Maison v. Puntenney

Appellants appeal from a judgment quieting plaintiff’s title to certain real property and awarding him $1500 for its use and occupation.

The complaint is in the usual form, and alleges ownership in plaintiff and an unfounded claim by defendants. As a second cause of action, it is averred that defendants have been occupying the premises without right, and that the reasonable value of the use and occupation thereof is the sum of $100 a month; The answer of C. W. Puntenney denies title in plaintiff, and sets up title and possession in himself. The defendants G. A. and Mary E. Puntenney, father and mother, respectively, of C. W. Puntenney, disclaim any interest in the ownership of the property, but allege right of possession along with and by authorization of the defendant C. W. Puntenney.

When the cause came on for trial, the defendants demanded a jury, urging that within the meaning of section 738 of the Code of Civil Procedure, the action presented certain legal issues in addition to the issues common to a quiet-title suit. This request was denied as to the first cause of action, the court stating that when necessary it would summon a jury to try the issues involved in the second cause of action having to do with the reasonable value -of the use and occupation of the premises. As to this cause of action, however, the defendants waived the right to a jury trial. The cause thereupon went to trial before the court sitting without a jury.

Plaintiff, for the purpose of proving title in himself, introduced in evidence the judgment-roll in an action entitled Miller v. G. A. Puntenney et al., wherein, on Peb

To establish his title, the defendant C. W. Puntenney in-traduced in evidence the deed of Mary E. Puntenney, the then record holder, transferring title to him, and under which deed he has since been in possession of the property. This deed is dated December 22, 1925, and antedates by approximately twenty-one months the sheriff’s deed under which plaintiff claims title. Defendant also introduced three earlier deeds tracing the record title down to his grantor, Mary E. Puntenney. Defendants thereupon rested.

On his cross-examination of the defendant C. W. Puntenney and also by way of rebuttal, plaintiff, over defendants’ repeated objection that the evidence sought to be

With this evidence before it, the trial court found all of the allegations of the complaint to be true and those of the several answers untrue. It is further found that plaintiff is the owner of the property; that the defendant C. W. Puntenney is without right, title or interest therein; and that the purported transfer to him was made for the purpose of defrauding the creditors of G. A. Puntenney.

Upon this appeal, the defendants again urge, the contention assuming several forms, that it was error for the court below to permit the plaintiff to attack by way of rebuttal the validity of the deed transferring title to C. W. Puntenney. It is asserted that evidence addressed to this point is without the issues made by the pleadings in an action to quiet title, the complaint being devoid of any allegation of fraud, and pertinent only to a creditor’s bill or an action to set aside a fraudulent conveyance.

We have not been favored with a brief from the respondent, nor with any response to the order directing him to show cause, if any he has, why the judgment appealed from should not be reversed. In the absence of such brief, we can only assume that in an attempt to support the judgment respondent would rest his case on that line of decisions holding that proof of fraud is admissible in rebuttal without further pleading when in avoidance of the defense set up in the answer. (Jose Realty Co. v. Pavlicevich, 164 Cal. 613 , 616 [ 130 Pac. 15 ] ; Wendling Lumber Co. v. Glenwood Lumber Co., 153 Cal. 411 , 413 [ 95 Pac. 1029 ] ; Moore v. Copp, 119 Cal. 429 , 433 [ 51 Pac. 630 ].) The case last above cited recognizes an exception to this rule, however, where, as here, the defendant has the clear record title and plaintiff’s whole case depends upon fraud which he does not aver. In Burris v. Adams, 96 Cal. 664 , 667 [ 31 Pac. 565 ], it is said: “Where the cause of action depends upon

This statement covers the present case. Prior to instituting this action, respondent knew that the appellant C. W. Puntenney had a clear record title to the property, a title that came to him by mesne conveyances from persons other than the one through whom respondent claims. Never at any time had the property stood in the name of G. A. Puntenney, the judgment debtor in the Miller ease, and through whom respondent asserts title by virtue of an execution sale purporting to sell his interest, if any, in the property. Appellant C. W. Puntenney, therefore, had a perfect legal title which the respondent could overthrow only by proving the perpetration of a certain fraud. That respondent was aware of this is attested by his statement to the court below at the commencement of the trial, wherein he intimated he would prove a “judgment title” in himself and would establish facts tending to show that the transfer of the property to C. W. Puntenney was in furtherance of a conspiracy between the members of the Puntenney family to defraud the creditors of G. A. Puntenney.

It is evident, therefore, that from the very origin of this action, respondent intended and was required to introduce evidence tending to show fraud on the part of the appellants, if he was to prevail. This proof was not required in avoidance of any defense set up in the answer, but was an essential and material part of respondent’s case if he was to overthrow C. W. Puntenney’s title. This being so, proof of fraud could not be made without averment of the facts, and it was reversible error to permit of such proof under the pleadings and circumstances of this case.

Under the views stated by us, the respondent’s remedy was not to quiet title as owner, but to seek, on appropriate averments, a decree declaring C. W. Puntenney’s

The judgment is reversed.

Seawell, J., Richards, J., Shenk, J., Curtis, J., Preston, J., and Langdon, J., concurred.

Rehearing denied.