Lunt v. Boris

GOODELL, J.

This is an appeal from a decree quieting the title of respondents to a piece of improved real property in Soledad, 160 feet by 290 feet in area, known as the Soledad Auto Court. On the same record there is presented an appeal from an order made after final judgment in an earlier case.

Respondents were the beneficiaries of a deed of trust securing a note for $13,000, standing against the property. At a trustee’s sale they bid it in for the face of the note, and after title vested in them they brought this suit.

There was an earlier lawsuit between the same parties which was decided on appeal by this court in

Lunt

v.

Boris,

77 Cal.App.2d 368 [175 P.2d 20] wherein the antecedent facts are stated.

In their answer herein appellants deny respondents’ title and plead that this action is barred by the judgment in the first case; that respondents are seeking to circumvent that judgment; that it “is res judicata of the issue raised in the present action, and that the present action is intended to nullify and vitiate ’ ’ that judgment.

One answer to this position is that “Matters not in issue in the previous action are not res ad judicata” (15 Cal. Jur. pp. 134-5) and “Where the fact, condition, status, right or title is not fixed and permanent in its nature, an adjudication, though conclusive of the situation at the time of its rendition, is not conclusive as to what it may be at some subsequent time, in so far as this may be affected by circumstances subsequently occurring or arising.” (15 Cal.Jur. pp. 154-5).

On January 1, 1942, Palo Alto Building Company, the owner of the property, executed a note for $13,000 to respondents, secured by a deed of trust. On July 1, 1942, when appellants acquired title from that company, the deed of trust had not been recorded (it was recorded on August 24, 1942).

The first action was commenced on June 29, 1943. The note was then in default and the purpose of that action was to obtain possession under a provision in the trust deed entitling

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