Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing (Denied, Granted) 36 Cal. 691 at 700.
Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.
This was an action of ejectment to recover a lot of land at the northwest corner of Bush and Larkin streets, in the City and County of San Francisco, commenced January 24th, 1863.
On the 25th of August, 1863, Abner H. Barker recovered a judgment against defendant, F. B. Austin, in the Superior Court of the City of San Francisco, for two thousand nine hundred and forty-six dollars and ten cents, and twenty-six dollars and twenty-five cents costs. On the 26th day of November, 1860, an execution was issued on the judgment and levied on the demanded premises by the Sheriff, who sold the same to G. W. Ryckman, and in due time executed to him a deed. Ryckman, on the 24th of February, 1862, conveyed the premises to the plaintiff. March 8th, 1862, both of said deeds were recorded in the office of the Recorder of San Francisco. At the time of the Sheriff's sale the plaintiff was the owner and assignee of the judgment, and Ryckman bid in the property for the benefit of plaintiff for the sum of four thousand four hundred and thirty-six dollars, which did not satisfy the judgment, as it bore interest at three per cent. per month.
On the 22d day of February, 1855, defendant F. B. Austin made a deed of gift of the property to his wife, the defendant Mary A. B. Austin. At the time the deed was given the husband owed about eleven thousand dollars, and was not solvent. The debt on which the judgment was recovered was contracted in 1854. The deed of gift to the wife had not been recorded at the time of the trial of this cause. Neither Ryckman nor plaintiff had knowledge of the existence of the unrecorded deed when they purchased, nor had they any knowledge that she claimed the premises as her separate property.
On the 14th of March, 1856, F. B. Austin and Mary B., his wife, conveyed said premises by their joint deed to Mansfield Compton, the other defendant, who, on the 10th day of June, 1856, without any consideration, conveyed the premises to said Mary B. Austin. The deed to Compton contained other property, and was given in consideration that Compton should pay Austin's debts. Compton was unable to do this, and, therefore, at F. B. Austin's request, conveyed the demanded premises to his wife. Both of the last named deeds were recorded, the former March 14th, 1856, and the latter June 11th, 1866, and the Court found that both were given to defraud Austin's creditors.
On the trial the plaintiff offered in evidence the judgment roll in Barker v. Austin. The defendants objected, because the Superior Court was a Court of special, inferior, and limited jurisdiction, and because the Court did not acquire jurisdiction of the person of the defendant Austin. The Court overruled the objection, and the defendants excepted.
Attached to the summons in said judgment roll was the following affidavit, which was the only evidence of its service contained in the judgment roll:
" City and County of San Francisco--ss.
" James Edwards, being duly sworn, says: That he received the within summons on the 13th day of August, 1856, and on the same day personally served the same by delivering to the said defendant, Franklin B. Austin, personally, in the City of San Francisco, a copy of said summons attached to a certified copy of the complaint, and leaving the same with him. James Edwards.
" Subscribed and sworn to before me this 24th August, 1856. J. B. McMinn, Clerk."
The Court below gave judgment for the plaintiff. The defendants F. B. and Mary A. B. Austin appealed.
COUNSEL:
The affidavit of service is fatally defective. It does not show that the person making the service was a white male citizen of the United States, or over twenty-one years of age. (McMinn v. Whelan, 27 Cal. 314.)
It nowhere appears that defendant was personally sorved. The judgment recites that he was duly served. But then the record shows to the contrary; that what the Court regarded as due service was no service at all. No Court can acquire jurisdiction by the mere assertion of it, or by deciding that it has it. (McMinn v. Whelan, supra ; Noyes v. Butler, 6 Barb. 613; Denning v. Corwin, 11 Wend. 648.) But it has been decided in this Court that the recital in a judgment, even by default, that the defendant has been regularly served with summons, is an adjudication upon that fact, and is conclusive in a collateral proceeding, unless the record shows to the contrary. This rule is applied, however, only to Courts of general jurisdiction, and if some of our arguments conflict with the rule above referred to as laid down in Hahn v. Kelly, we desire to be distinctly understood as not asking the Court to review the principles actually determined in that case, but to decide that the presumptions in favor of jurisdiction have already been carried far enough, and ought not to be extended to inferior Courts. When a judgment creditor purchases at Sheriff's sale, on his own judgment, no notice to him of the equity of third persons is necessary. He is not entitled to protection as a bona fide purchaser, because he pays no new consideration. (Arnold v. Patrick, 6 Paige, 316; see array of authorities in Hunter v. Watson, 12 Cal. 364.) If, however, Vassault was entitled to notice, he bought with the deed of June 10th, 1856, upon the record, which was full notice.
The remainder of the argument of appellants' counsel was devoted to discussing the question of the constitutionality of the Act creating the Superior Court.
Lloyd Baldwin, and W. H. Patterson, for Appellants.
Harmon & Estee, for Respondent.
The late Superior Court of the City of San Francisco was a Court of general jurisdiction, so far as concerned the presumptions in favor of its judgments. Counsel for appellants admit that the rule in Hahn v. Kelly, 34 Cal. 391, covers judgments like that rendered in Barker v. Austin, if rendered by a District Court; but contend that the rule does not apply to judgments rendered by the late Superior Court, because of its alleged limited jurisdiction. That is to say, although the jurisdiction of the Superior Court embraced all civil cases where the amount in controversy exceeded two hundred dollars, exclusive of interest; although this was exactly the jurisdiction in money matters of the District Court; although both were equally Courts of record; although the judgments of both were enforced in the same way; yet the records of the one import absolute verity, while the records of the other are mere scrawls upon the sand.
The deed of February 22d, 1855, from Austin to his wife, was never recorded, and is, therefore, void as against plaintiff, who was a subsequent bona fide purchaser, for value, without notice. (Act concerning Conveyances, Sec. 26.)
Vassault was a bona fide purchaser. He was owner of the judgment on which the lot was sold by the Sheriff, and the real purchaser at the sale. Such a purchaser, whetherhe be the judgment creditor or a stranger, is a bona fide purchaser within our Registry Act. (Hunter v. Watson, 12 Cal. 377; Pixley v. Huggins, 15 Cal. 131.)
The fact that Vassault was assignee of the Barker judgment, instead of the original judgment creditor, does not affect the question. (1 Hittell, Art. 3, 166, Sec. 22.)
JUDGES: Rhodes, J. Crockett, J., concurring.
OPINION
RHODES, Judge
Rhodes, J., upon petition for rehearing:
The point urged by the defendants in the petition for rehearing is, that, as the deed of Compton to Mrs. Austin was of record at the time the plaintiff purchased the property under execution, the plaintiff had notice of her title; and the point is again urged on the supposition that it was overlooked by the Court on the previous examination of the record. It was not overlooked, but it was passed because we thought, as we still think, the answer quite obvious. Both Mrs. Austin and the plaintiff claim through Austin. She took nothing, as against the plaintiff, under her deed from Compton, for it was found, upon sufficient evidence, that the deed of Austin and wife to Compton was void as to the plaintiff, and under section twenty-four of the Statute of Frauds, her deed from Compton afforded her no protection, because she was not a purchaser for a valuable consideration. She, then, can rely only upon her unrecorded deed from Austin, and not upon that of Compton, unless the plaintiff purchased with notice. We have heretofore disposed of the deed of Austin and wife to Compton, as related to the question of notice of her unrecorded deed. The deed of Compton is equally valueless as notice. Whatever force there might be in the point, if the plaintiff claimed through her--as the plaintiff in Ramsdell v. Fuller claimed through the deed to Mrs. Fuller--it was no merit whatever, when he not only claims in opposition to her, but shows that her deed is void. We know of no principle justifying us in holding that the record of a deed, void as to any person, was notice to such person of anything, except, perhaps, of the existence of the void instrument. It certainly furnishes no clue to an earlier deed to the same grantee, executed by another grantor.
The general rule is, that the record of a deed is notice to subsequent purchasers--that is to say, the subsequent purchasers from the same grantor--and it is not intended by anything that has been said to infringe upon this rule.
CONCUR
CROCKETT
Crockett, J., concurring:
I concur in the judgment; but, in my opinion, the fact that Mrs. Austin united with her husband in the deed to Compton, was not only insufficient to put the plaintiff on inquiry as to her unrecorded deed, but it was not sufficient to excite even a suspicion of it. It is so common a practice in this State for wives to unite with their husbands in conveyances of common property, where it is not pretended that they have any separate estate in it, that to hold that fact alone to be sufficient to put the purchaser on inquiry as to her secret equities, would extend the doctrine of constructive notice beyond all reasonable limits.