Opinion
Rehearing Granted Nov. 28, 1928.
In Bank.
Action by Clara E. Newport and others against W. H. Hatton and others. Judgments for defendants, and plaintiffs appeal
Affirmed.
Appeal from Superior Court, Stanislaus County; George F. Buck, Judge.
COUNSEL
Grant & Zimdars, Beverly L. Hodghead, Henry E. Monroe, C. F. Humphrey, and Chas. A. Shurtleff, all of San Francisco, and L. J. Maddux and Nathan B. McVay, both of Modesto, for appellants.
Frank Thunen, Herbert Chamberlin, Redman & Alexander, and James F. Peck, all of San Francisco, D. M. Maclean and S. P. Elias, both of Modesto, Leslie K. Floyd, of Los Angeles, Thomas M. Anaya, W. J. Brown, H. L. Chamberlain, L. E. Jones, A. J. Carlson, Dennett & Zion, Griffin, Boone & Boone, Hawkins & Hawkins, T. B. Scott, Joseph M. Cross, J. M. Walthall, Albert L. Johnson, and F. O. Hoover, all of Modesto, J. W. Coleberd, of South San Francisco, and Brown & Chamberlain and Griffin & Boone, all of Modesto, for respondents.
Pillsbury, Madison & Sutro, of San Francisco, amici curiae.
OPINION
WASTE, C. J.
Claiming to be the owners in remainder, subject only to a life estate in their mother, of a quarter section of land situate in Stanislaus county, the plaintiffs instituted this action to establish such ownership, to remove an alleged cloud upon their title, and to recover the proceeds derived from sales of the land. The facts and circumstances giving rise to this litigation are very fully set forth in an opinion of this court, heretofore handed down, reversing the judgment entered on an order sustaining demurrers to the complaint without leave to amend. Newport v. Hatton, 195 Cal. 132, 231 P. 987. The plaintiffs’ present appeal is from the judgment entered after a trial on the merits. Preliminarily, it may be said that plaintiffs, upon this appeal, have abandoned their pursuit of the proceeds of the sales of the land in controversy because of their confessed inability to trace the same into the hands or possession of the defendants charged in the complaint with the receipt thereof. In support of their claim of ownership of the land in remainder, the plaintiffs set forth at length in their complaint certain events which transpired during their minority, and which culminated in a tax sale of the premises and the entry of a fraudulent and collusive judgment in an action entitled Plato v. Newport, and having for its purpose the quieting of the title of the purchaser at a tax sale as against a life tenant and the plaintiff remaindermen. As certain of the defendants herein deraign title under the Plato judgment, the plaintiffs upon the trial urged that by reason of the fraud practiced in its procurement that judgment was and is void. The court below so found, but further found thar the defendants claiming thereunder were bona fide purchasers for value without notice, and therefore entitled to protection in the assertion of their respective claims to the land. This latter finding is not assailed by the plaintiffs upon this appeal. Both upon the prior appeal and herein the plaintiffs concede, as stated in the opinion heretofore filed, that—
‘Any person acquiring title to any part of the property in good faith, and without knowledge of the fraud, is fully protected, notwithstanding the interests of the plaintiffs. Their rights cannot prevail over those of innocent purchasers in good faith and for value.’
As to this, there can be no dispute. Stern v. Judson, 163 Cal. 726, 735, 127 P. 38; Doyle v. Hampton, 159 Cal. 729, 734, 116 P. 39.
The only attack the plaintiffs now make upon the judgment entered by the court below in favor of the defendants claiming under the Plato judgment is that the latter judgment is void for its asserted uncertain and inadequate descritpion of the property involved. The land in controversy was described in the Plato judgment as: ‘The fractional northwest quarter of section twenty-nine (29), township three (3) south, range nine (9) east, Mount Diablo Base and Meridian, in the County of Stanislaus, State of California, the said land being the land which is described in the complaint and in the answer in this action.’
Despite plaintiffs’ assault upon the Plato judgment, the court below found it not to be void for indefiniteness of description, declaring in its findings that—
‘The land described in the judgment in the action of Plato v. Newport et al., is all of the northwest quarter of section 29, excepting therefrom that part of the said quarter section assessed by the Modesto Irrigation District for the year 1894 to Charles Maze, and excepting that portion of the quarter section which in the year 1894 was owned by the Central Pacific Railroad Company, and this court concludes that the said description in said judgment is not void for indefiniteness or uncertainty, and that the plaintiffs are not entitled to a judgment against the defendants herein claiming title to that part of the land described in the complaint in the instant case which is included in the judgment in the case of Plato v. Newport et al., as hereinabove defined, who are bona fide purchasers for valuable consideration without notice as elsewhere in these findings set out, but on the contrary, the said defendants who are such bona fide purchasers for valuable consideration without notice are entitled to a judgment herein as against the plaintiffs declaring that they, the said defendants, are the owners of said lands as described in their respective answers, and in support of the foregoing conclusion of law that the said description in the judgment in the case of Plato v. Newport et al., is not void for uncertainty, and in explanation of the said conclusion, this court finds as follows:
‘That the attempted description of the property sought to be affected by the judgment in the case of Plato v. Newport et al. is insufficient and void so far as any description is set forth in any of the pleadings in said case, or in the judgment or decree or in the judgment roll in said action. That by reference to the transcript of the reporter’s notes of the proceedings of the trial of said action filed therein as set forth in Finding 107, and not otherwise can it be ascertained from any paper or record in said action of Plato v. Newport, that the claim of title of the plaintiff in said action was based on the tax certificate and tax deed attached as exhibits to the complaint in the instant case. That in said tax certificate and tax deed reference is made to the assessment rolls of the Modesto Irrigation District for the year 1894 as a basis for the tax sale proceedings; that said assessment rolls were not introduced in evidence at the trial of said case of Plato v. Newport et al., but were introduced at the trial of the instant case; that by an examination of said assessment rolls, and not otherwise, it is the conclusion of this court that the judgment in said action of Plato v. Newport et al. was designed and intended to affect and described all of the northwest quarter of said section 29, excepting and eliminating therefrom those parts or portions of said quarter section which were assessed for the year 1894 to Charles Maze, and further excepting and eliminating therefrom the interest or right in the said quarter section retained or owned by the Central Pacific Railroad Company as shown by the terms and limitations contained in said deed set out in Finding 1, subdivision (g).’
It is the contention of the plaintiffs and appellants herein that the description of the property as given in the Plato judgment is fatally defective, that recourse can be had to the judgment roll alone in an effort or attempt to supply any deficiency in such description, and that the court below erred in calling to its assistance evidence extrinsic to the judgment roll in the action of Plato v. Newport to bolsten up the description contained in the judgment therein entered. Appellants go further and assert that such extrinsic evidence, even if admissible to assist in the identification of the property, falls short of accomplishing that result. In support of these contentions it is urged that a description which ‘simply refers to the land sought to be affected as part of a larger tract without any reference to its boundaries or to the extent of its acreage or in some way to indicate with certainty to which part the reference is made is bad. * * *’
The contention as to the inadequacy of the description in the Plato judgment was also advanced by the appellants upon the former hearing herein, and in the decision then handed down (supra) this court said:
‘Applied to judgments, the rule is that the description in a judgment affecting real property should be certain and specific, and that an impossible, wrong, or uncertain description, or no description at all, renders the judgment erroneous and void. (33 Cor. Jur. p. 1209, par. 147.) The same work is authority for the declaration that the judgment may be aided by intendments and additional data drawn from the pleadings and other parts of the records, or even, in some cases, by extrinsic documentary evidence. We do not see how a judgment can be pronounced a nullity for uncertainty of description unless the court can see that nothing is described. Those claiming under it must rely on the description, it is true, but whether or not the description is defective must be tested by rules of evidence ordinarily applied to the subject. * * * The plaintiffs in this case have not made it clear that the land described in the judgment quieting title is so uncertain that the property cannot be identified and established with sufficient certainty, by the application of the ordinary rules of evidence, to define the rights of the parties.’
It must be borne in mind that the attack now made by the appellants upon the Plato judgment is a collateral attack, and for that reason must fall unless said judgment is an absolute nullity. In De Supulveda v. Baugh, 74 Cal. 468, 474, 16 P. 223, 226 (5 Am. St. Rep. 455), it is declared:
‘I cannot see how a judgment can be pronounced a nullity for uncertainty of description, unless the court can see that nothing is described. But here the description is not even uncertain or doubtful. It simply does not come up to some ideal standard laid down by the courts as more convenient for them and their officers. The true rule would seem to be that the judgment is not void. That the purchaser must, however, rely upon the description, and if it be found so defective when tested by rules of evidence ordinarily applied to the subject that nothing can be found, he will fail, otherwise he should recover.’
As intimated by the quotation from our former opinion in this case, we are of the view, despite the trial court’s finding to the contrary, that the Plato judgment is not void on its face for want of an adequate description of the property in controversy. For all that appears on the face of the judgment, it may have described the property in a manner best known to persons familiar therewith. It is by no means essential that, from a mere inspection of the description, the court should be enabled to know what lands are intended. In 15 R. C. L. 595, § 33, it is stated:
‘While in the description of real estate, as in other particulars, a judgment must be reasonably certain in its terms, the tract may be designated by some name not understood by the court, but perfectly familiar to all persons acquainted with the neighborhood in which the land is situated. Evidence may be received to show the signification of such a name, or to show that any other descriptive words, though apparently meaningless or uncertain, do in fact designate a particular tract in such manner that its identity would be apparent to persons with whom it is familiar. Thus it has been held that a judgment in ejectment describing the land as ‘fraction No. 12, a part of the southeast quarter and northeast quarter of section 16, township 4, range 4, containing 34.75 acres,’ is not void on its face for uncertainty in description.’
Along this same line seel, also, 1 Freeman on Judgments, 167, § 96; Threlkeld v. Allen, 133 Ind. 429, 32 N.E. 576, 577; Carlisle v. Killebrew, 91 Ala. 351, 8 So. 355, 24 Am. St. Rep. 915, 917. The court, in the case of Little Rock, etc., Co. v. Evins, 76 Ark. 261, 88 S.W. 992, held the following description appearing in a deed to be sufficient: ‘N.E. fr. quarter of the N.E. fr. quarter section 22-8-22 W.’ Again, in Key v. Ostrander, 29 Ind. 1, 6, a mortgage instrument described the property covered thereby as ‘the north-east quarter of section 36, in township 13 north, of range 9 west, north of Otter Creek, containing forty acres, lying in Vigo County, Indiana.’ This description was held adequate, the court declaring:
‘A practical difficulty might possibly arise in the actual location of the land by the description, but the existence of any such difficulty is not patent on the face of the deed. * * *’
In answer to a contention that ‘a deed is evidentiary, and may be helped out by other evidence, while a decree is final and determinative,’ it was held in De Sepulveda v. Baugh, supra, that ‘the distinction is illusory.’
Aside from our conclusion that the Plato judgment is not void on its face so as to permit of the collateral attack herein directed at it, we are of the opinion that the court below properly permitted the introduction of extrinsic evidence to explain away any uncertainties as to the exact parcel of real property intended to be covered thereby. The case of De Sepulveda v. Baugh, supra, permitted the introduction in evidence of public records referred to in the judgment there assailed in order to identify the property intended to be affected. As we read the opinion in that case, it contains nothing prohibiting, as the appellants would have us hold, the introduction of extrinsic evidence to explain away any possible uncertainty in a description of property appearing in a judgment. The case of Smith v. Biscailuz, 83 Cal. 344, 360, 21 P. 15, 23 P. 314, is authority for the introduction of such evidence. There, in an action to quiet title, a probate decree was attacked because of its asserted inadequate description of a portion of the property. This court said:
‘Is the decree to be pronounced ‘a nullity for uncertainty of description,’ ‘because’ the court can see that ‘nothing is described’? Is it one where the description is so defective that ‘the purchaser,’ relying ‘upon the description,’ and applying the ordinary rules of evidence to such a matter, can find nothing? If not, then the decree on a collateral attack, such as this, is not void. (De Sepulveda v. Baugh, 74 Cal. 468 [16 P. 223, 5 Am. St. Rep. 455].)
‘It is conceded here, upon all sides, that Jordan purchased the property for a valuable consideration. And the description in the decree, under the test of the application of the ordinary rules of evidence to the subject, can readily be shown to represent a specific and certain piece of land, the property of the decedent at the date of his death.
‘The decree of distribution is not, therefore, void upon this attack for want of a description of the land in which Gay claims an interest.’
In an action in this state to recover possession of certain described real property, the trial court entered judgment for plaintiff, describing the property in its judgment as it was described in the complaint, but excepting therefrom such parts of the land ‘as were sown to grain by the defendant during the fall of 1890 and the winter of 1891.’ Upon appeal from the judgment the defendant contended that the judgment was void because of inadequate description of the premises intended to be affected. This court held that—
‘Prima facie the description appears to be sufficient, and no reason why it cannot be applied so as to identify the excepted land is suggested. The boundary lines of the land sown to grain by defendant during the fall of 1890 and the following winter must have been distinctly apparent on the ground from the time the grain was sown until some time after it was harvested; and if the marks by which such boundary lines were designated were subsequently removed or destroyed, their original location may be proved by extraneous evidence, as in cases of the removal or destruction of stakes or other monuments called for in deeds and patents. * * *’ Rosenthal v. Matthews, 100 Cal. 81, 83, 34 P. 624.
‘Any description adopted in a deed by which the premises intended to be conveyed may be established and identified, is sufficient; and it is the settled doctrine, for the purpose of sustaining a grant, extrinsic evidence may always be used to identify and establish the objects of the call in the deed.’ Colcord v. Alexander, 67 Ill. 581, 583.
We perceive no good reason why the rule should be different as regards descriptions of real property contained in judgments.
There is also presented herein an appeal by the plaintiffs from a judgment entered in favor of the defendants Central Pacific Railway Company and Southern Pacific Company, adjudging the former to be the owner in fee, and the latter, as lessee, to be entitled to the exclusive possession of a certain parcel of the quarter section already described, and paralleling their railroad tracks. The title or right of these particular defendants in and to this strip of land is founded upon the following clause appearing in a deed of conveyance from the patentee railroad companies to James M. Conley, executed in the year 1874:
‘Excepting and reserving, however, for railroad purposes a strip of land four hundred feet wife lying equally on each side of the track of the railroad of said company, or any branch railroad now or hereafter constructed on said lands, and the right to use all water needed for the operating and repairing of said reilroad.’
It has been the contention of plaintiffs throughout that this clause created and gave rise to a mere easement or right of way, while the defendants have insisted that it constitutes an exception of the land affected thereby. In determining whether a clause, such as that here involved, constitutes a reservation or an exception, the intention of the parties employing the same is, if possible, to be ascertained. 9 Cal Jur. 324, § 188. The mere use of the word ‘excepting’ or ‘reserving’ is not alone determinative of the question. Coon v. Sonoma Magnesite Co., 182 Cal. 597, 600, 189 P. 271. In view of the fact that the main railroad line had been constructed across the quarter section and actually existed at a time prior to the execution of the deed containing the clause now in dispute, thus giving definite location and identification to the strip to be affected thereby, we are not prepared to say that the court below erred in construing such clause to be an exception of the parcel rather than the reservation of an easement over the same. Butler v. Gosling, 130 Cal. 422, 425, 62 P. 596; Los Angeles, etc., R. R. Co. v. New Liverpool Salt Co., 150 Cal. 21, 24, 25, 87 P. 1029: Pritchard v. Lewis, 125 Wis. 604, 104 N.W. 989, 1 L. R. A. (N. S.) 565, 110 Am. St. Rep. 873. The cases of Coon v. Sonoma Magnesite Co., supra., and Biles v. Tacoma R. R. Co., 5 Wash. 509, 32 P. 211, cited by the appellants, tend to warrant the assumption that had the roads therein referred to been in existence at the time of the execution of the instrument there presented for interpretation, the conclusions announced would have been different. That the deed here in question abortively attempted to except a strip of land on either side of other railroad tracks to be thereafter constructed over the quarter section does not, in our opinion, alter the situation as regards the main line then in existence. We find no merit in appellants’ further contention that, by adverse possession, they acquired title to the strip of land excepted in the deed of 1874. Aside from other considerations, this particular contention lacks in persuasive force because of the fact that, since the entry of the Plato judgment in 1902, no part or parcel of the quarter section has been in the possession of the appellants or their predecessors in interest, but, on the contrary, has been in the occupancy and possession of persons claiming title thereto as against them. In view of what has been said, it becomes unnecessary to pass upon the merits of respondents’ motion to dismiss, upon technical grounds, the appeal from the judgment entered for the defendant railroad companies.
For the foregoing reasons, the judgments appealed from are, and each is, affirmed.
We concur: RICHARDS, J.; SEAWELL, J.; SHENK, J.; CURTIS, J.; PRESTON, J.