(75 Cal. 240) WARD v. DOUGHERTY. (No. 11,085.) (Supreme Court of California. March 14, 1888.) 1. DEED-DELIVERY-PRESUMPTION. In an action to quiet title, plaintiff produced at the trial a deed from defendant, executed and acknowledged by him, duly recorded, and forming part of the chain of title from defendant to plaintiff. Held, that such facts constitute prima facie evidence of delivery, and, under Civil Code Cal. § 1055, providing that "a grant duly executed is presumed to have been delivered at its date," such delivery will be presumed to have been at the date of the deed. 2. SAME-IDENTITY OF GRANTOR-PRESUMPTION. Code Civil Proc. Cal. § 1963, provides that identity of person shall be presumed from identity of name. Held that, in an action to quiet title, where plaintiff claimed under a deed executed in the name of defendant, it will be presumed to be defend-ant's deed. 3. RES ADJUDICATA-LIEN FOR STREET ASSESSMENT-FORECLOSURE. In an action to quiet title, plaintiff claimed under a sheriff's sale, made in pursuance of a decree of foreclosure of the lien of a street assessment. Such assessment was, in that decree, declared paramount to the lien of a mortgage, the mortgagee under whom defendant claimed having been made a party to such proceeding to foreclose. Held, that defendant, being in privity of estate with such mortgagee, and the court rendering such decree having jurisdiction of the subject-matter and of the person of the defendant in such proceeding, it cannot be attacked collaterally by defendant's showing that the assessment had been paid. 4. MORTGAGES-FORECLOSURE-SHERIFF'S DEED TO PURCHASER AFTER CONVEYANCE BY LATTER. Defendant held a certificate of purchase under a foreclosure sale. The time for redemption had passed, and he conveyed the premises by quitclaim deed to plaintiff's grantor before the sheriff's deed had been made to him. Held, that the sheriff's deed subsequently made to defendant is void as between him and plaintiff. Department 1. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge. John J. Coffey, for appellant. Wm. M. Pierson, for respondent. SEARLS, C. J. This is an action to quiet title to a lot of land at the corner of Van Ness avenue and Broadway, San Francisco. Plaintiff deraigned title through a quitclaim deed executed by the defendant, John Dougherty, on the 14th day of June, 1870, to one Patrick J. Tannian, and recorded June 18, 1870, at the request of one Julius George. Plaintiff, in further support of title in herself, introduced a deed from P. J. White, sheriff of the city and county of San Francisco, to James Gaffney, under whom plaintiff claims by sundry mesne conveyances, dated July 5, 1883, and executed pursuant to a decree, order of sale, and sale in the case of James Gaffney v. Barnaby Dougherty, in an action to foreclose the lien of a street assessment under a contract made the 9th day of September, 1866. It appears from the judgment roll that Denis Mahoney, one of the defendants in the action, set up in a cross-complaint the prior lien upon the property of a mortgage thereon executed May 26, 1864, by Barnaby Dougherty to David Mahoney, and assigned to him, the said Denis Mahoney, by the mortgagee, David Mahoney. The lien of the street assessment was declared to be paramount to that of the mortgage. Date of decree, December 14, 1867; date of sale thereunder, January 22, 1868. Defendant claims title to the premises under a sheriff's deed, dated July 3, 1883, and executed pursuant to a foreclosure and sale of the premises under the mortgage above mentioned, in an action in which Denis Mahoney was plaintiff and B. Dougherty defendant. Decree entered March 19, 1868; sale April 14, 1868, to Denis Mahoney, who received a certificate of sale, and assigned the same to the defendant on the 22d day of September, 1868, with all his right, title, and interest in the premises. James Gaffney was made a party defendant in this last-named action, but there was a dismissal as to him, and no decree was taken against him. Upon the closing of the testimony on the part of plaintiff, defendant moved for judgment as in case of nonsuit, upon the ground that there was no proof of delivery of the deed from defendant v.17p.no.4-13 Dougherty to P. J. Tannian. The motion was overruled, and this action is assigned as error. We find in the record no specification of the particulars in which the evidence is alleged to be insufficient, but, waiving this point, we think there was sufficient evidence of the delivery of the deed by the defendant to the grantee therein named. It was regularly executed, acknowledged, and recorded as a conveyance of title to the premises in dispute. It formed a part of the regular chain of title from the defendant to plaintiff, and was produced and offered in evidence at the trial by the attorney of the latter. It is hardly necessary to say that a deed only takes effect upon delivery, and that without such delivery it has no validity. Possession of a deed of property, however, by the grantee therein named, and upon the same principle by one holding by conveyance of the same property under him, is prima facie evidence of its delivery. The question of delivery being one of fact, and possession being only primary evidence of delivery, he who disputes such fact may rebut the presumption arising from possession by showing that there has in fact been no delivery; but it has been said that where a deed is found in possession of the grantee, nothing but the most satisfactory evidence of non-delivery should prevail against the presumption. Devl. Deeds, § 294. In Tunison v. Chamblin, 88 Ill. 379, it was said: "When a deed duly executed is found in the hands of a grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption. Otherwise titles could be easily defeated, and no one could be regarded as being secure in the ownership of the land. It cannot be that a grantor may assail a conveyance fifteen or twenty years after a deed has been made, and recover the land by merely swearing that he never delivered the deed. The unsupported evidence of the grantor surely cannot be permitted to have such effect, especially when the evidence of such a grantor is in many material matters contradicted, and who seems to act on a low moral plane. To so hold would render all titles insecure, and would be disastrous in the extreme. Any system of jurisprudence adopting rules for the attainment of justice can never sanction a rule fraught with such unjust and iniquitous results." In Branson v. Caruthers, 49 Cal. 374, it was said: "The production of the deed of gift by the attorneys of the wife (the grantee) was sufficient evidence of its delivery and acceptance." Barr v. Shroeder, 32 Cal. 609. Section 1055 of the Civil Code provides that "a grant duly executed is presumed to have been delivered at its date." It may be inferred from the decision in Boyd v. Slayback, 63 Cal. 493, that this court was of opinion that this inference only applied to the time, and not to the fact, of delivery. In other words, that the fact of delivery must be proven by other and competent evidence, and that, when proven, the presumption of the Code as to the time of such delivery applies. In view of this interpretation the fact of delivery of the deed from defendant to Tannian having been sufficiently proven by its production by the attorneys of plaintiff, who held under him, the date of such delivery will, under the Code, be deemed to have been the date of the instrument, viz., June 14, 1870. So, too, John Dougherty, who executed the deed, is presumed, under section 1963 of our Code of Civil Procedure, to be the John Dougherty who is defendant in the cause, upon the theory that identity of person is presumed from identity of name. What is said here will apply with like effect to similar errors assigned upon the introduction of other deeds. The only other alleged error is predicated upon the refusal of the court to permit defendant to testify in answer to the following question: "Do you know of your own knowledge whether the assessment for that street work was paid by Denis Mahoney?" The proffered evidence involved an attempt to show by parol, in a collateral attack, that the decree of foreclosure of the lien of the street assessment, and the sale and deed thereunder, were void by reason of the payment of such assessment. Both plaintiff and defendant are in privity of es tate with Denis Mahoney, and the decree, being fair on its face, and rendered in a case where the court had jurisdiction of the subject-matter, and of the person of defendant, is not subject to collateral attack. Again, if we dismiss from view the title of plaintiff, based upon the sale under foreciosure of the lien for street assessment, which was found to be paramount to the lien of the mortgage, under which defendant claims title, and the case stands thus: Defendant held a certificate of purchase under the foreclosure sale. The time for redemption had expired. He had a perfect equitable title, which only lacked a sheriff's deed to turn it into a legal title. In this condition of things he conveyed by his quitclaim deed on the 14th day of June, 1870, to Tannian, from whom plaintiff deraigns title. In Green v. Clark, 31 Cal. 592, it was held that if one who has purchased land at sheriff's sale quitclaims his interest in the same, before a sheriff's deed is given, the quitclaim is equivalent to an assignment of the sheriff's certificate of sale, and if the sheriff afterwards give a deed to the purchaser, the deed is void as between the parties. It follows that, were we to concede the error upon the exclusion of defendant's testimony to be well assigned, the conclusion rendered by the court below was correct. Judgment affirmed. REAGAN . JUSTICE'S COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al. (No. 11,228.) (Supreme Court of California. March 15, 1888.) 1. REVIEW, WRIT OF WHEN LIES JUDGMENT BY DEFAULT. A judgment rendered upon default by a court having jurisdiction of the parties and the subject-matter cannot be questioned upon a writ of review. A complaint upon contract, to which the plea of the statute of limitations or of frauds has not been properly interposed, will be presumed to state a good cause of action as to these defenses, unless the contract is one which must be in writing, to confer jurisdiction on the court. Department 1. Appeal from superior court, city and county of San Francisco; T. K. WILSON, Judge. Appeal from a judgment dismissing a writ of review in the case of Daniel Reagan, plaintiff and appellant, against the justice's court of the city and county of San Francisco, and William B. Smith, a justice of said court, and Bridget Fitzgerald, executrix of the last will and testament of Patrick Fitzgerald, deceased, defendants and respondents. John D. Whaley, for appellant. M. Cooney, for respondents. SEARLS, C. J. This is an appeal from a judgment of the superior court of the city and county of San Francisco, dismissing a writ of review to the justice's court of said city and county. An action was commenced in the justice's court. The following is a copy of the complaint: "IN THE JUSTICE'S COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA. "Bridget Fitzgerald, Executrix of the Last Will of Patrick Fitzgerald, Deceased, Plaintiff, vs. Daniel Reagan and Ann Reagan, Defendants. "The above-named plaintiff complains of the above-named defendants, and alleges that the said Patrick Fitzgerald died in said city and county on or about the 28th day of July, 1884, leaving a will, which, after due proceedings had, was admitted to probate as his last will and testament on the 13th day of August, 1884, in and by the order and decree of the superior court of said city and county, duly made and given herein. And on or about the same day letters testamentary upon his estate issued to said plaintiff, Bridget Fitzgerald, out of said court, and she then and there qualified as executrix of said will, and she ever since has been, and now is, such executrix. That at the time of the death of said Patrick Fitzgerald the said defendants were indebted to him in the sum of $381, gold coin of the United States, for money loaned by said deceased to the defendants in his life-time, and legal interest on the same. That in about three months after the said death the defendants promised to pay said sum of $381 to said executrix, but they have not paid the same, or any part thereof, except the sum of $101, leaving a balance of $280 still due and unpaid, which sum is now payable to said plaintiff as executrix. Wherefore the plaintiff prays for judgment against the defendants for the sum of $280, with interest and costs. M. COONEY, Attorney for Plaintiff." Indorsed: "Filed February 4, 1885. . "FRANK MURPHY, Clerk. "By M. T. DwYER, Deputy-Clerk." Summons in due form was issued, returnable February 9, 1885, which was duly served, together with a copy of the complaint upon the defendant. He failed to appear to the action on the 9th, but on a day later, on the 10th, filed a demurrer to the complaint, which was stricken out, and judgment entered against him by default, as prayed for in the complaint. Before the expiration of 10 days he moved, on notice and affidavit under section 859, Code Civil Proc., to set aside the default, and for leave to answer. The motion was met by counter-affidavits, and was denied by the court, whereupon a writ of review was sued out from the superior court, which, upon the coming in of the return, was dismissed, as herein before stated. The complaint stated a cause of action against the defendant. The right to interpose the plea of the statute of limitations is waived, unless taken advantage of by demurrer or answer; and, had the complaint shown affirmatively on its face that the demand was so barred, it could have availed defendant nothing, in the absence of such demurrer or answer. So, too, where, under the statute, an agreement is required to be in writing, such agreement, if in other respects properly pleaded, will be presumed, for the purpose of testing the sufficiency of the pleading, to have been in writing. Wakefield v. Greenhood, 29 Cal. 598; Miles v. Thorne, 38 Cal. 335; Vassault v. Edwards, 43 Cal. 458; Blennan v. Ford, 46 Cal. 8. The exception to the rule arises in cases where the contract must necessarily be in writing, to confer jurisdiction on the court. Cory v. Hyde, 49 Cal. 469. In justices' courts, pleadings are not held to any great degree of strictness; but waiving this leniency to the pleading, and we are of opinion it was quite sufficient, in the absence of objection, to constitute a cause of action, under our Code, in any court. The court had jurisdiction of the subject-matter, and of the person of the defendant. We see nothing in the record to indicate that the court did not regularly pursue the authority conferred upon it by law. If, in so doing, it committed errors, it is not the province of the writ of review to correct them, as it only issues in case where the inferior tribunal, board, or officer, exercising judicial functions, has exceeded its jurisdiction, and there is no appeal or other plain, speedy, and adequate remedy. In Clark v. Superior Court, 55 Cal. 199, this court held that should the superior court, having jurisdiction, order judgment for one of the parties without a trial, the judgment, while erroneous, would not be in excess of jurisdiction, and the only remedy would be by appeal. The decision proceeds upon the theory that such action would not be without or in excess of the jurisdiction of the court. Applying the reasoning of that case to the question involved here, we are of opinion no proper foundation was laid for the issue of the writ, and that it was properly dismissed. Judgment affirmed. We concur: MCKINSTRY, J.; PATERSON, J. (75 Cal. 237) POWERS et al. v. BRALY et al. (No. 9,994.) 1. APPEARANCE-WHAT CONSTITUTES-BY ATTORNEY. An attorney having appeared for the purpose of striking out an amended complaint, and having asked for an extension of time in which to plead until the motion to strike out is decided, has not so appeared as to constitute a waiver of the service of summons by defendant, under Code Civil Proc. Cal. § 416, which provides that a defendant appears in an action when an attorney gives notice of appearance for 'him. 2. PRACTICE-SERVICE OF AMENDED COMPLAINT-DEFENDANT NOT SUMMONED. The service of an amended complaint upon a defendant who was not a party to the suit in the first instance, and has never been served with summons, is void. 3. SAME-SERVICE ON ATTORNEY. The service of an amended complaint upon an attorney, prior to his appearance in a cause for the defendant, does not constitute a valid service of such complaint upon the defendant. Department 1. Appeal from superior court, city and county of San Francisco; J. F. SULLIVAN, Judge. Action by John Powers and Catherine Powers against Margaret J. Braly, executrix, and William R. Sloan, executor, to quiet title. Judgment was rendered by default in favor of plaintiff. Defendants appeal. W. R. Daingerfield, for appellants. J. B. Hart, for respondents. SEARLES, C. J. This is an appeal from a final judgment by default in favor of plaintiffs, and against all the defendants. The action was originally brought by John Powers against Margaret J. Braly to quiet title to a parcel of land, by filing a complaint. Some time afterwards, and without any order or leave of the court, plaintiff filed an amended complaint making Catherine Powers, a party plaintiff with himself, and adding William R. Sloan, executor, and Margaret J. Braly, executrix, of Marcus Braly, deceased, as parties defendant. W. R. Daingerfield, Esq., was the general attorney of the defendants, and of all of them. The amended complaint was served upon defendant Sloan, and upon Daingerfield as and for defendant Margaret J. Braly. Two extensions of time were granted by plaintiffs' attorney to Daingerfield to answer. On the 22d day of December, 1882, Daingerfield gave notice that on December 29, 1882, he would move the court to strike out the amended complaint, and dismiss the action as to Sloan. This notice specified that Daingerfield appeared specially. On the same day said Daingerfield applied to the court for extension of time for defendants to move and plead until it was determined which complaint he should plead to; and on the 23d day of December, 1882, the court made an order granting all the defendants until five days "after notice of decision of motion to strike out amended complaint in which to plead." The notice to strike out was denied on the 23d day of January, 1883, and notice thereof served upon Dangerfield the same day. The summons (if any there was) was never served upon any of the defendants, and never was amended to meet the changes of parties plaintiffs and defendants. 1. The service of the amended complaint was void as to the defendant Sloan, because no service of a summons upon him or his co-defendants was had, and equally void as to defendant Braly, because, at the date of such service, Daingerfield, upon whom it was served, had not appeared as an attorney in the cause. 2. Daingerfield never appeared as an attorney of record in the cause so as to waive service of summons and complaint under section 416, Code Civil Proc. "A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him. Code Civil Proc. § 1014. None of these things were done. The appearance of Daingerfield to strike out the amended complaint was special, for that particular purpose, and in no sense a general ap |