25 P. 415 | Cal. | 1890
Lead Opinion
This is an action of ejectment for lots 27 and 28 in block 86 in the town of Modesto, in which judgment passed for defendant Mary Jackson. Plaintiff appeals from the judgment on the judgment-roll. There is a motion to dismiss the appeal, which will be hereafter considered. The complaint is in the form usual in the action of ejectment. The allegations of the complaint are denied by defendant Mary Jackson, except as to possession when suit was brought. In her answer she sets up a defense that in April, 1869, she and W. A. Jackson intermarried in this state, and have since been husband and wife; that sometime in 1881 her husband entered into a contract in writing with Charles Crocker for the purchase of the lots of land above mentioned; that about September, 1884, her husband, W. A. Jackson, erected on these lots a residence of about the value of $1,500; that the money paid for the lots in suit and the house was the joint earnings of herself and husband, since their marriage; that defendant and her husband and children have, since it was built, made this house their home; that on the twelfth day of August, 1885, defendant duly executed and filed in the proper office a declaration of homestead on these lots; that by virtue of the contract entered into between Crocker and her husband, the latter was to pay Crocker the sum of $75 for each lot in installments, with interest, etc.; that on the 26th of October, 1885, there was not to exceed $35 due Crocker on the purchase price of these lots, on the payment of which her husband was entitled to a deed from Crocker; that he (her husband) had abundant means to pay the purchase price; that he fraudulently refused to do so to prevent the conveyance of these lots to him, and that he might fraudulently prevent her from acquiring a homestead in the property; that in October, 1887, her husband made a pretended assignment of the contract of purchase to the plaintiff, and on the same day pretended to enter into a contract by which he was to sell and transfer
The motion to dismiss the appeal is made on the ground that the judgment had been satisfied. The court gave judgment in favor of Mary Jackson, thus holding that she was entitled to the possession of the lots in controversy, and that plaintiff was not, and then ordered and adjudged that she pay to plaintiff a sum of money “because of the purchase money paid on the lots involved.” This was done without any appropriate pleadings. She did not offer to pay any money, nor did she set forth in her answer any state of facts calling for any such judgment. The matter set up in the answer was pleaded merely as a defense to the action, which turned on the issue of right to the possession of the land sued for. There was no pleading on her part in which a demand was made for relief on payment of any sum of money. The portion of the judgment referred to (quoted above) was entirely outside of any issue joined in the cause before the court. It was entirely foreign to anything set forth in either com
We concur: Paterson, J.; Sharpstein, J.
Concurrence Opinion
I concur in the order reversing the judgment of the court below on the ground that said judgment as entered is not supported, either by the pleadings or the findings. But I am not prepared to say that the defendant Mary Jackson has not a homestead interest in the premises which she is entitled to have protected, under proper pleadings.
We dissent: McFarland, J.; Beatty, C. J.