Balaam v. Perazzo

RICHARDS, J.

This appeal is from a judgment in favor of the plaintiff in an action to quiet title to lot 26 and the south half of lot 25 in Middle Block of Baker’s Addition to the city of Exeter, county of Tulare, state of California. The complaint is in the usual form of an action to quiet title which, after setting up ownership of said lands in the plaintiff, alleges that the defendant claims some right, title or interest in said lands, but that his claim is without right, and closes with the prayer that the plaintiff’s title be quieted as against the defendant and as to said lands. The answer of the defendant, after denying plaintiff’s claim of ownership, alleges that the plaintiff has in fact no interest in said premises, and then proceeds to allege affirmatively ownership thereof in the defendant, and, upon the predicate thereof, prays for affirmative relief that the defendant be adjudged to be the owner of and entitled to the possession of said premises, and that the plaintiff has no right, title or interest therein. Upon the issues as thus joined the superior court made and entered its findings and judgment in the plaintiff’s favor, and it is from such judgment that this appeal has been taken.

The facts upon which the respective claims of the plaintiff and defendant are founded are practically undisputed and may be briefly stated as follows: On and prior to October 23, 1923, one G-. A. Perazzo was the owner of the premises involved in this action and of certain other lands and premises in said county of Tulare. Upon the above date Brambilio Juarez obtained a money judgment against G. A. Perazzo in the superior court of said county, which was duly docketed upon October 26, 1923', and thus became a valid and subsisting lien on any land standing in the name of G. A. Perazzo on the records of the county recorder of said county of Tulare as of said date. On October 28, 1924, G. A. Perazzo conveyed to his wife Victoria Perazzo the said and other pieces of property which, however, were subject to the lien of the aforesaid subsisting judgment in favor of Brambilio Juarez. On February 1, 1926, a writ of execu

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tion was issued upon the aforesaid judgment in favor of Brambilio Juarez, and thereafter and in pursuance thereof the premises involved in this action were sold under said writ to Brambilio Juarez, who thereafter and on the twenty-third day of August, 1927, prior to the issuance of the sheriff’s deed thereon, duly assigned the certificate of sale to H. 0. Balaam, plaintiff herein. On August 24, 1927, the sheriff executed and delivered to H. C. Balaam a deed to the aforesaid premises, which was duly recorded on September 1, 1927. Thereafter and on November 20, 1928, the present action was commenced against the defendant J. J. Perazzo, who has succeeded to the interest of G. A. and Victoria Perazzo, which in due course ripened into the judgment from which this appeal has been taken. On December 3, 1924, one N. C. Medley commenced an action to quiet title in said court, affecting the aforesaid and other lands, against G. A. Perazzo, Victoria Perazzo, Brambilio Juarez and certain other defendants not material to this controversy, the plaintiff Medley alleging that he was the owner of said premises and the whole thereof by virtue of a judgment which had been theretofore obtained against G. A. Perazzo, upon which judgment an execution sale had been had, at which sale the plaintiff Medley had become the purchaser of said premises, and as such was entitled to have his title thereto quieted as against the defendants in said action. The complaint and summons in said action were duly served upon G. A. Perazzo, Victoria Perazzo and Brambilio Juarez. Juarez did not appear or answer in said action. Victoria Perazzo, however, did answer, denying the alleged .title of the plaintiff Medley to the lands involved therein or any portion thereof, and alleging herself to be the owner thereof by virtue of her aforesaid deed from G. A. Perazzo bearing the date of October 28, 1924. In her answer she asserted no claim of ownership of the pieces of land involved in this action as against Brambilio Juarez, and in her prayer she asked only for affirmative relief against the plaintiff Medley and all persons claiming under him. It affirmatively appears from the record in said action that the aforesaid answer of Victoria Perazzo therein, affirmatively claiming the ownership in herself of said lands, was not served upon her co-defendant Brambilio Juarez, and that he made no appearance in said action in so far as the affirmative pleading of