Spencer v. Vigneaux.

is also alleged that De Boom was so situated as to be unable to ascertain the facts, and it is averred that Vigneaux was examined as a witness in the case, and testified to the correctness of the demand upon which the suit was brought. In effect, therefore, the answer shows that De Boom had no actual knowledge of the payment; and that the means of acquiring such knowledge were entirely beyond his reach. So far as the answer of Grisar is concerned, no objection of this character is interposed; and we see nothing in the record for which the plaintiff is entitled to a reversal. The authorities cited by the counsel for the appellant on the question as to whether the defense set up is not to be regarded as res judicata, have no application. The principle enunciated is undoubtedly correct, but there was no actual adjudication upon the matter in controversy, and this principle cannot be invoked to sustain a fraud.

In Borland v. Thornton (12 Cal. 440) and in Riddle v. Baker (13 Cal. 295) the rule governing cases of this character is clearly laid down.

The judgment is affirmed.

On petition for rehearing, COPE, J. delivered the following opinion-FIELD, C. J. concurring.

The petition for a rehearing in this case must be denied. It is claimed that the suggestion as to a conspiracy between the plaintiff and Vigneaux is unauthorized by the evidence. The proof is that the payment was made by a house in Valparaiso, of which Vigneaux had the control and management, and it is hardly to be supposed that a payment of such magnitude was made without his authority or knowledge. It would be absurd to suppose that the plaintiff receiving it was ignorant of the fact, and the only inference from the concealment is that it was a matter of concert and arrangement. It is claimed also, that the admission in the answer of De Boom is conclusive of his rights, as it shows him to have been guilty of negligence in defending the former suit. The admission is that he had been informed of the payment; but the circumstances stated in connection with this admission exculpate him from the charge of laches. Vigneaux, who made the payment,

CAL. REPS. XX.- 29.

Fulton v. Hanlow.

denied having done so, and was present to support the denial by his oath; and afterwards actually came forward and swore to the correctness of the demand. It is said that De Boom should have applied for a continuance; but it is evident that he could not have made a showing sufficient for that purpose, and that the application would simply have been a matter of form. If he had known the facts, the failure in that respect would probably be fatal to the defense: but under the circumstances it would be a gross denial of justice to refuse relief.

The petition is denied.

FULTON v. HANLOW.

THE decision in Hart v. Burnett (15 Cal. 530) cited and followed upon the following points: That the city of San Francisco succeeded to the rights of the pueblo of Yerba Buena in the lands of the pueblo; that these lands were held in trust for the public use of the city; that they were not, either under the old Government or the new, the subject of seizure and sale under execution; that the title of the city was unaffected by sales of the Sheriff under executions against her; and that a defendant in ejectment, relying solely upon his possession, may set up the invalidity of such sales, or of the title derived therefrom, in defense to the action.

A declaration in a decree upon the character of the title of one of the parties, when the consideration of the character of such title is foreign to the case and unnecessary for its disposition, is without any binding force as an adjudication elther upon parties, privies, or any one else.

In order that a judgment may be a defense in another action on the ground of res judicata, the same point must have been directly in issue and determined by the judgment.

It is the point as to which relief is sought and upon which the judgment rests, and not any incidental or secondary matter that may have been controverted by the parties, that becomes res judicata.

The city and county of San Francisco filed a complaint for the purpose of obtaining an injunction against the execution of a deed by the Sheriff to a purchaser under an execution sale of property held by the city, making the purchaser, the judgment creditor, and the Sheriff, parties defendant. The complaint set up the nature of the city's title to the property, and facts going to show that it was not the subject of levy and sale under execution, and averred that a deed to the purchaser would be a cloud upon the title. The defendants answered, the judgment debtor and Sheriff disclaiming all interest in the com

Fulton v. Hanlow.

troversy, and the purchaser denying in substance the several grounds of equitable interposition. The case was submitted on the pleadings alone, and the decision was to the effect that the sale under the judgment and execution was valid and effectual to pass the title of the premises to the purchaser, and that there was no equity in the complaint, and adjudging that the complaint be dismissed as to the judgment creditor and the Sheriff, and that the purchaser was entitled to a conveyance from the Sheriff: Held, that the purchaser's title was not so adjudicated in this action, or established by the decree, as to become res judicata, but was still open to be controverted in a subsequent action of ejectment between the parties or their privies. Such a decree, by adjudging that there was no equity in the complaint, established the fact that the matters alleged were not sufficient for the exercise of the jurisdiction of a Court of Equity, and after this conclusion was reached, nothing was left for the Court but to deny the injunction and dismiss the suit; any determination as to the truth or falsity of the matters alleged was unnecessary and foreign to the case, and could not affect the rights of the parties in this respect when subsequently presented in a Court of law.

The judgment of a Court of Equity is equally effectual as res judicata as that of a Court of law, but the nature of their different jurisdictions must be considered In order to determine what was the exact matter decided, and upon what points the judgment operates as a final adjudication.

The only judgment that could be given in the equitable suit was merely one granting or denying an injunction, and the only direct point upon which that judgment could be based was that the deed would or would not be a cloud upon the plaintiff's title.

APPEAL from the Fourth Judicial District.

This is an action brought to recover the possession of a tract of land situated within the limits of the City and County of San Francisco, and specifically described by metes and bounds in the complaint.

The plaintiff claims title by virtue of a conveyance executed to Frank M. Pixley by the Sheriff of the county of San Francisco, upon a sale made under an execution issued from the District Court of the Twelfth Judicial District, in the case of the San Francisco Gas Co. v. The City of San Francisco, upon a judgment recovered in said case against the city, and of certain mesne conveyances from Pixley to the plaintiff. The judgment of the Gas Company was recovered and docketed May 14th, 1856; the execution thereon was issued February 10th, 1858; the sale thereunder was made March 23d, 1858, and no redemption having been made, the Sheriff's deed was executed to Pixley, the purchaser, December 13th, 1858.

Fulton v. Hanlow.

On the twenty-third of September, 1858, the City and County of San Francisco, the successors to the rights and title of the city in the premises, filed a complaint against the Gas Company, the Sheriff of the county, and Pixley, for an injunction to restrain the Sheriff from executing and Pixley from receiving a conveyance of the premises sold. The following are copies of the complaint, the answer of defendants, and the decree of the Court in that case:

[COPY OF THE COMPLAINT.]

"District Court, Twelfth Judicial District, City and County of San Francisco.

"The City and County of San Francisco v. The San Francisco Gas Company, Frank M. Pixley and Charles Doane, Sheriff of the County of San Francisco.

"The City and County of San Francisco, a corporation existing under and by virtue of the laws of the State of California, and plaintiff in the above entitled action, complains against the San Francisco Gas Company, Frank M. Pixley and Charles Doane, Sheriff of the county of San Francisco, and for cause of action shows to the Court

"That heretofore, to wit: on the fifteenth day of April, 1851, the city of San Francisco was incorporated as a municipal corporation by an Act of the Legislature of the State of California, entitled An Act to reincorporate the City of San Francisco,' and continued to be such corporation until the nineteenth of April, 1856.

"That on the nineteenth of April, 1856, by virtue of an Act of the Legislature of the State of California, entitled 'An Act to repeal the several Charters of the City of San Francisco, to establish the boundaries of the City and County of San Francisco, and to consolidate the Government thereof,' approved that day, the said city of San Francisco ceased to exist as a distinct and independent municipal corporation, but was merged and did become an integral part of the county of San Francisco, by the name of the City and County of San Francisco, which said county of San Francisco was then and ever since has been and now is one of the counties of the State of California.

"And by virtue of the same act, the public buildings, lands and

Fulton v. Hanlow.

property, all rights of property and rights of action, and all moneys, revenues and incomes belonging or appertaining to the corporation of the city of San Francisco or the county of San Francisco, vested in and appertained to the said city and county, and do now vest in and appertain to the said city and county, the plaintiff herein.

"And the plaintiff further shows, that the San Francisco Gas Company is a corporation existing under and by virtue of the laws of the State of California, and has been such corporation for more than two years last past; and that heretofore, to wit: on the fourteenth day of May, 1856, in the District Court of the Twelfth Judicial District, in and for the county of San Francisco, the said San Francisco Gas Company recovered a judgment docketed that day against the city of San Francisco, for the sum of twenty-five thousand eight hundred and seventy-eight dollars and seventy-five cents, with three hundred and forty-nine dollars costs of suit, which judgment remains in part unsatisfied.

"And the plaintiff further shows, that on the ninth day of February, 1856, the said San Francisco Gas Company, by James Donahue, President, and James G. Eastland, Secretary of said Company, assigned the said judgment, for a valuable consideration, to the said defendant Frank M. Pixley, with an irrevocable power of attorney to said Pixley to enforce the said judgment, and to collect the money due thereon in the name of said San Francisco Gas Company, which said judgment and power of attorney were filed in the Clerk's office of said Court on the ninth day of April, 1856; and that the said Pixley now claims to be the owner of the whole or a part of said judgment.

"And the plaintiff further shows to the Court, that on the tenth day of February, 1858, an execution was issued out of the said District Court of the Twelfth Judicial District upon the judgment aforesaid, duly attested and delivered to said Charles Doane, Sheriff as aforesaid, directed to him, which said execution was issued at the suit of the said San Francisco Gas Company, and by the direction of the said Pixley; and the said Pixley ordered and directed the said Sheriff to levy said execution upon the lands hereinafter described, and the said Sheriff under the direction of the said Pixley, on the

day of, 1858, did levy upon and take