Lynch v. Kemp

WASTE, C. J.

This is an appeal by plaintiff from a judgment on defendant’s cross-complaint, .quieting defendant’s title to certain real property and awarding damages to defendant for slander of title.

Plaintiff, as the sole legatee of Mary Rheinschild, deceased, offered the will of said decedent for probate. The petition for probate named defendant and certain others as the next of

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kin of the decedent. Thereafter, the defendant, as guardian

ad litem

of her niece, filed a contest on behalf of her ward. The contest named defendant and others as heirs of decedent. In due time the contest was voluntarily dismissed and judgment for costs awarded to the plaintiff here by the probate court. Upon nonpayment of the costs, plaintiff levied upon two parcels of real property owned by the defendant and situate in different cities. Plaintiff thereafter bid in said parcels at the execution sale and received the sheriff’s certificate therefor. Defendant subsequently brought an action against plaintiff to quiet title to one of these parcels. Defendant’s title was quieted to said parcel on the theory that defendant had not been the contestant, but only the guardian

ad litem,

of the contestant, in the probate proceeding, and that defendant was not therefore personally bound by the judgment for costs therein awarded and her property not subject to execution upon such judgment. This court affirmed the judgment quieting defendant’s title to said parcel of real property.

(Kemp

v.

Lynch,

220 Cal. 505 [31 Pac. (2d) 375].) While that, action was pending, the plaintiff (defendant in the other action) brought the present action to quiet his title to the other parcel covered by the sheriff’s certificate issued to him. Defendant, as the original owner thereof, answered and cross-complained, praying for damages for alleged slander of her title to both parcels. At the commencement of the trial it appeared from plaintiff’s own testimony that before the execution of the sheriff’s deed thereto he had assigned the sheriff’s certificate covering the parcel not involved in the prior action. It was thus immediately apparent that plaintiff as to said parcel was not in a position to procure the relief sought in his complaint, which complaint was stricken from the files, and the cause proceeded to trial upon the defendant’s cross-complaint for damages for slander of title. At the conclusion of the trial judgment was entered quieting defendant’s title to the second parcel and awarding her compensatory damages in the sum of five hundred dollars and exemplary damages in the sum of two hundred and fifty dollars. The trial court determined, in substance, and in conformity with the prior decision involving one of the parcels, that defendant not being personally liable on the costs’ judgment entered in the contest, her property was not subject to execution thereon. From the judgment awarding damages