Allison v. Thomas

72 Cal. 562 | Cal. | 1887

Temple, J.

The omission of the initial letter of the middle name of McDonald, in the proceedings in the Justice’s Court, is a matter of no consequence, and does not in any way affect the validity of those proceedings

The rule undoubtedly, is, that the record in the Justice’s Court must show affirmatively jurisdiction of the person, or the judgment will not be valid. Here there was in fact jurisdiction, but the return of the constable failed to show due service. After the judgment was entered, this record was amended, and as amended did show jurisdiction. In the mean time, however, the land attached had been sold. The judgment debtor had also conveyed to plaintiff all his right, title, and interest in the land. As against the judgment debtor there was no impropriety in allowing an amendment to the record according to the fact. The officer may always amend his return if there are no intervening rights which would be affected. And we think it plain there was no error in allowing it as to the purchaser. He purchased the right, title, and interest of the judgment debtor, and took subject to all equities and secret defects.

We do not overlook the case of Graff v. Middleton, 43 Cal. 340, in which it was held that under the twenty-sixth section of the recording act, then in force, a quitclaim deed received in good faith and for a valuable consideration would prevail over a prior unrecorded deed. That decision is made to turn upon the language of that statute defining the word “conveyance.” This ruling was followed in Frey v. Clifford, 44 Cal. 343, where the description of the estate conveyed was “all my right, title, and interest ” of the grantor.

Unless these cases are justified by the peculiar wording of the statute, they seem to be against the decisions elsewhere upon the subject. It has been uniformly held that a conveyance of the right, title, and interest of the grantor vests in the purchaser only what the grantor himself could claim, and the covenants in such deed, if there were any, were limited to the estate described. (Coe v. Persons Unknown, 43 Me. 432; Blanchard v. Brooks, 12 Pick. 47; Brown v. Jackson, 3 Wheat. 449; Adams v. Cuddy, 13 Pick. 460; S. C., 25 Am. Dec. 330; Allen v. Holton, 20 Pick. 458; Sweet v. Brown, 12 Met. 175; S. C., 45 Am. Dec. 243; Pike v. Galvin, 29 Me. 183.)

This construction is in accord with the obvious meaning of the language. The grantee in such a deed necessarily takes only what the grantor then had, and subject to all defects and equities which could then have been asserted against the grantor. To this rule this court has made an exception founded upon the recording act, and still another has been recognized in reference to sales made by the sheriff under execution. There the statute provides that the purchaser acquires all the right, title, and interest of the judgment debtor. It has been held that such deed is good as against a prior unrecorded deed. (Roberts v. Bourne, 23 Me. 165; S. C., 39 Am. Dec. 614.)

These are both exceptions to the general rule, founded upon special statutory provisions, and rather tend to confirm the rule than to overthrow it.

Judgment reversed and cause remanded.

McKinstry, J., and Paterson, J., concurred.