15 Cal. 127
Cal.
1860
Field, C. J. delivered the opinion of the Court

Baldwin, J. and Cope, J. concurring.

This is а suit, on the equity side of the Court, to enjoin the sale of certain real property, alleged to belong to the plaintiff, situated in the City of San Francisco, under an execution issued upon a judgment recovered by the defendants, Huggins and Hall, against B. F. Moulton and others. The facts of the case are briefly as follows : In August, 1852, the property in question was conveyed by Thomas O. Larkin to the wife of Moulton, for four thousand dollars, and this sum is recited as the consideration in the deed to her. A few days subsequently, Moulton and wife conveyed, by their joint deed, the property to the plaintiff, for the consideration recited therein, of nine thousand and five hundred dollars. This deed was acknowledged by both husband and wife before a Notary Public of the county, and of the acknowledgment two certificates were indorsed by the Notary, both of which were sufficient in form as to the acknowledgment of the husband, but only one of them was sufficient as to the acknowledgment of the wife ; the other was defective in that respect. The deed was recorded with the defective certificate, the other being omitted.

*131In October, 1855, the defendants, Huggins and Hall, recovered a judgment in the District Court of the Fifth Judicial District, against Moulton and others, for upwards of seven thousand dollars, and on the fifteenth of December of the same year, a transcript of the docket of the judgment was filed in the оffice of the Recorder of San Francisco county, so as to become a lien upon property owned by Moulton at the time in that county. Upon this judgment execution was issued, and placed in the hands of the Sheriff оf San Francisco county, who proceeded thereunder, and levied upon the property which was conveyed by Moulton and wife to the plaintiff, and advertised for sale all the i;ight, title and interest which Moulton possessеd therein on the said fifteenth day of December, 1855. It is to enjoin this sale that the present suit is brought.

The property in question previous to the sale to the plaintiff, is presumed to have belonged to the community existing between Moulton and his wife, and in the absence of proof that it was purchased with the separate funds of the wife, the presumption is absolute and conclusive. The fact that the deed from Larkin was taken in the individual name of the wife, doеs not justify any inference that the property was her separate estate. The statute determines the character of the property. By its provisions all property acquired after marriage, by either spousе, except that acquired by gift, bequest, devise or descent, was common property. The conveyance in question was made upon a purchase, and this fact excludes the supposition of acquisition by gift, bequest, dеvise or descent. (See Meyer v. Kinzer, 12 Cal. and Smith v. Smith.) As the property belonged to the community, it was subject to the disposition of the husband. He was possessed of the same absolute power over it, as over his separate estate. He сould sell it without the concurrence or consent of his wife. It is of no moment, therefore, that the deed ‍‌​​​​​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌​‌‌​‌​‌‌​​‌​‌‌​​‌​​‌​​‌​‌‍to the plaintiff was recorded with the defective certificate of her acknowledgment. Her signature to the instrument was unnecessary, for it could add nothing to the validity or completeness of the transfer. The entire estate passed upon the execution of the deed by the husband alone.

But even had the signature of the wife been necessary to the transfer of the property,. the record of the defective certificate could not have been of any avail to the defendants. The deed bears a sufficient .certificate of acknowledgment, and subsequent judgment creditors of the vendors cannot, before a sale, object to its operation against their judg*132ment that it was not on record. The Registry Act was not intended to protect them ; it was only intended to prоtect subsequent purchasers and mortgagees in good faith and for a valuable consideration. (Act concerning Conveyances, sec. 26; Rose v. Munie, 4 Cal. 173.) Had the signature of the wife been necessary, and a sale had taken plаce, the purchasers at such sale, without notice, actual or constructive, of the conveyance to the plaintiff, would have been in a position to invoke the protection of the act, and to prеvent a state of things of this nature from arising, a bill like the one in the present suit might have been filed.

As the property vested by the deed of August, 1852, no interest would have passed to the purchaser under the sale advertised upon the еxecution issued upon the judgment of Huggins and Hall. But it does not follow, as the counsel of the defendants insist, that the" plaintiff was not entitled to the equitable interposition of the Court to prevent the sale. The jurisdiction of the Court to enjoin a sale of real estate, is co-extensive with its jurisdiction to set aside and order to be cancelled a deed of such property. It is not necessary for its assertion ‍‌​​​​​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌​‌‌​‌​‌‌​​‌​‌‌​​‌​​‌​​‌​‌‍in the latter case that the deed should bе operative, if suffered to remain uncancelled, to pass the title, or that the defense to the deed should rest in extrinsic evidence, liable to loss, or be available only in equity. It is sufficient to call into exercise the jurisdiction of the Court, that the deed casts a cloud over the title of the plaintiff. As in such case the Court will remove the cloud, by directing a cancellation of the deed, so it will interfere to prevent a sale, from which а conveyance creating such cloud must result. (Pettit v. Shepherd, 5 Paige, 501.) And every deed from the same source through which the plaintiff derives his real property must, if valid on its face, necessarily have the effect of casting such cloud upon thе title. Such deed is calculated to create uneasiness in the owner, and to awaken suspicions in others of the existence of concealed defects in the title, which may, at some day, be developed, and must thus tend to depreciate the value of the property in the market, and to embarrass the owner in its sale or use as security.

The deed of the Sheriff, upon the sale on the execution of the defendants, would have, оf course, the same effect as if the deed were executed directly by Moulton himself; and if placed upon the record it would naturally create doubts as to the validity, as against the judgment creditors, of the previous transfer to the plaintiff. The very fact that the conveyance from Larkin was taken in the individual name of *133the wife, would add strength to these doubts, and lead to the inference that the transfer was intended only as a cover. Against the сasting of a shade in this way upon his title, the plaintiff was entitled to the preventive remedy, by injunction. \

The case of Shattuck v. Carson et al. (2 Cal. 588) is similar to the one at bar. In that case, the plaintiff had purchased certain premises of one Griffith, and the defendants were рroceeding to sell the same, under an execution upon a subsequent order or judgment against the vendor. The complaint averred, that Griffith had no interest in the premises, but that the sale, if suffered to take place, would cast a cloud upon the plaintiff’s title; and prayed for an injunction against the sale. The Court below held, that ‍‌​​​​​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌​‌‌​‌​‌‌​​‌​‌‌​​‌​​‌​​‌​‌‍as the judgment debtor had no interest in the property, nothing would pass by the sale, and dismissed the complaint. This Court reversed the decree, observing that it was clear, both upon authority and reason, that the plaintiff was entitled to the relief he sought, upon proof of the truth of his allegations. In the decision, the Court proceeded upon thе supposition that the deed resulting from such sale, would have necessarily clouded the title of the plaintiff. In Hickman v. O’Neal (10 Cal. 293) the defendants were proceeding to sell, under an execution upon a judgment against Adams & Co., the real property which the plaintiff had purchased at a previous sale, under an execution upon a prior judgment against the same parties. The Court below enjoined the sale, and this Court affirmed the decree, observing that thе right of the party to enjoin a sale of his property for another’s debt was supported by several of its decisions.

In the case of the United States Bank v. Schultz (2 Ham. 471) the Supreme Court of Ohio, by the unanimous opinion of its members, held, that a Court of Equity might properly interferе to prevent a sale of land upon execution, where such sale would not at law confer a title on the purchaser, and where its only consequence would be to embarrass the title of the complainants; and in the subsequent case of Norton v. Beaver et al. (5 Ham. 179) that decision was, with ‍‌​​​​​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌​‌‌​‌​‌‌​​‌​‌‌​​‌​​‌​​‌​‌‍the same unanimity, affirmed.

The true test, as we conceive, by which the question, whether a deed would cast a cloud upon the title of the plaintiff, may be determined, is this : Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery ? If such proof would be *134necessary, the clоud would exist; if the proof would be unnecessary, no shade would be cast by the presence of the deed. If the action would fall of its own weight, without proof in rebuttal, no occasion could arise for the equitable interposition of the Court; as in the case of a deed void upon its face, or which was the result of proceedings void upon their face, requiring no extrinsic evidence to disclose their illegality. All actions resting upon instruments of that character must necessarily fail. “ That can never be considered a legal cloud,” says Chancellor Walworth, in Van Doren v. The Mayor, etc. of New York, (9 Paige, 388) “ which cannot for a moment obstruct the unaided rays of legal science, when they are brought to bеar upon the supposed obscurity. But where the claim of the adverse party to the land is valid upon the face of the instrument, or the proceedings sought to be set aside, as where the defendant has procured, and put upon record a deed obtained from the complainant by fraud, or upon an usurious consideration, which requires the establishment of extrinsic facts to show the supposed conveyance to be inoperative and void—a Court of Equity may interfere, and set it aside as a cloud upon the real title to the land.” ( Wiggin v. Mayor etc., of New York, 9 Paige, 23 ; Livingston v. Hollenbeck, 4 Barb. Sup. Ct. 16.) So, too, a conveyance not falling in the chain of title, as from one who never had any connection with thе property, would not constitute ‍‌​​​​​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌​‌‌​‌​‌‌​​‌​‌‌​​‌​​‌​​‌​‌‍a cloud upon such title. No action could be supported upon such a conveyance, even in the absence of rebutting proof, any more than upon so much waste paper.

The objection, that the proceedings should have been taken in the District Court of the Fifth Judicial District, is not tenable. No restraint upon the enforcement of the judgment of another and co-ordinate Court is sought. The еxecution issued is against the property of the judgment debtors generally, and the proceeding is not to stay such execution, but to prevent the sale of the property of the plaintiff under the claim that it is the property of the debtors. The cases cited of Rickett et al. v. Johnson, 8 Cal. 34; Revalk v. Kraemer, Id. 66 ; Chipman v. Hibbard, Id. 268; Gorham v. Toomey, 9 Cal. 77; and Uhlfelder v. Levy, Id. 607, have no application.

Judgment affirmed.