Rogers v. McCartney

*35 SMITH, J. The suit was brought against various parties to quiet the plaintiff’s title to numerous lots of land, comprising, among others, the lot in question; which is described as “lot 5, block 42, Ralph Rogers’ subdivision of blocks 41 and 42 of the Garvanza Addition No. 1, as per survey, map and record thereof, as appearing in book 15, page 54, Miscellaneous Records of said county.” The case was submitted upon an agreed statement of facts, which is substantially embodied in the findings of the court. Judgment was entered in favor of Seharff against the plaintiff and some of the defendants quieting his title to the lot in question. The plaintiff appeals from the judgment and an order denying her motion for a new trial. From the agreed statement (which was the only evidence) it appears that both parties deraign title from Ralph Rogers, who was formerly the owner of the lot in question; and that on May 12, 1887, Seharff purchased from Rogers, for the sum of $425, the lot described in a deed from Rogers to Seharff of date August 2, 1888, as “lot No. 5, in block 42, at Garvanza, according to a map recorded in book No. 9, pages 45 and 46, Miscellaneous Records.” Rogers had previously conveyed to one Childress, “in trust for the various purchasers and their assigns,” etc., a number of lots described in a tabular list, among which appears the lot described in the deed; and he had also made to him a power of attorney to execute conveyances of the lots conveyed. The deed in question was signed “Ralph Rogers [Seal], By A. D. Childress, as trustee and his attorney in fact.” It appears, however, that the map recorded in the book at the page referred to does not contain any block 42, but that there is such a block and number in the subdivision' and map referred to in the description of the lot in question in the complaint, recorded in book 15, page 54, which is the only map of Garvanza, or of any additions or subdivisions of lands adjacent thereto, containing a block No. 42; and it is further agreed that said block 42 is adjacent to the town of Garvanza and is popularly and generally" known and treated as a part of the town or locality of Garvanza. The defendant Seharff has also a deed from Childress as trustee, of date June 29, 1903, correctly describing the lot by reference to the map in book 15, page 54; it being recited that the deed was given to correct errors in the former deed between the same parties. *36 The plaintiff deraigns title under a deed of January 2, 1892, from Ralph Rogers, to Lydia Conway, to whose title she has succeeded, and a deed from Childress of date December 13, 1902, to herself, in which the lot is described as in the complaint. There is no allegation, evidence, or finding that the plaintiff purchased without notice, or for valuable consideratio n and it may be doubted whether, in the absence of the fact appearing, she can avail herself of the claim that she is such purchaser. (Alcorn v. Buschke, 133 Cal. 657, 658, [66 Pac. 15], and cases cited; Beattie v. Crewdson, 124 Cal. 579, [57 Pac. 463].) But we will assume, with appellant’s counsel (for the purposes of the decision only) that the question is whether “the description in said deed to Seharff was sufficient to give constructive notice to an innocent purchaser for a valuable consideration” of the lot correctly described; and this question, we think, must be answered in the affirmative. Upon the agreed facts, there can be no doubt that the lot described in the deed from Rogers to Seharff is the lot more correctly described in the complaint; nor do we think that upon proper inquiry the plaintiff or her grantors could have failed to ascertain this fact. It follows that the judgment and order appealed from must be affirmed; and it is so ordered. Gray, P. J., and Allen, J., concurred.