Bourn v. Kidd

[451]

CURTIS, J.

Action to quiet title to certain real property described in the complaint. The plaintiff’s title to said real property was acquired at a sale under execution under a money judgment in his favor and against the defendant J ames K. Kidd. The record title to said real property at the date of said execution sale stood in the name of John E. Kidd. At the trial it was the plaintiff’s contention that said defendant James K. Kidd was at the date of said execution sale the owner of said real property, and that by virtue of said sale he, the said plaintiff, became the owner thereof. The trial court found in favor of plaintiff and entered judgment in his favor as prayed for. The defendant James K. Kidd, though served with summons, made no appearance in said action and judgment was taken against him by default. The defendant John. E. Kidd appeared by answer in said action and denied the allegations of the complaint. He has appealed from the judgment entered against him and is the sole appellant.

The evidence as to the ownership of said real property at the time of said execution sale, and whether it was the property of James K. Kidd or of the appellant John E. Kidd was conflicting, and the trial court in a brief but careful review of said evidence at the close of the trial, which is set out in full in the record, held that the weight thereof was in favor of plaintiff and, accordingly, made findings in plaintiff’s favor. Appellant now contends that this evidence was insufficient to support the court’s findings in that it only shows, if it proves anything, that the defendant James K. Kidd at the time of the execution sale owned an equitable interest only in said real property, while the legal title then stood in the name of John E. Kidd. Therefore, appellant contends, all that plaintiff acquired at said execution sale, if he acquired anything, was an equitable interest in said real property, and that an action to quiet title will not lie in favor of the holder of an equitable title, as against the owner of the legal title, citing

Buchner

v.

Malloy,

155 Cal. 253 [100 Pac. 687];

Gray