86 P. 600 | Cal. | 1906
This is an action in the nature of ejectment, prosecuted by the widow and administratrix of George M. Zumwalt, deceased. The demanded premises consist of four acres of land, upon which are a dwelling-house and other improvements.
In May, 1897, Mrs. Larkin, who was then the owner of the land, executed and delivered her deed purporting to grant it to said George M. Zumwalt, and if that deed took effect according to its terms, the plaintiff at the commencement of the action was the owner, and entitled to the possession, of the premises. The adverse claim of the defendant, who is a brother of plaintiff's intestate, and who ousted the plaintiff in October, 1900, is based upon a deed of that date from their father, Isaiah Zumwalt, purporting to grant the premises to him and to another brother, and he defends the action upon the allegation that his brother George took and held the bare legal title to the land under the conveyance from Mrs. Larkin in trust for his father, who, he claims, purchased it for his own use, paid the full purchase price from his own funds and personally received Mrs. Larkin's deed when it was delivered, his sole purpose in having his son named as the grantee being to screen the property against any possible claim of his wife, from whom he had been separated — whether by divorce or agreement does not appear.
The cause was tried in the superior court without a jury, and the findings were in favor of the plaintiff and against the defendant as to every material issue. With respect to the equitable defense of a resulting trust in favor of Isaiah Zumwalt and his grantees, they were, in effect, that the land was purchased from Mrs. Larkin by George M. Zumwalt and the deed delivered to him; that the purchase money ($150) was given to him by his father as an advancement in furtherance of his proposed marriage to the plaintiff, and upon an understanding that after the marriage the old man was to have his home with them during the remainder of his life; that when the dwelling erected on the land was ready for *384 occupancy the marriage took place, and from that time until June, 1900, the father, son, and daughter-in-law resided there together. Towards the close of this period dissension arose between the father and the young people, and on the seventh of June he shot and killed his wife and son and his son's infant child, and seriously wounded the plaintiff. Afterwards, while in jail, he executed the deed under which defendant claims title, and in pursuance of which he took possession of the premises in the absence of the plaintiff.
Upon these and other findings judgment was entered in favor of the plaintiff for restitution of the demanded premises and for mesne profits. The defendant appeals from the judgment and from an order denying a new trial, alleging errors in certain rulings of the court, and contending that the evidence does not support the findings of fact.
As to the evidence, we think it is abundantly sufficient to sustain the findings without regard to the testimony of the plaintiff herself, and as to her testimony we do not think it involves any such inconsistencies or contradictions of statements made elsewhere as to have required the court to disregard it. In all material particulars it is entirely consistent with itself, and it is strongly corroborated by the testimony of apparently respectable and wholly disinterested witnesses.
There was no error — certainly no prejudicial error — in the rulings of the court upon objections to evidence. To sustain his equitable defense of a resulting trust the defendant offered to prove that the plaintiff during the lifetime of her husband had made certain declarations or admissions favorable to his claim. Upon plaintiff's objection to the competency of her declarations or admissions to impeach her husband's title to the land, the evidence was excluded, and we think properly so. Her husband's estate could not be bound by her admissions. And, besides, the plaintiff was afterwards examined as a witness and testified fully as to all these matters. If defendant had desired he could then have offered all this rejected evidence to impeach her, — for there was nothing in the previous rulings of the court to prevent him from making this legitimate use of the evidence, which was all contained in the depositions of two of his sisters then on file in the case.
The defendant, by his answer, also asserted a prescriptive title to the premises by adverse possession for more than five *385 years, but under the findings of the court as to his claim of constructive trust there is no support for this defense. If Isaiah Zumwalt gave his son the money to pay for the land upon the sole condition that he should be provided with a home there, his subsequent residence on the premises as a member of the family did not constitute possession, and certainly there was nothing to give it the character of an exclusive or adverse possession. Defendant's adverse possession commenced in October, 1900, and the action was commenced in February, 1903.
The only remaining question in the case arises out of the ruling of the court denying the motion of the defendant to call in another judge to preside at the trial. The motion was based upon the alleged bias of the judge (Code Civ. Proc., sec.
The plaintiff, in opposition to the motion, filed the affidavit of the judge, and of a witness, who as constable was present throughout the trial referred to by the defendant in his affidavit, and who deposes that he heard no such language used by Judge Bennett — then district attorney of El Dorado County — as alleged by defendant. The affidavit of the judge shows that the trial referred to was had in 1887, sixteen years before the trial of this cause; that he attended the trial of the defendant, his father, and one Brown, jointly charged with the crime of battery, at the request of the justice of the peace of the township, and in obedience to his official duty; that the defendants were entire strangers to him; that on the evidence produced they were all three convicted and sentenced to pay a fine of two hundred and fifty dollars; that the judgment was just, and erred, if at all, on the side of leniency; that he did not at any time use the language attributed to him, and that if he said anything at all resembling it he did so in the argument addressed to the court in commenting upon the evidence; that subsequently a petition for the pardon of the defendants was circulated in the county containing a misstatement of the facts of the case; that he refused to sign it, and, to prevent the governor from being misled in the matter, he, in the performance of his official duty, sent him a written communication — a copy of which is set out in his affidavit — containing a correct summary of the evidence adduced at the trial; that he did not go personally to the governor to oppose the granting of the pardon; that after his official connection with the battery ease ended be thought no more of the parties, and had never entertained any sentiment of personal hostility to them or either of them. His affidavit further shows that the objection to his presiding at the trial of Isaiah Zumwalt for murder was submitted to Judge Hughes upon the uncontradicted affidavit of this *388 defendant, the same in substance as his affidavit in this case, except as to those proceedings. He admits that he expressed his willingness to invite another judge to preside at the trial if defendant would pay the expense of his attendance, but says that, deeming himself not disqualified, he was unwilling to subject the county to the expense involved in calling another judge.
The court did not err in refusing the request of the defendant that he should call in another judge to hear and determine the motion and did not err in denying it on the showing made. The amendment constituting subdivision 4 of section
In this case, upon all the facts shown by the affidavits, there was nothing to support the motion of defendant except the bare circumstance that Judge Bennett sixteen years before the motion was made had in the discharge of his duty as district attorney prosecuted and convicted the defendant, his father, and a confederate of an aggravated case of battery, and had then in his official capacity laid the facts before the governor for his information in passing upon a petition for a pardon. From such facts no just inference arises that he could not try the cause with perfect impartiality.
The judgment and order appealed from are affirmed.
McFarland, J., Angellotti, J., Shaw, J., Henshaw, J., and Sloss, J., concurred.