Opinion
Appeal from the District Court, Fourth Judicial District, city and county of San Francisco.
The defendant recovered judgment in the Court below, and the plaintiff appealed.
COUNSEL:
F. D. Colton and E. A. Lawrence, for Appellant, argued that, prior to the adoption of the Code, an equitable defence could not be set up in ejectment, and that the Practice Act only enlarged the legal remedy, and did not compel a defendant to ask affirmative relief. They also argued that the fact that the equitable title was first pleaded in the ejectment suit and then withdrawn, did not affect the case; and cited Doty v. Brown, 4 N.Y. 71; and Davis v. Talcott, 14 Barb. 620.
Temple & Thomas, for Respondents, argued that a judgment was final and conclusive, not only as to every matter thereby determined, but as to every other matter which the parties might have litigated in the case, and which they might have decided; and cited Le Gruen v. Gouverneur, 1 Johns. Cas. 492; and Loring v. Mansfield, 17 Mass. 394. They also insisted that plaintiff might have set up his equitable defence in theejectment suit; and cited Arquello v. Edinger, 10 Cal. 159; and Estrada v. Murphy, 19 Id. 248; and that the law would not permit plaintiff to withdraw his equitable defence in order to institute the present action. As to a judgment in ejectment being an estoppel, they cited Caperton v. Schmidt, 26 Cal. 479.
JUDGES: Shafter, J. Neither Mr. Chief Justice Currey nor Mr. Justice Sawyer expressed any opinion.
OPINION
SHAFTER, Judge
This is an action to compel the specific performance of a contract to convey. The defendant, Catharine Waters, alleges in her answer that she brought an action of ejectment against the plaintiff some two years prior to the commencement of this suit, to recover the premises included in the alleged contract to convey, and that Hough set up the said contract as a defence in that action, and that the contract was denied by special replication; that the case was thereafter tried and judgment recovered by Waters for the possession of the land, which judgment is now in full force.
It appears from the record that the equitable defence set up in Waters v. Hough was withdrawn by consent before the trial.
The question presented is whether the judgment in favor of Waters, in the action of ejectment, estops Hough from maintaining this action for specific performance.
We do not consider the question an open one in this State. The point was directly presented in Lorraine v. Long, 6 Cal. 452, and it was held that although a party may set up an equitable defence to an action at law, he is not confined to that proceeding. He may let judgment go at law and file his bill in equity for relief. And it was further considered, while the Practice Act enlarges the field of remedy, that it does not take away preexisting remedies by implication. This decision has been acquiesced in and acted on as settled law by the profession from the time it was rendered; and so far as we are advised, its correctness has never been the subject of judicial doubt. To reverse this decision at this late day would involve a sacrifice not of this case merely, but presumably of many others instituted or to be instituted upon the faith that the decision would be adhered to. If the rule established by the case is found to be of evil consequence, the Legislature can correct it. The case of Morrison v. Wilson, 13 Cal. 497, and Gray v. Dougherty, 25 Cal. 277, are not opposed to Lorraine v. Long, when rightly understood. They were not intended to obliterate the established distinction between legal rights and remedies and equitable rights and remedies, nor in any manner to affect the rule in question.
Judgment reversed, and new trial ordered.