ROTH, P. J. I dissent.
Our Supreme Court points out in its order of retransfer of this case that Muktarian v. Barmby, 63 Cal.2d 558, 560 [47 Cal.Rptr. 483, 407 P.2d 659], limits the doctrine of Leeper v. Beltrami, 53 Cal.2d 195 [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803], insofar as the statute of limitations is concerned. There is nothing in the order of retransfer which remotely suggests that Muktarian limits the doctrine of Leeper which requires our courts to look beyond the relief sought when the facts of the basic cause of action are apparent from the face of a pleading.
The pertinent allegations of count I in appellant’s first complaint (to reform documents and quiet title) do not state a cause of action on any theory, and the judgment should be affirmed irrespective of the statute of limitations or of the “court-shopping” which obviously took place in the trial forum.
One of the grounds of the demurrer to the first action as well as the second was the general defect that no cause of action was stated on any valid theory, although the record shows that in the first action as well as the second the point emphatically argued in the trial court was the statute of limitations.
It is settled law that if the complaint is fatally defective upon any ground properly specified in the demurrer, the order must be sustained even though the trial court may have rested its ruling on a particular facet of the case which it deemed to be defective and which we hold to be good. (Davie v. Board of Regents, 66 Cal.App. 693, 702 [227 P. 243] ; Burke v. Maguire, 154 Cal. 456, 461 [98 P. 21] ; Bank of America v. Vannini, 140 Cal.App.2d 120, 127 [295 P.2d 102] ; Weinstock v. Eissler, 224 Cal.App.2d 212, 235-236 [36 Cal. Rptr. 537].) In other words, this court is free to consider each [24]ground of respondent’s demurrer to the complaints in the first and second action, and if the demurrer was well taken on any ground the judgment below must be affirmed. (Davie v. Board of Regents, supra.)
It is clear from the foregoing that irrespective of the statute of limitations and the "court-shopping” technique utilized by appellant in the trial court, if the second action had been filed within the original forum (rather than a different district of the Los Angeles Superior Court), the "judicial action” of the trial court irrespective of the “judicial reasoning ’ ’ in ordering a dismissal of the' second action, was valid.
Factually, it should be emphasized, too, that there are two trust deeds outstanding against the property involved (inclusive of the disputed strip) and that the beneficiaries of each were in no way parties to the contract of purchase and sale. These beneficiaries were not parties to the first action, and although apparently made parties to the second action, there was no appearance by them and the record does not show they were served.
The pertinent allegations of the reformation count of the first action are as follows: “. . . that by reason of an error in the property description in the Grand [sic] Deed prepared by the escrow department of the Security First National Bank, and not noticed by plaintiffs, the said Grant Deed included additional property not contemplated to be sold by plaintiffs; that the said additional property was also included in the following documents: (1) Deed of Trust . . . executed by . . . Nelson ... to secure a promissory note of $32,800 . . . (2) Deed of Trust dated April 11, 1961, executed by . . . Nelson to secure a promissory note of $2,050.00 . . .;
"... That through error, inadvertence and mistake plaintiffs erroneously executed said Grant Deed in favor of . . . Nelson;
"... that, prior to the opening of escrow and at all times since that time, the said parcel has been fenced and at no time could be mistaken as a part of the real property sold by plaintiffs . . . that plaintiffs have had uncontested and free use of said 20 foot strip as a means of access to their larger parcel for many years prior to inadvertent conveyance to defendants, and at all times since said conveyance. ...”
None of these allegations state a cause of action on the theories of reformation scrivener’s error, mutual mistake, prescriptive easement, or adverse possession. None of the allegations in count I of the first action are sufficient to entitle [25]appellant to reformation of a deed they executed or reformation of two separate trust deeds executed by their vendee Nelson to persons other than appellants.
A cause of action for reformation of a deed is sufficient only where it is alleged that there has been a mutual mistake of the parties or a unilateral mistake known or suspected by the other party. (Civ. Code, § 3399; Auerbach v. Healy, 174 Cal. 60, 63 [161 P. 1157]; McClure v. Cerati, 86 Cal.App.2d 74, 83 [194 P.2d 46]; Girard v. Miller, 214 Cal.App.2d 266, 273 [29 Cal.Rptr. 359].) Appellant’s complaint alleges only unilateral mistake on their part. It fails to allege mutual mistake or that their mistake was suspected, known to or concurred in by respondents or any ultimate facts from which such inference can be properly drawn.
Appellants’ contention that a mistake by the scrivener in reducing the intent of the parties to writing is grounds for reformation is correct. (California Pac. Title Co. v. Moore, 229 Cal.App.2d 114, 116 [40 Cal.Rptr. 61].) However, the error of the scrivener must be one which mistakes the intent of the principals on both sides of the transaction. For example, in Mills v. Schulba, 95 Cal.App.2d 559 [213 P.2d 408], the complaint alleged an error of the attorney “jointly employed. ’ ’ At bench, there is no suggestion in count I of the first action that the respondent in any way shared in the mistake of the appellant or the scrivener.
Appellants argue, however, that it is well settled law that the holder of an escrow is agent for all the parties up to the time the escrow is closed. (Oldenburg v. Brody, 139 Cal.App. 2d 543, 555 [293 P.2d 844]) and the allegations of count I of the first action are sufficient because it is clear that the escrow department prepared the documents. However, since mutuality of mistake is nowhere alleged and in view of the trust deeds taken out by respondents, which fact appears to be avoided, count I of the first action is insufficient to sustain on the ground of mutual mistake.
Adverse possession requires a showing that appellants were in actual possession of the disputed parcel, coupled with acts clearly proclaiming their right of ownership. (West v. Evans, 29 Cal.2d 414, 417 [175 P.2d 219] ; 2 Witkin, Summary of Cal. Law (1960) p. 871.) The fact that the strip was fenced and that appellants had free and uncontested use thereto is not equivalent to an allegation that appellants were in actual possession of the disputed parcel.
The possession must be exclusive. (Miller v. Doheny, 50 Cal.App. 413, 419 [195 P. 745]) and the complaint does not [26]allege the claimed possession was exclusive in the appellants.
The period of possession must be at least five years. (Code Civ. Proc., §§318, 319, 325.) The deed here to respondents was recorded July 11, 1961, less than five years prior to filing the original complaint.
Payment of taxes is required under Code of Civil Procedure, section 325. The complaint states that respondents paid the taxes on this property since the conveyance.
The same defects preclude a cause of action to obtain an easement by prescription. (2 Within, Summary of Cal. Law (1960) p. 1028.)
It is clear from the record that the trial court in the first action made a proper and valid order. Appellants were allowed 15 days to amend and cure if they were able so to do the defects of count I of the first action. They elected not to do so.
We have before us then the narrow question of whether the trial court was charged with the responsibility of knowing the defects in the complaints in both actions—other than the one upon which it specifically rested, and before dismissing the second action whether it had the duty to direct appellants’ attention to additional defects in count I of the first action.1 To so hold is in effect to nullify the rule that a valid ruling will be upheld irrespective of the reasons upon which it was made.
The record does not show that appellants asked for an opportunity to amend the second action at any time before the order dismissing it was made or to otherwise protect themselves against the dismissal.
The record in the trial court shows that appellants avoided amending the first action, even though given an opportunity so to do. In addition, there is nothing in the record of pro[27]ceedings in the trial court, nor in the extended proceedings before this court, which suggest that appellants could amend so as to cure the defective allegations of count I of the first action. Appellants, having exposed the nature of their claim by verified allegations, should not be able to indefinitely cloud title to the strip in question by immunizing in the form of a second general cause of action clandestinely filed, what the record shows to be a defective claim of title.
On the record before us, the trial court made valid orders in both actions. Appellants not only did not at any time request the court to relieve them of the effect of such orders, but actually ignored in the first action the opportunity given to amend and ignored the court’s invitation extended in the second action to set aside the dismissal of the first action. (Note 1.) In my opinion, the trial court was the forum in which to cure the defects of each action, if they could be cured. Reversing the judgment in this ease places the imprimatur of this court not alone on loose pleading and loose conduct, but also upon a new procedure for prolonging actions which will inevitably prevent a just and proper disposition of litigation.
On February 20, 1969, the opinion was modified to read as printed above. Respondents’ petition for a hearing by the Supreme Court was denied March 21,1969.