41 Cal. 595 | Cal. | 1871
The demurrer to the complaint, on the ground that it is ambiguous, and does not state facts sufficient to constitute a cause of action, was properly overruled. The facts on which the plaintiff relies might, perhaps, have been stated with more perspicuity; but enough appears in the complaint to render it easy of comprehension and free from reasonable doubt, which is all that is necessary.
Under the second ground of demurrer, it is objected that if the plaintiff can recover at all, it can only be in her capacity of executrix, and not in her own right, and that the complaint fails to allege any title in her testator to the demanded premises. If this be conceded, the complaint is not necessarily defective. Neither the legal title nor the right of possession may have been in the testator at the time of his death, and yet both may have been since acquired by the plaintiff, in her capacity of executrix, prior to the commencement of the action. After setting forth the will, and alleging that it was duly probated and that letters testamentary were issued to the plaintiff, the complaint avers that “ by virtue thereof (she) possessed herself of the real estate of said testator hereinafter described, and ever since then has been, and now is, the owner seized in fee simple of an estate of inheritance of, in, and to all of said land, both as such executrix and as heir at law of said testator, and is now entitled to the possession thereof.” This is a sufficient averment of seizin and a right of possession in the plaintiff in her capacity of executrix.
The plaintiff and defendants claim title to the premises in controversy under one Bartolomé Bojorques, who, in November, 1851, conveyed to his eight children, as tenants in common, eight ninths, undivided, of the “ Bancho Laguna. de San Antonio,” reserving the remaining one ninth to himself, “to be laid out on that part of said rancho on which I now
At the trial, the plaintiff* put in evidence the deed from Bartolomé to his children, and offered to prove by parol that it was intended as a deed of gift, and not as a deed of bargain and sale, and that no valuable consideration whatever was paid or agreed to be paid by the grantees. The defend
It becomes material, it is said, to determine whether the deed from Bojorques to his children was a deed of gift, or of bargain and sale, for the reason that in the former case the . estate conveyed to Theodosia became her separate property and might be alienated by her without joining her husband in the deed, under the circumstances alleged to exist in this case; whereas, if the conveyance from her father was a deed of bargain and sale, made upon a valuable consideration, it is claimed that the estate conveyed became community property, and could not be transferred by her separate deed. In determining the character of the deed, resort must, of course, be had to the instrument itself; and if it can be ascertained from the face of it, interpreted in the light of . the surrounding facts, that it was intended to he, in fact, a deed of gift, and that the transaction between Bojorques and his children was a donation, and not a sale, there will be no necessity for the inquiry whether parol evidence was admissible to prove it to be a gift. If the deed itself, viewed in the light of the circumstances under which it was made, establishes the gift, there was no need of proof aliunde on that point.
In Peck v. Vandenberg, 30 Cal. 11, this Court had occasion ' to consider a deed very similar to that now under discussion. . In that ea.se a mother conveyed to her eight children eight ninths of two large tracts of land, reserving one ninth to
I think it is apparent in this case, as in that, on the face of the deed itself, construed in connection with the surrounding facts, that the money consideration named in the instrument was merely nominal, and that the transaction was, in fact, a donation, and not a sale. Here was an old man with a family of eight children, most of whom were married and living apart from him, and who was the owner of about twenty-five thousand acres of land situate in one of the most fertile portions of the State. He conveys to all his children eight ninths of this laige estate in equal portions, reserving to himself only one ninth, including his homestead, and recites on the face of the deed that it is made “ for and in consideration of the natural love and affection of the said party of the first part "to his children, the parties of the second part;” and then adds, as a further consideration, the
I am aware that in Tustin v. Faught, 23 Cal. 241, this particular deed from Bojorques to his children was under consideration, and was held to be a deed of bargain and sale, and not a deed of gift. But from the report of the case this point does not appear to have been argued by counsel, or carefully considered by the Court. The opinion of the Court, by Mr. Justice Crocker, does not attempt an analysis of the deed, and, on this point, is unsatisfactory. I think the Court fell into an error in deciding on the character and legal effect of the instrument.
The next point urged by the appellant is, that the deed from Theodosia to Salmon, Bliss, and Touchard is inoperative and void as a conveyance, because of a defect in the certificate of acknowledgment. The statute of February 14th, 1855 (Stats. 1855, p. 12), provides in what manner a married woman may convey her separate estate, in the -absence of her husband. It requires the acknowledgment to be made before the District Judge of the county in which the land is situate, and only authorizes such a conveyance to he made by the wife, when the husband was not, and for one year next preceding the execution of the instrument had not been bona fide, residing in this State. The second section requires that the Judge taking the acknowledgment shall, £< before he certify the same, be satisfied by
Another point made by the appellant is that the deed from Bojorques to his children was inoperative to vest the legal title in them until after the one ninth reserved by him had been definitively located so as to include his homestead. But there is no force in this proposition. There is nothing in the deed to indicate that the actual location of the one ninth was intended as a condition precedent to the vesting of the title. On the contrary, that clause of the deed was designed to be only a specification, in general terms, of the manner in which the reserved one ninth should be thereafter located on a final partition between Bojorques and his children. The provision for the location contains none of the elements of a condition precedent.
The only remaining ground of error relied upon is that there was no proof of the ouster complained of. But the answer puts in issue the plaintiff’s title and right of possession; and even-on this appeal it is insisted that the plaintiff has neither title nor right of entry, whilst it is not denied that the defendant is in the exclusive possession, holding for himself alone, and not for himself and the plaintiff, as' one of his cotenants., Under all the authorities this-is sufficient proof of ouster. (Owen v. Morton, 24 Cal. 373; Carpentier v. Gardiner, 29 Cal. 163; Marshall v. Shafter, 32 Cal. 194; 10 Wend. 414; 2 Greenl. Ev., Sec. 318.)
Judgment affirmed.
Mr. Justice Temple, being disqualified, did not participate in the decision of this case.