32 Cal. 597 | Cal. | 1867
The plaintiff brought his action of ejectment against Austin and his wife for a lot of land in San Francisco, with which he united a suit in equity against them and one Mansfield Compton, the object of which was to obtain a decree of the Court declaring certain conveyances investing Mrs. Austin with the title to said land fraudulent and void, and further declaring that she had no interest in the premises as against the plaintiff, and enjoining her perpetually from setting up or claiming any right, title or interest therein. From the part of the complaint setting forth the facts upon which equitable relief is sought, it appears that in March, 1856, Austin and his wife executed a deed of conveyance of the premises in controversy to Compton, which the plaintiff charges was without consideration, and made to delay, hinder and defraud creditors. That in June, of the same year, Compton, by the direction of F. B. Austin, without any consideration, therefor, conveyed the same premises to Mrs. Austin, who, since then, has pretended to claim and hold said premises as her separate property. It further appears from the complaint that on the 25th of August, 1856, Abner H. Barker recovered a judgment in the Superior Court of the City of San Francisco against the defendant, F. B. Austin, for a sum amounting to nearly three thousand dollars, which remains “ unreversed and unsatisfied and that on the 26th of November, 1860, an execution was issued bn such judgment to the Sheriff of the City and County of San Francisco, who levied upon the property, and after-wards, on the 19th of January, 1861, sold the same to Gr. W. Ryckman, to whom a certificate of sale was given ; and thereafter, on the 6th of December, of the same year, a deed was executed and delivered by such Sheriff to said Ryckman, who, on the 24th of February, 1862, conveyed the premises to the plaintiff. The complaint was duly verified.
When the cause came on to be tried the plaintiff’s counsel read the complaint to the Court, and then stated that the defendants’ answers respectively admitted all the material allegations of the complaint—that is, the recovery of the judgment, the issue of execution, the Sheriff’s sale under the execution, the Sheriff’s deed to Ryckman, the conveyance by Ryckman to the plaintiff, the plaintiff’s ownership of the property, and the ouster of him. by the defendants, Austin and wife, and the monthly value of the premises. The answers were then read and the Judge of the Court intimated that his opinion was in accordance with the position of the plaintiff’s counsel, but did not then decide the point. An application was afterward made for leave to amend the answer so as to obviate the objections made on the part of the plaintiff, but was denied, and the trial then proceeded.
The plaintiff offered in evidence an execution upon the judgment therein recited, obtained in said Superior Court in favor of Abner H. Barker, against Franklin B. Austin, with
First—That the alleged judgment on which said deed purported to be founded had not been given in evidence.
Second—That said judgment was not sufficiently described in said deed.
The Court overruled the objection and thereupon the deed was received in evidence, to which decision the defendants then and there excepted. The deed from Ryckman to the plaintiff was then given in evidence.
The parties respectively then submitted to the Court other evidence, which it is not of use to notice; and in conclusion the Court rendered a finding and judgment in the plaintiff’s favor. A motion for a new trial was made in due time, which was denied, and then the defendants, Austin and wife, appealed.
The plaintiff united in the same complaint an action at law against the defendants Austin and wife, and a suit in equity against them and the defendant Compton. Eo objection to this course of proceeding was made by the defendants, and
The forty-sixth section of the Practice Act provides, that, if the complaint be verified, the answer shall contain a specific
It is difficult to define with more exact precision when an answer should be positive in its denials, than to say that when the material facts alleged in the complaint are presumptively within the knowledge of the defendant he must traverse them, if he undertakes to do so at all, directly and positively, or he must show how it is that he is without knowledge of such facts. In the case under consideration, we are of opinion the presumption did not arise, that the defendants knew that a judgment had been recovered by Barker against Austin, or the contrary, and, consequently, that they might deny the recovery of such a judgment upon information and belief.
We have said nothing, and do not intend that any inference shall be drawn from our silence, respecting the validity or invalidity of the judgment in form which was exhibited to the Court below on the motion for leave to amend the answers. It is not agreed by counsel for the respective parties that such judgment is properly before us for consideration, and the question of the jurisdiction of the Superior Court over the person of the defendant in that case has not been discussed by counsel in the submission of this case, and we deem it proper to dispose of the appeal upon the point considered, as such point is the only one now necessary to be decided.
Judgment reversed and a new trial ordered.
Mr. Justice Sanderson did not express any opinion.