[No. 18353. In Bank.-October 1, 1895.]

LAURA J. HILDRETH, ADMINISTRATRIX, ETC., APPELLANT, v. J. G. JAMES ET AL., RESPONDENTS.

EJECTMENT-JUDGMENT QUIETING TITLE-RES ADJUDICATA.-In an action of ejectment, a prior judgment quieting the title of the vendor of the defendants as against the plaintiff is res adjudicata, and estops and debars the plaintiff from prosecuting the action of ejectment against the defendants.

APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. M. K. HARRIS, Judge.

The action was brought by Laura J. Hildreth, as administratrix of the estate of Thomas Hildreth, deceased, to recover land situated in the county of Fresno. Thomas Hildreth, in his lifetime, claiming an equitable interest in the lands in controversy, on the twenty-eighth day of April, 1885, agreed to quitclaim the lands in controversy to the defendants W. W. Davis and D. P. Edwards, who on the day previous entered into an agreement with Kate D. McLaughlin for a conveyance of the legal title to them. Afterward, the defendants J. G. James and J. R. White purchased an interest in the executory contract from Davis and Edwards, and entered into possession with them of a portion of the premises. The defendants claimed that Hildreth had no right or interest in about four hundred acres of the land bargained for, and that they settled and compromised with his administrator, William Dunphy, and paid him an agreed price for the equitable interest of Thomas Hildreth in the remainder of the land, with the approval of the probate court. The defendants acquired a bargain and sale deed of all the premises described in the complaint, with the exception of about four hundred acres thereof, from Kate D. McLaughlin, who held the legal title thereto. Before the conveyance of that title Kate D. McLaughlin, who claimed title to the land as administratrix and as sole devisee of Charles

McLaughlin, deceased, on the twenty-ninth day of April, 1887, commenced an action against the plaintiff as administratrix of the last will and testament of Thomas Hildreth, deceased, and other defendants to quiet the title of the estate of Charles McLaughlin, deceased, and of Kate D. McLaughlin, administratrix thereof, to the lands described and set forth in this action, and afterward, during the pendency of the action, Kate D. McLaughlin, in her own right and as administratrix, deeded the land to the defendants, and agreed to prosecute the action to final judgment for their benefit, and it finally resulted in the judgment quieting the title of the estate of Charles McLaughlin and of the plaintiff as administratrix, as against the defendants in that action, which judgment is the one referred to in the opinion of the court.

J. C. Black, for Appellant.

W. C. Graves, for Respondent.

MCFARLAND, J.-This is an action of ejectment to recover certain parcels of land containing about thirteen thousand acres. The superior court rendered judgment for defendants and plaintiff appeals.

We see no reason for reversing the judgment or the order denying appellant's motion for a new trial. We pass over respondents' contentions that the title to the land passed to Charles McLaughlin by the deed to him from Burr, Shotwell, and the decedent, Thomas Hildreth; that all demands of the estate of said Hildreth against respondents were compromised with William Dunphy, administrator of said estate, with the approval of the probate court; and that, even viewing the deed to McLaughlin as a mortgage, this action must fail because a mortgagor cannot maintain ejectment against a mortgagee in possession until the debt is paid. There are other points made by respondents which we do not deem it necessary to review. We pass these points and contentions, because in our opinion the appellant is

estopped and debarred from the prosecution of this action by the judgment rendered in the action of Kate McLaughlin, executrix of the will of Charles McLaughlin, deceased, against Laura J. Hildreth et al., to quiet title to the lands involved in the present action. The nature of that action, and the facts concerning it, are fully set forth in the transcript, and it would serve no useful purpose to recite them here.

The judgment and order denying appellant's motion for a new trial are affirmed.

HARRISON, J., GAROUTTE, J., TEMPLE, J., and HENSHAW, J., concurred.

VAN FLEET, J., deeming himself disqualified, did not participate in the foregoing.

Rehearing denied.

[No. 18385. In Bank.-October 1, 1895.]

LAURA J. HILDRETH, ADMINISTRATRIX, ETC., ET AL., APPELLANTS, v. J. G. JAMES ET AL., RESPONDENTS.

ACTION TO SET ASIDE JUDGMENT-FRAUDULENT CONCEALMENT-DEED

INTENDED AS MORTGAGE-PUBLIC INVENTORY OF ESTATE-LACHES. An action to cancel and set aside a judgment quieting title to land, brought more than five years after the entry of the judgment sought to be canceled, is barred by laches and gross carelessness of the plaintiffs, and cannot be maintained upon allegations that the plaintiff in the action to quiet title had only a mortgage interest in the land under a deed absolute on its face, and had fraudulently concealed the fact that it was a mortgage, where it appears that in the inventory of the estate of the grantee of the deed, filed by the administratrix, who was plaintiff in the action to quiet title, the land in contest was stated to be a mortgage interest of the grantee, and such inventory constituted a public record at the time of the action to quiet title, and would have been evidence of the fact claimed to have been concealed.

APPEAL from a judgment of the Superior Court of Fresno County. M. K. HARRIS, Judge.

The facts are stated in the opinion of the court.

J. C. Black, for Appellants.

The suppression of falsehood in the action to quiet title, that the estate of McLaughlin was the owner in fee of the property, when it only held a mortgage interest therein, was a fraud which vitiates the judgment. (Civ. Code, secs. 1571, 1572; California Beet Sugar Co. v. Porter, 68 Cal. 372, 373; Archbishop V. Shipman, 69 Cal. 589; Black on Judgments, secs. 366-71; Whittlesey v. Delaney, 73 N. Y. 571; Freeman on Judgments, secs. 48993; Roseman v. Canovan, 43 Cal. 116; Edson v. Edson, 108 Mass. 590; 11 Am. Rep. 393; Adams v. Adams, 51 N. H. 388; 12 Am. Rep. 134; Hayden v. Hayden, 46 Cal. 333; Poindexter V. Waddy, 6 Munf. 418; 8 Am. Dec. 749.) The action having been brought within three years from the discovery of the fraud was in time. (Code Civ. Proc., sec. 338, subd. 4; Moore v. Moore, 56 Cal. 89; 2 Pomeroy's Equity Jurisprudence, sec. 917; Gleason v. White, 34 Cal. 258; People v. Blankenship, 52 Cal. 619; Preston v. Preston, 95 U. S. 200.)

W. C. Graves, for Respondents.

The complaint was insufficient, as it shows no diligence to ascertain the facts. (Butler v. Vassault, 40 Cal. 74; Mulford v. Cohn, 18 Cal. 43; Boston v. Haynes, 33 Cal. 37; Allen v. Currey, 41 Cal. 318; Whitney v. Kelley, 94 Cal. 146, 155; 28 Am. St. Rep. 106; Zellerbach v. Allenberg, 67 Cal. 296; Davis v. Chalfant, 81 Cal. 627, 631.)

MCFARLAND, J.-This is an action to have canceled and set aside a judgment rendered in a certain action. in which Kate D. McLaughlin, executrix of Charles McLaughlin, deceased, was plaintiff, and Laura J. Hildreth (plaintiff herein) and others were defendants, rendered on the second day of February, 1888, quieting the title of plaintiff therein to certain land. This present action was not brought until more than five years after the entry of the judgment sought to be canceled. A general demurrer to the amended complaint was

sustained, and plaintiffs failing to judgment was rendered for defendants. peal.

further amend,

Plaintiffs ap

The demurrer was properly sustained. In the complaint no facts are averred showing any diligence on the part of appellants, at the time of the pending of said action of Kate D. McLaughlin v. Laura J. Hildreth et al., to discover what they now allege to have been a defense to said action. One of the principal averments is that a certain deed to Charles McLaughlin, absolute on its face, was in fact a mortgage, and that the plaintiff in said action concealed the fact that it was a mortgage from the defendants therein (appellants herein). The only concealment consisted in the fact that Mrs. McLaughlin averred in her complaint that she, as successor to Charles McLaughlin, owned the land in fee; the defendants therein demurred to the complaint, and the demurrer being overruled, they failed to answer, and there is no averment in the complaint in the present action that they took any steps to inform themselves as to what they now aver to have been the real facts. Indeed, it affirmatively appears from the complaint that they were guilty of gross carelessness; they aver, for instance, that they can now prove by the records of the probate court, then in existence, that in the inventory of the estate of Charles McLaughlin filed by Mrs. McLaughlin she stated that the only interest which the estate of said Charles had in the land in contest was a mortgage interest secured by a deed absolute on its face, but given as a mortgage. If this be true there was a public record at the time of said action which would have been evidence of the fact claimed to have been concealed. We think that the averments of the complaint are totally insufficient to warrant a decree setting aside a solemn judgment of the court of record, especially after it has stood for so long a period unchallenged.

The judgment is affirmed.