The controversy as between the appellants andrespondent was passed upon, and adjudicated by this Court in the case of Welton v. Palmer, 39 Cal. 456, and is therefore res adjudicata. (Soule and Page v. Dawes, 14 Cal. 247.)
JUDGES: Rhodes, C. J., delivered the opinion of the Court, Wallace, J., and Sprague, J., concurring. Temple, J., expressed no opinion. Mr. Justice Crockett, being disqualified, did not sit in this case.
OPINION
RHODES, Judge
Action to quiet title. The answer of Merit Welton, Lamson Welton and Amy Welton alleges that the premises, together with other lands, were conveyed to two trustees, in trust for Elizabeth S. Welton, and that the trustees accepted the trust; that one of the trustees, together with Mrs. Welton and her husband, executed a deed of the premises to George Brown, but that Mrs. Welton did not acknowledge the deed; that the other trustee never executed nor authorized the execution of the deed; that the defendants claim title as the heirs of Mrs. Welton, now deceased: and that the plaintiff derives his claim of title under the deed to George Brown, and in no other manner. The demurrer to the answer was sustained.
In Welton v. Palmer (39 Cal. 456), we assumed that the deed to George Brown was void, and this because it was so alleged in the complaint. But whether void or not, it is clear that the conveyance by one of the trustees, while the other trustee was acting as such, did not pass the legal title to the premises. The cases cited by the defendants, show that a conveyance under such circumstances is not well executed, unless both trustees unite in the conveyance. The basis of the complaint is, that the plaintiff is the owner in fee of the premises. The answer shows that he does not hold the legal estate, and the demurrer, therefore, should have been overruled.
Judgment as to Merit Welton, Lamson Welton and Amy Welton reversed, and cause remanded, with directions to overrule the demurrer to their answer.