124 Cal. 216 | Cal. | 1899
This is an action to quiet title to a certain lot in the city of Yallejo, Solano county. The title claimed hy the plaintiff is founded upon a sheriff’s deed. The plaintiff, September 30, 1895, obtained a judgment against the defendant Eliza Sheean, in the city and county of San Francisco, and upon this judgment levied upon the right, title, and interest of said defendant Eliza Sheean in and to said lot, and under said judgment and levy, March 2, 1896, a sale was made by the sheriff of Solano county of said interest to the plaintiff in said action,
The evidence abundantly supports the findings.
The first error assigned by the appellant is the refusal by the court to allow the plaintiff to testify as to a conversation had with Mrs. Sheean, in the absence of her husband, as to the ownership of the property. What Mrs. Sheean may have said in the absence of her husband could not bind him, nor affect his title to the property. Besides, the plaintiff, on being recalled, was allowed, without objection, to state as follows: “I am the purchaser of said property under the execution sale..... Down to the time of the sheriff’s sale I did not know that the defendant Timothy Sheean claimed that the undivided one-half thereof standing in his wife’s name was held by her in trust for him, or that he claimed said one-half to be his own property. I had no notice of that from any source. ¡Nobody told me anything of the kind. The only information I had about it was from Mrs. Sheean, who told me that she owned the property—
The record shows: “It was here admitted by plaintiff that it was a fact that at all times since paid conveyance by -Catherine Reynolds (the grantor of the defendants) the property had been assessed for state -and county and town taxes to the defendant Timothy Sheean; that the tax receipts for said property ran to Mr. Sheean right along, but plaintiff objected to the admission of evidence of that fact on the ground that th-e same was irrelevant, incompetent, and immaterial.” The appellant makes the point that the court erred in admitting this evidence. It was admitted for the purpose of meeting an issue -made by an affirmative 'allegation in the cross-complaint, to wit: “This defendant further alleges that he is mow and for more than five years last past has been the owner of said parcel of land, and has been in the open, notorious, and exclusive possession thereof, and adverse to all persons whatsoever, and has paid for more than five years last past all taxes of every kind and description levied thereon.” The finding of the court supports this allegation.
The conveyance from Catherine Reynolds running to Timothy Sheean and his wife was dated February, 1886, and was at once put -on record in Solano county. At that time, and up to the amendment of section 164 of the Civil Code, in March, 1889, it had been repeatedly held by this court that property conveyed for a money consideration to either or both of the spouses was deemed community property. (Ramsdell v. Fuller, 28 Cal. 43; 87 Am. Dec. 103; Jordan v. Fay, 98 Cal. 264; Gwynn v. Dierssen, 101 Cal. 563.)
Appellant makes the point that the notice at -the sheriff’s sale stated that the property was claimed as community property on the part of defendant Timothy Sheean, and also as a homestead, whereas -there was no valid homestead. But, if it had been community, instead -of separate, property of Timothy Sheean, as found by the court, still it would not be subject to execution and sale on a judgment obtained against Eliza Sheean individually.
Harrison, J., and Garoutte, J., concurred.