Solari v. Show

Fitzgebald, J. Action to quiet plaintiff's title to the land described in the complaint against the claims of defendant; and for the recovery of the possession thereof; also to cancel a tax deed issued to defendant therefor as a cloud on plaintiff’s title; and for rents and profits, and damages for withholding. Plaintiff had judgment, and defendant appeals from the judgment and the order denying his motion for a new trial. The evidence shows that plaintiff was the owner of the property described in the complaint at the date of its purchase by the defendant. This being so, it is only necessary to consider but two of the questions discussed by counsel in their briefs, as their decision necessarily disposes of the others raised by the record on this appeal. These questions are: 1. Did Domingo Grondoma who joined—individually and as attorney in fact of plaintiff—with his wife and son in the execution of the deed to defendant of the premises in controversy sustain or claim to sustain at and prior to the execution' thereof the relation of attorney in fact to plaintiff? 2. If so, did defendant purchase said property with notice, either actual or constructive, of such relation, and of plaintiff’s owfiership thereof? On these questions the court in its decision found adversely to appellant, and as the findings thereon, as well as the other findings attacked by the specifications, are fully justified by the evidence, they will not, under the [389] well-established rule of this court, be disturbed, unless the rulings of the court complained of in relation to the admission and rejection of evidence bearing upon these questions were erroneous. There are thirty assignments of error claimed to have been committed by the court during the trial of the cause, but the only one necessary to be noticed, the others being immaterial or unimportant, is the one relating to the admission, against defendant’s objection, of an unverified complaint signed by the attorney alone, the contents of which were not shown to have been known to the plaintiff therein, filed September 1, 1887, in a certain action brought in the superior court of Santa Barbara county, notice of which was thereafter duly recorded and filed, wherein the said Domingo Grondoma was plaintiff, and his son, Jose H., and Encarnación, the wife of the said Domingo, were defendants. That action, which was dismissed on the day after the execution of the deed to defendant herein, was brought to set aside and vacate, on the ground of fraud, two deeds to the property in question, one a deed of gift executed by Domingo to his son, Jose H., conveying to him the whole of said property; the other, also a deed of gift, from Jose H. to his mother Encarnación, conveying to her a part thereof. The complaint in that action contained the allegation, among others, that said Domingo Grondoma was “at all the times hereinafter mentioned the' duly appointed, qualified and acting administrator, and trustee, of the estate of Giobatti Solari, who is civilly dead, and the real property hereinafter described belongs to said estate.” The property referred to is the property involved in this action. This complaint was offered and admitted in evidence, against defendant’s objection, for two purposes: 1. As an admission by Domingo Grondoma of the relation which he claimed to sustain to plaintiff, thereby contradicting his testimony at the trial on that point; and 2. [390] To charge the defendant with notice of the contents thereof. The complaint was clearly inadmissible as evidence for either purpose, for the reason that it was unverified and not signed by the plaintiff therein, and not shown that he had any knowledge of its contents. But it affirmatively appears from the record that defendant could not have been injured by its admission, as the evidence, independent of the complaint, was overwhelming in support of the finding that defendant purchased the property with full knowledge of plaintiff’s ownership, and of Domingo Grondoma’s assumed relation to him as his attorney in fact in connection therewith. The deed to defendant of the property in question was signed by the said Domingo as the attorney in fact of plaintiff. This was, of itself, sufficient to charge the defendant with notice of the character and extent of plaintiff’s interest in the property, and of Grondoma’s pretended relation to him, at and prior to the purchase of the property by the defendant, and he took it subject to such interest. Judgment and order affirmed. De Haven, J., and McFabland, J., concurred. Hearing in Bank denied.