Spencer v. Harmon Enterprises, Inc.

• Decision Date: 24 May 1965
• Citation: 44 Cal.Rptr. 683,234 Cal.App.2d 614
• Court: California Court of Appeals Court of Appeals
• Parties: Mary Ann Gaasch SPENCER, as Administratrix of the Estate of Michael O'Toole also known as Michael D. O'Toole, Deceased, Plaintiff and Respondent, v. HARMON ENTERPRISES, INC., et al., Defendants and Appellants. Civ. 7159.

Page 683

44 Cal.Rptr. 683

234 Cal.App.2d 614

Mary Ann Gaasch SPENCER, as Administratrix of the Estate of Michael O'Toole also known as Michael D. O'Toole, Deceased, Plaintiff and Respondent, v. HARMON ENTERPRISES, INC., et al., Defendants and Appellants.

Civ. 7159.

District Court of Appeal, Fourth District, California.

May 24, 1965.

Rehearing Denied June 10, 1965.

Hearing Denied July 21, 1965.

Chapman & Sprague, Roy E. Chapman, San Bernardino, and Max Tendler, Los Angeles, for defendants and appellants.

James A. Starritt, Mariposa, and Guy T. Graves, Los Angeles, for plaintiff and respondent.

CONLEY, Justice. ^*

This is an appeal by Harmon Enterprises, Inc. (hereinafter called Harmon) and its guiding spirit, Herbert Rose, from a judgment in favor of the heirs of Michael O'Toole acting through the administratrix of his estate, which restored to them a parcel of land in San Bernardino County, together with damages and costs. The judgment quieted title to the east half of the property described in respondent's complaint; but provided that Eva M. Ward and Alma Asmussen (not parties to this appeal) were bona fide purchasers for value without notice of the west half of the quarter section, and that, consequently, they may retain title to that portion of the real estate; however, appellants were directed either to reacquire and deed the latter real property to the respondent, or, in the alternative, to pay her the sum of $22,000 as damages for its loss. The court also vacated and set aside (except as to the interests of Eva M. Ward and Alma Asmussen) a prior judgment of the Superior Court of San Bernardino County (numbered 86086 therein), which had purported to quiet the alleged title of Harmon to the subject property. The judgment and findings also determined that appellants not only had obtained ostensible title by extrinsic fraud, but had slandered respondent's title to the subject property, and that, as a result, respondent suffered additional and special damages in the amount of $5,450 as reasonable attorneys' fees incurred in the instant action. The court characterized the acts of appellants as fraudulent, malicious and oppressive, and judgment was, consequently, ordered in favor of plaintiff for an additional $5,000 as punitive damages. Costs of suit were also awarded to respondent, but it is claimed that, by inadvertence or otherwise, the respondent failed to file a second exemplar of her cost bill after the judgment was modified in connection with appellants' motion for a new trial.

At the beginning, it is advisable to note carefully the exact scope of the notice of appeal: 'This appeal is taken from the portions of said judgment appearing on pages 3 and 4 of the judgment and more particularly designated in said judgment as sub-paragraphs 4, 5, 7, 8, and 9.' Subparagraphs 4 and 5 award reasonable attorneys' fees in the sum of $5,450 to plaintiff as against the defendants, Herbert Rose and Harmon, because they '* * * slandered and disparaged the title of plaintiff to said real property'; subparagraph 7 provides for the payment of $5,000 as exemplary damages; subparagraph 8 awards costs of suit to the plaintiff and paragraph, 9, which incidentally is not discussed in any way in the briefs, the point being presumably waived, is as follows:

'This judgment shall bear interest at the rate provided by law from the date of its actual rendition and entry but otherwise shall be deemed to have been rendered and entered nunc pro tunc as of the 16th day of June, 1961.'

The notice of appeal is therefore notable, not only for what is specifically included, but for what is excluded. The appellants do not here question the impact of subparagraph 1 of the judgment, which holds that plaintiff is the owner in fee simple and entitled to the possession of the east half of the northeast quarter of section 32, township 11 north, range 4 west, San Bernardino Base and Meridian, or the determination that the appellants have no right in or to that land, or that the west half of the quarter section now belongs to Eva M. Ward and Alma Asmussen as bona fide purchasers for value without notice; neither do the appellants quarrel with the portion of the holding which sets aside the earlier judgment in favor of Harmon in case No. 86086. The effect of these inferential concessions is the implied admission that the trial court had before it substantial evidence from which it found that the respondent had been threatened with the deprivation of title through the fraudulent attempt of the appellants to acquire the land, and, furthermore, that the portion of the judgment which requires the return of the west half of the quarter section to the plaintiff or the payment of $22,000 in damages in lieu thereof is unimpeachable.

Michael O'Toole died on the 28th day of March, 1944; he was then the owner of the northeasterly quarter of section 32, township 11 north, range 4 west, San Bernardino Base and Meridian. Taxes on his property were delinquent, starting with the fiscal year 1940, and continuing each succeeding year through the fiscal year 1948; and the property had been deeded to the State of California as a result of the nonpayment of taxes. The land was then redeemed by one of the O'Toole relatives, Mrs. William Bradkey, on April 22, 1949.

Several of his heirs, including Mrs. Bradkey, Joseph O'Toole, Helen Cramer and Mary Ann Gaasch Spencer, were aware of the death of Michael O'Toole, of his ownership of the land, and that the taxes on it were delinquent. At the time Mrs. Bradkey redeemed the property in 1949, some of the heirs besides herself, contributed to the payment of the past due taxes.

In 1954, one of the defendants, Diana Randolph, ferreted out the fact that taxes again became delinquent on the property for 1949 and subsequent years; during her investigation, she learned that Michael O'Toole was deceased; she ascertained the address of Mr. Joseph O'Toole from whom she requested a quitclaim deed; he refused to give her such an instrument. Thereupon, Diana Randolph paid the current year's taxes and an installment on the delinquent taxes under the five-year-pay plan; she later assigned whatever interest she had acquired by the payment of taxes to Harmon with the understanding that when it cleared the title through contemplated proceedings, it would share with her the ownership of the property.

On December 9, 1955, attorney, Michael Motta, filed a petition for the appointment of P. A. Powell, as administrator of the estate of Michael O'Toole, deceased, in Los Angeles County (Probate No. 372354); Powell was then an employee of the appellant Rose, and attorney Motta had been retained by Rose to represent Powell. In the petition for appointment, it was alleged that Harmon '* * * claims an interest in the aforesaid real property, and has filed a quiet title action in order to remove the claim of the Estate of Michael D. O.'Toole in and to said real property' and that '* * * as far as known to your petitioner there are no heirs.' Powell succeeded in obtaining an order appointing himself as administrator and he qualified as such on January 19, 1956.

On March 22, 1956, Diana Randolph wrote to Mrs. William Bradkey, sister of Michael O'Toole, stating, 'About a year ago I took over the desert land of your late brother, Michael O'Toole for the taxes,' and asking for a deed which was not given to her. The record shows that Diana Randolph did not redeem the property by the payment of taxes until April 11, 1956.

On July 23, 1956, Harmon, acting through attorney Leon Gordon, fild a complaint in San Bernardino County to quiet title to the subject property, naming P. A. Powell, as administrator of the estate of Michael O'Toole, deceased, as one of the defendants. The pleading was a short form quiet title complaint containing the averment that Harmon was the owner of four described parcels of real property, including the subject property, which was therein designated as parcel three. It further alleged that Powell, as administrator, and the other defendants '* * * claim an interest in said real property adverse to the Plaintiff and that the claims of said Defendants are without any right whatsoever, and that said Defendants have not nor has any one of them any right, title or interest whatever in said land.' No heir of Michael O'Toole was named as a party defendant. After apparent regular service upon him, Powell, as administrator, defaulted; the default was duly entered of record, and judgment quieting Harmon's alleged title to the property as against the estate of Michael O'Toole was filed on October 16, 1956; the judgment was then recorded in the office of the County Recorder of San Bernardino County on October 25, 1956. Leon Gordon, the attorney of record for Harmon, appeared for it at the default hearing; the 'evidence' presented by him consisted of the quitclaim deed from Diana Randolph to Harmon as to which he made the oral statement that the instrument covered parcel three; the deed, however, was never actually received in evidence, but was returned by the trial judge to attorney Gordon with a statement, 'You will have to record the deed. Take judgment as to Parcels 3 and 4.'

On October 31, 1956, Security Title Insurance Company issued a policy of title insurance to Harmon with a value of $1,000.

More than a year later, on January 21, 1958, two deeds and a deed of trust, covering the west half of the property, were recorded in San Bernardino County by Land Title Company of San Bernardino. One of the deeds, dated December 27, 1957, was from appellant Harmon to Randolph Properties, Inc. That organization deeded to Eva M. Ward and Alma Asmussen and others whose rights were later acquired by the two womon.

The heirs of Michael O'Toole, including Mrs. William Bradkey, Joseph O'Toole, Helen Cramer, and Mary Ann Gaasch Spencer, knew that taxes on the property were again delinquent starting with 1949, and also knew that Diana...