The San Francisco call., 1897-04-06

which it was set, to wit, on March IL. 1897.
virginia Fair filed, by leave of the court, a
complaint IN intervention IN which the alleges
that she is the owner in fee simp e absolute of
an undivided one-third of the lands described
In The original complaint and in the cross
complaint; that James G. Fair was during ali
the month of September. 1894, the owner in
fee simple absolute of the lands; that James
g. Fair died on or about December 81 ! S94
that in the year 1895 the defendants Nettie
K. Craven, Elizabeth Haskins and James j
Cooney, together with other persons whose
true names are unknown to the intervenor,
combined and confederated together and en-
tered into and concocted fraudulent scheme,
combination and conspiracy for the purpose
OF procuring for themselves, by means of forged
documents and false evidence, the said real
property; that thereafter and pursuant to the
fraudulent scheme, combination and con-
| spiracy, the said defendants prepared and ut
tered two false and pretended deeds. purport-
Ing to have been executed by James 6. Fair on
september s. 1894; that said deeds were not
made or executed by James G. Fair. nor ever
acknowledged by him, and the instruments
ana the signatures thereto are false, forged
and simulated, and were made subsequent 10
| the death OF James G. Fair, purs uant to and as
part OF the fraudulent scheme, compinauon
and conspiracy.
Miss Fairs complaint in Intervention is
| epitomized down to the last allegation
and intention of fraud and conspiracy,
after which the court takes up the thread
| OF the narrative in regard to the course OF
the present litigation. He said:
On March 13, 1897, the defendant, Nettie R.
| Craven, moved to strike the complaint in in
tervention from the files, and to vacate and
set aside the order permitting it TO be filed, Oh
1 the principal grounds that by II the inter-
| venor sought 10 change the subJect-matter OF
| the action; that the intervenor sought an
| other and other and different relief than any
which could be granted 10 either party upon
| the issues heretofore joined in the action; !;
| that the intervenor sought to change the
| method of procedure esta blished by law for
| the trial of such actions, and adopted
! by the parties to the action that, the
| interyenor sought to delay the trial of
the action, and the result OF permit
| ting the intervention would be to delay
| The trial; that the interyenor mas been guilty
| OF gross laches in delaying her attempt TO in
| tervene; that the intervenor is not a neces-
sary party to the action, and judgment in
| favor OF the plaintiffs will as completely
| establish her claim as judgment in favor of
herself; that the complaint in intervention is
not filed in good faith, but las been fled solely
| for the purpose OF hindering and delaying the
| defendant in eStab, ,1shing her rights, and 10
| veX, annoy and harass the defendant; and
| that the complaint in intervention does not
disclose facts authorizing an Intervention. No
| affidavit in support of the motion was filed.
The motion 10 strike the complaint in in
| tervention from the flies was partly heard and
| then continued un Til March Is, 1897, at which
time the action had been set for trial On tn It
day at the calling of the case on the calendar,
the plaintiffs moved the court to proceed with
the trial OF the equitable issue raised by the
pleadings in the case, and 10 dispose of those
issues before a jury should be called to try the
legal issues Both motions weretresisted.
The motion to proceed with the trial of the
equitable issues Will be first considered, be-
cause the questions presented by 1t are in
yolved, to some extent, in the motion to strike
the intervention from the files.
Alter quoting copiously from the au-
thorlties touching he matter under dis
cussion Judge Slack added:
Sufficient has been said to show that an
action to quiet title, brought under section
73S of the Code of Civil Procedure, Dy a plain
tiff in possession. whose possession has not
been disturbed by legal proceedings, and an
action to remove cloud from title are in their
nature alike. The one is equitable as is the
other, and the one rests quite as much upon
the principle quia timet rather than upon the
doctrine OF preventing q multiplicity CT suits
as does the other. So far as the purposes of
the actions are concerned, however, there is
difference between Them. This difference
and actions to quiet title under the statute is
clearly pointed out by Commissioner Hayne
in Castro VS.. Barry (79 CALAIS, 446).
In the decision the following significant
passage occurs:
1t is TO be remarked that Nettie r. Craven
the only defendant who has answered, does
not set forth in her answer the particulars OF
her claims, further than her admissions of
allegations of the supplemental complaint and
her ayerments that the deeds are true and
genuine and that she is the owner in fee sim
pie may SO operate. The unnecessary matter
in the supplemental com paint not, how
ever, AIIhCkeu, nor was any ODJeCLlOn maze 10
the efficiency of the answer. The meagerness
ofthe ayermeEts of the answer, nevertheless,
affords some justification for the special plea
in the answer to the cross-com plant, assailing
the deeds as cloud upon title.
Notwithstanding the equitable nature of
the supplemental complaint, the defendant
Nettie r. Craven, is entitled a jury trial as
10 the legal issues which it may be present !;
but not as TO equitable issues if any
there be: Hancock VS. Plummer, 66 Id. 337;
Crocker We. Carpenter, 90 Id 41S. The proper
course of procedure TO nursyP did the
stand alone upon the supplemental complai int
and the answer, is stated by Chief Justice
Field III Curtis VS.. Sutter. 15 CAL 260, 263. -,
The defendant, Nettie Z. Craven, had with
out doubt, the right to file her cross-complaint
in ejectment: see Donahue Meister, SO
Cal. 121 and, in fact, her right to do so is not
disputed. In SO doing she became an actor
standing with reference 10 the eross-com-
plant substanti TALLY in the same position as if
she had filed 1t as an original complaint in a
ceparate action, and the plaintiffs, on the
other hand, are subs tantially in the position
OF defendants in such an action: Ewing VS..
Patterson, 30 Ind. 326 $50. No good reason
has been suggested why defendant in an ac-
ton OF ejectment, or q plaintiff when cross
complaint IN eJectment has been interposed
against him, may not. in the exercise OF his
right TO plead any defense which he may have
under proper certain circuIns stances set forth
facts showing that the instruments relied
upon by the complainant as munfments of
title constitute cloud upon his own title and
pray that the cloud be removed. There
is. OF course, no doubt that he might under
utu1dls suON tllc mUnlmenlS
of title 10 be void.
1t is to be observed in this case that the
plaintiff are in possession and the defendant,
Nettie Z. Craven, is out of possession, and it
may be assumed that the intervenor is also
out OF poss ession.
The deeds in ques ton, although they are
alleged to be forged, constitute, if the allega-
tions are true, clouds upon title, beca use their
inyaEdlty does rot appear on their face, and
because, particularly, having certificates of
acknowledgment: attached, and having been
recorded, they may be read in evidence with
out further proof and certified copies of their
records can also be thus read In evidence,
under section 1851 OF the Code of Civil Pro
ODougherty 81 \. Y, 474; Nationai Bank VS..
Levy, 127 Idaho. 549: Dunes VS.. Gallagher, )
Biatchf, 4S1; Byerly VS.. Hump hrey, 90 n. c.,
Isl. -
Judge Slack thus presented his con-
clusion in regard to the right of Mrs.
Craven to jury trial under the conditions
as produced by the filing of Miss Fairs
com plant in Intervention:
The issues raised by the cross-com plai mt m ust
first be disposed OF: Whittier vs. Siege, 81, Cal,
23S; Fish VS.. Benson. II ID, 42S, 434 The
equitable defense to the cross-complnint Is,
furthermore, frs 10 be passed upon, and on
the trial OF the issues presented by such
defense, the parties have no legal right TO q
jury: ArgueIlo VS.. Edinger. 10 Cal, $50. 160 !;
Estrada VS.. Murohy, 10 Id, 24S, 272; Weber
VS.. Marshall, 10 Id, 447, 457: Lestrade VS..
Barth, 10 Id. 66l, Ell; Downer vs.. smith, ID
Ia; ia IA Marlin VS.. zelerbach, SO ID.
Swasey VS.. Adair, SS, Id, 179. Thus. in Es-
trada VS.. Murphy, supra, the Court, after the
language already quoted. continues: "The
equitable defense is, therefore, first to be
posed of the assertion OF the legal remedy is
in effect stayed. Upon the determination of