Tustin v. Faught

California Supreme Court Jul 1, 1863Published

Before: Crocker

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Holding. The court affirmed the judgment against all defendants except Freeman, holding that a defendant may assert a title acquired after the commencement of an action, necessitating a new trial to determine if Freeman ousted his co-tenant.

Issues

Whether a deed is admissible when signatures vary from the names listed in the body of the instrument.
Whether a deed of bargain and sale founded on a money consideration constitutes common property, rendering the husband's signature sufficient.
Whether a defendant may assert a title acquired after the commencement of an action to defeat a claim of ouster.

Disposition. Affirmed in part, reversed in part, and remanded.

Quotations verified verbatim against the opinion

“The deed shows clearly, upon inspection, that several of the persons named in the body of the instrument signed their names to it; and to that extent, at least, it was executed, and properly admissible in evidence.”

“The deed being one of bargain and sale, founded upon a money consideration, and not a deed of gift, the property conveyed became common property, and the deed of the husband was sufficient without the signature of the wife.”

“But there is no good reason why a defendant may not show such after-acquiring title.”

Synopsis

Where the grantor named in the body of a deed signs a different name from that recited in the body of the deed, it is not entitled to be admitted in evidence, until it. has been shown by parol proof that the person who executed the deed was the same one whose name is recited in the body.

Where real estate is conveyed to a married woman by a deed which recites a consideration of money paid, as well as love and affection, the land conveyed becomes the common property of the husband and wife, and the deed of the husband alone is sufficient to convey it.

A defendant in an action of ejectment may show in defense a title to the demanded property acquired by him after the commencement of the action.

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an action to recover possession of a tract of land in Sonoma County—a portion of the Rancho “ Laguna de San Antonio.” Both parties claim title under Bartolomé Bojorques, the grantee of the Mexican Government. The Court rendered a judgment against all the defendants except Gaston, from which, and from an order overruling a motion for a new trial* they appeal.

The plaintiff, to maintain the action, introduced in evidence a deed of conveyance, dated December 8th, 1855, executed by Bar[239]tolome Bojorques and eleven others. The defendants made several objections to this deed, one of which was that it was an unexecuted instrument. It appears, from an examination of the record, that the names of twelve persons, mostly Spanish names, are described as the grantors in the body of the conveyance, and that the names and seals of twelve persons, mostly Spanish, are attached as signatures to the deed, but these vary from each other; some of the names in the body of the deed do not appear in the same terms among the signatures, while several signatures do not appear in the same words among the names in the body of the deed. Whether they were in fact all the same persons, under different names, it is unnecessary to determine; for this objection of the defendants is untenable. The deed shows clearly, upon inspection, that several of the persons named in the body of the instrument signed their names to it; and to that extent, at least, it was executed, and properly admissible in evidence. This objection was made to a similar deed in the case of Colton v. Seavey et al. (22. Cal. 496), and was overruled.

It was also objected to this deed, that its execution was not so proved as to entitle it to be received in evidence. This objection is also untenable. The execution of the conveyance appears to have been acknowledged, by all the parties who signed the deed, before a Notary Public, who was also the subscribing witness to it —except as to one grantor, whose acknowledgment was taken before the County Clerk—and duly certified to by him.

The defendants introduced in evidence a deed from Bartolomé Bojorques to Pedro Bojorques and seven others, his children, for the undivided eight-ninths of the rancho, dated November 20th, 1851. These grantees are the same persons under whom the plaintiff claims title, and by whom, with their husbands, he claims his deed was executed. One of the grantees in this deed was Marcella Lopez, whose name appears in the body of the plaintiff’s deed as Maria Marcella Lopez, but her name does not appear among the signatures, at least not in either of those terms; and if it appears in another name, that fact should have been proved. On the second day of February, 1857, Marcella Lopez and her husband executed to Richardson & Hunt a conveyance of the

Tustin v. Faught

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