Crocker v. Carpenter

De Haven, J. The complaint in this action states substantially a cause of action under section 738 of the Code of Civil Procedure, which authorizes one person to bring an action against another, claiming an interest in real property adversely to him, for the purpose of determining such adverse claim; and the prayer of the complaint is that the defendants be required to set forth the nature of their adverse claims, and for a judgment that the title of plaintiffs to the lands described be quieted and declared good and valid, and that plaintiffs are entitled to the possession of the same, and the defendants be enjoined(C from asserting any claim whatever of, in, or to the said lands .... or any part thereof, or to the possession thereof, adverse to these plaintiffs.” The judgment of the superior court was in favor of plaintiffs and the defendants appeal.

1. The court did not err in refusing the demand of the defendants that all the issues made by the pleadings should be tried by a jury. It is certainly true that in an action brought under section 738 of the Code of Civil Procedure, the issues may be such as to require their trial by a jury upon the demand of either of the parties. In the case of Donahue v. Meister, 88 Cal. 121, which is relied upon by defendants, the court said that the main effect of section 738 of the Code of Civil Procedure

[420]"was “to give parties the right to compel others by suit to litigate and determine controversies in cases where such right did not exist before; but, if in such a suit issues arise which are clearly cognizable in a court of law, the code does not take away the right to have such issues tried by a jury”; and this same principle was again affirmed in the later case of Newman v. Duane, 89 Cal. 597; but there is a very broad distinction between those cases and the one now under consideration. In both of the cases cited the issues were of a purely legal character, as distinguished from those usually arising in what are termed equitable actions. In Donahue v. Meister, from which we have just quoted, the defendant asserted a right to the possession of the premises in controversy, founded upon prior possession, and alleged that he had been ousted from such possession by the plaintiff in the action, and he demanded judgment for the recovery of such possession, and the court simply held that the issues tendered by this answer were such as are involved in an ordinary action for the recovery of real estate, and that the defendant was entitled to have the same tried by a jury. So, also, in Newman v. Duane, 89 Cal. 598, the defendant was in possession, and in his answer not only denied that the plaintiff was the owner of the land there in controversy, but also alleged that he, the defendant, had been in possession of such land for more than fifteen years, and it was held by the court in that case that the action under the issues thus made was in substance one for the recovery of specific real property, and that the defendant Avas entitled to a jury for the trial of his alleged rights; but in the case at bar there are no such issues. In this case the defendants admit that the legal title to the land described in the complaint is in the plaintiff, and, while alleging possession in themselves, they do not claim any right to such possession except under and by virtue of an alleged agreement for the sale of said lands made by the predecessor of plaintiffs, and to which agreement the defendants claim they have succeeded by assignment, and they aver that “they are noAv ready, able, and willing to make to plaintiffs herein the payments” required by such agreement, and under the general prayer of their answer they in effect ask for a specific performance of such agreement. Indeed, in the brief filed in this court in behalf of defendants, their counsel