Opinion
Rehearing Denied March 3, 1930
Hearing Granted by Supreme Court April 7, 1930
Appeal from Superior Court, Kern County; Erwin W. Owen, Judge.
Action by Levi Cohn and another, special administrators of the estate of Charles Cohn, deceased, against E.A. Klein and another. From a judgment for plaintiffs on pleadings, and an order denying defendants’ motion for judgment on pleadings, defendants appeal. Reversed, and order denying defendants’ motion on pleadings affirmed. COUNSEL
Emmons, Aldrich & Mack, of Bakersfield, and W.W. Kaye and Bruns & Mooney, all of Los Angeles, for appellants.
F.E. Berton and James Petrini, both of Bakersfield, for respondents.
OPINION
BARNARD, J.
This is an appeal from a judgment in favor of the plaintiffs, on the pleadings. The complaint was filed by the plaintiffs, as special administrators of the estate of Charles Cohn, deceased. It alleges that the said Charles Cohn died on June 22, 1926, and that, at the time of his death, "the said Charles Cohn was the owner in fee and entitled to the possession and in possession of that certain property, situate in the City of Bakersfield, County of Kern, State of California, and commonly known as the Midland Hotel on 19th Street in said city, including the building and the lot or parcel of land upon which said building stands, and was also the owner in fee and entitled to the possession and in possession of that certain property in the City of Bakersfield, County of Kern, State of California, located on 19th Street and commonly known as the Vernon Hotel, including the building and the parcel of land upon which said building stands." It then alleges that on June 25, 1926, one of the defendants caused to be recorded in the county of Kern a certain written instrument, dated August 2, 1926, a copy of which is set out in full in the complaint. This instrument, although in the form of an agreement between the said Cohn and one of the defendants, purports to convey the properties in question to the other defendant herein, the same to take effect upon the death of Cohn. It is then alleged that the defendants have no interest in the real property involved, other than such as arises by and through the said instrument. It is further alleged that the defendants have served notice upon the tenants on the properties involved, claiming and asserting themselves to be the owners of said properties.
The amended answer contains the following: "Said defendants deny that at the time of the death of Charles Cohn as alleged in paragraph two of the complaint, he was the owner in fee or otherwise or at all of either the Midland Hotel as described in said complaint or the Vernon Hotel as described in said complaint or of the buildings or either of them, or the lots or parcels of land upon which said hotels or either of them then stood and now stand or any of the said property."
There is also included a further special defense and counterclaim, in which the instrument mentioned in the plaintiffs’ complaint is set out in full, and the same is alleged to be a deed, with allegations that the same was delivered to one of the defendants during the lifetime of the said Charles Cohn, and that the plaintiffs are wrongfully withholding from the defendants the possession of said properties. There is then set forth another separate affirmative defense, practically to the same effect, but with slightly different averments in regard to the delivery of the instrument in question.
The trial court granted the plaintiffs’ motion for a judgment upon the pleadings, and the defendants have appealed. Apparently the trial court was of the opinion that the instrument in question showed upon its face that it was not a deed, and therefore concluded that the plaintiff was entitled to a judgment on the pleadings. Respondents in their brief present the argument thus: "Here the complaint alleges and the amended answer accepts and asserts that the sole claim of defendants is under the instrument in dispute. The instrument is fully before the court in both pleadings, and if, as respondents claim, it bears upon its face the incontrovertible evidence of its complete invalidity, respondents were entitled to judgment on the pleadings, unhampered by any general rule of pleading." As the court said in Patchett v. Webber, 198 Cal. at page 451, 245 P. 422, 426: "The difficulty with respondents’ position on this phase of the case is that they have overlooked the well-known rule that in actions of this nature a party must prevail upon the strength of his own title and not upon the weakness of another’s."
This action was apparently not brought under sections 3412 and 3413 of the Civil Code, as it is based, and the motion under consideration was made and granted, upon the theory that the instrument, a copy of which is set up in the complaint, is void upon its face. We take it, the action is one under the provisions of section 738 of the Code of Civil Procedure, and, as such, is subject to the usual rules of quiet title actions. While it is true that the allegation in the complaint as to the possession of the property is not denied in the answer, it is also true that the matter of possession need not be alleged. Hyatt v. Colkins, 174 Cal. 580, 163 P. 1007; Davis v. Crump, 162 Cal. 513, 123 P. 294. This being true, there was no necessity for denying that allegation. The particular and controlling issue in an action to quiet title is as to the ownership of the property in controversy. Flood v. Templeton, 152 Cal. 148, 92 P. 78, 13 L.R.A.(N.S.) 579. It has been held that a denial in the answer of an allegation in the complaint that a plaintiff is the owner of particular land is sufficient to put in issue the question of title. Casci v. Ozalli, 158 Cal. 282, 110 P. 932; Peterson v. Plunkett, 4 Cal.App. 302, 88 P. 283. The issue as to plaintiffs’ ownership of the premises here involved was directly raised by those portions of the complaint and the amended answer, which are above quoted. The issue having been thus raised, the general rule of law that a plaintiff in a quiet title suit must prevail, if at all, on the strength of his own title, rather than on any weakness in the claims of his opponent, must prevail. Rocky v. Vieux, 179 Cal. 681, 178 P. 712; Patchett v. Webber, supra; Biaggi v. Mainero, 60 Cal.App. 608, 213 P. 541. In Williams v. City of San Pedro, etc., Co., 153 Cal. at page 49, 94 P. 234, 236, the court said:
"It is elementary that a plaintiff in an action to quiet title cannot prevail unless he shows title in himself. If he has no title he cannot complain that some one else, also without title, asserts an interest in the land. Pennie v. Hildreth, 81 Cal. 127, 22 P. 398; United Land Ass’n, etc., v. P. Imp. Co., 139 Cal. 370, 69 P. 1064, 72 P. 988; City of San Diego v. Allison, 46 Cal. 162; City and County of San Francisco v. Ellis, 54 Cal. 72; Winter v. McMillan, 87 Cal. 256, 22 Am.St.Rep. 243, 25 P. 407; Heney v. Posoli, 109 Cal. 58, 41 P. 819; McGrath v. Wallace, 116 Cal. 551, 48 P. 719; McKenzie v. Budd, 125 Cal. 602, 58 P. 199; Schroder v. Aden G.M. Co., 144 Cal. 630, 78 P. 20. A defendant in such an action may always effectually resist a decree against himself, by showing simply that the plaintiff is without title."
In the instant case, defendants had a right to attack the plaintiffs’ title to the real property involved, irrespective of whether or not the instrument, which seems to be the principal ground of controversy, was, in fact, a valid deed, or not. Under defendants’ denial of the allegations in plaintiffs’ complaint that the said Charles Cohn was the owner in fee of the property many other defenses were available to the defendants other than their reliance upon the instrument in question. If it be assumed that the instrument in question did not constitute a deed, and that the defendants’ claims under said instrument were worthless, it was still incumbent upon the plaintiff to prove his own title, and, this having been flatly denied in the answer, an issue was raised which should have been heard on its merits.
While a judgment on the pleadings may be an appropriate remedy where no material issues are raised by the complaint and the answer, it cannot be granted where the answer raises an issue as to any of the material allegations of the complaint. Cass v. Rochester, 174 Cal. 358, 163 P. 212, 213; Neale v. Morrow, 174 Cal. 49, 161 P. 1165. Nor is the rule any different where, as here, the two separate defenses relate more particularly to the instrument set forth in both the complaint and the separate defenses in the answer. These separate defenses merely set up additional matters, other than the previous denial of the plaintiffs’ title. In any event, as is stated in Cass v. Rochester, supra:
"*** A defendant has the right to plead inconsistent defenses, and, if one of them denies material allegations of the complaint, judgment cannot be rendered on the pleadings, even though the matter thus denied may be admitted in another defense. Nudd v. Thompson, 34 Cal. 39; Botto v. Vandament, 67 Cal. 332, 7 P. 753."
The defendants also filed a motion for judgment on the pleadings, which was denied by the court, and an appeal is also taken from that order. It is a sufficient answer to this portion of the appeal to call attention to the fact that the answer of the defendants sets up affirmative allegations as to new matter, including the allegation that the instrument in question is a deed, that it was delivered by the said Charles Cohn, in his lifetime, to the said Ethel Klein, and that it was delivered with the intent that it take effect immediately. All of these allegations, and others, under section 462 of the Code of Civil Procedure, are deemed to be denied by the plaintiffs. Assuming the instrument in question to have been a valid deed, upon its face, such defenses as fraud, undue influence, incompetency, and the like, were available to the plaintiffs, and it is possible that some such defense might have successfully prevailed against a deed that was otherwise valid.
If this action be considered as one under sections 3412 and 3413 of the Civil Code, rather than under section 738 of the Code of Civil Procedure, the result is the same. In that event, a holding that the instrument was invalid upon its face, necessary for a judgment for the plaintiffs on the pleadings, would conclusively show no cause of action was alleged, under these two sections. Nor would a judgment for the defendants, on the pleadings, be justified, merely because the validity of the deed appeared upon the face of the instrument, for the reasons above stated.
We cannot escape the conclusion that there were issues here that required a hearing on the merits, and that the judgment on the pleadings in favor of the plaintiffs, was improperly entered. It therefore becomes unnecessary to take up the other questions raised. The order granting plaintiffs’ motion for a judgment on the pleadings is reversed, and the order denying defendants’ motion for judgment on the pleadings is affirmed.
We concur: SLOANE, P.J.; MARKS, J.