Gill v. Johnson

HARDEN, J., pro tem.

This is an action, as against the defendant C. G. Johnson, State Treasurer, to recover from the Torrens title assurance fund the value of certain land, upon a claim that plaintiffs purchased it in reliance upon a certificate of title issued by the registrar of titles of Imperial County. The case has been before this court on two former appeals. The decisions will be found in 103 Cal. App. 234 [284 Pac. 510] and 125 Cal. App. 296 [13 Pac. (2d) 857, 14 Pac. (2d) 1017]. In the latter decision is a recitation of facts forming the basis of the action.

After the decision on the last appeal, the complaint was amended by making Austin a party. Upon regular proceedings, and for failure to appear, judgment was taken against Austin by default on December 9, 1932, for $31,400. The action then proceeded to trial' against the State Treasurer. At the close of plaintiff’s ease a demurrer to the evidence was interposed and a motion for nonsuit made upon the grounds: (a) that the evidence showed that plaintiffs were negligent, and therefore not entitled to recover under the Torrens Act; and (b) that the action was barred by the statute of limitations. At the close of defendant’s case the court granted said motions upon the ground, as stated in a written decision incorporated into a minute entry, that the statute of limitations operated to bar the action.

The demurrer to the evidence is seldom interposed under our practice. A motion for nonsuit raises the same questions.

(Ringgold

v.

Haven,

1 Cal. 108, 113;

In re Daly’s Estate,

15 Cal. App. 329 [114 Pac. 787].)

Subdivision 3, section 105, of the Torrens Act (Act 8589, Deering’s Gen. Laws 1931) provides in part that "Actions for compensation out of the assurance fund under the

[372]

provisions of this act shall be commenced within four years from the time when the right of action accrued, or they shall be forever barred ...” It is admitted that the complaint was filed as against the State Treasurer within said four-year period and as against defendant Austin after the expiration thereof.