Marshall v. Shafter

32 Cal. 176

Opinions

By the Court, Rhodes, J.:

The leading question in this case, is whether the defendants can rely upon, and are protected by the recovery in the case of McMillan v. Richards et al., set up in their third answer by way of estoppel. Counsel have discussed the case with great ability, and have urged many points in support of their respective positions, and we have given them the attentive consideration that the magnitude of the interests involved, and the importance of the questions argued, would require at our hands; but the line of argument we shall adopt in deciding the controversy will render it unnecessary to discuss or even allude to very many of the propositions advanced. The rules laid down in Caperton v. Schmidt, 26 Cal. 479 ; Gray v. Dougherty, 25 Cal. 266 and Garwood v. Garwood, 29 Cal. 514, are decisive of every question necessarily arising in this branch of the case, and it will be unnecessary to go beyond the principles announced and affirmed in those cases. The plaintiff does not propose to attack the decision in Caperton v. Schmidt, nor deny the authority of any of the doctrines therein advanced, but insists that under that decision and those doctrines, the defendants cannot avail themselves of the former judgment as a bar, nor of the fact in issue upon which the recovery proceeds, as an estoppel in this action.

The leading facts out of which the controversy in the former case arose may be briefly stated as follows: Osio mortgaged the premises in 1851, and in 1853 he conveyed the legal title to Randall. Cary, the assignee of the mortgage, in 1854 obtained judgment of foreclosure, and the appeal taken therefrom by Randall was dismissed in 1856. ' The premises were sold under the foreclosure, June 14th, 1856, and were conveyed to Hyatt, January 19th, 1857, and within a month thereafter he conveyed the same to Richards, S. F. Reynolds, and J. Reynolds. On the 7th of February, 1855, McMillan filed in the Recorder’s office a transcript of the docket of a judgment in his favor against Randall, and under an execution issued upon the j udgment, the premises weré sold to McMil Ian, March 17th, 1856, and in pursuance thereof, on the 26th of December, 1856, the Sheriff executed to him a conveyance of the premises. On the 13th of December, 1856, McMillan served on the Sheriff a notice of redemption of the promises from the sale under the Cary foreclosure, and paid him a certain sum of money which, it was claimed on his part, operated as a redemption, and in 1858, subsequent to the commencement of the suit of McMillan v. Richards, the Sheriff, in pursuance of the redemption, executed a deed to Shatter, Park, and Heydenfeldt, as the vendees of McMillan. The District Court, in the case of McMillan v. Richards, gave judgment for the defendants, but on appeal the judgment was reversed, and it was ordered that judgment be entered for the plaintiff.

In this case the contest centers in the third answer. We shall not consider separately the demurrer to the answer and the objections to the admission of the judgment roll in McMillan v. Richards, for both questions rest on the same ground. The plaintiff contends that title, though it may have been a fact in controversy, was not a fact in issue in that case; that in order to ascertain what facts were in issue, we must look to the complaint alone. In view of the system of pleading and practice in force in this State, under which the defendant in ejectment may plead new matter, raising a material issue in the case, the argument of the plaintiff would not lead to the conclusion, that in the inquiry for the issues recourse must be had solely to the complaint. It is proper at this point, however, to say that it is settled beyond all controversy in this-' State that the defendant may, under the general denial, give in evidence title in himself, and it follows that the allegation of such title in the ahswer does not constitute new matter, and therefore the allegation of title in the defendant does not present a new issue.

What was the issue tendered in the complaint in McMillan v. Richards ? It is therein alleged that the plaintiff, on a day named, “ was possessed of certain lands therein described, which said premises the said plaintiff claims in fee simple absolute.” The plaintiff insists that this is not an allegation of ownership in fee, but amounts only to this, that the plaintiff claims such title, without saying that he in fact holds it; that a denial of that branch of the allegation would amount only to a denial that the plaintiff so claimed such title, which of course would be an immaterial issue in the action of ejectment. The defendant argues that the word “ claims” is equivalent to “says,” “avers,” “states,” or “shows.” But substituting either of those words for “claims,” it would be necessary to interpolate the words “ he owns,” or others of the same import, in order to make the sentence sufficient by itself to present the issue of title. “ Claim,” when used as a noun and in relation to land, has, in most of the States, a signification beyond that of a mere demand—a right not reduced to enjoyment but to be enforced against another—but it is used as well to express all the rights which a person holds and enjoys in the land. Pre-emption claims, homestead claims, and mining claims are familiar instances. A conveyance of the grantor’s claim to the land passes all the title he holds. And so of the verb “ claim.” In common speech, a person says he claims the land to which he has the title, and in a contest for the possession, each party, relying on title alone, would perhaps as frequently say that he claimed title, as that he held the title.

The allegation mentioned, is followed by the further allegation that he “ being so possessed thereof, and being so the owner thereof as aforesaid,” the defendant entered, ejected the plaintiff and unjustly withholds the possession, etc. This clearly indicates that the plaintiff intended to aver and understood that he had averred title in himself, in fee, and reading both averments together, whatever doubt may have arisen on account of the use of the word claims is cleared up, and the language must be construed to amount to an averment of title in the premises in fee simple absolute. The rule requiring the pleading to be most strongly construed against the pleader, does not require such a construction to be given (if it will reasonably bear a different one) as will make the pleading absurd. Such would be the case if the plaintiff should be held to have averred that he asked, sought for or demanded the title in fee. It may be doubted whether the rule of the common law invoked by counsel, has any application to a case like the present. (See Sec. 70, Practice Act; Nevada Co. & Sac. Canal Co. v. Kidd, 28 Cal. 683.) That the defendant in that case understood it as an averment of title, is apparent from the fact that no objection was interposed to the count on that ground, which would doubtless have been done, had they understood the averment as they now do ; for if that is not an averment of title in fee, there is nothing in that count showing that the plaintiff was still entitled to the possession. An examination of the opinion of this Court in that case, as reported in 9 Cal. 365, clearly shows that the Court understood the complaint to tender issue upon title; and though the point before us was not presented or expressly decided in that case, such must have been the construction of that allegation, for the whole decision goes upon the question of title.

The second count, though it clearly presents the issue of title in fee to the undivided third of the premises, need not be noticed, for both in the District Court and this Court, the contest was confined to title to the whole premises.

In our opinion, the title of the plaintiff in that suit was expressly put in issue by the pleadings.

The other and more important branch of the question is, was the title of the defendants in that action also at issue ?

No light is.thrown on this question by the answers in that case, which consist of general denials and the averment of title and the right of possession in themselves—the latter being, as we have said, a general denial in an argumentative form. The averment, when stated according to its logical effect, "is “ the plaintiff is not the owner or entitled to the possession, because the defendant is the owner and entitled to the possession.”

The findings in that case contain matters of evidence, facts in controversy, and facts in issue. It may be admitted without hesitation that it is impossible, under the very general system of pleading adopted and repeatedly recognized, as sufficient in this State, in the action of ejectment, to draw the line with accuracy between facts in controversy and facts in issue. It may be stated generally that the ultimate facts upon which the recovery is had—facts which if found the other way the recovery must have been different—are facts in issue. Thus, in Hardy v. Johnson, 1 Wal. 371, the recovery was based on the facts that the plaintiff was the owner of one undivided twentieth of the premises, and that the defendant was in possession without title. All the facts established by the plaintiff going to support his alleged title were probative facts, which, if disputed by the defendant, were facts in controversy ; and the ultimate fact in proof of which the probative facts were offered, was title in the plaintiff, and that was a fact in issue. In the former action the District Court did not directly find title in either party, but among the conclusions of law it is stated that the plaintiff (McMillan) was not on the day named, or afterward, the owner in fee simple absolute or otherwise, of the premises. That matter should have had its place among the findings of fact, and not the conclusions of law, for if title in fee or otherwise is a fact that may properly be alleged in the complaint, it is an ultimate fact that should be found by the Court. The findings show that McMillan had acquired the legal title from Randall, subject to Cary’s judgment of foreclosure and the sale made under it; that McMillan attempted to redeem from that sale; and that, in pursuance of the sale, the Sheriff conveyed the premises to Hyatt, and that Hyatt conveyed the premises to Richards and others, under whom the present plaintiff'claims. The contest, as appears from the findings, was narrowed down to a point in respect to the redemption, and as that should be determined, so must the title. • If the redemption was in fact made, the Sheriff’s deed to Hyatt was void; but if the proceedings to effect the redemption were not sufficient, then the deed to Hyatt took the legal title formerly conveyed to .McMillan. The District Court found that McMillan had not effected a redemption. Hyatt’s deed was therefore valid, and his vendees had judgment. On appeal, this Court held that the findings showed that the redemption had been made, and there fore Hyatt’s deed was unauthorized and void, and judgment was ordered against Hyatt’s vendees. The evidence reported in the findings, the facts in controversy and the facts in issue, all unmistakably point to an issue between the adversary titles claimed by the respective parties.

The same conclusion is reached when the question is looked at from another point of view. The object of the action of ejectment, so far as the form of the recovery alone indicates it, is to recover the possession of premises which the defendant unlawfully withheld from the plaintiff. The judgment for the plaintiff determines that he was entitled to the possession, at the commencement of the action and the rendition of the judgment. (Yount v. Howell, 14 Cal. 465 ; Calderwood v. Brooks, 28 Cal. 151; Hardy v. Johnson, 1 Wal. 371.) The gravamen of the action is the wrongful withholding of the possession. An ouster is usually distinctly alleged, but it is not necessary, for the wrongful withholding is an ouster, and none other need be proven. But although the direct result of a recovery is only a restitution of the possession, the action is still, like ejectment at common law, a suit for the trial of disputed titles to lands. The judgment proceeds on the sole ground that the plaintiff, when he recovers, is entitled to the possession as against the defendant; and when the judgment is for the defendant, in case he is found to be in possession, and the action is determined on its merits, it is given on the ground that he is entitled to the possession as against the plaintiff. It is the right to the possession as between the parties that is tried, and that fact, when ascertained, determines how the recovery shall be. This right to the possession is title—“ the means whereby the owner of lands hath the just possession of his property.” (Co. Lit. 345 ; 2 Black. Com. 195.) The actual title, it is true, may not be in either litigant. The plaintiff may rely upon the title presumed from the fact of prior possession, and the defendant in possession may rely safely upon the legal presumption of title until the true title or prior possession is shown to be in the plaintiff. But whether the title exists in presumption or is produced in fact, it is the title that prevails in the action. The Court adjudges that the plaintiff is entitled to the possession-of the premises, when it appears that his title is better than that held by the defendant, by presumption or in fact. The party who recovers, after a trial on the merits, is successful in the action, because his is the better title. We do not undertake to say that the parties may not by their pleadings, or in some other manner, limit the issues to a particular title; but when the plaintiff alleges that he is the owner in fee and entitled to the possession—under which of course he may prove a less estate —and it is adjudged that he recover the possession, the judgment is conclusive that his right to the possession—his title— is better than that held by the defendant. If the title of each party was not put in issue and determined in such case, it would be difficult, if not impossible, to say what was in issue.

The reports of this and other States, in which the actions in ejectment are abolished, are replete with cases deciding what evidence of title is or is not sufficient to maintain the action, and what title the defendant may show to defeat the recovery. It would be absurd to require, as has been repeatedly done, the defendant to set up in a supplementary answer in the nature of a plea puis darrein continuance, a title acquired by him after-issue joined, if his title was not drawn in issue. In Vance v. Olinger, 27 Cal. 358, the pendency of a former action by the same plaintiff against the same defendant, and for the possession of the same premises, was set up by the defendant, and it was held that the answer did not constitute a defense, because it did not also appear that the same title was in issue. In Wattson v. Dowling, 26 Cal. 125, it was considered that a purchaser from the defendant, pending the action of ejectment, was bound by the judgment as an instrument of evidence, to the same extent that the grantor would have been, had not the conveyance been made. This result could accrue only in consequence of the defendant’s title having been in issue.

It must be admitted by every one, that the recovery operates as an estoppel to this extent, to preclude the losing party from denying that as to him, the prevailing party was, at the time of the rendition of the judgment, entitled to the possession. It would seem necessarily to follow that in order ■ to avoid the estoppel the losing party must show some other right of possession than that which he had when the estoppel was created. He is bound to show such other right, because his former claim of right was determined by the recovery.

The plaintiff, while contending that a judgment for the plaintiff is only conclusive that on the day of the commencement of the action he had the right of possession, does not deny that when the plaintiff’s title is put in issue by the averments of the complaint, the recovery is conclusive of that issue, and may be relied upon as an estoppel in a subsequent action between the parties for the same premises. The averment of title we alluded to is such as is usually found in the complaint—the general allegation that the plaintiff is the owner, the owner in fee, or the like. If the trial is upon the merits, and the defendant in possession recovers, the recovery as an estoppel, works a complete extinguishment of the plaintiff’s title. Is it not possible for the defendant’s title also to be brought in issue, so that the adjudication, whether in its favor or against it, may also be pleaded or offered in evidence as an estoppel ? We have seen that the allegation of the defendant, that he is seized in fee, is no more or better than a general denial, and if his title—whatever it may be, so only it is a legal title—is not in issue under the denial, it will be necessary for him also to sue, notwithstanding he has just recovered judgment, if he desires an adjudication upon the question of Ms title. Concede, for the sake of argument, that the defendant’s title is not drawn in issue under the general denial, and suppose the plaintiff recovers, and that the defendant, not desiring to produce his evidence at that trial, sues the plaintiff in the former action and recovers. Each party then has the benefit of an estoppel in support of his own title— that is, an estoppel conclusive that the title is valid and sufficient when considered by itself, but not that it is valid when set in opposition to the title of his adversary. The process might be repeated ad infinitum with the same results. In tracing out such estoppels to their legitimate consequences, under the familiar rules that estoppels ought to be mutual, estoppel against estoppel, setteth the matter at large, etc., we might agree with Lord Coke that they are a “ curious,” but not that they are also an “ excellent sort of learning.” The truth is, there is but one title between the parties to the action to recover the possession of the premises, though there may be many evidences of title. It is impossible, that two persons claiming adversely to each other can at the same time hold such right or title in the premises as will entitle each as against the other to the possession. Each party to a contested action claims the title, out of which the right of possession springs, and the Court determines which of the two holds it. That is the matter which is adjudicated.

In McMillan v. Richards the defendants were in possession, and from that fact they were presumed to hold the title, and in addition thereto they showed a claim of title apparently regular from Osio. The plaintiff, in order to succeed, was bound to break the chain, and this he attempted to da by showing a redemption before the execution of the Sheriff’s deed under which the defendant claimed. As that fact should be determined, so must the title. The fact was important only as it related to title. It did not directly touch the possession. This Court determined that the redemption was suf"ficient, and consequently the plaintiff’s claim of title was valid and that of the defendants invalid, and the possession was ordered to be delivered to the party in whom was the title. The determination had a necessary bearing upon the defendant’s title, and in bolding that the redemption left the title in the plaintiff, it necessarily resulted that it did not pass to the defendants. The doctrine expressed in Capcrton v. Schmidt, that “the estoppel of the verdict and judgment is necessarily limited to the rights of the parties as they exist at the time when such verdict and judgment are rendered, and cannot preclude either party from showing that their rights have been varied or extinguished at a subsequent period,” would necessarily imply that whatever rights they severally possessed at the time to which the verdict and judgment relate (unless the issues were limited by the pleadings, by stipulation or otherwise) were settled by the recovery.

Mo sufficient reason, in our opinion, is given why the matters that have once been judicially determined in the action of ejectment, may be again drawn in question between the same parties, when they could not in an action of another character. In ejectment as in other actions, the parties rely strictly upon their rights in the matter in litigation. Mo argument can be drawn from the fact that the judgment is not that the plaintiff recover the title, but only the possession, for a similar result accrues in the action of replevin, though the title to the personal property is confessedly in issue. In trespass to lands, whatever may be the form of the issues, the recovery is only of damages, and yet, as in Outram v. Morewood, 3 East. 346, the losing party is estopped in another action from averring contrary to the title as found in the former suit. (See cases cited in note to Duchess of Kingston’s Case, 2 Smith’s Lead. Cases.)

The plaintiff contends that neither the deraignment of title, nor the redemption by McMillan, nor his payment for that purpose were in issue, but came only collaterally in controversy. For what purpose were they drawn in controversy? They would not of themselves show who was entitled to the possession, and would not have any direct bearing on that issue, and were only important as they tended to prove title, from which alone the right to the possession was deduced.

We are of the opinion that the third answer is sufficient in law, and that the former recovery and the issues found in that action estop the plaintiff in this action.

The offer to show that the redemption was not in fact made was properly rejected, for if the proof had been made it would have .shown that the judgment of this Court on the former appeal was improper and erroneous, and have thus directly overthrown the estoppel. The District Court will not assume the authority to revise the judgment of the Supreme Court. The door was not open for the introduction of the proposed proof, in consequence of the production by the defendants of the redemption deed, for they did not thereby go behind the estoppel set up by them, but they claimed that by virtue of the recovery and as a consequence of the adjudication of this Court, they were entitled to the deed.

The object of the suit of Shafter v. Reynolds was to set aside a certain deed in the hands of Elizabeth Reynolds, as a cloud upon the title of the plaintiffs in that action. It does not appear from the record in that case that the title now claimed by the present plaintiff was involved in the action. (Hamm v. Arnold, 23 Cal. 373; Hager v. Schindler, 29 Cal. 57.) And if it can be said that it was actually or necessarily in issue, it would be difficult to see how the adjudication could have been in their favor, for it must have been found that the plaintiffs in that action held the title, otherwise there would have been no basis for the judgment that the deed to Elizabeth Reynolds was null and void, and that she convey to the plaintiffs all the claim of title she derived through that deed. The Court could not have granted the plaintiffs any relief against the deed had it been found that title was in any of the defendants.

Judgment affirmed.