Shirran v. Dallas

This is an action for the partition of the lands described in the complaint. The court found that the property affected by its decree was so situated that partition thereof could not be had without “great prejudice” to the owners of the same, and, accordingly, decreed a sale thereof

The intervener, John Dallas, appeals from the interlocutory decree so entered and from the order denying his motion for .a new trial.

The facts of the several transactions which are pertinently connected with this litigation are not controverted and are correctly stated in the brief of the respondent as follows:

“On the 9th day of April, 1873, Charles Dallas was the owner of the land in controversy, and was a single person, and had the following children by a deceased wife, to wit: John Dallas, Robert Dallas, Mary Hickman, Belle Keep, Sierra Nevada Dallas, Mrs. Jefferson, and William Dallas— these were his only heirs and were all of age. On that day, in contemplation of marriage with Mrs. Ellen Sturge, he executed a deed of this same land, conveying to ‘Ellen Sturge for and during her natural life, with the reversion at her death to the said party of the first part, or to his heirs or devisees. ’ That he married Ellen Sturge, on the 9th day of April, 1873. On the 13th day of August, 1883, he died intestate. At the time of his death the same children were living, and were his only heirs as to the land in controversy. He had no children by the second wife. When the estate was distributed, December 27th, 1887, these same children were all alive. On the 11th day of March, 1887, the said John Dallas was indebted to J. M. Shafe and C. A. Post, partners doing business under the firm name and style of Shafe & Post, on a promissory note dated January 6th, 1887, for $2,263.63, with interest thereon at the rate of one per cent per month, both principal and interest aggregating on said day, $2,312.66. On the 11th day of March, 1887, said Shafe & Post brought suit against said John Dallas in the superior court of the county of Stanislaus; that summons was duly issued on said day and served March 11th, 1887, on the defendant, John Dallas, intervener and appellant herein; that the summons was filed in said court March 15th, 1887, and the admission of service was written on said summons, and signed by the said defendant; that on March 22nd, 1887, there being no appearance by the defendant, judgment by

default was rendered and entered by the clerk against the defendant, John Dallas, for the sum of $2,320.22, and for $6.10 costs; that this admission of the service of summons was signed by the defendant, John Dallas; that the clerk, on August 24th, 1887, issued execution for the sum of $2,395.07 with interest thereon from the date of judgment at seven per cent, and said execution was duly levied un said land, on August 25th, 1887; that the sheriff of said county advertised said land for sale on the 24th day of September, 1887, and on that day sold the same to Shafe & Post for $2,451.60; that there were no other Shafe & Post in the county of Stanislaus, except J. M. Shafe and C. A. Post, doing business under the .firm name and style of Shafe & Post, and they are and were the plaintiffs in that action; that a certificate of sale was on said day issued by the sheriff to the said Shafe & Post, and the same was recorded on said day in the recorder’s office tif the county of Stanislaus; that on the 19th day of October, 1887, Ellen C. Dallas, the administratrix of the estate of Charles Dallas, filed in the superior court of the county of San Joaquin a petition for the distribution of the estate of Charles Dallas; that the hearing of the same was fixed for the "17th day of November, 1887; that the decree of distribution was made on the 27th day of December, 1887. On the 29th day of October, 1887, said Shafe & Post filed in the superior court a request that the one-seventh interest of John Dallas be distributed to them under the certificate of sale, and that the court denied said request. On April 28th, 1888, B. B. Purvis, as sheriff of Stanislaus County, pursuant to said sale, conveyed said land to said J. M. Shafe and C. A. Post, which deed was on May 5th, 1888, recorded in the recorder’s office of the county of Stanislaus; that on May 5th, 1888, said C. A. Post conveyed his interest in said land to said J. M. Shafe, which deed was recorded in the recorder’s office of Stanislaus County on the 26th day of September, 1903; that on the 5th day of May, 1888, the said J. M. Shafe conveyed the whole of said land to the plaintiff herein, which deed was on the 26th day of September, 1903 recorded in the recorder’s office of Stanislaus County.” Ellen C. Dallas, widow of Charles Dallas, died on the eleventh day of November, 1906.

As stated, most, if not all, of these objections involve a collateral attack upon the judgment in the case of Shafe & Post v. John Dallas. The settled rule is that, in a collateral attack upon a judgment, the question whether such judgment is or is not void must be determined by an inspection of the judgment-roll, which, in a case where, as here, the complaint has not been answered, consists of the summons, proof of service, the complaint upon which is indorsed a memorandum that the default of the defendant in not answering has been entered, and a copy of the judgment, “and in case the service so made is by publication, the affidavit for publication of summons, and the order directing the publication of summons.” (Code Civ. Proc., sec. 670, sub. 1.) In other words, “every presumption is in favor of the validity of the judgment, and any condition of facts consistent with the validity of the judgment will be presumed to have existed, rather than one which will defeat the judgment. ’ ’ (Canadian etc. Co. v. Clarita etc. Co., 140 Cal. 674 , [ 74 Pac. 302 ]; In re Eichoff, 101 Cal. 605 , [ 36 Pac. 11 ]; Eichoff v. Eichoff, 107 Cal. 42 [ 48 Am. St. Rep. 110 , 40 Pac. 24 ].)

In the case of Shafe & Post v. Dallas, the defendant indorsed on the summons in writing the following admission: “I hereby acknowledge and admit that the within summons was duly and legally served on me at the county of Stanislaus, state of California, this 11th day of March, A. D. 1887. (Signed) John Dallas.” Section 415 of the Code of Civil Procedure provides that proof of the service of summons and complaint, may, among other modes, be by “the Written admission of the defendant. ” It is contended, however, that it cannot be told from an inspection of the judgment-roll whether there was proof of the genuineness of the signature of the defendant to the admission of service of summons, nor whether a copy of the complaint was served with the summons. (Code Civ. Proc., sec. 410.) The answer to this proposition is that the judgment itself recites that the defendant, John Dallas, was “regularly served with process,” and that from such re

The rule uniformly adopted by the authorities was stated and applied in the early ease of Alderson v. Bell, 9 Cal. 315 , 321, the facts of which, so far as the point under consideration is concerned, were precisely the same as those in the case at bar. There, as here, the defendants, over what purported to be their signatures, acknowledged service of process by the indorsement thereof in writing upon the complaint. There, as here, the claim was that such admission of service was insufficient to give the court jurisdiction of the persons of the defendants because of the absence of proof of the signatures of the defendants, and a designation of the place where the service was made. While holding that “when the proof of service of process consists of the written admission of the defendants, such admission, to be available in the action, should be accompanied with some evidence of the genuineness of the signatures of the defendants,’’ the court nevertheless said: “The decree recites that the defendants had been regularly served with process, or had'waived service by their acknowledgment. This is sufficient evidence that the requisite proof was produced to establish the genuineness of the signatures of the defendants to their admission. Even if there were no such recitals in the decree, and there was an entire absence of evidence in the record on the point, still the presumption should be in favor of the jurisdiction of the court, and of the regularity of the proceedings; and for the want of such evidence, the decree cannot be impeached in this collateral action” (citing Cook v. Darling, 18 Pick. (Mass:) 393; Crane v. Brannan, 3 Cal. 182 .) (See, also, Hahn v. Kelley, 34 Cal. 391 , [ 94 Am. Dec. 742 ] ; Peck v. Strauss, 33 Cal. 658 ; Sharp v. Daugney, 33 Cal. 514 .)

In the case of Drake v. Duvenick, 45 Cal. 455 , it is held that the failure of the return of summons to show that a copy of the complaint had been served with the summons discloses a mere irregularity which does not render the judgment void or subject to collateral attack.

What has already been said applies with equal pertinency and force to the assault upon the judgment in question because of the alleged illegal allowance of costs and the asserted

It is further contended that the execution issued on the judgment was void because it called for more money than was awarded to the plaintiffs by said judgment. Conceding that the suggested disparity between the judgment and the execution existed, still the variance amounted to a mere irregularity which did not render the execution absolutely void. The rule is that an execution which may be amended is not void, and it has been held that an execution which calls for too much money is amendable. (Hunt v. Loucks, 38 Cal. 372 , [ 99 Am. Dec. 404 ].) Therefore, the execution concerned in this ease, if erroneous in the particular indicated, could have been amended on motion or through some appropriate proceeding, so that the amount it called for would have conformed to the amount awarded by the judgment; but, no such proceeding having been resorted to at the proper time, the variance, if variance there was, cannot, in this collateral way, be sustained as in impeachment of the title established and conveyed by the sheriff’s deed. (1 Freeman on Executions, sec. 43; Hunt v. Loucks, 38 Cal. 372 , [ 99 Am. Dec. 404 ]; Doehla v. Phillips, 151 Cal. 496 , [ 91 Pac. 330 ].) Nor is the rule as thus proclaimed any the less applicable in a case where, as here, the judgment upon which the execution has been issued was entered upon

The authorities cited by counsel for appellant in support of his position on the questions discussed in the foregoing are not in point. They are cases in which a direct attack was made upon the judgment, and, therefore, deal with situations entirely different from that presented here.

The claim that the return of- execution and the sheriff’s certificate of sale are void for the asserted reason that they d'o not appear upon their face to have been executed by the sheriff is untenable. This point grows out of the fact that said return and certificate purport to have been executed by the sheriff by and through an “under” sheriff, the contention being that at the time of the purported sheriff’s sale there was no such an officer known to our law as an “under sheriff.” It is not deemed necessary, in order to decide the present point, to ascertain whether, at the time of the purchase of the property in dispute at the sheriff’s sale by

The contention that there was not a legal levy upon the property in dispute cannot be supported. The sheriff’s return and certificate of sale clearly disclose that the levy was made according to the requirements of the law, but even if this were not true, still the point cannot be urged in derogation of the title acquired by the purchaser at the sheriff’s sale of the property under the execution. The rule in this state is and has been from a very early date that the validity of the title to property conveyed by a sheriff’s deed at an execution sale is not dependent upon the sheriff’s return. “That title was not created by the return, but was derived from the previous sale made by the sheriff by virtue of his writ. The sale and the sheriff’s deed are sufficient evidence of the title, and if the purchaser can show that the sheriff had authority to sell it is enough, and he need look no further.” (Ri tter v. Scannell, 11 Cal. 248 , [ 70 Am. Dec. 775 ],

The point that the judgment is void for the alleged reason that it was not “filed” by the clerk is without merit. Section 585, subdivision 1, of the Code of Civil Procedure, at the time of the entry of the judgment in controversy, provided, as it now provides, as follows: “In an action arising upon contract for the recovery of money or damages only, if no answer has been filed with the clerk of the court within the time specified in the' summons, or such further time as may have been granted, the clerk, upon application of the plaintiff, must enter the default of the defendant, and immediately thereafter enter judgment for the amount demanded in the complaint, including the costs, against the defendant,” etc. Section 670 of the same code provides: “Immediately after entering the judgment, the clerk must attach together and file the following papers, which constitute the judgment-roll: 1. In case the complaint is not answered by any defendant, the summons, with the affidavit of proof of service; the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment,” etc. It will be observed that, with the exception that a copy of such a judgment must be attached to the other papers mentioned in section 670 and thus become a constituent part of the judgment-roll, which must be filed, neither of the sections above referred to requires that a judg

We have discovered no variance between the allegations of the complaint in the present action and the proofs, nor any between the allegations of the plaintiff’s answer to the appellant’s complaint in intervention and the evidence. One of the contentions under this assignment is that the complaint alleges that “in the case of J. M. Shafe and C. A. Post v. John Dallas, judgment was made and entered for the sum of $2366.63 and interest,” whereas the judgment so made and entered was “in favor of the partnership and not in favor of two individuals.” But counsel for some reason seems to' have overlooked in its entirety the averment to which he refers. The complaint very plainly alleges that the judgment in question was rendered and entered in favor of Shafe and Post, as partners. In that particular it reads: “ ... in the case of J. M. Shafe and C. A. Post, partners doing business under the name and style of Shafe & Post v. John Dallas, judgment was made and entered for the sum of $2366.63 and interest in favor of said J. M. Shafe and C. A. Post, partners doing business under the name and1 style of Shafe & Post,” etc.

There are several other points' urged against the decision of the trial court, but the only one of those which appears to demand special consideration in this opinion is involved in the proposition earnestly contended for by counsel, that at the time of the entry of the judgment in the case of Shafe & Post v. John Dallas, the latter had no interest in the land in dispute upon which a judgment could become a lien or upon which execution could be levied.

It will not, of course, be questioned that if, at the time of the docketing of the judgment in favor of Shafe & Post against John Dallas, the latter had a vested interest in the

The habendum clause of the deed from Charles Dallas to Ellen Sturge reads as follows: “To have and to hold all and singular the said premises unto the- said party of the second part for and during her natural life with a reversion at her death to the said party of the first part or to his heirs or devisees.” Then follows a provision whereby each of the parties relinquishes all right to succession to the separate property of the other. From the foregoing provisions of the indenture these propositions are clearly and unmistakably deducible: 1. That the grantor intended to and did vest in the grantee a life estate only in the property described, at the same time expressly pretermitting her as an heir or cutting off her right to succeed as an heir to any of his estate; 2. That he intended that, in case the grantee’s death should ante-date his, the whole estate in the lands should return to him; 3. That, although the word “reversion” in lieu of the word “remainder” is used in connection therewith, in the event that he died, intestate, prior to the termination of the life tenancy, the fee in the property should go to and vest in his heirs.

It is, however, argued that, if the language of the deed above quoted means anything or has any force at all, so far as the fee in the property is involved, the interest thereby granted to John Dallas was not to vest until the death of the life tenant. But we are unable to take that view of the grant. It is true that the deed provided for a contingency, the happening of which would have defeated' the right of the heirs to take any estate thereunder. This contingency lay in the right reserved by the grantor to devise the property or dispose of it by testament, and it is undoubtedly true that, during the lifetime of the grantor, whatever interest the deed contemplated that the heirs should take thereunder was contingent in the strictest sense, since by the terms of the grant there was uncertainty as to which of the two classes of re

In the case at bar, we find the existence in ascertained persons (the heirs or children of Charles Dallas) of a present fixed right of future enjoyment. In other words, we can here “point to a person who, if the life estate should cease,

The evidence shows, as we have seen, and the court finds that Charles Dallas died in San Joaquin County in the month of August, 1883, and that his estate was probated in said county, he having left property therein as well as the lands involved here, situated in Stanislaus County. Said estate was under administration at the time of the entry of the judgment against John Dallas and which is concerned in this suit. The heirs of Charles Dallas consisted of six children and upon his death, he having left no will or testament whereby the property in dispute was disposed of, the remainder in fee in said property immediately passed to and vested in said children as the heirs of the grantor. Therefore, by virtue of the law of this state, the lien of the judgment, upon the entry thereof, immediately attached to the future interest of John Dallas so acquired.

But it appears that, on the twenty-ninth day of October, 1887, while the estate of Charles Dallas was yet in process of administration, Shafe & Post petitioned the court in probate to distribute to them the share or interest of John Dallas in the property in dispute; that thereafter, and on the twenty-seventh day of December, 1887, the superior court in and for the county of San Joaquin, before which the administration of said estate was had, made and entered its' final decree of distribution of said estate; that by said decree, said court denied' the petition of Shafe &_ Post above mentioned in the following language: “That Shafe & Post, under and by virtue of their judicial sales and purchases thereunder, have not yet acquired a legal title to the distributive shares or any part thereof of William Dallas or John Dallas to the lands remaining of said • estate of Charles Dallas, deceased, and are not entitled to have the said interests or shares or any part thereof distributed to them. ’ ’ Upon this finding by the superior court, sitting in probate in the matter of said estate, the appellant bases the contention that thereby the claim of

There are two answers to that proposition: 1. That, at the time of the sale and the issuance of the certificate thereof by the sheriff to Shafe & Post—September 24, 1887—the law gave John Dallas the right to redeem the property from such sale within six months thereafter. (See Ne-wmark’s Code Civ. Proc., (ed. 1889,) sec. 702.) Therefore, Shafe & Post were not entitled to a deed until the twenty-fifth day of March, 1888. It necessarily follows- that, the final decree of distribution having been made and entered on the twenty-seventh day of December, 1887, a trifle over three months only from the date of the sale and the issuance of the certificate thereof, the court .was without the right or jurisdiction to distribute the share of John Dallas to Shafe & Post, even if there were no other legal obstacle to interrupt and prevent the exercise of that power. 2. The law requires that the probate court shall distribute the estate to the original heirs, legatees or devisees, except in those cases where such heirs, legatees, or devisees may have conveyed their shares to other persons, in which case “such shares must be assigned to the person holding the same in the same manner as they otherwise would have been to such heirs, legatees, or devisees.” (Code Civ. Proc., sec. 1678; Martinovich v. Marsicano, 137 Cal. 354 , 357, [ 70 Pac. 459 , 460] ; Hardy v. Mayhew, 158 Cal. 95 , 103, [ 139 Am. St. Rep. 73 , 110 Pac. 113 ].)

In the first mentioned' of the cases just cited it is said: “In the absence of statutory authority therefor, the superior court, under its jurisdiction of 1 all matters of probate, ’ would have no authority upon the final distribution of a decedent’s estate to assign the same, or any portion thereof, to any person other than an heir, devisee or legatee. By section 1678 of the Code of Civil Procedure authority is given to it to make distribution of real estate to others than the heirs, legatees, or devisees, but its authority therefor rests solely upon the provisions of this section, and is limited by its terms. . . . Under this section the court is authorized to assign the share of an original -heir or devisee -to another only when such heir or devisee has ‘conveyed’ his share to such other person.”

The appellant presents some assignments of error in the rulings of the court in receiving certain evidence. These objections involve, practically, some of the points which have already been considered and decided adversely to the contentions of the appellant. They do not, therefore, require special notice. The record appears to be free from prejudicial error, and the judgment and the order appealed from are, therefore, affirmed.

Chipman, P. J., and Burnett, J. concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 3, 1913, and the following opinion then rendered thereon :

The petition for a rehearing of this cause in the supreme court is denied.

We base this action upon the proposition that upon the face of the record of the judgment in the case of Shafe &