SCHAUER, J. I dissent. The record supports the finding that Douglas and Agnes conspired in the original purchase of the property in question and in the taking of title to it in the name of Agnes in order to defeat a possible claim of plaintiff to a community interest but it does not establish a ground for setting aside or avoiding the effect of the judgment in the ejectment action. To the contrary, the record establishes that Douglas and Agnes had come to a parting of the ways and were asserting directly conflicting claims to the property at the time the ejectment action was filed.
The parties to that action were Agnes as plaintiff and Douglas as defendant and cross-complainant. The property he was claiming adversely to Agnes was the property here at issue and, if it be community property at all, he necessarily, or at least prima facie on the record as it is presented to us, was representing the community in that action. On the record as it now exists, the plaintiff wife here was in privity with her husband there and is bound by that judg[295]ment. (Cutting v. Bryan (1929), 206 Cal. 254, 258 [274 P. 326]; Yearout v. American Pipe & Steel Corp. (1946), 74 Cal.App.2d 139, 142-144 [168 P.2d 174]; Secondo v. Superior Court (1930), 105 Cal.App. 179, 182 [286 P. 1089]; see also Rest., Judgments, § 85, p. 409.)
It is a general rule that a party to a ease, or a privy to a party, may, after a judgment has become final, attack it only directly and only upon a showing of extrinsic fraud in procuring it. (Campbell-Kawannanakoa v. Campbell (1907), 152 Cal. 201, 208-210 [92 P. 184]; Anderson v. Bank of Lassen County (1903), 140 Cal. 695, 698 [74 P. 287]; Harada v. Fitzpatrick (1939), 33 Cal.App.2d 453, 459 [91 P.2d 941]. See also 15 Cal.Jur., Judgments, § 123, p. 15 et seq., and § 139, p. 47, and cases there cited; Neblett v. Pacific Mutual L. Ins. Co. (1943), 22 Cal.2d 393, 397 [139 P.2d 934]; Caldwell v. Taylor (1933), 218 Cal. 471, 475-476, 479-480 [23 P.2d 758, 88 A.L.R. 1194]; McGuinness v. Superior Court (1925), 196 Cal. 222, 227-230 [237 P. 42, 40 A.L.R. 1110]; Associated Oil Co. v. Mullin (1930), 110 Cal.App. 385, 389-390 [294 P. 421]; Feig v. Bank of Italy (1933), 218 Cal. 54, 56-57 [21 P.2d 421].)
There is no suggestion that the judgment in the ejectment action is void on its face and there is no finding of extrinsic fraud in its procurement. In this state of the record the majority opinion, to support its holding that the ejectment judgment is not binding on the plantiff, declares its own conclusion that “It thus appears that the ejectment action was but a continuation of the fraudulent scheme employed by Agnes and Douglas in their endeavor to defeat the rights of the plaintiff to the property.” But there was no finding to such effect. Instead, the court found as follows:
“6
“That subsequent to the taking of legal title to said real property in the name of Agnes M. Hansen, and about the time that the final payment was made on the purchase price thereof, the two defendants herein separated from each other; the defendant Douglas B. Babbitt demanded of Agnes M. Hansen legal title to said real property, which conveyance was refused; and the defendant Agnes M. Hansen claimed said real property to be her own.
“7
“That on or about September 11, 1951, in the Compton branch of this Court, the said Agnes M. Hansen commenced [296]an action against the said Douglas B. Babbitt, having for its object and purpose to eject the said Douglas B. Babbitt from said real property; that the said Douglas B. Babbitt contested said action and filed his cross complaint therein claiming legal title to said real property by reason of his aforesaid payments of money and trust agreement and on to wit June 4th, 1952, in said proceeding number COG 313, files [sic] in said Branch Court, a stipulated judgment was entered into, upon the consent of said parties, giving each of said parties an undivided one-half interest in and to said real property, and adjudging that the same be sold and the net proceeds be divided between them according to the tenor of said judgment.”
It appears to me that the above quoted findings not only fail to determine that the ejectment judgment was a product of continuing collusion, obtained in fraud of the rights of the plaintiff here, but, to the contrary, conclusively establish (so far as this appeal is concerned) that the earlier action was a bona fide adversary litigation in which plaintiff’s husband (her privy) 11 contested said action and . . . [obtained for himself and plaintiff as against the adverse claim of Agnes] an undivided one-half interest in and to said real property. ’ ’
Whether Douglas (plaintiff’s husband) did or did not make a wise compromise of the conflicting claims of Agnes and himself is beside the point. The fact as found is that Douglas 11 demanded of Agnes M. Hansen legal title to said real property, which conveyance was refused; and the defendant Agnes M. Hansen claimed said real property to be her own.” These findings negative collusion.
At no point in either the pleadings or the court’s findings and conclusions is it stated or suggested that the judgment in the ejectment action was procured in any wise other than as a bona fide compromise and settlement of an actual and active dispute between defendants (husband and Agnes) as to their respective rights in the property. Nor does the judgment roll in the ejectment action suggest or reveal fraud of any nature. Agnes’ complaint in that action alleges that she owns the property in fee and is entitled to possession of it; the husband’s answer denies her ownership and his cross-complaint alleges that he “agreed to purchase” the property and put it in her name, in reliance upon her statements that she would reconvey to him upon his request; that he paid for the property but she intended to defraud him of it. [297]Agnes’ answer to the cross-complaint alleges that part of the purchase price was paid from her earnings and separate property and that an accounting would be needed to determine the respective interests of the parties in the property, and that title had been taken in her name to prevent the wife from learning of the husband’s interest in the property and from asserting any interest therein. The judgment in the ejectment action recites that the parties had “stipulated in open court that the court may make the judgment and decree set forth hereafter”; it is then adjudged that the parties each own an undivided one-half interest in the property, that the husband’s one-half interest therein is vested in him by virtue of the decree, that Agnes has “an equitable charge and lien against” the property in the sum of $500 and the husband has a similar “charge and lien” in the sum of $850.
The fact that originally Douglas paid for the property and had it placed in Agnes’ name for the purpose of defeating the plaintiff’s claims is only indirectly relevant to the controlling issue. That issue is not how was the property originally obtained but, rather, how was the judgment obtained. Unless the judgment was eollusively obtained in fraud of plaintiff’s rights it is conclusive as between her and Agnes as well as between Douglas and Agnes.
Without going into further detail here, I submit that it is plain from the record that the trial court in the present (divorce) suit did not find fraud in the procurement of the ejectment action judgment and that the court’s conclusion that such judgment is not res judicata or binding as to plaintiff is utterly without support. (See e.g., Cutting v. Bryan (1929), supra, 206 Cal. 254, 258; Yearout v. American Pipe & Steel Corp. (1946), supra, 74 Cal.App.2d 139, 142-144; Secondo v. Superior Court (1930), supra, 105 Cal.App. 179, 182; see also Rest., Judgments, § 85, p. 409.)
If in truth there was collusion between Douglas and Agnes in the procurement of the judgment in the ejectment action, then plaintiff, as a person in privity with her husband in that action but claiming by reason of the fraud to be not bound by it could (either in a direct action brought for the purpose, or, probably, upon proper proof and sufficient findings here) establish the fact of actual fraudulent collusion in the obtaining of the judgment and so avoid the prima facie and otherwise conclusive bar of that judgment. (See 15 Cal.Jur., Judgments, § 139, p. 47, and cases there [298]cited; Caldwell v. Taylor (1933), supra, 218 Cal. 471, 475; Associated Oil Co. v. Mullin (1930), supra, 110 Cal.App. 385, 389-390; Rest., Judgments, § 115, p. 556, and § 122, p. 594.) It is declared at page 556 of Restatement of Judgments that “Where an action is brought by or against a fiduciary for the benefit of another, and a judgment is rendered therein, the beneficiary is* bound by the rules of res judicata . . . Hence the beneficiary is entitled to equitable relief under the same circumstances as if he were a party to the judgment. He may be entitled to equitable relief even though the fiduciary is not so entitled, as where the judgment is the result of collusion between the other party and the representative ...” It would appear that this latter exception to the general rule would be applicable to plaintiff-wife here, if she proves and the court finds facts in support of such theory.
For the reasons above stated, there is shown in the record now before us no tenable basis for sustaining the holding of the trial court that the entire property is community and awarding it to plaintiff. The portion of the judgment so decreeing, insofar as it is in derogation of the earlier judgment, should be reversed and the judgment modified or the cause remanded for a new trial on the res judicata issue.
Carter, J., concurred.