Friday, July 27, 2001
Appeals Court Finds Rare Error in Witkin in Voided-Instrument Case
By a MetNews Staff Writer
A First District Court of Appeal opinion has pinpointed what the justices claim is a rare error in Witkin, the bible of California law and procedure.
Witkin on California Procedure is wrong in asserting that Civil Code Sec. 3412—which allows cancellation of a void instrument—operates free of any statute of limitations, Justice Paul Haerle wrote for Div. Two Wednesday.
Witkin was wrong, Haerle said, because it was based on dicta in a 1921 case that also was wrong. The judge said that case, Hironymous v. Hyatt, was one those that help produce the “overworked cliché” that hard cases make bad law.
The First District ruling overturned a Marin Superior Court decision in favor of canceling a 1949 quitclaim deed as void on the ground that the woman who executed it was mentally incompetent at the time.
Haerle said it was simply too late, regardless of whether any limitations period was set forth in the code section, to bring a claim to void the deed.
“In the first place, Civil Code section 3412 is not a statute of limitations, nor does it contain one within it,” the justice said. “It is, as are many sections of that Code, just maxims of law generally applicable to civil and commercial transactions and relationships. To find out whether actions intended to enforce rights recognized in the Civil Code are timely, we almost invariably look to the provisions of the Code of Civil Procedure.”
The Code of Civil procedure contains several limitation of action provisions that apply to title or possession of real property, Haerle said. For example, Sec. 318 bars an action to recover possession of real property unless the plaintiff or predecessor was possessed of the property within the previous five years. Sec. 319 similarly bars actions impacting title to real property unless the plaintiff had title within the last five years. Sec. 328 imposes a five-year period for bringing an action in challenging an action based on a disability.
The justice said:
“The overall effect of these sections is manifest: actions relating to either the possession of or title to real property (or, of course, both) must be commenced within five years from the end of possession or seizin of that property by the claimant or his or her predecessor in interest, unless his or her chain of title includes a person who was either a minor or insane, in which case a tolling period not to exceed 20 years is allowed, provided that in any event the action is commenced within no more than five years after the end of the disability.”
The case of the 1949 quitclaim deed is just the sort of case covered by those three Civil Procedure sections, the justice said.
“The fact that Civil Code section 3412 underlies the right being asserted in no way lessens the applicability of the statutes of limitations provided in the Code of Civil Procedure for real property-related actions,” he said.
That is true even though Witkin states that actions under Sec. 3412 may be brought at any time, he said.
The case is Robertson v. Superior Court, Brooks RPI, A093924.
Copyright 2001, Metropolitan News Company