Mcgehee v. Curran

This is an action brought by the plaintiffs, after a lapse of over twelve years, to set aside and vacate a judgment, rendered in 1905, in an action to quiet title, wherein the defendants here were the plaintiffs and these plaintiffs were the defendants. Plaintiffs also seek to establish a constructive trust in the land in their favor. It is the contention of the appellants that they did not have a just and fair trial in that action, because of the suppression of facts, and because of fraud and collusion on the part of the defendants here and the attorneys for, and guardian ad litem of four of these plaintiffs, who were then minors. Demurrer to the second amended complaint was sustained, and the plaintiffs declining to amend, judgment was entered in favor of the defendants, from which the appeal is taken.

The parties to the divorce action settled their differences, and immediately after the filing and entry of the decree of divorce Tully and his wife entered into an agreement, whereby Tully promised and agreed with Mrs. Tully that if she would remarry him, and would forego and release him and the lands he had conveyed to his children from the lien, and the payment of permanent alimony for the support of herself and the child, he would convey to her an undivided one-third interest in all of the lands theretofore deeded to these defendants, The parties thereupon

Demurrer to the third amended complaint in that action was sustained, the plaintiffs declined to further amend, and judgment was entered in favor of the defendants. While it does not so appear from the averments of the amended complaint in the present action, it is a matter of record to which both appellants and respondents have referred in their briefs and arguments, that on appeal the judgment was affirmed upon two grounds: 1. That the facts stated in the complaint did not state a cause of action; and 2. That the action was barred by the statute of limitations. The court held on the facts pleaded, which were those we have here set out, that John Tully had neither legal nor equitable title after his conveyance to his children in 1885, and that there was no trust relation to save the operation

Matters appear to have remained in'status quo until January 2, 1904, when these defendants instituted an action against these plaintiffs, Sarah G. Tully and her children, who were still minors, to quiet title to all of the property conveyed by the John Tully deeds, excepting the portion theretofore sold. The plaintiffs appeared in the action, the minors being at all times represented by F. J. Hambly, their duly appointed guardian ad litem. Judgment was rendered in favor of the plaintiffs in that action, the defendants here. It is that judgment that the plaintiffs, all of them being now of legal age, are seeking to have vacated and set aside. They also seek to have a trust in favor of plaintiffs impressed upon the property conveyed by John Tully to the defendants, and pray for interest upon the rental value of the shares to which they claim to be entitled under the trust.

As the basis of the present action begun twelve years after the entry of the judgment, the plaintiffs allege that they did not have a just or fair trial in the suit to quiet title, because of the fraud of the defendants in suppressing facts which would have established the rights of the plaintiffs, and because of collusion on the part of the defendants and the guardian ad litem of the plaintiffs who were minors at the time. In support of their position the plaintiffs now allege that on August 1, 1885, the defendants induced John Tully to convey his property to themselves, by a deed absolute in form, “upon the express oral agreement with the .said John Tully that they and each of them would hold the said property in trust for the use and benefit of him, the said John Tully, and would permit him to remain in possession and take the rent, issues and profits of said property as he had always done theretofore, and would convey to said John Tully, or to whomsoever he might direct, the whole or any portion of the same.” It is alleged that the second or confirmation deed of John Tully to the defendants, made on October 12, 1894, was executed without consideration, and was executed by John Tully, and accepted by the defendants, upon the express oral agreement that the defendants would convey to Sarah G. Tully the legal title to an undivided one-third equitable interest in said property, and that

It is these alleged facts which the plaintiffs now charge were suppressed by the defendants in the trial of the quiet title suit, the averment being, that in that action “the said plaintiffs endeavored to defend themselves against said suit to quiet title upon every available ground then known to them; that the defense that said property was held in trust as heretofore set forth was rendered unavailable to said plaintiffs and no fair submission of said defense was had for the reason that the defendants fraudulently suppressed the facts of the existence of said trust and agreements by remaining silent and refusing to disclose to the plaintiffs, their cestui, either the rights of the plaintiffs in said property or the facts to prove the existence of said rights; that the said Sarah G. Tully, for the purpose of discovering the true manner in which said defendants held the said property, caused the depositions to be taken of Joseph Tully, Edward O. Tully, and Isabella Higgins, defendants hereto, and said defendants asserted in said depositions that they were the absolute owners of said property, and refused to disclose anything with reference to the rights of said plaintiffs; that at the trial of said suit to quiet title, the said defendants asserted that they were the absolute owners of said property and refused to disclose the rights of the plaintiffs, their cestui-, that said plaintiffs exhausted every available means to ascertain the facts and secure the evidence in regard to the manner in which the said defendants held the said property . . . that said facts of the existence of said trusts and of the evidence to prove them lay peculiarly within the minds of said defendants for the reason that said defendants were the only parties present from whom the plaintiffs could obtain the information except John Tully, who was at that time dead; that the plaintiffs did not have a just or fair trial in said suit to quiet title because of the said suppression of the facts of the existence of. their rights by said defendants, their trustees, and because of the fraud of said defendants and the guardian acl litem of said minor plaintiffs as hereinafter set forth.”

As the basis of the fraud and collusion on the part of the defendants, and the guardian ad litem, and attorneys for

Three principal questions at once address themselves to our consideration upon the foregoing facts: 1. Was the

[1] That a former judgment, or decree, may be set aside and annulled for some frauds, - there can be no question ; but it must be a fraud extrinsic, or collateral to the questions examined and determined in the action. [2] When parties have once submitted a matter, or have had the opportunity of submitting it, for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive, unless it can be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party has prevented a fair submission of the controversy. (Pico v. Cohn, 91 Cal. 129 , 133, [ 25 Am. St. Rep. 159 , 13 L. R. A. 336 , 27 Pac. 537 ]; Steen v. March, 132 Cal. 616 , 618, [ 64 Pac. 994 ]; Bacon v. Bacon, 150 Cal. 477 , 490, 491, [ 89 Pac. 317 ].) [3] According to the averments of plaintiffs the fraud which prevented a fair submission of their controversy lay in the fact that at the trial of the suit to quiet title, the defendants e “asserted that they were the absolute owners of said property and refused to disclose the rights of the plaintiffs.” The plaintiffs were not prevented by any fraudulent contrivance of the defendants from having a trial. That was their opportunity for presenting the whole matter of their alleged interest in the lands to the court for determination. In the absence of any showing to the contrary, it will be assumed that the controversy was fairly submitted. The plaintiffs did not make the judgment-roll, or any part of the evidence taken and received in the court below, a part of their complaint. We do not know what transpired there, beyond the fact that a judgment was rendered in favor of these defendants. In what manner or form the defendants asserted that they were the absolute owners - of the property and under what circumstances they refused to disclose the rights of the plaintiffs is not made to appear.

If, as alleged, but not so clearly as to be established, the guardian ad litem, and the attorneys for the minors, corruptly sold out their clients’ interests, and through fraud, and collusion with the defendants, conspired to defraud the plaintiffs and did deprive them of their right to a new trial, and to an appeal in the quiet title action, to their prejudice, such conduct amounted to extrinsic fraud. (Pico v. Cohn, supra; Rountree v. Montague, 30 Cal. App. 170 , 181, [ 157 Pac. 623 ].) [5] But even in that case, before a court of equity can set aside the judgment it must be made to appear with reasonable certainty that the judgment was wrong, or that the result would have been different upon another trial. (Davis v. Chalfant, 81 Cal. 627 , 630, [ 22 Pac. 972 ]; Painter v. J. B. Painter Co., 133 Cal. 129 , 131, [ 65 Pac. 311 ].) In the instant case it does not appear that the result would have been different had the plaintiffs pressed their motion for a new trial, or, in the event of its being denied, had appealed to the higher court. It was incumbent upon the plaintiffs not only to show by their complaint the facts constituting the fraud which they contend gives them the right to set aside this judgment, but they were required also to show that they have a defense to the original action upon the merits, and that they are able to present to the court the evidence constituting that defense. They were required to not merely allege these matters as ultimate facts, but the facts themselves—those constituting the fraud, those constituting the defense, and those consti

Even if the plaintiffs had possessed the knowledge of the facts they now assert, we are of the opinion that the re¡-, suit of a new trial, if one had been granted, would not have been different, any more than if the action were to be now tried anew. As tending to show that they have a defense to the original action upon the merits, and that they are able to present to the court the evidence constituting that defense, the plaintiffs allege the facts constituting the discovery of the purported fraud and the evidentiary matters relied upon to establish it. In 1917, twelve years after the date of the judgment, one of them, since arrived at maturity, had a conversation with the attorney, who, back in 1894, drafted the deed from John Tully to Sarah G. Tully, and was by him informed that shortly after said deed had been executed, one of the defendants, Isabella Higgins, called at his office and in conversation had approved of the making of the deed, and during no time in said conversation regarding the deeding of said property did she lay claim to said property, either on behalf of herself or the other defendants, nor did she assert or declare

The foregoing allegations, if admitted or proved, would not establish an express trust in the defendants in faVor of either John Tully or the plaintiffs. That precise point was, in effect, decided upon the appeal in the former action between the same parties. There is no pretense that there was any writing creating such trust, and without it none could exist. (Tully v. Tully, 137 Cal. 60 , 67, [ 69 Pac. 700 ]; Smith v. Mason, 122 Cal. 426 , 427, [ 55 Pac. 143 ]; Sheehan v. Sullivan, 126 Cal. 189 , 192, [ 58 Pac. 543 ]; Civ. Code, see. 852; Code Civ. Proc., sec. 1971.) As the land was conveyed by an absolute deed, no express trust in favor of the grantor can be raised by proof of a parol agreement by the grantee to hold the property in trust or reconvey it. (Barr v. O’Donnell, 76 Cal. 469 , 471, [ 9 Am. St. Rep. 242 , 18 Pac. 429 ].)

If the evidence pleaded he relied upon by the plaintiffs as proof of a parol promise, which is unenforceable because of the statute of frauds, and which the defendants decline to recognize,—in other words, to show a resulting trust,—it does not have that effect. It is attempted to be pleaded, and parenthetically appears, that certain oral agreements were entered into between John Tully and these defendants, which formed the consideration for the deeds, and the repudiation of which constitutes the constructive fraud upon which the alleged trust arises. (Lauricella v. Lauricella, 161 Cal. 61 , 65, [ 118 Pac. 430 ]; Cooney v. Glynn, 157 Cal. 583 , 587, [ 108 Pac. 506 ].) The evidence disclosed by the averments of the complaint is not sufficient to warrant the court in finding that the deeds, which on their face are .absolute conveyances of the lands in fee simple, were intended to be something else, namely, conveyances in trust. The authorities are uniform to the point that, to justify a court in determining from oral testimony that such a deed was intended to be something different, as, for instance, a trust, the testimony must be clear, convincing, and conclusive. The rule is so well stated in Sheehan v. Sullivan, 126 Cal. 189 , 192-196, [ 58 Pac. 543 ], that we refer to that decision for a full discus

Prom this review of the law and the facts we are of the opinion that the demurrer to the second amended complaint was properly sustained. In one of the concluding allegations of their complaint, the appellants say they “have other evidence of the said trusts and fraud that they will offer at the trial of the case.” But such averment does not assist the court in arriving at a correct determination of the matter. (Bell v. Thompson, supra.) Appellants argue that this is not a suit to set aside -a judgment upon the ground that it was secured by perjured testimony, but is an action for

Before leaving that subject we pause to say that, in our opinion, it has not been established that the guardian ad litem of certain of the minors, or their attorneys, corruptly, or at all, entered into a collusive agreement with the defendants, through their attorneys, for an unrighteous or unconscionable abandonment of the defense of those plaintiffs in the quiet title action. The litigation was at that time already stale. Upon two separate occasions, following the death of John Tully, the codefendant of the minors, their mother, had unsuccessfully assailed the title by which the grantees of John Tully claimed to be the absolute owners of the land. In one of the actions, in which the minors were parties plaintiff with their mother, an effort had been made to have it determined that such plaintiffs were part owners of the property. After what would appear to be ample opportunity for the proper presentation of every claim they might have (for the demurrer sustained was to the third amended complaint), the plaintiffs had allowed judgment to be taken against them, and affirmed upon appeal to the supreme court. (Tully v. Tully, supra.) It had there been held, on the facts presented, that the first deed of John Tully to his children, the defendants there and here, passed title to them, and that such title had continued to remain in the grantees. We have not before us the record of that case other than the complaint, but three points appear to have been urged by the plaintiffs in support of their claim,— the invalidity of the conveyance to the defendants, title by adverse possession in John Tully, and a resulting trust in these defendants. We may safely assume such facts, for the supreme court passed upon those questions and decided each against the contentions of the plaintiffs. After elaborate preparations for presenting their defense to the quiet title action, brought against them by these defendants, judgment

We think it unnecessary to devote further consideration to the many points raised by the parties on the submission of this case. For the reáson, which we deem readily apparent from what we have already said, the litigation should have an end. No sufficient ground has been suggested in the second amended complaint why it should be prolonged. Further discussion would involve questions which are merely corollary to the main issue, many of which become of material importance only when considered from a viewpoint differing from that whidh we have reached.

The judgment is affirmed.

Richards, J., and Welch, "J., pro tern., 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 October 28, 1920, and the following opinion then rendered thereon:

We agree with the conclusion reached by the district court of appeal, but there are matters stated in its opinion as to which we have some doubt and from which we prefer to withhold approval. With the general line of reasoning of the opinion we agree. The essential point of the case is that in 1905 the defendants in the present action secured a judgment against plaintiffs quieting their title to the property involved, and this judgment is conclusive upon the plaintiffs unless their complaint alleges such fraud in obtaining the judgment as will warrant setting it aside. The only fraud in the obtaining of that judgment which the complaint alleges is that the plaintiffs there, defendants here, falsely claimed and testified that the deeds from their father, under which they claim, were intended as absolute conveyances, and were not given or received upon any trust. There is no allegation that the plaintiffs in that action prevented the defendants, or those acting for them, from controverting in every way available to them the claim and testimony of the plaintiffs that the property had been conveyed to them as absolute owners. The allegation of the complaint is, indeed, that every effort was made on behalf of the then defendants to secure evidence of the trust upon which it is now claimed the deeds were executed, but that such endeavors failed. The new matter which it is alleged the now plaintiffs have since discovered is but evidence which they claim is sufficient to show that the testimony of their adversaries given in the former action was false. This is nothing more than an allegation that the former judgment was obtained by false testimony. But the rule is thoroughly established that a judgment had after a trial of controverted issues of fact will not be reopened on a claim that the issues were erroneously determined because of false or even perjured testimony. The false or genuine character of the testimony was intrinsic to the trial in the course of which it was presented, and a judgment 'based upon the conclusion then made that it was genuine is final, and cannot be reopened to permit of a retrial of the same issues simply because of a claim that it can now be_ shown that such testimony was false. If the rule were otherwise, there could be no end to litigation.

[6] The complaint also attacks as fraudulent a settlement made between the parties after the rendition of the former

What we have said is substantially said in the opinipn of the district court of appeal, and sufficiently disposes of the case. As to all other matters discussed in the opinion we withhold approval.

Rehearing denied.

All the Justices concurred, except Shaw, J., and Sloane, J., who were absent.