Smith v. Stuthman

SHINN, Acting P. J.,

This is an appeal from an order dismissing an action for slander of title to real property, on the ground that such a cause of action did not survive the death of the original defendant, Myrtle E. Smith, defendant’s

[709]

testate, the alleged wrongdoer. The alleged slander of title consisted of the recording of a

Us pendens

in an action for divorce by Myrtle E. Smith against plaintiff herein, in which the former was claiming an 'interest in the real property.

Slander of title is a tort action for redress of an invasion of a particular property right, that of immediate salability of the property involved.

(Coley

v.

Hecker,

206 Cal. 22, 27 [272 P. 1045] ; Restatement, Torts, § 624.) As a cause of action arising out of a violation of a property right it survives the death of its owner. (Civ. Code, § 954

; Wikstrom

v.

Yolo Fliers Club,

206 Cal. 461, 464 [274 P. 959].) It has been held that it necessarily follows that such a cause of action also survives the death of the defendant.

(Vragnizan

v.

Savings Union etc. Co.,

31 Cal.App. 709, 713 [161 P. 507].)

Respondent contends, however, that in California the survival of causes of actions involving property rights after the death of the defendant is governed exclusively by sections 573 and 574 of the Probate Code, and that section 574 alone applies to the instant case. Assuming these contentions to be correct (without so deciding), the question is presented whether section 574 authorizes the survival of the cause of action of slander of title to real property.

The order appealed from was entered and this case was briefed prior to the decision of our Supreme Court in