets, 126 Cal. 57, 58 P. 318; Sichler v. Look, 93 Cal. 600, 29 P. 220; County of Yolo v. Knight, 70 Cal. 431, 11 P. 662; 1 Freeman on Judgments, § 130, and cases there cited.
In the case of Houghton v. Tibbets, 126 Cal. 57, 60, 58 P. 318, 319, it is said: "*** But respondent contends that if there is no evidence of service upon Curtis except as found in the judgment we must, in support thereof, presume that he was duly served. The point is, that if there is no evidence of service upon William T. Curtis, the recital in the judgment that he was served is sufficient to confer jurisdiction. This we understand to be the rule upon collateral attack (Freeman on Judgments, sec. 130, and cases cited); but when from the whole record it appears even upon such attack to be untrue, or when the record discloses the evidence upon which the recital was based, and such evidence overthrows rather than supports the recital, the recital in the judgment will be disregarded. ***"
The complaint in the action which resulted in this appeal contained two causes of action. The first of such causes of action, as hereinbefore stated, was for the purpose of vacating a former judgment which assumed to quiet title of the defendants herein to certain real property; and the second of which causes of action sought to quiet the title of plaintiff herein in the same property. In the second cause of action several of the allegations contained in the first cause of action were adopted by reference only— among which was an allegation to the effect that defendants claimed to be the holders of the legal title to the property alleged to have been acquired by them by virtue of the judgment rendered in the former action, which judgment was predicated upon a false return of service of the complaint and summons in that action.
Respondents raise the question of the sufficiency of plaintiff’s pleading, and contend, first, that a complaint to quiet title cannot be maintained by one who is out of possession, but who is the holder of the equitable title, as against one who is in possession and who is the holder of the legal title. Although it may be conceded that in ordinary circumstances the rule is as stated by respondents, at the same time it is apparent that, if by the allegations of the complaint it appears that the asserted legal title in the defendants in effect was fraudulently obtained through the medium of a void judgment rendered in another action, and that in fact they have no title whatsoever, either legal or equitable, the general rule should have no application. It is only because of the asserted or assumed validity of the title in the defendants that the real owner of the title seeks redress. By his pleading, he does not admit any title whatsoever in the defendants. To the contrary, he denies their title, and asserts title in himself. There is no middle ground. Either plaintiff has no title of any sort, or he is the absolute owner of the property. If, as an ultimate deduction or inference from the allegations contained in the complaint, the utter invalidity of the apparent legal title in the defendants appears, the real spirit and intent of the rule here suggested by the respondents is not violated.
With reference to the contention on the part of plaintiff that the judgment was founded on a false affidavit of service of summons and a copy of the complaint therein, the record shows that the complaint contained the allegation: "That in truth and in fact the said A.A. Crosbie did not serve the said Annie H. Vail with the said summons, or with a copy thereof, or with the said complaint, or with a copy thereof, on the said 25th day of July, 1923, or at any other time, nor was the said Annie H. Vail ever served with the said summons, or with the said complaint, by any other person, or in any other manner, and at the time of her death, as aforesaid, she did not have, nor at any time prior thereto did she have, any notice of, or knowledge of, the commencement of the said action, or of any of the other proceedings thereafter therein had and taken."
Referring to such allegation, respondents urge the point that it constituted but a conclusion of law (Lindley v. Lindley, 49 Cal.App. 631, 194 P. 85), and consequently failed to state the essential facts as a basis for the complaint. Considered from a standpoint of what constitutes an example of perfect pleading, it is possible that the position assumed by respondents is correct; but also considering the rule that the plaintiff is required to state his case in "ordinary and concise language" (sec. 426, Code Civ.Proc.), which must receive a liberal construction (sec. 452, Code Civ.Proc.), and also remembering that which appears from the remainder of the record in the case, to wit, that the issue thus presented by plaintiff was fully understood by defendants and the evidence in their behalf relating thereto exhaustively presented by them, it is clear that in any event no prejudice of any sort resulted to defendants by reason of the defect in question.
Further objection by respondents to the complaint herein is that relief should have been sought by plaintiff by way of motion under the provisions of section 473 of the Code of Civil Procedure, rather than by a suit in equity; and that in any event, because more than one year elapsed between the date of the judgment in the suit in which the title of defendants herein purportedly was quieted in the property in question and the date when the instant action was commenced, plaintiff should not be permitted to maintain it. That in the instant case neither of such positions is well taken, see: Ex-Mission L. & W. Co. v. Flash, 97 Cal. 610, 32 P. 600; Baker v. O’Riordan, 65 Cal. 368, 4 P. 232; Wickersham v. Comerford, 96 Cal. 433, 31 P. 358; California B.S. Co. v. Porter, 68 Cal. 370, 9 P. 313; Bacon v. Bacon, 150 Cal. 477, 89 P. 317; Victor Oil Co. v. Drum, 184 Cal. 226, 193 P. 243; Estudillo v. Security Loan, etc., Co., 149 Cal. 556, 87 P. 19; Hawley v. State Assurance Co., 28 Cal.App. 41, 151 P. 153; Holmes v. O’Brien, 28 Cal.App. 264, 151 P. 1151; Altpeter v. Postal Tel.-Cable Co., 25 Cal.App. 255, 143 P. 93; Swallow v. Tungsten Products Co. (Cal.Sup.) 270 P. 366; Vaughn v. Pine Creek Tungsten Co. (Cal.App.) 265 P. 491.
Respondents urge that the complaint was also defective in that it contained no allegation regarding the ability of plaintiff to make proof of the facts alleged or the means by which such proof was to be established; and cite certain cases as authority therefor. Although in proper circumstances, especially as pointed out in the authorities to which reference is had, where actual fraud is the basis of the action, good pleading may require a compliance with the condition here demanded by respondents, nevertheless it should be remembered that the instant action is not founded on actual fraud of one of the parties against the other, but rather arises from an alleged want of jurisdiction in the court to render the judgment because of noncompliance by the plaintiff in the former action with a statutory regulation regarding the manner of bringing his opponent into court. In effect the complaint herein contained the essential allegation that the plaintiff in the former action had failed to serve the defendant in that action with a summons and a copy of the complaint. No claim is made that defendants herein were in any wise misled by such a statement, and the record herein abundantly testifies to the fact that the case went to trial largely on that issue. In the circumstances, regardless of the true rule of pleading, it is apparent that no harm ensued so far as defendants were concerned. It is well established that error must be shown to have resulted in prejudice before it may be considered a reason for the reversal of a judgment. (Section 4½, art. 6, Const.)
Respondents also suggest the rule that an action of the character of that here involved will not lie on behalf of a successor in interest of the person against whom the former judgment was rendered; and their brief contains many well-considered authorities in apparent support thereof. None of them, however, was a parallel of this action so far as concerns the parties to the litigation. In each of them the plaintiff was a stranger to the original proceeding, and in the action to have it vacated he appeared merely as a grantee or assignee of the defendant in the former action. In the instant case the defendant in the former action is deceased and the plaintiff herein appears as her administrator. Such distinction is commented upon and extensively treated in the case of Collins v. O’Laverty, 136 Cal. 31, 68 P. 327, where in principle it is held that an action of the character of that here involved may be maintained. To the same effect is the case of Rianda v. Watsonville W. & L. Co., 152 Cal. 523, 93 P. 79, where, however, owing to the particular circumstances surrounding the controversy, it was held that the action could not be maintained. See, also, Sec. 1582, Code Civ.Proc.; Rice v. Carey, 170 Cal. 748, 151 P. 135; Pennie v. Hildreth, 81 Cal. 127, 22 P. 398; Doherty v. Courtney, 150 Cal. 606, 89 P. 434. It is therefore concluded that respondents’ objection to the complaint is not well taken.
But assuming that the allegations in the complaint in the instant case were sufficient to constitute a cause of action against the defendants, respondents advance the point that on the trial thereof plaintiff failed to show that title was ever lodged in the deceased Annie H. Vail as to 100 acres of the 343 acres involved in the controversy; and that as to the remainder she was legally possessed of an undivided five-sixths interest therein only. As to the first of such contentions, namely, that which affected the specified 100 acres, it appeared that the husband of Mrs. Annie H. Vail, under whom she claimed title, had acquired the property (which at that time consisted of an inchoate interest in public land) by quitclaim deed which had been executed and delivered by the grantor prior to the time that patent to the land was issued to him by the United States government. In such circumstances the weight of authority in this state is to the effect that on the issuance of the patent to the grantor the title thereby acquired relates back so as to confirm title in the grantee. 9 Cal.Jur. 278, 279; Touchard v. Crow, 20 Cal. 150, 81 Am.Dec. 108; Crane v. Salmon, 41 Cal. 63; Schmitt v. Giovanari, 43 Cal. 617; Thompson v. Spencer, 50 Cal. 532; Watkins v. Lynch, 71 Cal. 21, 11 P. 808; Wholey v. Cavanaugh, 88 Cal. 132, 25 P. 1112; Walsh v. Abbott, 145 Cal. 285, 78 P. 715, 104 Am.St.Rep. 38.
Among the "findings of fact" made by the trial court in the instant action was one "that plaintiff in this action does not come into court with clean hands"; which decision is relied upon by respondents as a determination of a question of fact which is binding and conclusive upon this court. Without setting forth herein the evidence in the case, it may suffice to state that the finding under consideration depended generally upon evidence relating to the situation hereinbefore outlined, to wit: That plaintiff was present at the time process was inadvertently served on the sister of plaintiff, who was a daughter of Mrs. Annie H. Vail, and that at no time did he make any attempt to inform the plaintiff in that action of the mistake which had been made by the person who erroneously made the affidavit of service. It will be remembered that by further finding of the trial court it is made plain that at the time when the service of process was attempted to be made on Mrs. Vail no actual service was made upon her. That decision involved one of the principal issues in the case, and the determination thereof was made in accordance with and reliance upon the testimony given by plaintiff. The fact that plaintiff made no effort to correct the error into which the serving officer had fallen is clearly insufficient evidence upon which to base a finding of "unclean hands." Nor would the further fact, as respondents claim, that as to other matters plaintiff gave untrue testimony on the trial of the case, present a situation which would justify the conclusion that by reason of the falsity of his individual testimony in that regard (which fact is not established by the findings) the estate which plaintiff represented as administrator thereof should be made to suffer therefor. Incontestably the record discloses the fact that plaintiff is acting solely in a representative capacity and his personal shortcomings should not prejudice the rights of heirs or possible creditors of the estate. This court is therefore unable to concur in the conclusion that the "unclean hands" of plaintiff should present an insuperable obstacle to a correct determination of the dependent issues in the case.
As a general answer to each of the objections both now and heretofore interposed by defendants as affects the complaint as well as the appeal herein, it is manifest that, if it be concluded that in equity defendants have no title to the property involved in the action, no substantial right of defendants in the premises is in any wise prejudiced by reason of either or any or all of the conditions of which they complain.
Assuming the correctness of the foregoing conclusions, ordinarily it would follow that the judgment in the former action to which reference has been had should be vacated. However, by the parties to this litigation it seems to be conceded law that in an action of the character of that here under consideration, in addition to a showing that process was not served upon the defendant Annie H. Vail in the former action, before relief may be obtained in this action from the consequences of the former judgment the burden devolves upon the plaintiff herein to establish that he has suffered a real and substantial injury therefrom; in other words, that Annie H. Vail had a good defense to the action in question, and that, if in truth and reality she had been served with process therein, she would have maintained such defense, and thereby and therefrom no judgment would have been rendered against her. In accordance with such understanding of the law (as to which this court finds it unnecessary to express an opinion), on the trial in the lower court of the instant action, among other things, plaintiff endeavored to establish the invalidity of the title of the plaintiff in the former action, which primarily rested upon a sale by the state of the property involved in the action on account and by reason of the failure of plaintiff’s predecessor in interest to pay the taxes levied thereon. In that connection plaintiff has specified numerous alleged defects, of which but one will receive consideration by this court. It has to do with one of the items which goes to make up the total amount chargeable against a given piece of property on a sale for the nonpayment of delinquent taxes. The property which is the subject-matter of the instant action consisted of one entire, compact parcel of land of approximately 343 acres. In levying the assessment, instead of describing the land as one parcel, it was described by the assessor as of four parcels. In connection with a sale of property for failure to pay the taxes levied thereon, section 3770 of the Political Code provides that: "The tax-collector must collect, in addition to the taxes due on the delinquent-list, together with the penalties for delinquency, fifty cents on each lot, piece, or tract of land separately assessed. ***" The ultimate question presented by appellant is whether under the law, although the property consisted of but one entire parcel of land, the tax collector was authorized to add 50 cents to each of the four separate parcels described by the assessor on the assessment roll. If in the exercise of an authority not lawfully possessed by him the property of plaintiff was charged with an amount of money not legally chargeable against it and the property was sold for an amount including such illegal charge, it is clear that the sale was void.
By section 4125 of the Political Code the assessor is charged with the performance of such duties as are elsewhere prescribed in the Political Code. Section 3628 of the Political Code requires that "*** land shall be assessed in parcels, or subdivisions, not exceeding six hundred forty acres each, ***"; and by section 3650 of the Political Code it is provided that: "The assessor must prepare an assessment-book, *** in which must be listed all property within the county, and which shall show under the appropriate head: *** Land, by township, range, section, or fractional section; and when such land is not a congressional division or subdivision, by metes and bounds, or other description sufficient to identify it, giving an estimate of the number of acres, not exceeding in any tract six hundred forty acres. ***"
In the case of Cooper v. Miller, 113 Cal. 238, 45 P. 325, one of the questions involved therein was the authority of the county assessor to unite and assess as one parcel five separate but adjoining lots on which a livery stable was situated. Following the case of People v. Morse, 43 Cal. 534, in which a similar question was before the court, it was held that such a course was within the authority of the assessor. To the same effect is Houghton v. Kern Valley Bank, 157 Cal. 289, 107 P. 113. In the case first cited, in deciding the particular point to which reference has been had, in part the Supreme Court said: "*** In People v. Morse, 43 Cal. 534, it was held that an entire block or a half block owned by a single individual might be assessed in one parcel, and this notwithstanding the blocks were divided into lots, and in sound reason there is no more cause for assessing a block of land owned by one party in lots, than there is in assessing a section of land owned by a single individual in eighty or one hundred and sixty acre tracts. ***" It is apparent that the court might have carried its illustration farther by saying that no more cause existed for making a separate assessment of each of the lots in a block owned by one person than for assessing a section of land of 640 acres owned by a single individual in 640 one-acre lots. Perhaps the absurdity of the situation would have been heightened if, instead of contrasting the uniting of all the lots in a block into one assessment with a section of land arbitrarily divided by the assessor into 640 one-acre lots and so assessed by him, the court had suggested the possibility of the illegal division by the assessor of a 50-foot city lot into 50 one-foot strips and the levying of his assessment in accordance therewith. It is apparent that under such a void assessment of the 50-foot lot, assuming that the owner thereof should fail to pay the taxes thereon, and the tax collector should advertise the lot for sale as a whole, in addition to the several penalties imposed by law, 50 separate charges of 50 cents each would be added to the sum for which the lot would have to be sold.
As hereinbefore stated, in the instant case the 343 acres which forms the subject-matter of the action consisted of one entire, compact parcel, which was readily describable as such. For some undisclosed reason the assessment thereof was entered as of four separate parcels. On the failure of the owner to pay the taxes levied thereon within the time allowed by statute, the necessary statutory steps were taken by the state to sell the property. In so doing, and as a part of the statutory procedure, the property was advertised in a so-called delinquent or addenda tax list. Having been divided by the assessor into four separate parcels and so "assessed" by him, in accordance with the provisions of section 3770 of the Political Code, the tax collector added to the regular charges and penalties for the delinquency of the owner in paying the taxes, fifty cents to each of the four parcels into which the 343 acres had been divided. However, in advertising the property for sale, instead of describing it therein as four separate parcels of land, as to each of which theretofore had been added the various statutory charges and penalties, the 343 acres were described as a single parcel of land, and the several amounts so charged against each of the four parcels into which the 343 acres had been divided by the assessor were aggregated into one total sum and represented as one gross amount chargeable as against the entire tract. It is manifest that the property owner was substantially prejudiced by such procedure. In the first place, his property having consisted of a single parcel of land, he was entitled to have it so assessed, and, if he failed to pay the taxes levied thereon, neither the tax collector nor any other officer had authority to place penalties and charges against it not provided by law. In the second place, assuming that the charges and penalties made against each of the four parcels into which the land had been arbitrarily divided by the assessor were authorized by statute, then certainly the tax collector thereafter had no right to combine the four parcels so as to make one single parcel and advertise it for sale as such.
On the opening of the trial of the case in the lower court, plaintiff submitted to defendants and filed in court his "offer to do equity," which consisted of an offer to pay defendants for a release of all their claim upon the real property described in the complaint, the amount paid by them to the county tax collector for the purchase of said property at the sale thereof by the state, also all amounts paid for taxes thereon subsequent to the said sale, together with all amounts by them expended in or about the said property, with 7 per cent. interest upon each of said sums, and for such other amounts as the court might find the defendants entitled to.
As from the record herein it appears that at the time the instant action was commenced defendant G.H. Jones was the owner of an undivided one-sixth interest in the property described in the complaint, the conclusion of this court is that the judgment herein should be modified so that the title as to an undivided five-sixths interest in the property described in the complaint should be quieted in plaintiff, subject to the condition that on the going down of the remittitur herein, evidence be taken by the trial court as to the amount of defendants’ expenditures, with interest thereon, included in plaintiff’s "offer to do equity," as shown on page 44 of the transcript on appeal; which total sum, after deducting therefrom plaintiff’s costs in the lower court as well as on appeal, with like interest thereon, should be secured by a lien on the premises in controversy. It is so ordered; and it is further ordered and directed that the findings of fact made by the lower court be amended so as to accord with the conclusions herein indicated.
We concur: CONREY, P.J.; YORK, J.