40 Cal. 58 | Cal. | 1870
delivered the opinion of the Court:
Judgment was entered in the District Court for the plaintiff on the pleadings. The action is to quiet title, and the complaint, which is verified, is in the usual form. Exception
The action is brought to quiet plaintiff’s title to certain real estate, and the defendant claims an interest in the prenr ises through a deed from José Antonio Espinosa, dated Octaber 16, 1867. The plaintiff derives title to the premises, in part through a deed from the same José Antonio Espinosa, dated September 7, 1860. This deed is upon its face an absolute conveyance, but the answer alleges that it was executed and, delivered for the sole purpose of securing a certain sum of money which was then a subsisting debt due from Espinosa to the grantee named in the deed. In effect, that the deed was intended as a mortgage, and therefore did not convey the title from Espinosa. It does not appear when the debt secured by this conveyance became due, and the presumption would therefore necessarily arise that it was due immediately, or upon demand, and therefore was barred by the Statute of Limitations at the time this action was commenced.
We have held all that the rights of the mortgagor and mortgagee in such cases are mutual, and that when the debt
Tbe answer admits that tbe plaintiff is in possession of a portion of tbe premises sued for, and denies her possession as to tbe remainder. It was incumbent upon her not only to establish her title, but also her possession, as well as tbe invalidity of tbe defendant’s claim. It was, therefore, error to enter judgment upon tbe pleadings in her favor as to that portion of tbe premises not admitted to be in her possession
Judgment reversed and cause remanded.