Dunlap

I concur. It appears that Dunlap was, without any fault of his own, deprived of the opportunity of interposing a perfect defense to the action of Steere v. Dunlap, and it is alleged in the complaint herein, and found by the court, not only that the allegations of the complaint'in the former action were untrue, but that Steere at the time knew they were false. The evidence is sufficient to sustain this finding, at least so far as the complaint in the former action counted upon a title by prescription; but there is nothing to show that Steere in fact knew that his tax title *350 was void, though such knowledge is by the law imputed to him. The case, then, presents these features: Steere sues Dunlap upon a claim which he knows to be false. He obtains an order for publication of summons, based upon the two grounds that Dunlap has departed from the state, and cannot, after due diligence, be found within the state. His affidavit is in itself sufficient to justify a finding that these grounds exist; and a judgment entered upon Dunlap’s default, after publication of summons, is not void, and cannot be set aside upon motion, unless the motion is made within a year. (Code Civ. Proc., sec.…

I dissent, and concur in the opinion of Commissioner Vanclief, prepared in Department, a copy of which is hereto attached; and I desire to say further, that, in my opinion, there is no sufficient evidence to support the latter part of the following finding of the court: “And the said John Steere was not then the owner of the said property, nor any part thereof, and had no right, title, or interest of any sort therein, all of which he well knew.” In Steere’s complaint in the original action, he first averred ownership and possession of the land, and afterwards also averred adverse possession in himself and grantors for five years; and it fully appears that he relied upon paper title founded on a certain tax deed, as well as upon adverse possession, —if *351 indeed he introduced any evidence at all about adverse possession, which does not appear. In the present action, Dunlap avers that the only claim which Steere had was a certain tax deed, which he sets out in full in his. complaint, together with the certificate of purchase which preceded it, in order to show that it did not, in law, convey title; the contention being that the deed, although good on its face, did not accomplish…

I dissent, on the ground that the evidence does not justify the decision. I recognize the correctness of the rule stated in the cases cited by Mr. Justice De Haven; but to make it applicable, it should clearly appear from the evidence that the party charged with fraud deliberately commenced and prosecuted his action with the intent to defraud his adversary, and knowing that his claim was baseless in law and in fact. In this case the evidence, in my- opinion, fails to *357 show that the defendant, in prosecuting his action against Dunlap, acted in bad faith. His complaint was filed on June 25, 1884. Summons was issued on the same day, but the affidavit for publication was not made until February 7, 1885. This does not show great activity on the part of Steere in attempting to consummate the fraud with which he is charged. No wrong can be predicated upon the fact that the summons was published in the Weekly Censor. The judge decided the question as to the paper in which the summons should be published. The default of the defendant in that action was entered on May 18, 1885. This action was not commenced until November 30,1887. Mr. Dunlap testified that he left Boyce in charge of the…

The action is one in equity, and is, in effect, to set aside a former judgment between the parties, wherein the alleged title of the defendant herein to the land described in the complaint was quieted as against all claims of the present plaintiff. The findings of the court below show that this judgment was obtained by default, and upon a service of the summons therein by publication, and that the present plaintiff had no knowledge of the pendency of that action, or of the rendition of said judgment, until more than one year after its date. The court also finds, and the evidence is sufficient to sustain these findings, that in point of fact the plaintiff here was the owner of the property involved in that action, and that not only was the defendant here without title, but that he knew that the allegations of the complaint filed by him for the purpose of obtaining the judgment referred to were wholly false. The ques *346 tion therefore presented is, whether a judgment thus obtained is beyond the reach of successful attack in a court of equity. The legal effect of this judgment, if permitted to stand, is to divest plaintiff of all title to his property, in favor of one who has…