| Cal. | Jan 15, 1869

Lead Opinion

By the Court, Rhodes, J. :

In the judgment, through which the plaintiff claims title, it is recited that “the defendant, having been regularly served with process, and having failed to appear and answer the complaint of the plaintiff on file herein, and the legal delay for answering having expired, and the default of the said defendant in the said premises having been duly entered,” *696and it is ordered that judgment be entered for the plaintiff. Had the judgment been rendered in a District Court, there would be no question that, within the principles of Hahn v. Kelly, 34 Cal. 391" court="Cal." date_filed="1868-07-01" href="https://app.midpage.ai/document/hahn-v-kelly-5436559?utm_source=webapp" opinion_id="5436559">34 Cal. 391, the recitals in the judgment' would be conclusive upon the point of jurisdiction of the person of the defendant, although the affidavit of service of the summons was not of itself sufficient for that purpose. But it is claimed that the judgments of the late Superior Court of San Francisco have not the benefits of the intendments extended to Superior Courts of general jurisdiction. The statute creating the Superior Court of San Francisco gave it the same jurisdiction in civil cases as that possessed by the District Courts—except that in actions respecting the title or possession of real estate it was limited to the City of San Francisco—and made it a Court of record, with a seal and a Clerk. Its judgments import the same absolute verity as those of the District Courts, unless the Act creating the Court was unconstitutional.

Upon this question the language of the Court in Seale v. Mitchell, 5 Cal. 403, and in Hickman v. O’Neal, 10 Cal. 294, may now be cited with peculiar force and significance, as thirteen years have elapsed since the decision in the first case, and ten years since that in the second, and we apprehend that those decisions have as generally been acquiesced in, as settling the question, as those upon any controverted point arising in the Courts. In the first case Mr. Justice Heydenfeldt says: “ The clear result from that case is, that the Superior Court has constitutionally all the powers which are specified in the Act, and such has been the uniform understanding of the profession. That decision (People ex rel. Hughes v. Gillespie, 1 Cal. 342" court="Cal." date_filed="1850-12-15" href="https://app.midpage.ai/document/people-ex-rel-hughes-v-gillespie-5432327?utm_source=webapp" opinion_id="5432327">1 Cal. 342) has remained as an exposition by the tribunal of the last resort of the character of the Court in question for nearly five years. The community to be affected by it have acted upon it in a vast number of judicial relations; rights of property have grown up under it, have changed hands, and passed through numerous ramifications, until it has become imperative to regard it as *697a rule of property, which no power can disturb.” In the last case, Mr. Justice Baldwin, in discussing tills question, said: “ This Court has put that question at rest on the doctrine of stare decisis. We think it might have been placed, if thought necessary, upon broader ground. Upon principle and authority the constitutionality of the Act, we suppose, might be safely rested. (Beaubien v. Brinekerhoff, 2 Scam. 273; Nugent v. The State, 18 Ala. 521" court="Ala." date_filed="1850-06-15" href="https://app.midpage.ai/document/nugent-v-state-6504396?utm_source=webapp" opinion_id="6504396">18 Ala. 521; Thomas v. The State, 5 How., Miss., 20; Houston v. Royston, 7 How., Miss., 548.)” In this opinion Mr. Justice Field concurred. Since those decisions, many cases have been passed upon, by this and the District Courts, in which this question has been treated as settled, or the jurisdiction of that Court has been tacitly assumed without question, and innumerable evils, without any corresponding benefits, would follow the reopening of the question.

The only remaining question which we deem it necessary to consider, is that in relation to notice to the plaintiff of the title claimed by Mrs. Austin. In 1855 Austin made a deed of gift of the premises to his wife, but the deed was not recorded, nor did the plaintiff have actual notice of it. In March, 1856, Austin and his wife united in a conveyance of the premises to Compton, and .in June of the same year Compton conveyed the premises to Mrs. Austin. The Sheriff sold and conveyed the premises to Ryekman, under a judgment against Austin, in 1861, and Ryekman, who had made the purchase and taken the conveyance as the agent of the plaintiff, conveyed the premises to him in 1862. The defendant’s position is, that the deed to Compton, having been executed by Mrs. Austin as well as her husband, the record was constructive notice to the plaintiff of Mrs. Austin’s unrecorded deed—that it furnished a clue which, if followed by him with due diligence, would have disclosed her title. Aside from the authorities upon the general doctrine of constructive notice, the case of Ramsdell v. Fuller, 28 Cal. 37" court="Cal." date_filed="1865-04-15" href="https://app.midpage.ai/document/ramsdell-v-fuller-5435764?utm_source=webapp" opinion_id="5435764">28 Cal. 37, is principally relied upon by the defendants. In that case the *698deed was made by Jane E. Fuller, and it did not appear from the deed that she was a married woman. The plaintiff could not show title in the mortgagor without producing that deed, for the mortgagor claimed title through a deed from the husband alone, he having conveyed it as common property; and it was held that her deed afforded those claiming through her husband a cine which, if pursued with proper diligence, would have disclosed the fact that the premises were the separate property of Mrs. Fuller.. The title to common property may be taken either in the name of the husband or the wife, or of both jointly; but it is unusual to take it in the name of the wife; that when the title to premises is taken in the name of the wife, that fact is sufficient to excite inquiry on the part of the purchaser from the husband as to whether the legal presumption that the premises are common property is well founded, and if the premises are in truth the separate property of the wife, such purchaser is chargeable—as we held in that case—with notice of the true state of the title. Purchasers may, as a general rule, rely with safety upon the legal presumptions arising from the apparent facts relating to the title, without going in search of possible facts to test or overthrow the presumptions. Thus, where premises are conveyed to the husband for a valuable consideration they are presumptively common property; but they may, in truth, be the separate property of either the husband or the wife, if either of them furnished the purchase money from his or her separate estate. A purchaser from the husband may rely upon the legal presumption that the premises are the common property of the husband and wife, although he knows that, notwithstanding the form of the deed, they may be the separate property of either. From the fact that the husband took the title during the existence of his marriage relation, the purchaser may suspect that the premises are the separate property of the wife, but it amounts to no more than a suspicion, and he is not chargeable either with negligence or fraud if he fails to pursue the inquiry. (2 Story on Eq., Sec. 400 a.) The property in this *699case was presumptively the common property of Austin and wife, and the circumstance that she joined him in the execution of the deed to Compton was scarcely sufficient to raise a suspicion that it was her separate property, or that she held some interest in it. Instances of conveyances by both husband and wife, where the wife has no separate estate in the property conveyed, are neither rare nor unusual. The doctrine of Famsdell v. Fuller does not extend to cases of that character. The husband or wife in purchasing property may readily cause the deed to speak the truth, and if any injury is occasioned by a failure in this respect, they, and not a purchaser from them or either of them, ought to suffer the consequences. Had any third person, instead of Mrs. Austin, joined in the execution of the deed, no one would have claimed that that fact would have imparted to one claiming title through Austin, in opposition to the deed to Compton, notice of or a clue leading to an unrecorded deed of Austin to such third person.

Judgment affirmed, and ordered that this judgment be entered as of the fifth day of October, A. D. 1868.

Concurrence Opinion

Crockett, J., concurring:

I concur in the judgment; but, in my opinion, the fact that Mrs. Austin united with her husband in the deed to Compton, was not only insufficient to put the plaintiff on inquiry as to her unrecorded deed, but it was not sufficient to excite even a suspicion of it. It is so common a practice in this State for wives to unite with their husbands in conveyances of common property, where it is not pretended that they have any separate estate in it, that to hold that fact alone to be sufficient to put the purchaser on inquiry as to her secret equities, would extend the doctrine of constructive notice beyond all reasonable limits.

*700By the Court, Rhodes, J., upon petition for rehearing:

The point urged by the defendants in the petition for rehearing is, that, as the deed of Compton to Mrs. Austin was of record at the time the plaintiff purchased the property under execution, the plaintiff had notice of her title; and the point is again urged on the supposition that it was overlooked by the Court on the previous examination of the record. It was not overlooked, but it was passed because we thought, as we still think, the answer quite obvious. Both Mrs. Austin and the plaintiff claim through Austin. She took nothing, as against the plaintiff, under her deed from Compton, for it was found, upon sufficient evidence, that the deed of Austin and wife to Compton was void as to the plaintiff, and under section twenty-four of the Statute of Frauds, her deed from Compton afforded her no protection, because she was not a purchaser for a valuable consideration. She, then, can rely only upon her unrecorded deed from Austin, and not upon that of Compton, unless the plaintiff purchased with notice. We have heretofore disposed of the deed of Austin and wife to Compton, as related to the question of notice of her unrecorded deed. The deed of Compton is equally valueless as notice. Whatever force there might be in the point, if the plaintiff claimed through her —as the plaintiff in Ramsdell v. Fuller claimed through the deed to Mrs. Fuller—it was no merit whatever, when he not only claims in opposition to her, but shows that her deed is void. We know of no principle justifying us in holding that the record of a deed, void as to any person, was notice to such person of anything, except, perhaps, of the existence of the void instrument. It certainly furnishes no clue to an earlier deed to the same grantee, executed by another grantor.

The general rule is, that the record of a deed is notice to subsequent purchasers—that is to say, the subsequent purchasers from the same grantor—and it is not intended by anything that has been said to infringe upon this rule.

Rehearing denied