Change of Venue — Convenience of Witnesses — When Motion Premature — Action to Reform Contract of Sale of Real Property on Ground of Fraud — Place of Trial Where Property Situate. Change of Venue — Convenience of Witnesses — When Premature. 1. A motion for change of venue based on the ground that the convenience of witnesses would be promoted by the change is premature if made before the answer is filed. Same — Action to Remove Cloud on Title — Place of Trial. 2. An action to remove a cloud on title is one in rem and one to quiet title, which must be tried in the county in which the realty is situated. Same — Action to Reform Deed on Ground of Fraud — Place of Trial. 3. An action to reform a deed to real property or one to set aside a sale of such property on the ground of fraud must be tried in the county in which the property is situated. Same — Action to Reform Contract of Sale of Real Property — Fraud — Triable in County Where Property Situate. 4. In an action to reform a contract of sale of real property and a deed thereto, placed of record, on the ground of mistake on the part of the vendor in inadvertently including therein property belonging to another (plaintiff), to the knowledge of the purchaser, thus rendering him guilty of fraud committed in the county of plaintiff's residence where the deed was executed and where the action was commenced, though the property in question was situated in the county where defendant and others, conspiring with him and made his co-defendants, resided, held, under the above rules, that a change of venue was properly granted defendants to their county where the property was located. Same — Rule Where Complaint Contains Several Causes of Action, as to One of Which Defendant Entitled to Change. 5. Where a complaint contains more than one cause of action on one of which defendant is entitled to a change of venue, the motion must be granted though the others may be properly triable in the county where the action was brought.
The district court was in error, in stating in its order changing the place of trial in this cause, when it said that "Article 8, section 11, of the state Constitution, and section 8831, Revised Codes 1921, provide generally that actions relating to real estate must be commenced in the county wherein the same is situate." It is not true, in the first place, that all "actions relating to real estate" must be commenced in the county wherein the same is situate. The only actions which must be commenced in the county where the real property is situated are: (a) Actions for the recovery of real property; (b) Actions for the possession of real property; (c) Actions for quieting the title to real property; and (d) Actions for the enforcement of liens upon real property.
What is the nature of this action? This is an action designed neither to recover real property, secure the possession of real property, quiet the title to real property, nor enforce a lien upon real property. It is, as the complaint shows, an action designed to accomplish the reformation of certain instruments in writing, to make them represent the true intention of the parties when the same were executed, and to secure a judgment expunging such fraudulently obtained instruments from the records of Stillwater county, where they were wrongfully and fraudulently recorded. The fact that appellant invoked the equitable powers of the district court to enjoin respondents from assuming to convey or encumber this property, pending the accomplishment, by a proper judgment, of the design above indicated, does not in any way affect the question of where appellant is entitled to have this case tried. Under familiar principles, equity will so exercise its authority pendente lite.
It is the contention of appellant that this action is transitory and not local, and, therefore, the place for its trial is to be determined by the law relating to transitory actions. "If the cause of action is one that might have arisen anywhere, then it is transitory; but if it could only have arisen in one place, then it is local." (Cooley on Torts, 2d ed., 451; Mason v. Warner, 31 Mo. 508.)
Testing the instant case by these rules, it is apparent that the present action is transitory, for the frauds and unlawful acts complained of could have been committed in any county in the state. Furthermore, the judgment in this case, if one is rendered in favor of appellant, will merely be that the consequences flowing from the unlawful acts of respondents are set aside. If the contention of appellant is sound, and this action is transitory in character, then it becomes an important consideration to determine where the torts charged in the complaint were committed. It is clear that they were committed in Lewis and Clark county; hence under section 9096, Revised Codes, the action was triable in that county. It was argued, however, in the district court, that the complaint itself shows that whatever may be said of the torts committed in Lewis and Clark county, two distinct torts were committed in Stillwater county, namely, the conveyance by Scott to Ellen Mulvihill and the recordation by her of such conveyance there. This, however, on principle, would not appear to very greatly aid respondents in their contention that this case should be transferred to Stillwater county. It cannot be the law that a party can come into Lewis and Clark county and here commit frauds upon residents of that county, and, because to fully accomplish his fraudulent designs, he commits other tortious acts in relation to the same transactions in another county, and insist when sued that the county where the original torts were committed is not the proper county for trial. The rule in that regard is thus stated in 40 Cyc. 49: "If the action is founded on two facts, both essential to plaintiff's cause, and these facts have occurred in different counties, the venue may be laid in either county." (See, also, Marshall v. Hosmer, 3 Mass. 23.)
This is an equitable action, and equity acts in personam. For this reason it is held that under statutes practically identical with ours, an action in equity can be maintained to obtain relief from tortious acts, even though such relief incidentally affects real property in another county than that in which the action is brought. ( Massie v. Watts, 6 Cranch (U.S.), 148; Ely v. Lowenstein, 9 Abb. Pr. (n.s.) 42; Close v. Wheaton, 65 Kan. 830, 70 P. 891; Kirby v. Union P. R. Co., 51 Colo. 509, 119 P. 1042, Ann. Cas. 1913B, 461; Zane v. Vawter, 102 Kan. 887, 172 P. 37; 2 Bancroft's Code Practice Remedies, 1417; Perry on Trusts, sec. 166; Pomeroy on Equity Jurisprudence, sec. 1318.)
The right of the defendants to have the action commenced in the county where the property is situated is absolute, and the court has no discretion in the matter where timely application and proper showing is made, and the sufficiency of the showing is not questioned here. (Secs. 9097, 9098, Rev. Codes 1921; Watts v. White, 13 Cal. 321; Sloss v. De Toro, 77 Cal. 129, 19 P. 233 (action to set aside fraudulent sale); Franklin v. Dutton, 79 Cal. 605, 21 P. 964 (action to reform contract); Urton v. Woolsey, 87 Cal. 38, 25 P. 154 (action to enforce vendor's lien); Fritts v. Camp, 94 Cal. 393, 29 P. 867 (injunction re interfering with running water); Smith v. People, 2 Colo. App. 99, 29 P. 924 (injunction re irrigation ditch); Miller v. Kern County Land Co., 7 Cal. Unrep. 9, 70 P. 183 (action to quiet title).
Plaintiff alleges in his complaint: "Defendants wickedly conspired and confederated together to cast a cloud upon and secure ostensible title to the lands and premises." Also: "That the acts of the defendants hereinbefore set forth have cast a cloud upon plaintiff's title to the lands and premises first hereinabove described."
"A cloud on title has been defined as a semblance of title, either legal or equitable, or a claim of a right in lands, appearing in some legal form, but which is, in fact, invalid, or which it would be inequitable to enforce. The proceedings in courts of justice designed to effect the removal of clouds on title are generally termed actions to quiet title." (5 R.C.L. 634, and cases cited.)
Notwithstanding the apparent studied effort of counsel for plaintiff to avoid using the term "quiet title" in pleading and prayer, certainly the purpose of this action is to effect the removal of this alleged cloud on title of which he is complaining, else why allege that defendants have clouded his title? (See 5 R.C.L. 679.)
Whether we term it an action to "quiet title" or not, the fact remains that it is an action which might be brought under section 9479, Revised Codes 1921, by plaintiff against defendants who claim or may claim right, title, estate or interest in the property adverse to plaintiff, else why make them parties defendant? The statute says such an action must be brought in the county in which the real estate is situated. But counsel argue: "It is not an action to quiet the title to real property." If such an action as is contemplated in the foregoing section 9479 is brought, according to the express terms of section 9488, every person made a party defendant shall be bound by the judgment or decree. What difference does it make to the defendants whether the action is denominated by the pleader as one to "quiet title," "for injunction," or "for cancellation of a written instrument," under which defendants claim or may claim some right, title, estate or interest in the property, so long as they are bound by the judgment or decree entered in such action, as is provided for by section 9488? If the defendants, as here, hold a deed to property from the record owner, it is little consolation to them to say this is not an action to "quiet title," which we admit must be brought in the county where the property is located and where you live, but it is one to "cancel your deed and expunge" the record thereof and permanently restrain you from ever asserting any right, title or interest in the property covered by such deed! Just how appellant can ever have a court make such a decree or order without first determining the title of the plaintiff to the property involved, is more than we can understand. Regardless of the name by which we designate the action, the result is the same and we respectfully submit that the substance and subject of the action rather than any appellation counsel may choose to give it should govern in this matter, and that the district court of Lewis and Clark county was correct in holding it was without jurisdiction to proceed with the trial of this action after proper demand and motion had been made.
MR. JUSTICE ANGSTMAN delivered the opinion of the court.
This is an appeal from an order changing the place of trial. The action was commenced in Lewis and Clark county, and, upon application of some of the defendants, was transferred to Stillwater county.
The complaint sets forth that plaintiff is the owner of certain described lands in Stillwater county; that in June, 1931, A.C. Johnson entered into a written contract in Lewis and Clark county with defendant L.G. Scott for the sale by Johnson to Scott of a parcel of land situated in Columbus, Stillwater county; that payments on the purchase price were by the contract made payable, and were actually paid, in Lewis and Clark county; that, when the contract was made, Johnson executed a deed to Scott, which was deposited in escrow to be delivered in Lewis and Clark county to Scott on the payment of the full purchase price; that, in drafting the contract of sale and the deed, through inadvertence there was included in the property described in both instruments plaintiff's property specifically described in the complaint, which was not purchased by defendant Scott and was not intended to be purchased by him; that, when the full purchase price was paid by Scott, the deed was delivered to him in Lewis and Clark county, and was by him placed of record in Stillwater county; that at the time of the execution of the contract and deed, and at the time of the delivery of the deed, Johnson did not know that the instruments included plaintiff's property, and this fact was not discovered until November 5, 1932; that, when the instruments were executed, defendant Scott knew that the inclusion of plaintiff's land was an inadvertence, and that it was not intended by the parties to the instruments that they should cover plaintiff's land; that Scott knew at that time that plaintiff, and not Johnson, was the owner of the lands described in the complaint and included in the contract and deed; that the conveyance was wholly without consideration; that on September 1, 1931, plaintiff entered into a written contract for the sale by him, and the purchase by defendants E.T. and Thomas Mulvihill, of the lands belonging to plaintiff and so described in the contract and deed executed by Johnson to Scott; that defendants conspired and confederated to cast a cloud upon, and secure ostensible title to, plaintiff's land, and in furtherance of such conspiracy caused the deed from Johnson to Scott to be placed of record in Stillwater county; that defendants L.G. Scott and his wife, Celeste Scott, immediately thereafter executed and delivered to defendant Ellen Mulvihill a deed to the property of plaintiff, and caused the deed to be recorded in Stillwater county; that the last-mentioned deed was executed without consideration and for the purpose of carrying out the conspiracy and fraudulent design and casting a cloud upon and obtaining ostensible title to plaintiff's property; that, at the time of the deed from defendants Scott to Ellen Mulvihill, defendants knew that neither L.G. Scott nor his wife had any right, title or interest in or to the property described; that defendant Thomas Mulvihill made certain payments under the contract entered into by him with plaintiff, but discontinued further payments after the execution and delivery of the deed by L.G. and Celeste Scott to Ellen Mulvihill; that Ellen Mulvihill, in furtherance of the conspiracy and fraudulent confederation, threatens to and will, unless restrained, fraudulently transfer the property to someone having no knowledge of the facts. It is alleged that the acts of defendants have cast a cloud upon plaintiff's title.
The prayer is (1) that the deed from Johnson to Scott be reformed to eliminate therefrom plaintiff's property, and that the records in the office of the county clerk of Stillwater county be corrected accordingly; (2) that the deed from the Scotts to Ellen Mulvihill be canceled and expunged of record; (3) that defendants Ellen Mulvihill and L.G. and Celeste Scott be enjoined and restrained from asserting any claim in, or title to, plaintiff's property described, and from transferring or conveying the same or any interest therein; (4) for such other relief as the court deems meet and equitable.
Defendants filed separate general demurrers to the complaint. Defendants Mulvihill filed a motion for change of venue to Stillwater county, asserting as grounds therefor that each and all the defendants are residents of Stillwater county, where they were served with summons, that the convenience of witnesses and the ends of justice would be promoted by the change sought, and that the complaint seeks relief affecting title to real estate situated in Stillwater county. The motion was supported by affidavit showing that defendants were served with summons in Stillwater county, where they all reside. The affidavit also set [1] forth matters designed to show that the convenience of witnesses would be promoted by the change sought. The contents of the affidavit in this respect, at this stage of the case, are immaterial; no answer having been filed. ( Dawson v. Dawson, 92 Mont. 46, 10 P.2d 381.)
Plaintiff's contention is that the action is one grounded upon [2-4] tort committed in Lewis and Clark county, and that in consequence it is properly triable there, under section 9096, Revised Codes 1921, as construed by this court in a number of cases. Defendants contend, and the court found, that the action is one affecting title to real estate, and that it must be tried in the county where the property is situated.
Plaintiff's complaint as against defendant Scott is to reform the contract and deed, and to have the record in Stillwater county corrected accordingly. It proceeds upon the ground of mistake by one party to the contract, of which the other knew, and is based upon section 8726 of our statute. Plaintiff's view is that the action is grounded upon fraud committed in Lewis and Clark county, and that the relief, so far as it affects the real estate, is merely incidental.
We agree with the trial court that the action is one governed by section 9093, which in part provides: "Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial as provided in this code: 1. For the recovery of real property, or of an estate or an interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property."
In part, at least, the action is one to remove a cloud on title. Such an action is in rem (Largo Land Co. v. Skipper, 98 Fla. 541, 123 So. 915), and is one to quiet title. (5 R.C.L. 634.) It is so denominated by our statute (sec. 9479, Rev. Codes 1921), and must be tried in the county where the property is situated (sec. 9479, supra; sec. 8831, Id.; sec. 11, Art. VIII, Const.).
Analogous cases reach the same conclusion. Thus an action to reform a deed has been held to be local, and must be tried where the real estate is situated. ( Franklin v. Dutton, 79 Cal. 605, 21 P. 964; Cohen v. Hellman Commercial Trust Savings Bank, (Cal.App.) 24 P.2d 960; Nunnally v. Holt, (Tex.Civ.App.) 1 S.W.2d 933.) And the weight of authority supports the view that an action to set aside a transfer of realty as in fraud of creditors must be brought in the county where the land is located. (27 R.C.L., p. 793, note 10; Gem City Acetylene Generator Co. v. Coblentz, 86 Ohio St. 199, 99 N.E. 302, Ann. Cas. 1913d 660; Murchison Nat. Bank v. Broadhurst, 197 N.C. 365, 148 S.E. 452.)
And it has been held under a statute identical with our section 9093 that an action to set aside a sale of real estate on the ground of fraud must be tried in the county where the real estate is situated. ( Sloss v. De Toro, 77 Cal. 129, 19 P. 233; Stanley v. Barney, 123 Cal.App. 139, 10 P.2d 1022; Booker v. Aitken, 140 Cal. 471, 74 P. 11; Dickerson v. Oliphant, 160 S.C. 288, 158 S.E. 546; Eckstrand v. Wilshusen, 217 Cal. 380, 18 P.2d 931.) The case of Zane v. Vawter, 102 Kan. 887, 172 P. 37, reaches a contrary conclusion in part, but even in it the court said: "So far as the relief sought is the setting aside of the deed, * * * the action is local." In that case it was held that, since the complaint asked for such equitable relief as plaintiff was entitled to, and since under the complaint the defendant could be compelled to execute a deed to plaintiff, the action was in personam and not in rem. That case is not controlling here, for in this state, contrary to the holding in the Zane Case, if the complaint [5] contains more than one cause of action, on one of which defendant is entitled to a change of venue, the motion must be granted, though the other cause or causes of action may be properly triable where the action was commenced. ( Yore v. Murphy, 10 Mont. 304, 25 P. 1039; Bond v. Hurd, 31 Mont. 314, 78 P. 579, 3 Ann. Cas. 566; State ex rel. Stephens v. District Court, 43 Mont. 571, 118 P. 268, Ann. Cas. 1912C, 343; Woodward v. Melton, 58 Mont. 594, 194 P. 154; Stewart v. First Nat. Bank, 93 Mont. 390, 18 P.2d 801.)
Were we to concede that as to defendants L.G. and Celeste J. Scott the action is one which may properly be tried in Lewis and Clark county, and were we to hold that as to them the action is transitory and not local, yet this would not be ground for denying to defendants Mulvihill their right to have the action tried in the county of their residence and where all the defendants reside, since there is no allegation in the complaint that defendants Mulvihill committed any tort in Lewis and Clark county. Under such circumstances they are entitled to have the action tried in the county of their residence. ( Brown v. Happy Valley Fruit Growers, 206 Cal. 515, 274 P. 977.)
The court properly ordered the cause transferred to Stillwater county for trial. The order is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS, STEWART and ANDERSON concur.
Comments