C. H. KILLEY and C. H. LAPHAM v. JOHN WILSON, LYMAN F. GREEN, and HETTY C. GREEN, HIS WIFE, 33 Cal. 690

By the Court, Rhodes, J.: The judgment roll in the case of Hastings v. Cudworth, after the defendants presented the objection to its admission, on the ground that it was null and void, was received in evidence by consent of parties, with the understanding and agreement that the Court, after examining the papers, orders, etc., should pass on the objection. The Court sustained the objection, and this is the sole error relied on by plaintiffs.

For the purpose of determining the appeal, it is unnecessary to consider this question ; and although it may be as the plaintiff’s counsel regards it—one of very great interest and importance—we decline to examine it, because, conceding that the judgment offered in evidence is valid, or that it is not open to a collateral attack, the judgment in this ease must still be for the defendant, Hetty C. Green. At the time that case was referred by the stipulation of the parties, it was also stipulated that the plaintiff in that case should, within five days, execute and properly acknowledge a quitclaim deed to Hetty C.

Green, of Blocks Humbers Two Hundred and Forty-Two and Two Hundred and Sixty-Four. She claims in this action only a part of Block Two Hundred and Sixty-Four. The stipulation secured to her the equitable title, as against Hastings, and it was equally available in her favor against the present plaintiffs, who are purchasers from Hastings, for, at the time of their purchase she was in possession, claiming title, and that was sufficient to put them upon inquiry as to her right or title. It also appears that the deed was executed and delivered by Hastings to Hetty C.

Green in accordance with the stipulation, except that it was not acknowledged. The legal title, so far as the same was held by Hastings, under his judgment or otherwise, passed to her through that deed. Subsequently, and after a controversy between the parties, respecting the deed and its acknowledgment, Hastings executed a deed of Block Two Hundred and Forty-Two, and she paid him two hundred dollars, and returned the first deed to be torn up. The surrender of the deed and its destruction—if it was destroyed—did not revest the legal title in Hastings. (Bowman v.

Cudworth, 31 Cal. 152; 2 Wash, on Real Property, 557; Greenl. Ev. Sec. 568, and cases cited.) If the agreement, at the time the deed was returned to Hastings was such as entitled him to a reconveyance of Block Two Hundred and Sixty-Four, that relief cannot be granted here, for the plaintiff has not stated such a case in the complaint, the action being in the form usual in actions to quiet title, and not an action for a specific performance. Judgment affirmed. Mr. Justice Sawyer did not express an opinion.