King v. Samuel

Action to quiet title. • The controversy concerns the title to certain swamp and overflowed land in sections 27 and 28, township 15 south, range 23 east, Mount Diablo base and meridian, situated in Fresno county. The land in question is that portion of said sections, embraced in survey number 593, lying on the east side of Kings river. The survey is particularly described in the complaint by metes and bounds, “as described in patent of the State of California to W. T. Cole, recorded May 1, 1888, in Book of Patents, at page 41, Records of Fresno County.” Plaintiff alleged ownership in fee on and ever since April 13, 1901. A general demurrer to the complaint was overruled and defendant Samuel alone answered. He denied plaintiff’s alleged ownership, and alleged on his own behalf upon information and belief “that he is and long prior to the commencement of this action (complaint filed May 25, 1904), was, and ever since has been the owner in fee of all that portion of swamp and overflowed land survey numbered 593, lying east of the center of the channel of Kings River . . . and within sections 27 and 28 . . . which said land, as defendant is informed and believes, is the land attempted to be described in plaintiff’s complaint.” The court made 1he general findings: “1. That all the allegations of plaintiff’s complaint are true and that the denials contained in the answer of defendant, Moses Samuel, are, and each of them is untrue”; and 2. That on April 13, 1901, plaintiff was and ever since has been and now is the owner in fee of all the land in said sections situated on the east side of Kings river, being a portion of the survey 593 as particularly described in the complaint and set out in the finding, and that defendant Samuel’s claim is without right. Judgment went accordingly, from which and from the order denying his motion for a new trial defendant Samuel appeals. ■

The evidence shows that survey 593 embraced' parts of sections 21, 22, 27 and 28 of said township on both sides of Kings river and was approved June 24, 1871, and recorded June 29, 1871. Patent issued to W. T. Cole April 18, 1888,

Defendant Samuel introduced in evidence a deed from Cole to Margaret R. Ross, executrix of the estate of Henry Ross, deceased, dated October 1, 1891, and duly recorded, by

On June 30, 1893, the property in controversy was sold to the state by the tax collector of Fresno county for delinquent state and county taxes for the year 1892. A deed was made to the state November 1, 1898, under said sale. On July 5, 1901, the state by the tax collector sold and conveyed the land to one Meyer and defendant deraigns title through him. It was admitted that Margaret R. Ross intermarried with one Baird and is the same person as Margaret R. Baird mentioned in the transcript.

Two questions arise under the deed from Cole U ?'rs. Ross as executrix of the will of Henry Ross, deceased: First, did it in absolute and uncertain terms convey the land in controversy; second, if not, was extrinsic evidence admissible to explain the intention of the parties? The deed first described all the land in sections 27 and 28 by metes and bounds, including by the description the land in question. The acreage is set down as 69.53, which is considerably less than the acreage, in said sections, embraced on both sides of the river. Following the description is this clause: “This conveyance intends, to convey all the S. and 0. lands in sections 27 and 28, lying west of the river.”

Appellant contends that if there is any conflict between the two parts of the description, the former must prevail and the clause quoted must be ignored; citing section 1070 of the Civil Code; and that a general description in a deed of conveyance, which is certain, must prevail, if the particular description is uncertain; citing Martin v. Lloyd, 94 Cal. 195 , 203, [ 29 Pac. 491 ]. The code section cited reads as follows: “If several parts of a grant are absolutely irreconcilable, the former part prevails.” There is no such repugnancy between the description given in the deed and

Appellant says the intention was to make more certain that the description included the land on the west side of the river. But why introduce it at all when a complete description preceded it, including that land? It is quite as reasonable to suppose that it was introduced to make clear the intention not to embrace the land on the east side of the river. The case cited in the 94th California is not in point because we cannot say that the clause in dispute is uncertain; it is as certain and definite in its meaning as any part of the deed, for it has the river as a controlling monument. It seems to us that we must either give effect to this clause and limit the grant accordingly, or we must sustain the lower court in its ruling that there was sufficient doubt and uncertainty as to the intention of the grantor to warrant the introduction of extrinsic evidence to ascertain that intention, by considering the situation of the parties, the subject matter at the time of contracting, and the attendant and surrounding circumstances leading to the execution of the instrument. That such inquiry may be made where such doubt exists is well settled. (Martin v. Lloyd, 94 Cal. 195 , [ 29 Pac. 491 ] ; Walsh v. Abbott, 145 Cal. 285 , 289, [ 104 Am. St. Rep. 38 , 78 Pac. 715 ], where the rule is spoken of as a familiar principle of construction.)

It appeared from the evidence that on September 19, 1887, Cole sold to Henry Boss (Mrs. Boss’ testator) “69.25 acres embraced by the land on the west side of Kings Biver in sections 27 and 28,” for $1,731.25, or $25 per acre. Having lost his certificate of purchase and having applied for a dupli

Respondent contends that the tax collector had no power to make the tax deed to Meyer for the reason that there was no notice given by the purchaser and also for the further reason that the deed contains no description of the land attempted to be conveyed. The law in force at the time was the act of March 19, 1891 (Stats. 1891, p. 133). Section 2, which amended section 3785 of the Political Code, reads in part: “provided, however, that the purchaser of property sold for delinquent taxes, or his assigns, must, thirty (30) days previous to the expiration of the time for the redemption, or thirty days before he applies for a deed, serve the owner of. the property purchased, or upon the person occupying the property, if said property is occupied, a written notice” (then follow certain things which must be embraced in the notice). The act requires a duplicate of this notice to be filed with the county recorder. It also provides for posting the notice upon the property if unoccupied and the owner cannot be found; “and no deed of property sold at a delinquent tax sale shall be issued by the tax collector, or any officer, to the purchaser of said property, until the notice herein provided for shall have been given, and each purchaser shall have filed with such tax collector, or other officer, an affidavit showing that the notice hereinbefore required to be given has been given as required,” etc. This was the law in force when the deed was made and must govern the sale. (Reed v. Lyon, 96 Cal. 501 , [ 31 Pac. 619 ] ; Teralta v. Shaffer, 116 Cal. 518 , [ 58 Am. St. Rep. 194 , 48 Pac. 613 ] ; Walsh v. Burke, 134 Cal. 594 , [ 66 Pac. 866 ] ; Collier v.

It remains to determine whether plaintiff proved title. Plaintiff offered in evidence a deed by Cole to S. M. King, C. W. King and W. R. King of date April 15, 1901 (and, as we have seen, Cole was then the owner), which accurately and definitely described the property in dispute. There was also admitted in evidence over defendant’s objection a quitclaim deed of the Bank of Selma to the same persons, dated

S. M. King was plaintiff’s father and C. W. King was plaintiff’s brother. Plaintiff testified that he received a conveyance of the land in dispute and left it in the care of his attorney, Mr. Cosgrove, and has not seen it since, but did not remember the date. Mr. Cosgrove testified that he himself prepared a deed from S. M. and C. W. King to plaintiff; that it was signed and acknowledged by C. W. King in his office; that it was sent to Selma to be executed by S. M. King; that it was returned to his office “signed by S. M. King and properly acknowledged.” He testified: “Now, that deed has been misplaced in my office with the original deed from Cole to King. I have evidently wrapped it up in some papers, and I have not been able to find them, although I have made diligent search at different times within the last three months. ... I know, as a matter of fact, however, that the conveyance was actually made. It covered the swamp and overflowed land. I remember the contents of the document and the names of the parties contained in it (naming them). There was a description of the land contained in the deed; I know what that description was (describing the land in controversy). The document contained a habendum clause; it contained the usual common clauses of printed forms of deeds; it was a grant deed” (giving other particulars). . . . “When it came back from Selma or somewhere, S. M. King’s name was appended together with a certificate of acknowledgment by him. The certificate of acknowledgment was in due form, taken before a notary or a justice of the peace; I wouldn’t be certain which. It was in due form.” On cross-examination he testified that he could not state

It is claimed by appellant that no sufficient foundation was laid for the admission of testimony as to- the loss of the deed or its contents; that the testimony of the alleged grantors of the deed should have been taken or the notary’s or its.absence accounted for; that Mr. Cosgrove did not exhaust the search of all places in his office where by some possibility the deed might have been discovered; that plaintiff did not testify that he had not possession of the deed and did not then know its whereabouts. But plaintiff did testify that he left it in care of Mr. Cosgrove, his attorney, and since that time he had not seen it. He could not truthfully say that he had not seen it if he had it in his possession. It would have strengthened plaintiff’s case had he shown by the grantors that-they signed the-deed or by the notary that he had taken their acknowledgment of its execution, but we cannot say that such proof was indispensable. The code provides that the original writing must be produced and proved, except where it is lost or destroyed, in which case proof of loss or destruction must be first made. If it has been lost and proof of that fact made, evidence of its contents may be taken by the recollection of witnesses. (Code Civ. Proe., secs. 1855, 1937.) We think the term “loss” as used in the statute means something different from destruction, for in the latter case loss would necessarily follow, but not so in ease of loss. The instrument may be lost for all practical purposes of the trial when it cannot be found after diligent

Whether a sufficient foundation was laid to justify secondary evidence is a question of law and the evidence may be examined by the appellate court to determine its sufficiency. Still, no arbitrary or hard-and-fast rule can be laid down by which to judge the evidence. The rule stated by Mr. Green-leaf is as follows: “If the instrument is lost, the party is required to give some evidence that such a paper once existed, though slight evidence is sufficient for this purpose, and that a bona fide and diligent search has been unsuccessfully made for it in the place where it is most likely to be found, if the nature of' the case admits such proof; after which his own affidavit is admissible to the fact of its loss. . . . What degree of diligence in the search is necessary, it is not easy to define, as each case depends much upon its peculiar circumstances; and the question, whether the loss of the instrument is sufficiently proved to admit secondary evidence of its contents, is to be determined by the court and not by the jury. But it seems that, in general, the party is expected to show that.he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him. It should be recollected that the subject of the proof is merely to establish a reasonable presumption of the loss of the instrument, and that this is a preliminary inquiry addressed to the discretion of the judge. If the paper was supposed to be of little value, or is ancient, a less degree of diligence will be demanded, as it will be aided by the presumption of loss which these circumstances afford.” (1 Greenleaf on Evidence, 16th ed., sec. 5636.)

The surrounding circumstances and facts are to be taken into consideration; the presence or absence of pecuniary interest or ' other improper motive in seeking to substitute secondary for the best evidence; the probability that the instrument was materially different from that sought to be established by the oral proof; the effect such proof would have upon the rights of the person seeking to exclude it; the

In the case here the title to the property passed to the Kings—father and his two sons—by Cole’s deed. Plaintiff has a third interest by virtue of that deed.- Proof that the father and the other son conveyed to plaintiff could not affect the title of defendant, for he has none, and as they are not parties to the action a judgment resting on such proof could not affect their interest.' At most it would only meet the technical rule of law that plaintiff in the action must rely upon the strength of his own title and not upon the weakness or failure of his adversary’s. No motive of self-interest can be imputed to Mr. Cosgrove, nor can a reasonable belief be entertained that he would falsify the contents of the deed drawn by him, or that he could have had any possible interest in concealing it, Ms testimony being that its sole purpose was to pass to plaintiff the interest held by his father and brother. Besides, his testimony was that the brother in fact executed and acknowledged the deed in his office, and, while this fact does not -bear directly upon the fact that the deed was afterward lost, it is a fact not to be ignored in considering the weight to be given Mr. Cosgrove’s testimony as to the loss or disappearance of the deed. Most of the eases cited by appellant were cases where the secondary' evidence was vital in determining in whom the title was vested—plaintiff or defendant. But here the result must be to quiet plaintiff’s title to one-third interest in the property, leaving the other two-thirds to be determined possibly in another action, but in no event to belong to defendant. In our opinion there was a.sufficient foundation laid to admit the secondary evidence offered.

Most of the rulings upon the evidence complained of depend upon the view of the law taken by defendant as to which we have expressed our disagreement with Mm and have thus disposed of them. Some of these rulings have been noticed in the course of the opinion and others will at once be seen to be either free from error or not prejudicial from our standpoint of the main question to wMch the rulings re

The judgment and order are affirmed.

Burnett, J., and Hart, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on December 23, 1907, and the following opinion was then rendered thereon:

Petition for rehearing. We do not feel called upon to write opinions in all cases where rehearings are denied or granted, and where we fail to do so it is through no indifference to the views of counsel, but because our attention is invited to no question, necessary to the decision, which has not in our judgment been sufficiently noticed. Where some more or less vital question has been overlooked or insufficiently treated it would seem but just that further consideration to it should be given. The court invites careful scrutiny of its decisions and deems it a favor to be given an opportunity to correct errors which it may have committed.

Our attention is now invited to two points which counsel urges were either overlooked or not given due consideration. It is said that we “overlooked, as did the court below, the provisions of section 1069 of the Civil Code, which provides that a grant between private parties is to be interpreted in favor of the grantee”; and it is urged that if the several parts of a grant are absolutely irreconcilable, the former prevails. (Civ. Code, sec. 1070.) Where the question is simply one of construction the code rule should be followed. But the general rule that the earlier clause prevails is not imperative where the inconsistency or irreconcilability is so great as to justify extrinsic evidence to explain it. The code rule that a grant is to be interpreted in favor of the grantee must be read in connection with another code rule (Civ. Code, sec. 1654), which provides that where there is uncertainty the language of the instrument must be interpreted most strongly against the party who caused the uncertainty to exist. In the present case the deed under examination

Upon the evidence it may be admitted that the trial court would have been justified in reaching a different conclusion as to the intention of the parties. Mrs. Boss testified that her intention in having the disputed clause inserted in the deed was to make sure that she would get the land west of the river. Her testimony is, in some respects, corroborated. On the other hand, the testimony of Cole leads to a different conclusion, certainly as to his intention in executing the deed and what he understood to be its purpose, and the conduct of Mrs. Boss in some degree weakened her statement. The testimony and also the documentary evidence on the point are in open conflict. It was the province of the trial judge to reconcile conflicting evidence and inferences derivable therefrom. If we are correct in our view that resort to extrinsic evidence was justified, the rule that where there is a substantial conflict this court will not interfere with the conclusions of the trial court leaves us without power to look farther. The manifestly firm and honest conviction of counsel for appellant that we are in error in holding that extrinsic evidence was admissible has led us to re-examine the question, but, with our present lights, we are still of the opinion that such evidence was properly taken. Indeed, this to our minds is the principal question in the ease and, fortunately for appellant, if we are wrong, he has an adequate and speedy method to correct our error.

Behearing is denied.

Hart, J., and Burnett', J., concurred.