Zaccaria v. Bank of America National Trust & Savings Ass'n

Plaintiffs-appellants liberto Zacearía and his wife Carol, as owners, brought this action against defendants-respondents Bank of America National Trust and Savings Association, as trustee, Rim Conrad, and Robert and Emma Watkins, as beneficiaries, to set aside a trustee’s sale of certain described real property in Orange County under a trust deed executed by plaintiffs to secure the payment of an indebtedness for $3,408.12. They alleged that on September

A demurrer to the complaint was sustained with leave to amend. An amended complaint was filed alleging, in addition to the allegations of the original complaint, that the property had a true value of $17,500. It also set forth a letter written by defendant Martin on December 9, 1954, signed Pro-assistant cashier. It was directed to Mr. Zacearía, in which he made reference to the “foreclosure” of the trust deed by the beneficiary. It was further alleged that it was plaintiffs’ belief that from the use of this word there was a foreclosure action pending and he would have a period of redemption, when in truth and in fact it was a trustee’s sale with no right of redemption; that plaintiffs immediately attempted to redeem and were informed there was not right of redemption; that the trustee requested the beneficiaries to proceed with the sale knowing plaintiffs were confronted with financial problems and even though they did not desire to go forward with the sale. A motion to dismiss as to each defendant was presented. In said motion it was alleged that the judgment in the case of Conrad versus these plaintiffs, ease Number 64524, rendered in the Orange County Superior Court, was res judicata as to all issues tendered by this complaint. A judgment dismissing the action on this ground followed. The appeal is from this judgment.

The propriety of this judgment is the only point raised on this appeal and involves the issues presented in that case. The record in that action and affidavits used in support of the motion were brought to this court under proper motion to augment the record under rule 12(a), Rules on Appeal, which was granted. It was an action commenced by Rim

Appellants here claim that there was no prayer for a declaration of title in that complaint and accordingly no claim of title was put in issue and no title was decided, citing Johnson v. Fontana Fire Protection Dist., 15 Cal.2d 380 [ 101 P.2d 1092 ]; that an action in ejectment sounds in tort and is merely a possessory action to recover the possession of the property, citing Craviotto v. All Persons, 93 Cal.App. 346 [ 269 P. 760 ]; that accordingly, not being in issue and not being a necessary part of the action, title was not adjudicated by it, and res judicata does not apply.

It is true that in some instances the question of title is not necessarily resolved in an ejectment action. (17 Cal. Jur.2d 168, § 2 and cases cited.) However, ejectment may become the means of trying title, since either party may base his right to possession entirely on some claim of title. See Craviotto v. All Persons, 93 Cal.App. 346 [ 269 P. 760 ]; and Marshall v. Shafter, 32 Cal. 176 , where it was held that if the plaintiff, in his complaint in ejectment, avers title in himself, and the defendant interposes a general denial, the respective titles of the plaintiff and the defendant are put in issue. A judgment in ejectment as to all matters put in issue

! In the Conrad action plaintiff’s right to possession ■ rested solely on the title he acquired by virtue of the trustee’s deed particularly described in the complaint. It was there alleged that plaintiff was the owner in fee simple of the property by virtue of said deed; that defendants were in possession and plaintiff was entitled to such possession. The defendants answered and generally denied these allegations, which included the claim of title under said deed. Defendants there had the opportunity to protest plaintiff’s claimed right of possession by setting forth the claims here made with respect to any defective title involving the trustee’s sale. Either this was not done, or if done, there was an adverse ruling as to defendant’s claim. It appears to us that the record and pleadings in that action sufficiently establish that defendants there did place in issue the question of title to said property by virtue of said trust deed sale, and the court found and determined this issue when it held that plaintiff was “the owner of the property described in plaintiff’s complaint by virtue of a trustee’s deed, and that all right of and title of defendants has ceased.” Under the authorities cited

Judgment affirmed.

Mussell, J., and Shepard, J., concurred.