Burton v. Mullenary

McFARLAND, J.

This is an action to quiet plaintiff’s title as against the defendant, Mullenary, to a city lot in the city of Santa Barbara. The lot is described in the complaint by metes and bounds, and the description shows it to be a lot ninety feet by four hundred and fifty feet, situated on the northwesterly corner of Cola and De la Vina streets in said city. Defendant sets up a defense, and claim of ownership which will be noticed hereafter. The findings and judgment were for plaintiff; and defendant appeals from an order denying his motion for a new trial.

On February 7, 1895, the lot in question was owned by one Ben Burton, who was the husband of respondent, and on that day he executed to respondent a deed conveying the lot to her in fee. (Appellant contends that this deed was void for uncertainty of description; and this point will be noticed hereafter.) Respondent took possession of the lot under that deed, and has been in continued possession of it—the lot having a house on it and being inclosed by a fence—and claiming title to it against all persons and paying all taxes on it; and her said continuous possession extended over a period of more than five years next preceding the commencement of this action. At or about the time of this deed to respondent by her husband the latter deserted her and left this state. He has never returned to her, but has continued his desertion, and respondent has ever since lived separately from him. This action was commenced May 7, 1901,—more than six years

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after the execution of said deed and after the beginning of said desertion. At the time, of the execution of said deed respondent’s husband also conveyed to her a tract of land in the county of Santa Barbara, containing about twenty thou- ' sand acres, being a part of the Rancho Jesus Maria, and which we will call for convenience the “rancho.” This property was mortgaged to the German Savings and Loan Bank for forty-five thousand dollars.

Appellant sets up as a defense to the action that the said deed to respondent of the lot here in contest by her husband was made by the latter with intent to hinder and defraud his creditors, and was therefore fraudulent and void; that at the time Ben Burton conveyed the rancho to respondent he was indebted to appellant in the sum of $3,466 for services rendered said Burton by appellant and his wife, as employees on said rancho; that on December 30, 1898, appellant commenced an action against said Burton to recover said amount of money, with interest, and procured a writ of attachment to' be issued and levied on this lot here in contest; that on November 18, 1900, judgment was rendered in said action for appellant for the said amount of money and interest from February 1, 1895,—Burton having been served by publication; that on March 7, 1901, a writ of execution was issued on this judgment, under which the lot in question was, on March 30, 1901, sold by the sheriff to appellant, who received and now holds the certificate of purchase under the sale, and no redemption has been made. Upon these alleged facts appellant prays judgment that respondent is not the owner or entitled to possession of the said lot, and that appellant is the. owner thereof, subject to the right of redemption by those entitled to redeem.