Maguire v. Cunningham (64 Cal. App. 536, 1923)

WORKS, J.

This action was commenced in the county of Los Angeles. The complaint consists of three counts. The first of these is in the ordinary form of a complaint to quiet title, but the real property involved lies in the county of Alameda and in the city and county of San Francisco. The second count partakes of a hybrid character, being in form a complaint to quiet title to the real property described in the first count and to personal property consisting of $3,000 in cash. The third count is for the recovery of money had and received in the sum of $3,000. Plaintiff had judgment and the interveners appeal.

Before disposition is made of the appeal a preliminary matter engages our attention. Appellants move the court “to dismiss the . . . action, and for an order . . . ordering and directing” the trial court “to dismiss said action, and for an order and decree therein that” the trial court, “and, therefore the above-entitled court, never had jurisdiction of said action, or right or power to try the same.” The motion is made “on the ground that said action involves the title to real property, all of which is situated, lying and being in the county of Alameda, . . . and that said action was commenced in the superior court in and for the county of Los Angeles, . . . and not commenced in the superior court in and for the county of-Alameda, ...”

Whatever may be said of the first and second counts of the complaint, it is at once evident that the grounds upon which the motion is based do not reach the third count. The cause of action there pleaded, plainly, does not involve the title to real property, situate in the county of Alameda, or elsewhere. Accordingly, the motion, addressed as it is to the action in its entirety, falls to the ground. As we we cannot under the motion dismiss the cause of action pleaded in the third count, we cannot dismiss the action as a whole.

There may be some question whether the motion made by appellant is proper practice. We are, therefore, not to be understood as passing upon that point. It is also to be understood that we are not determining several questions which appear to present themselves on the face of the complaint: 1. Does the second count set forth two causes of action without separate statement? 2. If it does not, is the first count properly joined with the other two? 3. Is the third count properly joined with the other two? These questions will receive mention later.

The motion made by appellants was an afterthought, that is, the notice of the motion was served and filed long after the filing of both appellants’ opening brief and the brief of respondent Michael Edward Maguire. Respondent Cunningham, administrator, has filed no brief. The point made in support of the motion is under the statute available on appeal, for the right to object to the jurisdiction of the court is always open (Code Civ. Proc., sec. 434), at least, in favor of a defendant—and we state this qualification, for reasons which will hereafter appear, because the presentation of the point under the motion here is made by appealing interveners. We are now confronted with the question whether we shall consider the question of jurisdiction as arising upon the appeal, notwithstanding the fact that it is not presented in the briefs on appeal, but only in the briefs under the motion. We have concluded that it is our duty to do so. In the first place, the point is one which arises under the constitution of the state (art. VI, sec. 5), the provision also finding its echo in the Code of Civil Procedure (sec. 78). It is the settled policy of the state that actions to quiet title, and certain others which affect real property, shall be commenced in the county in which the real property is situated. Moreover, the question is one which cannot be waived (Fritts v. Camp, 94 Cal. 393 [29 Pac. 867]). Further, by the presentation of the motion appellants haVe indicated a desire to avail themselves of this state of the law, and it appears to us that we should allow the point the same effect upon the appeal, provided, of course, that it possesses merit, that it would have had under the motion if the latter had been addressed to the separate counts of the complaint, and not to the pleading as a whole. Again, the point has been argued under the motion and it is therefore fully before us, in form at least. For these reasons we shall proceed to consider it upon the appeal, after we have made disposition of a point made by the appearing respondent, to whom we shall hereafter refer as if he were the sole respondent.

Respondent contends that appellants, being interveners, may not raise the question of jurisdiction, because of the well-established rule that an intervener must take the action into which he projects himself as he finds it. This principle has found expression in many cases, but none of them supports the contention made by respondent here. In fact, the statement of the rule, in terms, that is, that an intervener must take the action “as he finds it,” would seem to exclude the contention of respondent. Objections to the jurisdiction and the objection that a complaint does not state facts sufficient to constitute a cause of action are always open to the defendants (Code Civ. Proe., see. 434), and we have already seen that the objection that there is no jurisdiction of the subject matter cannot be waived (Fritts v. Camp, supra). So the interveners “found” this action when they were permitted to intervene. As the original defendants could have objected to the jurisdiction as well after the intervention as before, it seems that the same right must inhére in the interveners. From an examination of the authorities on the subject we are satisfied that the rule for which respondent contends is correctly stated in a note to Walker v. Sanders, 123 Am. St. Rep. 276, 292, thus: “It is sometimes said that an intervener must take the case as be finds it, and by this is generally meant that he cannot avail himself of or urge irregularities in the proceeding which the original parties have expressly or impliedly waived, nor of defenses which are personal to them. ’ ’ Later on in this same note are one or two general statements which seem to uphold the contention of respondent, it is true; but an examination of the cases cited in support of them will show that the editor in making them did not have in mind such a question as is presented here, that is, whether the trial court had jurisdiction of the subject matter. It certainly cannot be the law that an intervener cannot object that the complaint in the action in which he intervenes fails to state a cause of action. The contrary has been directly decided (Hanchett v. Gray, 7 Tex. 549). We are convinced that the right to object to the jurisdiction must be placed in the same category.

It cannot be questioned that appellants’ objection to the jurisdiction, as applied to the first count of the complaint, taking it alone, is good; and we say “taking it alone” for the reason that we shall later have something to say of the pleading in its entirety as made up of three counts. It will be remembered that the first count was presented to the superior court in and for the county of Los Angeles for the purpose of quieting title to real property in the county of Alameda and in the city and county of San Francisco. Under both constitution (art. VI, sec. 5) and code (Code Civ. Proc., sec. 78) an action to quiet title to the Alameda property could have been commenced only in that county, and a similar action involving the San Francisco property could have been commenced only in that city and county. The presentation of the first count of the complaint to the Los Angeles superior court, remembering still that we are considering it alone, was an idle act, as that court had no jurisdiction to receive it, nor to try the issues tendered by it after receiving it (Urton v. Woolsey, 87 Cal. 38 [25 Pac. 154]; State v. Royal Consol. Min. Co., 187 Cal. 343 [202 Pac. 133]). In fact, the filing of such an action in a county other than that in which is situated the real property involved is so completely a nullity that the venue cannot be changed to the county in which the property lies, for no court can have jurisdiction of such an action unless it was commenced in the county where the land is situated (Urton v. Woolsey, supra. See, also, Fritts v. Camp, supra; Duffy v. Duffy, 104 Cal. 602 [38 Pac. 433]). The trial court had no jurisdiction over the subject matter of the first count of the complaint, standing alone.

We meet a greater difficulty when we come to consider the second count, which has for its purpose the quieting of title to the Alameda and San Francisco parcels of real property and also to personal property consisting of $3,000 in cash. Does this count state but a single cause of action, or does it in its essence include two causes of action? This question is one of great moment, for it is settled that an action “must be wholly local in its nature to require it to be brought in the county” wherein is situated the property which is the subject matter of the action (Weyer v. Weyer, 40 Cal App. 765 [182 Pac. 776], See, also, State v. Royal Consol. Min. Co., supra). The right to maintain an action to quiet title to personal property is of recent origin in this state, having been created in 1921 by an amendment to Code of Civil Procedure, section 738 (Stats. 1921, p. 542), and whether a claim to quiet title to both real property and personal property may be included in the same complaint without separate statement has never been determined here, nor in fact, so far as we can discover, elsewhere. It is the rule in this state, however, as to actions to quiet title to real property, that but one cause of action is presented where a complaint seeks to quiet title to many parcels of land, even if they be noncontiguous, provided only that the conflicting claims to all the parcels be between the same parties (Pennie v. Hildreth, 81 Cal. 127 [22 Pac. 398]), and the same rule seems also to prevail in Colorado (Mitchell v. Knott, 43 Colo. 135 [95 Pac. 335]). Is there not in these cases a condition which is analogous to the subject of our present inquiry? It is the same section of the Code of Civil Procedure, section 738, that confers the right to maintain actions to quiet title to both real and personal property. Before the amendment of 1921, the opening language of the section was, “An action may be brought by any person against another who claims an estate or interest in real property, adverse to him,” etc. The amendment consists in the insertion of the words “or personal” between the words “real” and “property.” If under this provision a conflict may be waged, under the same complaint, between those who have opposing claims to many parcels of real property, no matter how different the chain of title of each claimant to each parcel may be—and nothing on this latter head is shown in the ordinary complaint to quiet title—we can see no good reason why a similar contest may not be carried on, under the same complaint, between parties who hold adverse claims to a city lot and to a piano. It has been said in a case in which the right to maintain an action to remove a cloud on the title to personal property was in question: “Any distinction between real estate and personal property in this respect must be purely artificial, and tend to hinder the practical administration of justice.” (Earle v. Maxwell, 86 S. C. 1 [138 Am. St. Rep. 1012, 67 S. E, 962].) The court then upheld the right to maintain the action, independent of statute. That right did not exist in this state until section 738 of the Code of Civil Procedure was amended in 1921, but by that amendment the legislature yielded recognition to the fact that in respect to the right to maintain actions to quiet title the distinction between real property and personal property is artificial. At any rate, if it did not recognize that artificially, the legislature by the amendment wiped out any distinction which had theretofore existed in that respect between the two kinds of property. Under section 738, property is property, whether it be realty or personalty, and the logic of Pennie v. Hildreth, supra, compels us to hold that in the second count of the complaint now before us there was properly included respondent’s right to quiet title to both the real property and the personal property mentioned therein. Therefore, as the cause of action stated in that count was not wholly local, the trial court had jurisdiction of the entire subject matter of it.

We find the complaint, then, in this condition, disregarding for the moment any possible question of misjoinder of causes of action and considering each count as if it stood alone: The trial court had no jurisdiction of the subject matter of the first count, while it had jurisdiction of the subject matter of both the second and third. We need not consider the question of joinder as between the first and second counts, for the reason that the latter included the entire subject matter of the former. Touching the question of joinder as between the second and third counts—granting for the sake of argument, which we do not decide, that there is such a question—no demurrer on that. ground was ever interposed. There being no question of jurisdiction involved in the point, it was waived by failure to demur (Code Civ. Proc., sec. 434). It therefore appears, to sum up the situation, that the trial court had jurisdiction to quiet title to real property described in the second count, to quiet title to personal property in the form of $3,000 in cash, and to determine whether respondent was entitled to judgment for money had and received in the sum of $3,000. It is to be noted that throughout the foregoing discussion we have assumed, without deciding, that cash is personal property within the meaning of section 738 of the Code of Civil Procedure. This we have done for two reasons: First, the point that cash is not such personal property is not made in the briefs on appeal; second, those briefs assure us that the $3,000 mentioned in the second and third counts is one and the same sum of money. This latter reason is controlling because evidence entitling respondent to judgment quieting title to the money would also entitle him to judgment for money had and received, and the trial court made its findings of fact, conclusions of law, and judgment in favor of respondent, as to the $3,000, upon each of the two theories.

We now take up the questions presented by the briefs upon the appeal. The case was one in which a surviving husband sued the administrator of the estate of his deceased wife for the purpose of procuring decree that the property mentioned in the three counts of the complaint was the community property of the spouses before the death of the wife, and not her separate estate, as claimed by the administrator. The interveners were nieces and nephews of the decedent, the Maguires never having had children of their own. The interest of the decedent in a part of the real property described in the complaint, laying aside for the moment the question as to the nature and character of the funds by-means of which it was acquired, arose because of the fact that her husband has made to her conveyances of that part of the property by way of deeds of gift. The record title as to this property stood in the wife at her death under these deeds of gift. One of the contentions of appellants is that the evidence was insufficient to overcome the presumption, arising from the deeds of gift to the wife, that the property conveyed thereby was her separate estate. The point really is, in effect, that the evidence was insufficient to support a finding of the trial court that the property mentioned was community property, for under the issues framed upon the complaint the presumption was merely a part of the evidence in the case tending to show that it was not community property (Foivler v. Enriqu-ez, 56 Cal. App. 107 [204 Pac. 854]). In order to determine whether the court’s finding in this regard is supported by the evidence it will be necessary for us to recapitulate a part of the testimony concerning the propgrty covered by the husband’s deeds of gift to the wife. In doing so we shall refer to it by parcel numbers, as far as may be, in accord with the designation employed in respondent’s brief, although it will be observed that testimony quoted as to specific parcels will in part often refer to the entire property. To avoid more than a mere statement of the testimony we shall resort frequently to the use of italics. Respondent himself testified as to parcel I: “At the time that that property was bought ... I was interested in playing the races in Oakland. I had this amount of money . . . and for fear I would spend the money at the race-track, I bought the property. ... I thought it was better to buy the property than to take a chance to spend it on the races, . . . and I thought it would be a little nest egg . . . for my wife, m case anything was to happen to me. That was the whole reason I gave it to her while she was living, but I never intended— and everything we ever had, ... it was always between us; if she had a thousand dollars and I says, 1 Give me nine hundred and ninety,’ she would give me nine hundred and ninety; I would give the same thing to her. ...” Respondent testified concerning parcel II: “As I deeded the other property to her prior to that time—to protect myself—to protect myself and to give the property to Mrs. Maguire for fear that at any time—my name was good in Oakland, sir,—I could bet on the races at $5,000, if I wanted to, without having to put up any cash, . . . but for fear I would bet and lose our property, I gave it to the wife; I made the deed to her in order to protect myself. That was the whole, sole reason for it all.” Respondent had the following to say as to parcel III: “Z wanted to secure my wife. I was an extravagant man, and in case anything happened to me in my extravagance, I wanted to have her secure ivhile she lived, that everything I had belonged to her. . . . Q. That was the only reason you put it in her name? A. The only reason in the world I put it in her name; she never asked me to put it in her name, but I wanted to secure her.” The property can be treated no further as to specific parcels, the remainder of the testimony being either general as to all three parcels, or relating to some one piece or other which we are unable to identify from the briefs as any particular one of the designated parcels. It is to be observed, however, as an aid to an understanding of the testimony, that the three parcels constitute the whole of the Alameda County property, all of which lies in Oakland. The whole of the San Francisco property was held by the husband and wife, in her lifetime, under deeds running to them both as tenants in common. To proceed with the testimony: Respondent testified that one of the pieces of Oakland property had buildings on it when it was purchased, that certain improvements on the buildings were paid for by him in cash, that whenever any repairs had to be made tenants came to him about them, that he hired carpenters, plumbers, painters, or paperhangers whenever anything was to be done and paid them in cash which he either took from his pocket or drew from the bank, that he paid taxes on the property with cash which was “Michael and Bridget Maguire’s. It was my cash at the time,” that later the taxes were taken care of by an agent (whose testimony will be mentioned later), and that respondent attended to the insurance on the buildings. Respondent also testified: “Q. Was there ever any conversation between yourself and your wife as to what would become of this property in case she should outlive you? . . . A. Well, she said—she would always say, ‘If I die first, .the ' property goes to you, and if you die first the property goes to me.’ . . . She said Toeing as it is community property, then the property goes to the one that is living. That is what she always said.” Respondent further testified that during all the time that he and -his life lived in Oakland he collected all rents on the rented property there, and that at other times the rents were collected by the agent already mentioned. This agent, one George D. Troy, of Oakland, testified that Mr., and Mrs. Maguire removed from Oakland to Los Angeles in the latter part of 1918. The record shows that Mrs. Maguire died in the latter place on June 15, 1920. Mr. Troy further testified that he collected the rents on the Oakland rented property from the time that the husband and wife removed to Los Angeles until the trial of the present action, in July, 1921, that when he collected rents during the entire time, about three years, he mailed to respondent drafts for amounts collected, together with statements showing collections, that on an occasion in March, 1919, when Mrs. Maguire was in Troy’s office while on a visit to Oakland he showed her one of these statements which he had just made out, that then, to quote him, “I told her I had a certain amount of money here and didn’t care to keep it and I would give it to her, and gave her a copy of the statement.” He also read the statement to her and she made no objection to its form. This paper was introduced in evidence at the trial. It was headed “Rents Collected to Date for M. E. Maguire.” Then followed eight items of rent collected, with a total of $380. Next came the heading, “Money Paid Out on Account of M. E. Maguire,” followed by nine items of expenditure, totaling $160. A balance of $219.90 was then struck and the statement closed. Mr. Troy also testified that Mrs. Maguire once said to him, after she had received the deeds of gift from respondent, that the property was earned by Michael and it was only right that he should have it should anything happen to her, and that she talked to him, Troy, about making deeds of gift back to respondent before she should die.

The above is a goodly portion of the evidence pointed to by respondent as bearing upon the finding that the property in question was the community property of the spouses, despite the fact that deeds of gift had been made by the husband to the wife. We have found it unnecessary further to refer to or quote from the evidence. No matter what the opposing showing may have been, in addition to the presumption arising from the deeds of gift, we are satisfied that the finding receives a substantial support from the evidence to which we have adverted.

Appellants contend that the filing of a claim or demand against the estate of his wife, pursuant to the terms of Code of Civil Procedure, section 1500, to the effect that “No holder of any claim against an estate shall maintain any action thereon, unless the claim is first filed with the clerk, or presented to the executor or administrator, except,” etc., was a necessary prerequisite to the maintenance of this action by respondent. As no such claim was filed, they ask for a reversal on that ground. Appellants also insist that the trial court erred in overruling objections made to the competency of respondent as a witness under the language of Code of Civil Procedure, section 1880, subdivision 3, providing that parties to an action cannot be witnesses if the action is “against an executor or administrator upon a claim or demand against the estate of a deceased person,” and if the testimony of such party relates “to any matter of fact occurring before the death of such deceased person.” These two points may be treated together, as they are both concluded by Bollinger v. Wright, 143 Cal. 292 [76 Pac. 1108]. The legal question in that ease was identical with the last of the two which we have just stated, that is, the one arising under Code of Civil Procedure, section 1880, and the case was in principle like the present one. The court said: “We are of the opinion that the witness was competent and the evidence properly admitted. The controversy is not concerning a claim or demand against the estate of deceased within the meaning of the section. It is concerning the property of plaintiff and to quiet a claim or demand or title asserted by the estate of such property. The question to be determined is as to whether or not the interest held by deceased under the deed is the property of the estate or the property of plaintiff: If it is not the property of the estate, then the action does not involve a claim or demand against the estate. To hold that the claim or demand in controversy here was a part of the estate, and thus render the witness incompetent, would be to determine in advance the very question at issue.” The point in the case cited, it is true, relates specifically to the question presented here under section 1880, only, but the reason of the opinion is directed as clearly at the point raised under section 1500. This is shown by the sentence, !