Opinion
Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.
This is an action by a married daughter against her father to compel the execution of a second deed to certain premises, the first deed having been lost before it was recorded. The property had been conveyed by the plaintiff and her husband to the defendant in trust, to be reconveyed to plaintiff as her separate property. The cause was referred to the Court Commissioners, who reported findings in favor of the plaintiff. Thereupon the plaintiff moved for judgment, which was denied, and, on motion of the defendant, the Court dismissed the complaint, ordering judgment for the defendant. The plaintiff appealed.
COUNSEL:
Quint & Hardy, for Appellant, cited Cummings v. Coe , 10 Cal. 529, and Swift v. Arentis , 4 Cal. 390, in support of plaintiff's right to the deed: and as to the allegations of the complaint, they relied upon Parrot v. Byers , 40 Cal. 622.
John M. Burnett, for Respondent, referred to Hoody v. Hoard, 2 Carter, Ind. 474, and Warrall v. Mann , 17 N. Y., 476, on the first point, and on thesecond he cited Connelly v. Pierce, 7 Wend. 129, and Fuller v. Hubbard, 6 Cowen, 1. He also argued that equity could not be invoked as long as plaintiff had a clear, speedy and adequate remedy at law. That an action in ejectment was the proper remedy, if out of possession. If in possession, a suit to quiet title, under the statute, was the remedy.
OPINION By the Court:
1. The complaint contains a sufficient averment as to a demand for a deed having been made upon the defendant. It alleges as follows: " Plaintiff, on the 26th day of February, 1870, demanded of defendant the execution of another deed conveying said property to plaintiff, and then and there offered to pay the expenses thereof, and the defendant failed and refused, and still fails and refuses, to make or deliver such or any deed to plaintiff." There was no necessity to make a second demand after the lapse of a reasonable time from the making of the first demand. The rule prevailing in the State of New York in that respect, and relied upon by the counsel for the respondent, does not exist in this State. (Gray v. Dougherty , 25 Cal. 266.)
2. Nor can there be any doubt that the plaintiff stated a case in her complaint which entitles her to a deed from the defendant. The deed she had received from him had not been recorded, but had been lost or mislaid, and could not be found after diligent search, and she was thereby deprived of the written evidence of her title. The fact of loss being averred, and nothing appearing to show that the loss was willful on her part, the question of the degree of mere negligence, if any, by which the loss was occasioned, is not to be considered, unless it be with reference to costs. Even gross neglect upon her part in the preservation of her title papers would not forfeit her estate, nor bar her claim to be relieved against their loss. In Cummings v. Coe , 10 Cal. 529, relief in this form was given where the deed had been accidentally destroyed by fire. " The jurisdiction," we said in that case, " is maintained in such cases where the destruction would create a defect in the deraignment of the plaintiff's title, and thus embarrass the assertion of his rights to the property." No distinction upon principle is perceived between the case of the accidental destruction of the instrument by fire, and that of its accidental loss by any other misfortune of the party.
The other points do not require a particular notice.
Judgment reversed and cause remanded for further proceedings.