65 P. 618 | Cal. | 1901
Lead Opinion
Judgment was entered in the court below for defendants. Plaintiff made' a motion for a new trial, which was denied. This appeal is from the judgment and order denying the motion.
The complaint is for the recovery of the possession of the land's described therein, and contains the usual allegations in ejectment. The answer, in addition to a denial of the allegations of the complaint, alleges affirmatively that defendants are, and were at all the times therein named, the
There was testimony on the part of the plaintiff tending to contradict some of the matters above set forth; but, in case of a substantial conflict in the evidence, the finding of the court below is conclusive here. Not only this, but we think the finding is supported by the great preponderance of the evidence. If Saturnino Carrion took the deed from defendants in June, 1892, as an absolute conveyance of the property, it is strange that nothing was said in the negotiations as to the price thereof. It is a circumstance of much significance that the defendants remained in- possession of the property as their own continuously after the deed was made until the death -of Carrion. If Carrion had in fact purchased the property, it would seem that in the ordinary course of business he would have entered into possession of it, or, if he allowed defendants to remain in possession, it would have been under a lease of some kind. If he purchased the property, why did he take an assignment of the two mortgages which he paid out of the $1,000? The fact —which is conceded—that in November, 1896, the grantor of plaintiff had the interest computed on the $1,000, and gave the computation to defendant;?, asking them for the dollar paid to Seaver for making the computation, is wholly inconsistent with the idea that the property was his. It is
We concur: Haynes, C.; Chipman, C.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Concurrence Opinion
I concur in the denial of a hearing in bank, but I think that the expression in the opinion that “in case of a substantial conflict in the evidence the finding of the court below is conclusive here” should be stricken out. That rule does not apply to a case where an absolute deed is sought to be declared to be something else.
I concur: Beatty, C. J.
Rehearing
On Motion for Hearing in Bank.
July 29, 1901.
Rehearing denied.