Lestrade v. Barth

19 Cal. 660

• Court: California Supreme Court
• Decided: July 1, 1862
• Status: Published

Opinion

Field, C. J. delivered the opinion of the Court

Norton, J. concurring.

This is an action of ejectment to recover the possession of certain premises situated in the city of San Francisco. The complaint is in the ordinary form. Both parties deraign title from the same source—from Vardeman Bennett, to whom an Alcalde grant of lot designated No. 48 on the map of the city, embracing the premises in controversy, was issued in 1847. Bennett died in August, 1849; and the plaintiff claims by conveyance from his heirs, and upon the evidence produced by him presents a prima facie case entitling him to recover. To the action, the defendant by his amended answer— filed by stipulation between the parties since the case was before this Court at the January term, 1861—sets up an equitable defense, alleging, in substance, that in March, 1849, Bennett sold the premises now in the occupation of the defendant to one Serrine, and that in July following, Serrine sold them to Salmon & Ellis, under whom the defendant claims ; but that in the conveyance from Bennett to Serrine an erroneous description of the premises was given, the error arising from a mistake made as to the location of the eastern line of the lot No. 48 ; that from this mistake the premises were described as “ the eastern part ” of the lot containing thirty feet in front on the street, and running back fifty varas—whereas, in fact, the premises were twenty-six feet and six inches from the true eastern line ; that this mistake was common to the neighborhood, and was made by the owners of the adjoining lots; that it arose originally with Bennett in taking possession and inclosing his lot; that the consequent misdescription has continued through all the intermediate conveyances from Serrine to the present occupant; and that the plaintiff took his deed from the heirs with actual notice of the sale of the premises by Bennett, and of the subsequent sales down to the one to the defendant, and of the error -in the description contained in the several conveyances. The answer concludes with a prayer that the defendant may be adjudged the owner of the premises, and that the plaintiff be decreed to convey them to him by a good and sufficient deed, and for general relief.

Under our system of practice, equitable defenses may be interposed to the action of ejectment; that is to say, a defendant may set up in his answer such matter as would, if presented by a bill in equity, entitle him to affirmative relief against the action. But as we have had frequent occasion to observe, the defendant in such cases becomes an actor with respect to the matter presented by him, and his answer must contain all the essential averments of a bilf in equity. The defense to an action of ejectment must meet the present claim of the plaintiff to the possession ; and in order that an equitable defense may avail, the equity presented must be of such a character that it may be ripened, by the decree of the Court, into a legal right to the premises, or such as will estop the plaintiff from the prosecution of the action. The equitable defense should, therefore, be first passed upon by the Court, as according to the determination of the claim of the defendant to the relief he seeks will the necessity of proceeding with the action at law depend. (Arguello v. Edinger, 10 Cal. 160 ; Estrada v. Murphy, 19 Id. 248 ; and Weber v. Marshall, Id. 447.) This is the proper practice in such cases, for it serves to keep the equitable and legal matter distinct, and to prevent what would otherwise frequently ensue—confusion and embarrassment in the progress of the action. We had occasion to refer particularly to this subject in the case of Weber v. Marshall. We there held that it was irregular to submit to a jury all the legal and equitable defenses together. “ It does not by any means follow,” we said, “ that a jury must be called to pass upon an equitable defense to an action of ejectment. The parties are entitled to a trial by jury upon the legal issues; but the Court, sitting to administer equitable relief, either by way of defense to an action of ejectment or affirmatively, sits as a Chancellor, and, in the exercise of equitable powers, may or may not order an issue or issues to a jury in its discretion ; but in a great majority of cases, the Judge can as well pass upon the facts as a jury, and may do so with a great deal less delay and expense. It is only when the evidence is very contradictory, and the question turns on the relative credibility of witnesses, or in such exceptional instances, that the Chancellor calls in the aid of a jury to assist him in sifting and ascertaining the facts.”

In the present case, the matter constituting the equitable defense was submitted to the jury, and a general verdict rendered for the defendant. This mode of proceeding was irregular, but as no objection was taken to it in the Court below or raised in this Court, we will not give to the irregularity any influence in the determination of the appeal. We have called attention to it, as it is desirable that the .practice when once settled should be uniformly followed.

The questions on the merits are : 1st, whether the equity asserted by the defendant is sufficient to justify a decree giving him affirmative relief against the action ; and 2d, whether the evidence produced in the case establishes that equity.

1. The equity asserted is, that the premises occupied by the defendant were the premises sold and intended to be conveyed, and that there is an error in their description in the several conveyances, and its sufficiency for the relief sought depends upon the point whether the necessary parties are before the Court. The jurisdiction of Courts of Equity to correct an error in any material particular of a written agreement, either executory or executed, so as to make the instrument conform to the intention of the parties, is well settled. And it matters not whether the error be in the insertion or omission of a material stipulation ; or, as alleged in the present case, in an inaccurate description of the subject matter of the agreement. Nor does it make any difference whether the error be the result of fraud in one of the parties, or be committed under a mutual mistake, contrary to the intention of both parties. “A Court of Equity,” as justly observes Mr. Justice Story, “would be of little value if it could suppress only positive frauds, and leave mutual mistakes, innocently made, to work intolerable mischiefs, contrary to the intention of parties. It would be to allow an act, originating in innocence, to operate ultimately as a fraud, by enabling the party who receives the benefit of the mistake to resist the claims of justice under the shelter of a rule framed to promote it.” (1 Eq. Jurisp. sec. 155 ; see also 1 Sugden on Vendors, ch. 3, sec. 11 ; Townshend v. Stangroom, 6 Ves., Jr. 328 ; Henkle v. Royal Assurance Co., 1 Ves., Sen. 319 ; Hunt v. Rousmaniere’s Administrators, 1 Pet. 12 ; Gillespie v. Moon, 2 John. Ch. 586 ; Tilton v. Tilton, 9 N. H. 392 ; Peterson v. Grove, 20 Maine, 363 ; Clopton v. Martin, 11 Ala. 187 ; Beardsley v. Knight, 10 Ver. 190 ; Goodell v. Field, 15 Id. 448 ; Bailey v. Bailey, 8 Hump. 230.)

The inquiry then is, whether the necessary parties are before the Court to justify the exercise of its equitable jurisdiction in the present case. The answer setting up an equitable defense, being in the nature of a bill in equity, must, as we have stated, contain all its essential requisites. Such defense can as a consequence only be interposed Awere the parties to the action are such as would be required to a bill in equity seeking the same relief. We are of opinion that the plaintiff is the only person who would be deemed an indispensable party defendant, upon the facts alleged in the answer set forth in an independent suit for the correction of the misdescription of the premises. Upon the facts alleged, the heirs of Bennett never possessed in their Own right any estate in the premises occupied by the defendant. That estate had been sold by their father, though the legal title did not pass, from the error in the description of the premises, in the conveyance given. They were at best only trustees of the legal title, holding it for the purchaser from their father, or those claiming under him, and bound to transfer it whenever requested. The plaintiff receiving, according to the allegations of the answer, the conveyance from the heirs, With knowledge of the sale and error in the description, took the legal title subject to the same trust, and bound by a like obligation to transfer it when called upon for that purpose. And it is not per-

ceived that any good end would be subserved by uniting the heirs as parties with him in a suit to enforce such transfer. No decree could pass against them, either in favor of the defendant or as between them and the plaintiff. Taking the conveyance according to the answer, with knowledge of the facts of the case, the plaintiff could not ask a decree against the heirs for reimbursement of any moneys paid as a consideration for the conveyance, or for any other purpose. The proper parties being, then, before the Court, the defendant was entitled, upon proof of the equity asserted by him in the amended answer, to relief against the action. Whether that equity was established by the evidence produced is another matter, which we shall hereafter consider. The form in which relief will be given, when a mistake in a material particular is established in a written agreement, must necessarily depend upon the circumstances of the particular case. Courts of Equity have a wide discretion in such matters, their object being to give parties the same beneficial result which would have flowed from the agreement had the mistake never existed. In the present case, that object would have been effected by a conveyance from the plaintiff, and had the equitable matter presented been first heard by the Court, according to what we have indicated to be the proper practice, a direction for such conveyance would undoubtedly have been embodied in the decree, pursuant to the prayer of the answer. And as the execution of the conveyance would have taken from the plaintiff any right to proceed with the action of ejectment, a provision enjoining the further prosecution of the action might also have been inserted. In Gillespie v. Moon (2 John. Ch. 585) the description of the property by metes and bounds in the deed embraced a tract of fifty acres not intended to be included, and the Court relieved against the mistake by decreeing that the defendant release and convey the fifty acres to the plaintiff, with covenants against his own acts.

2. The second question for consideration is, whether the evidence produced by the defendant establishes the equity asserted by him. The evidence shows that Bennett sold and intended to convey, and the grantees purchased and believed they had received a conveyance of the premises occupied by the defendant. The repeated declarations of Bennett; his conduct in fencing the lot; the location of his own building; and the agreement as to the partition wall between himself and Salmon & Ellis leave no doubt whatever on this point. They show a mistake on the part of vendor and purchaser as to the location of both the eastern and western lines of the lot, a mistake which affected the description of the premises in the first and all subsequent conveyances. The evidence of Bennett’s declarations and conduct was admissible to show the mistake, relief from its consequences being sought by application to the equity jurisdiction of the Court. From the very nature of the case such evidence must be admissible, or mistakes in written agreements could in few instances be rectified. And so all the authorities hold. The evidence, it is true, must be clear and convincmg, maldng out the mistake to the entire satisfaction of the Court, and not loose, equivocal or contradictory, leavmg the mistake open to doubt. (See Story’s Equity Jurisp. Secs. 152 to 159 inclusive, and the authorities there cited.) After the death of Bennett no claim was made, m the administration of his estate, to the premises occupied by the defendant. They were not treated as part of the estate, but on the contrary, the mistake in the location of the eastern fine having been ascertained, that portion of the lot lying east of these premises was not considered as having been sold, but was disposed of for the benefit of the estate. And not until June, 1858, nearly nhie years after the death of Bennett and the commencement of the present action, was any pretense put forth, so far as the record discloses, that the heirs retained m their own right any mterest m the premises m controversy. Nor does it appear that the plamtiff gave any valuable consideration for the conveyance from the heirs. The conveyance oEy purports, accordmg to the stipulation of the parties, to have passed all “ them right, title, estate and interest ” m the premises. But it is immaterial whether or not he Ed give such consideration. He took the conveyance with notice of the equitable mterest of the defendant, and therefore subject to the right of the defendant to enforce such mterest. It is true, the evidence does not sustam the allegation made m the answer of actual notice to the plaintiff of the sale of the premises by Bennett, and of the subsequent sales down to the defendant, and of the error made E the description contained m the several conveyances; it shows, however, a state of facts which equally affected him. The defendant was in the open, notorious and exclusive possession and occupation of the premises, having valuable and lasting improvements thereon. This possession and occupation were sufficient to put the plaintiff upon inquiry as to the interest, legal or equitable, which the defendant held in the premises, and that inquiry should have been made of the defendant thus in possession and occupation. If he failed to make this inquiry, he is not entitled to any more protection in his purchase than if he had inquired and ascertained the real facts of the case. (Hunter v. Watson, 12 Cal. 363, and cases there cited, and Pritchard v. Brown, 4 New Hamp. 404.) We are clearly of opinion that the equity asserted by the defendant in his amended answer is sufficiently established by the evidence, and that it entitled him to the affirmative relief he seeks.

The view we have taken of this case renders it unnecessary to notice in detail the several objections to the rulings of the Court below urged by the appellant. Most of them are inapplicable when the equitable character of the defense is considered; and the others are sufficiently answered by the authorities we have cited.

Judgment affirmed.