Hyatt v. Colkins

This action was to quiet title to a lot of land in the city of Los Angeles. The complaint contained the usual allegations in such an action—that plaintiff was the owner and entitled to the possession of the land; that defendants claimed an interest in it adverse to plaintiff, which claim was alleged to be without right, and that none of the defendants had any right or interest in the property—with the usual prayer that defendants be required to set forth their claim or interest in the property; that it should be adjudged in

Defendant Colkins filed a general demurrer to the complaint which was overruled, and failing to answer, judgment was entered against him, from which he takes this appeal.

Taking up his points on appeal: He contends that the court erred in overruling his demurrer. His argument is that his demurrer was well taken, because the complaint did not allege that the plaintiff was in possession of the premises when the suit was brought, and further, that nowhere in the complaint is it stated in what the invalidity of the instrument which is said to constitute the cloud upon the title of plaintiff consists, or any facts which show its invalidity. "We are at a loss to understand how, under the long-settled law of this state, the appellant can see any merit in his contentions. As to the point that the complaint does not state that the plaintiff was in the possession of the property, it was unnecessary to do so. An action to quiet title may be brought by one out of possession. In People v. Center, 66 Cal. 551 , [ 5 Pac. 263 , 6 Pac. 481 ] (decided in 1885), it was held on this subject that section 738 of the Code of Civil Procedure (enacted in 1872) is like section 254 of the former Practice Act, except that since the adoption of the code the action to quiet title may be brought by one out of possession. In Casey v. Leggett, 125 Cal. 664 , [ 58 Pac. 264 ], in meeting a similar objection as that urged by appellant, the court said: “The owner of land does not have to be in possession in order to maintain an action to quiet title.” (See, also, Brusie v. Gates, 80 Cal. 462 , [ 22 Pac. 284 ] ; Landregan v. Peppin, 94 Cal. 465 , [ 29 Pac. 771 ] ; Reiner v. Schroeder, 146 Cal. 411 , [ 80 Pac. 517 ].)

As to the point that nothing specific is alleged in the complaint concerning the invalidity, or a recital of any facts showing the invalidity of the instrument asserted to be a cloud against the title of plaintiff, it is well settled that there is no merit in such a claim. It was held directly in Castro v. Barry, 79 Cal. 443 , [ 21 Pac. 946 ], that the plaintiff is not required to set forth the nature of the claim of defendant. In Rough v. Simmons, 65 Cal. 227 , [ 3 Pac. 804 ], a general demurrer to a complaint like the one at bar was sustained by the trial court and the judgment reversed in this court. Appellant cites Hibernia S. & L. Society v. Ordway, 38 Cal. 679 , 681, as sus

The judgment appealed from is affirmed.

Melvin, J., and Henshaw, J., concurred.