HAMMELL v. BRITTON (1941)

Plaintiff appeals from a judgment in favor of defendants, which judgment was entered after the trial court had sustained a demurrer to plaintiff's amended complaint without leave to amend.

This action was brought to set aside a judgment in a former action numbered 202490 in the files of the superior court in the county of Los Angeles. Said action, hereinafter called the former California action, was originally brought in 1926 by Sophie Britton against her former husband, John Henry Britton, and against the plaintiff herein, D.C. Hammell, to quiet title to certain real property in this state. During the pendency of said former California action, said John Henry Britton died in 1927 and said Sophie Britton died in 1932 and their representatives were duly substituted. The cause was first tried in 1928 and it was again tried in 1933 and each of said trials was followed by an appeal. See Britton v. Bryson, 216 Cal. 362, 14 P.2d 502; Britton v. Hammell, 4 Cal.2d 690, 52 P.2d 221. The facts which form the background of this litigation are fully set forth in the opinions on said appeals and need only be briefly summarized.

Sophie Britton and John Henry Britton were married in 1873 and were residing in Colorado when said John Henry Britton obtained a decree of divorce in that state in 1891. He remarried thereafter and it was not until 1926 that further litigation started between the parties by the filing of said former California action. Said Sophie Britton sought thereby to quiet title to certain real property which said John Henry Britton had conveyed in 1926 to D.C. Hammell, the plaintiff herein, by deed of gift. After the filing of that action, and after the death of John Henry Britton in 1927, said Sophie Britton commenced an action in Colorado in 1928 to set aside the Colorado divorce decree of 1891. The defendants in that action were the administrator of the estate of said John Henry Britton and the heirs of said John Henry Britton. Plaintiff herein was not a party to said Colorado action to set aside the divorce decree. In that action Sophie Britton obtained a decree in 1928 setting aside the Colorado divorce decree of 1891 and she introduced said decree on the first trial of the former California action in 1928. Said former California action was based upon the theory that she and said John Henry Britton were at all times husband and wife; that the real property was community property; and that the conveyance thereof by way of gift to D.C. Hammell in 1926 was invalid as she had not consented thereto. Judgment went against her on the first trial of the former California action but said judgment was reversed on appeal. Britton v. Bryson, 216 Cal. 362, 14 P.2d 502. After her death in 1932, the former California action was again tried in 1933 and a judgment was entered in favor of her administrator, which judgment was affirmed on appeal. Britton v. Hammell, 4 Cal.2d 690, 52 P.2d 221. It is this last mentioned judgment which plaintiff, D.C. Hammell, now seeks to set aside.

In addition to the facts above set forth, plaintiff D.C. Hammell alleged in his amended complaint that he had no knowledge or notice of said 1928 decree setting aside the divorce decree or of the pendency of the action in which said decree was entered until said decree was introduced at the first trial of the former California action; that thereafter he commenced an action in Colorado against the administrator of the estate of Sophie Britton and the administrator of the estate of John Henry Britton and certain other defendants to set aside the Colorado decree of 1928 upon the ground that said decree had been obtained by the fraud and collusion of said Sophie Britton and the other parties to the action in which said decree had been obtained; that on July 6, 1934, a decree was entered in plaintiff's Colorado action whereby it was adjudged that the Colorado decree of 1928 setting aside the divorce decree was obtained through the fraud and collusion of the said Sophie Britton and other parties and that said Colorado decree of 1928 was of no force and effect and that the Colorado divorce decree of 1891 in favor of John Henry Britton was a valid and binding decree from and after the day of its entry; that an appeal was taken from said Colorado decree in plaintiff's favor and that said decree was thereafter affirmed. Plaintiff therefore prayed that the judgment in the former California action, which was based upon the Colorado decree of 1928, be set aside.

Plaintiff contends that his amended complaint stated a cause of action and that the trial court erred in sustaining the demurrer thereto and in entering judgment in favor of defendants. In our opinion, this contention must be sustained. To hold otherwise would mean that the decree in the former California action quieting the title of Sophie Britton to the real property standing in the name of plaintiff, D.C. Hammell, would be permitted to stand despite the fact that it was based upon the 1928 decree of the Colorado court setting aside the Colorado divorce decree of 1891, which decree of 1928 has in turn been set aside in the later Colorado action in which it was adjudged that the 1928 decree of the Colorado court was obtained by fraud and collusion of said Sophie Britton and others and that said Sophie Britton was not the wife of said John Henry Britton at any time after the entry of the Colorado divorce decree of 1891. This would be a strange and unusual result at which to arrive in this prolonged litigation.

Defendants take the position that the allegations of the amended complain show only intrinsic fraud rather than extrinsic fraud on the part of said Sophie Britton. We do not believe this position to be tenable. While our attention has not been directed to any case directly in point, the authorities have frequently discussed the nature of the fraud which constitutes extrinsic fraud justifying the setting aside of a judgment in a former action. Perhaps the cases most frequently cited are Flood v. Templeton, 152 Cal. 148, 92 P. 78, 13 L.R.A.,N.S., 579; Pico v. Cohn, 91 Cal. 129, 25 P. 970, 27 P. 537, 13 L.R.A. 336, 25 Am.St.Rep. 159, and United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93. See, also, 15 Cal.Juris. 14, § 123; 23 Cal.Law Rev. 79; 9 Cal.Law Rev. 156 and cases cited. Some of the acts which constitute extrinsic fraud are set forth in Pico v. Cohn, supra, but “any attempted recital of the means or manner in which extrinsic fraud may be perpetrated is necessarily incomplete and not intended as a statement of all the devices which may be employed”. 15 Cal.Juris. 16; see, also, Milekovich v. Quinn, 40 Cal.App. 537, 547, 181 P. 256. Under the general principles set forth in said authorities, we are of the view that the allegations of the amended complaint were sufficient to show extrinsic fraud on the part of said Sophie Britton.

The facts here were quite different from the facts in the ordinary case wherein it is sought to set aside a judgment in a former action. Related litigation was being conducted in the courts of two jurisdictions. The litigation in Colorado involved the marital status of said Sophie Britton and said John Henry Britton and the litigation in California involved the rights of said parties and plaintiff D.C. Hammell in the real property situated in California. The determination of the Colorado courts, however, relating to the marital status of said Sophie Britton and John Henry Britton was entitled to full faith and credit in the California courts (Britton v. Bryson, 216 Cal. 362, 14 P.2d 502), and under the circumstances, such determination would be the decisive factor in the California litigation. With these considerations in mind, we may consider the conduct of said Sophie Britton as shown by the allegations in the amended complaint. After filing the California action and after the death of said John Henry Britton during its pendency but prior to the trial thereof, said Sophie Britton, without notice to and without the knowledge of said plaintiff D.C. Hammell, commenced a fraudulent and collusive action in Colorado to set aside the Colorado divorce decree of 1891 and to have it determined that she and John Henry Britton were husband and wife at all times including the time when the property was acquired and the time when the deed of gift was delivered to plaintiff D.C. Hammell by said John Henry Britton in 1926. She succeeded in obtaining such a decree through such fraud and collusion and she introduced said decree in the former California action as the basis for her judgment therein. Plaintiff learned of such decree for the first time when it was so introduced upon the trial of the former California action and, under the circumstances, he had no real opportunity to defend against it. It therefore appears from the allegations of the amended complaint that the fraud of said Sophie Britton in obtaining the Colorado decree of 1928 permeated the entire litigation and that such fraud prevented any real contest or adversary trial in either the Colorado trial of 1928 or the trial of the former California action. In so far as said former California action is concerned, the alleged fraud was in our opinion extrinsic fraud which would warrant the setting aside of the judgment therein.

The judgment is reversed with directions to the trial court to overrule the demurrer.

SPENCE, Justice.

We concur: NOURSE, P.J.; STURTEVANT, J.