Stewart v. Thompson

By the Court, Sanderson, J.: Action to set aside and cancel certain conveyances upon the ground that they are clouds upon the title of the plaintiff. The plaintiff had judgment in the Court below, and the defendants have brought the case here upon the judgment roll only.

The only points which we can reach, in view of the shape in which the case has come up, are those founded upon the Statute of Limitations, and even those can be reached only through a liberal disregard of technical obstacles.

We consider that the limitation of three years does not apply to an action of this character. It is true that the clouds in question have their inception in fraud ; but fraud is not a universal characteristic of the cause of action and cannot, therefore, be adopted as a test of the true nature of the action, when its position in the various categories presented by the Statute of Limitations comes to be considered. We so held in effect in Hager v. Schindler, 29 Cal. 60. The gravamen of the action is that the conveyances of which complaint is made, are clouds upon the title, and -for that reason, and that only, their cancellation is asked. The right of the plaintiff to his relief does not depend altogether upon the question whether they are tainted with fraud, but upon the fact that they are clouds. Conveyances not tainted with fraud may cloud the true title. Hence fraud is a falsé quantity when we come to assign an action of this character to its proper class under the Statute of Limitations. If fraud exists, it does so merely as a feature in the case, and not as a test of the true nature of the cause of action within the meaning of the statute."

Whether a cause of action of this character fulls under the bar of four years it is unnecessary to say. We held, in Hager v. Schindler, that in no event could the statute commence to [264]run until the execution of the Sheriff’s deed. In this case the deed was executed less than four years prior to the commencement of the action.

Counsel for the respondent are mistaken in saying that the action was commenced within three years after the execution of the deed. The transcript shows that it was not, and it is not suggested that the transcript, in that respect, is incorrect. Hence the question as to the limitation of three years is not in terms answered by the case of Hager v. Shindler, as counsel assume.