65 P. 1079 | Cal. | 1901
This is an action to have set aside and declared void two deeds executed by plaintiff to defendant, conveying to the latter a certain lot of land, and to quiet plaintiff's title thereto. Judgment went for defendant, and plaintiff appeals from an order denying his motion for a new trial. He also attempted to appeal from the judgment, but such attempted appeal was taken too late, and cannot be considered.
The first deed was executed and delivered to respondent on December 28, 1878, and was on that day recorded, and by it the land was conveyed to respondent in fee-simple. The second deed was executed and delivered April 4, 1884, and conveyed the same land to respondent during her natural life, "and in case she survives said party of the first part, then to her, and her heirs and assigns forever," and was also on the day of its execution duly recorded. This action was commenced on February 14, 1896, which was nearly eighteen years after the execution and recordation of the first deed, and over twelve years after the execution and recordation of the second deed. The decision of the court below was based, *603
among other things, on the laches of plaintiff and the bar of the statute of limitations, under subdivision 4 of section
A marriage was solemnized between plaintiff and respondent on July 3, 1862, and they lived together as husband and wife from that time until the year 1883, when they separated. It may be briefly stated, for a general understanding of the case, that appellant contends that the marriage was not valid, for the alleged reason that some four or five years before its solemnization respondent had been married to one Joseph Milam, who was then still alive, and she had not been divorced from him; that appellant did not know these facts, and supposed that his marriage to respondent was valid, until some time in the year 1883; that he made the first deed supposing that respondent was his legal wife, and would not otherwise have made it; and that he made the second deed with the understanding that respondent would destroy the first deed. All these alleged facts respondent denied.
A great deal of appellant's argument is directed to the point that the judgment is erroneous as a matter of law; but as there is no appeal from the judgment, we can only consider attacks made upon the findings as not supported by the evidence, and alleged errors of law occurring during the trial, to which exceptions were taken. We cannot inquire whether or not the findings support the judgment.
There are only two attempted specifications of the particulars in which the findings are not sustained by the evidence. It is specified, first, as follows: "The evidence is insufficient to justify the first finding, because the evidence shows that on the third day of July, 1862, the defendant was the wife of one Joseph Milam, and was incompetent to enter into a marriage with plaintiff." Assuming that this is a sufficient specification, the said first finding is merely to the effect that on July 3, 1862, a marriage was solemnized between the parties and the certificate of marriage recorded, which facts were proven and not disputed. The second specification is, that "the evidence is insufficient to justify the tenth finding, because the evidence shows," etc. The only part of the tenth finding which is vulnerable to this attack is that in which it is found that plaintiff "for more than ten years thereafter suffered the legal title and exclusive possession *604 to remain in defendant"; and this part of it is certainly supported by the evidence, with the exception, perhaps, of the expression, "and exclusive possession." It is not quite clear as to which ten years are referred to; but it is clear that the court did not mean that during the ten years immediately following the date of the first deed defendant was in the exclusive possession, in the sense that plaintiff did not live with her on the premises; for in the fifth finding the court finds that "soon after the execution of this deed [the first one], plaintiff and defendant moved upon the premises described in the complaint as their home, and continued to occupy the same as a family residence until 1883." It is therefore immaterial how the said expression, used in the tenth finding, should be construed. The two findings, taken together, show the real facts.
As to errors of law occurring at the trial, the main one is the alleged error in admitting in evidence the judgment roll in a former case of the present plaintiff versus the present defendant, described as "Jane Elizabeth Milam, sometimes known as Jane Elizabeth Hunter." That action was brought in August 1892, to have annulled the marriage between plaintiff and defendant. The case was tried in the superior court, and judgment was rendered for defendant, the court holding that the marriage was valid, and upon appeal to this court, the judgment was affirmed. (See Hunter v. Hunter,
The appeal from the judgment is dismissed and the order denying a new trial is affirmed.
