Hihn v. Courtis

By the Court, Sawyer, J.: This is an action for partition of the “Augmentation to the Soquel Rancho.” The several appeals are in all respects like those in the case of Peck v. Courtis, ante, 207. The same objections are taken to hearing the appeals, and the same grounds of objection exist in this as in the other case, except that in the record now before us, the final judgment appears to have been rendered on the Sth of August, 1864, consequently the appeal taken July 10th, 1865, was within a year thereafter, and in due time. On the appeal from the final judgment the record presents but one question—the only one in fact argued by appellants—and it is, to say the least, doubtful whether that is properly presented; but as the simplest and perhaps the most satisfactory mode of disposing of the case, we shall regard the question as properly before us.

On the trial before the referee, a conveyance of eight ninths of two large tracts of land from Donna Maria Castro, wife of Louis Depeaux, to her eight children, Niconora Coto and others, dated August 29th, 1850, was introduced in evidence under objection and exception on the part of the appellants. [400]If this deed was properly received in evidence, then there is no error to the prejudice of appellants apparent on the record, and the judgment must be affirmed. The conveyance is of land which constituted a part of the separate estate of Martina Castro, wife of Depeaux. The objection to the deed is, that it is improperly executed, and, if properly executed in other respects, is not duly acknowledged under the provisions of the Act of 1850, concerning conveyances, and section six of the Act of the same year, defining the rights and duties of husband and wife; and that it is, therefore, void upon its face, and failed to pass any interest of Donna Martina Castro to the nominal grantees, some of whom are respondents—the numerous other respondents claiming under them through said deed.

The deed in question is the same which was the subject of discussion in the case of Ingoldsby v. Juan, 12 Cal. 564, and reference to that case is made for the facts in regard to it. The question raised is precisely the same as the one before presented and determined. The administrator of John Ingoldsby, the plaintiff in that case, is now one of the appellants, and the others claim, in part, at least, under said Ingoldsby.

With a view of breaking the force of the former decision upon the validity of this conveyance, it is claimed that the point as to the validity of the deed, although dismissed, was not necessarily involved, and not determined. The Court which decided the case was manifestly of a different opinion. In the beginning of the opinion, after stating that the case presents many interesting questions, the Court say : “ We do not consider it essential to the disposition of this case upon the merits to pass upon them all. The main question, which, we think, disposes of the question of title, rests upon the validity of the deed set up by the defendants in bar of the plaintiff's action. The deed, being the predicate of the title of the defendants, ivas ruled out, because, under the statute of 1850, it did not convey the title of the grantor, Martina, in the premises.'' (573-4.) After an elaborate discussion of the question as to the validity of the deed, at the close of the opinion it is again