Opinion
Rehearing Denied.
Appeal from a judgment of the Superior Court of Fresno County. M. K. Harris, Judge.
COUNSEL:
The suppression of falsehood in the action to quiet title, that the estate of McLaughlin was the owner in fee of the property, when it only held a mortgage interest therein, was a fraud which vitiates the judgment. (Civ. Code, secs. 1571, 1572; California Beet Sugar Co. v. Porter , 68 Cal. 372, 373; Archbishop v. Shipman , 69 Cal. 589; Black on Judgments, secs. 366-71; Whittlesey v. Delany 73 N.Y. 571; Freeman on Judgments, secs. 489-93; Roseman v. Canovan , 43 Cal. 116; Edson v. Edson , 108 Mass. 590; 11 Am. Rep. 393; Adams v. Adams , 51 N.H. 388; 12 Am. Rep. 134; Hayden v. Hayden , 46 Cal. 333; Poindexter v. Waddy , 6 Munf. 418; 8 Am. Dec. 749.) The action having been brought within three years from the discovery of the fraud was in time. (Code Civ. Proc., sec. 338, subd. 4; Moore v. Moore , 56 Cal. 89; 2 Pomeroy's Equity Jurisprudence, sec. 917; Gleason v. White , 34 Cal. 258; People v. Blankenship , 52 Cal. 619; Preston v. Preston , 95 U.S. 200.)
J. C. Black, for Appellants.
W. C. Graves, for Respondents.
The complaint was insufficient, as it shows no diligence to ascertain the facts. (Butler v. Vassault , 40 Cal. 74; Mulford v. Cohn , 18 Cal. 43; Boston v. Haynes , 33 Cal. 37; Allen v. Currey , 41 Cal. 318; Whitney v. Kelley , 94 Cal. 146, 155; 28 Am. St. Rep. 106; Zellerbach v. Allenberg , 67 Cal. 296; Davis v. Chalfant , 81 Cal. 627, 631.)
JUDGES: In Bank. McFarland, J. Harrison, J., Garoutte, J., Temple, J., and Henshaw, J., concurred. Van Fleet, J., deeming himself disqualified, did not participate.
OPINION
McFARLAND, Judge
This is an action to have canceled and set aside a judgment rendered in a certain action in which Kate D. McLaughlin, executrix of Charles McLaughlin, deceased, was plaintiff, and Laura J. Hildreth (plaintiff herein) and others were defendants, rendered on the second day of February, 1888, quieting the title of plaintiff therein to certain land. This present action was not brought until more than five years after the entry of the judgment sought to be canceled. A general demurrer to the amended complaint was sustained, and plaintiffs failing to further amend, judgment was rendered for defendants. Plaintiffs appeal.
The demurrer was properly sustained. In the complaint no facts are averred showing any diligence on the part of appellants, at the time of the pending of said action of Kate D. McLaughlin v. Laura J. Hildreth et al ., to discover what they now allege to have been a defense to said action. One of the principal averments is that a certain deed to Charles McLaughlin, absolute on its face, was in fact a mortgage, and that the plaintiff in said action concealed the fact that it was a mortgage from the defendants therein (appellants herein). The only concealment consisted in the fact that Mrs. McLaughlin averred in her complaint that she, as successor to Charles McLaughlin, owned the land in fee; the defendants therein demurred to the complaint, and the demurrer being overruled, they failed to answer, and there is no averment in the complaint in the present action that they took any steps to inform themselves as to what they now aver to have been the real facts. Indeed, it affirmatively appears from the complaint that they were guilty of gross carelessness; they aver, for instance, that they can now prove by the records of the probate court, then in existence, that in the inventory of the estate of Charles McLaughlin filed by Mrs. McLaughlin she stated that the only interest which the estate of said Charles had in the land in contest was a mortgage interest secured by a deed absolute on its face, but given as a mortgage. If this be true there was a public record at the time of said action which would have been evidence of the fact claimed to have been concealed. We think that the averments of the complaint are totally insufficient to warrant a decree setting aside a solemn judgment of the court of record, especially after it has stood for so long a period unchallenged.
The judgment is affirmed.