No. 2,281.

#### *C.*C. BUTLER, Appellant, *v.*FERDINAND VASSAULT, *et al.*Respondents.

Pleading. — Action to Review Judgment. — Newly-Discovered Evidence.— Laches. — In an action to review a former judgment and for a new trial therein, on the ground of newly-discovered evidence, it is incumbent on the plaintiff to establish that he has been guilty of no *laches,*and that the failure to produce the evidence on the former trial was imputable to no lack of diligence on his part.

Idem. — To entitle him to relief, he is held to a strict proof of diligence; and a general averment is not sufficient. He must state particularly what acts he performed, in order that the Oourt may decide whether proper diligence was used.

Practice. — New Triad. — In an action for the recovery of real property sold under execution, the mere fact that the purchaser — who was not called as a witness — omitted to disclose the fact that at the time of the sale he had notice of a prior convevance of the same property, is of itself no ground for a new trial.

Appeal from tbe District Court of tbe- Fourth District, City and County of San Francisco.

Tbe facts are stated in tbe opinion.

*Lloyd Baldwin,*for Appellants.

*Estee & McLaurin,*for Despondent®.

Crookett, J.,

delivered tbe opinion of tbe Court; Temple, J., Wallace, J., and Bhodes, C. J., concurring:

Tbe appeal in tbis case is from an order sustaining a demurrer to tbe complaint. There were two grounds of de*75murrer assigned: first, a defect of parties plaintiff; and second, that tbe complaint does not state facts sufficient to constitute a cause of action. Tbe action is in the nature of a bill of review, and for a new trial in a former action brought by tbe defendant, Yassault, against one Austin and bis wife, to recover tbe possession of certain real estate. During tbe pendency of that action, and before tbe judgment was rendered in favor of tbe plaintiff therein, tbe present plaintiff obtained a conveyance from Mrs. Austin for three undivided fourths of tbe premises sued for. It appears that tbe land in controversy was formerly tbe property of F. B. Austin, who, in 1855, conveyed it to bis wife by an unrecorded deed of gift; and subsequently, Yassault purchased tbe same and obtained tbe Sheriff’s deed therefor, under an execution sale against tbe said 3?. B. Austin. Tbe principal question in tbe cause was whether or not Yassault was a *bona fide*purchaser without notice of tbe prior conveyance from Austin to bis wife; and tbe Court found that be was such *bona fide*purchaser without notice, and accordingly rendered a judgment in bis favor for tbe possession of tbe premises. Tbe present plaintiff alleges in bis complaint that, after be became interested in tbe property by tbe conveyance from Mrs. Austin, pending tbe former action, be frequently consulted with Austin and bis wife as to tbe defense of tbe action, and that be personally exercised tbe greatest diligence in preparing tbe defense, and in ascertaining and producing at tbe trial all tbe evidence within bis knowledge which was material to tbe defense; that long after tbe judgment bad become final be ascertained for tbe first time that, at tbe time of tbe sale at which Yassault became tbe purchaser, tbe Sheriff distinctly notified all bidders, of whom Yassault was one, that Mrs. Austin claimed to own tbe property as of her separate estate, and that tbe title which , tbe Sheriff proposed to sell was only such interest as F. B. Austin owned. He further avers, on bis information and belief, that neither Austin nor bis wife bad any knowledge during tbe pendency of the action, nor until long after a final judgment was rendered *76therein, that the Sheriff had given to the bidders at the execution sale the notice of Mrs. Austin’s claim as already stated. He further alleges that Yassault fraudulently concealed the fact that at the time of his purchase he had notice of Mrs. Austin’s claim, and he avers that if he is afforded an opportunity to do so, he can now establish by conclusive proofs the fact of such notice. In actions to review a former judgment, and for a new trial therein on the ground of newly-discovered evidence, it is plain both on reason and authority, that it is encumbent on the plaintiff to establish that he has been guilty of no *laches,*and that the failure to produce the evidence on the former trial was imputable to no lack of diligence on his part. There would be no end of litigation if issues of fact once tried and decided were liable to be again opened upon an allegation that the unsuccessful party had discovered new and material evidence, of which he had no knowledge at the trial. To entitle him to relief he is held to strict proof of diligence; and a general averment of diligence is not sufficient. He should state particularly what acts he performed, in order that the Court may decide whether proper diligence was used. In this case the complaint averred only in general terms that the plaintiff used proper diligence, which is only an averment of a conclusion of law. He should have stated what steps, if any, he took to ascertain the fact of notice to Yassault.

The complaint fails tó show that the plaintiff made any inquiry of the Sheriff, or of any one present at the sale, whether or not notice was given to the bidders of Mrs. Austin’s claim; and in the absence of such an averment, there can be no presumption that any such inquiry was made, and the failure to make it, under all the circumstances, would raise a presumption of negligence. But, even though the complaint had shown proper diligence on the part of the plaintiff, there is no averment of any diligence whatever on the part of Mrs. Austin, under whom the plaintiff acquired his title, pending the action; and it is not clear that he would not be bound by her neglect. But, *77however this may be, the complaint avers no facts showing proper diligence on the part of plaintiff himself. If actions of this character could be maintained on such general and vague averments of diligence as are contained in this complaint, there would be no end to litigation, and the trial of causes would be but an expensive and interminable proceeding, never to be ended so long as the unsuccessful party should allege, in general terms, that after proper diligence he had failed to discover, in time for the trial, evidence which was material to the issue. Nor can the fact, which is averred in respect to the concealment by Yassault of the notice given to him by the Sheriff, afford any ground of relief in this case. It does not appear from the complaint that Yassault was examined as a witness on the trial, and the mere fact that he omitted to disclose the circumstance of the notice given by the Sheriff is of itself no ground for a new trial. He was not bound to furnish evidence for his adversary unles s called upon to testify as a witness; and even then, if he had testified falsely, the plaintiff could have had no relief, provided there was evidence within his power which he might, with reasonable diligence, have produced to rebut the false testimony. This view of the case renders it unnecessary to decide the question raised by the demurrer as to the defect of parties plaintiff.

Judgment affirmed.

Sprague, J., expressed no opinion.