Cohn v. Kelly

HENSHAW,J.

—This was an action to quiet title. Defendant answered, denying the title of plaintiff to the property in controversy, and then, “for a further and separate answer and defense to said cause of action set out in plaintiff’s complaint,” alleged fraud in the procurement of plaintiff’s deed. At the conclusion of the evidence offered hy plaintiff upon the trial, defendant moved for a nonsuit, urging, as he here urges, that his separate defense was in reality a cross-complaint; that plaintiff’s failure to answer it as a cross-complaint was equivalent to his admission that the matters set up were true; and, consequently, that he was entitled to a judgment against plaintiff upon the pleadings. This proposition, however, has been repeatedly advanced, and as repeatedly answered against the contention of defendant.

(Brannan

v.

Paty,

58 Cal. 330;

[469]

Shain

v.

Belvin,

79 Cal. 262;

Goldman

v.

Bashore,

80 Cal. 146;

Carpenter

v.

Hewel,

67 Cal. 589;

Doyle

v.

Franklin,

40 Cal. 106.)

Complaint is further made that the findings do not cover all the material issues, but this complaint is also unfounded. In the first place, there is an omnibus finding that all and singular the allegations of plaintiff’s complaint are true, and the allegations of defendant’s answer are false; but, in addition to this, the findings specifically negative the charge of fraud and conspiracy which was the basis of the separate defense, and these findings are supported by the evidence. In view of this fact, the absence of other findings becomes immaterial, since if defendant was not defrauded as he alleges, he had no right to ask a rescission.