Gillespie v. Gouly

GAROUTTE, J. This action is brought by James and Edward Gilfeather and William M. Gillespie, administrator of the estate of Dennis Gilfeather, deceased, against Ellen Gouly, administratrix of the estate of Bridget O’Hara, deceased, James V. Lawrence and J. J. Rauer. The Gilfeathers are sons of Ann Gil-feather, now deceased, and Bridget O’Hara was a sister of Ann Gilfeather, deceased. The defendants Lawrence and Rauer appeared and filed a general denial to the verified complaint, and [516]such appearance' was wholly unjustified under the law. But, as-we view the case, their status in the litigation is -unimportant, and we pass them by.

Ann Gilfeather was the owner of a lot in the city of San Francisco. The defendant Lawrence recovered a judgment against her, and under execution levied upon and sold this lot. He became the purchaser at the sale, secured a deed, and thereafter sold to Bauer, who thereafter transferred by quitclaim deed his interest to Bridget O’Hara. The complaint in this action is based upon two counts, but we shall' direct our attention to the first count alone. The action is brought by these plaintiffs as heirs of Ann Gilfeather, deceased, against the administratrix of the estate of Bridget O’Hara to quiet their title to this particular lot of land, the complaint setting out that they are out of possession and the defendant is in possession and asking for a restitution of the premises. Defendant admits her possession and claims title. Plaintiffs claim that the title to the property rested in Ann Gil-feather at the time of her death, and allege that prior to the action brought by Lawrence against her,' and at all times subsequent thereto, she, the said Ann Gilfeather, ivas entirely incompetent to transact business, and had no guardian. It is further alleged that Bridget O’Hara and the defendants, Lawrence and.Bauer, knew these facts at the time they dealt with the property. For these reasons it is claimed that no title to the lot ever passed to Bridget O’Hara, inasmuch as the title never passed from Ann Gilfeather under the execution proceedings inaugurated by Lawrence. Defendants were granted a nonsuit, and plaintiffs prosecute this appeal from the judgment and order denying their motion for a new trial.

This action may be siaid to be one of those statutory actions authorized by section 738 of the Code of Civil Procedure. It is an action brought to quiet title by a party out of possession against one claiming title and in possession. In such an action either party is entitled to a jury as a matter of right. (Donahue v. Meister, 88 Cal. 121; 22 Am. St. Rep. 283; Newman v. Duane, 89 Cal. 597; Hughes v. Dunlap, 91 Cal. 385; Taylor v. Ford, 92 Cal. 419; Landregan v. Peppin, 94 Cal. 465.)