Smith v. McDaniel

SALSMAN, J.

The respondents brought this action to set aside a quiet title judgment obtained by appellant, which judgment determined that appellant was the owner of two parcels of real property. The court set aside appellant’s former judgment and determined that it was not binding upon respondents.

There was evidence that in 1915 Mabrey McMahan was the owner of a large tract of land, of which the two parcels here in dispute formed a part. McMahan had an ambitious scheme for development of the area, and in pursuit thereof improved his lands, dredged channels and moved in buildings from the 1915 World’s Fair. The development did not rise to his expectations however, and after McMahan’s death in 1957 his heirs deeded the two parcels here in controversy to appellant McDaniel.

The respondents are farmers and dairymen. They have a substantial ownership of land in the immediate vicinity of the lands formerly owned by McMahan. One of the parcels of land here involved is entirely surrounded by lands of respondents, and the other is also encompassed by lands of the respondents except for that portion of the second parcel which borders on the south fork of the Gallinas Canal.

Respondents’ predecessors are Sam Smith, their father, and Zeke Smith, their uncle. Sam Smith died in 1954 and Zeke Smith died in 1955. For many years prior to their death respondents’ predecessors had been in actual possession of

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the two parcels of land in question and had cultivated and improved them along with their surrounding lands. The character of their possession, that is, whether it was by permission and consent of McMahan until his death, and after-wards by permission of his heirs, or adverse to their interests is an important question in this ease, but the fact of respondents’ long possession and continued use is not in dispute. Sam Smith and Zeke Smith deeded their lands to respondents, but whether the exact parcels here in dispute were specifically described in those deeds does not appear.

In 1959 appellant McDaniel received a deed to the two parcels from the heirs of McMahan and shortly thereafter brought an all persons quiet title action under the provisions of Code of Civil Procedure section 749. His purpose was to quiet his title to the lands in possession of respondents against all outstanding claims. Appellant knew of the possession of the lands by respondents, but it does not appear that he was aware that respondents were asserting any claim to an interest in the lands. Accordingly appellant did not make personal service of summons upon respondents but in other respects followed the usual procedure in the prosecution of a quiet title action under the provisions of Code of Civil Procedure section 749. Appellant made service of summons by publication, filed a lis pendens, and posted a notice of the action on the property. In due course appellant obtained a judgment quieting his title against the claims of all persons. It is undisputed, however, that respondents had no actual knowledge of appellant’s suit until long after the judgment had become final and time for relief under Code of Civil Procedure section 473 had passed. Upon discovering appellant’s judgment, respondents promptly brought this action to set it aside.