Bernal v. Gleim

By the Court, Rhodes, J. : Some time between the years 1846 and 1849 George W. Bellamy and his wife entered upon and inclosed the land in controversy, and otherwise subjected it to their will and control. On the 27th of October, 1861, Bellamy mortgaged the land to Reid and Davis; and on the 15th of December, 1852, Bellamy and his wife united in a conveyance of the land to their children, who were then minors, but the deed was not acknowledged by the wife, as required by the Act of the 17th of April, 1850, in order to pass her separate estate. Between the 25th of October, 1851, and the 5th of October, 1852, two judgments were entered against Bellamy, the one in favor of one W. C. Jones, for a certain sum of money, and the other in favor of Reid and Davis, for the foreclosure of their mortgage; and an execution having been issued on the first judgment and an order of sale on the other, the Sheriff, by virtue thereof, sold the premises to J. W. Red-man on the 5th day of March, 1852, and on that day executed and delivered to him the Sheriff’s deeds for the premises. The seventh finding is that “ The family i. e. the plaintiff, Maria, her said husband (George W. Bellamy) and their children, continued in possession until October, 1854, when they were removed from the possession by one Thomas Bodlev, who was then acting Under-Sheriff of Santa Clara County.”

Redman entered into possession in October, 1854, after Bellamy and wife and their children were dispossessed, and remained in possession until the year 1860, and at the commencement of this action the defendants were in possession under mesne conveyances from Redman. The children of Bellamy remained minors until 1864, and in 1865 they reconveyed the premises to the plaintiff Maria, their mother.

The case may be disposed of without investigating the [675]questions touching the grant made by the Prefect. The discussion will be limited to matters having a relation to the prior possession of Bellamy and wife, or, more accurately speaking, the title arising by presumption of law from the fact of possession. We agree with the Court below, that the premises were either the separate property of Bellamy, or the common property of him and his wife, and that it is unnecessary to determine to which class it belonged. He, therefore, was competent to convey or mortgage the premises, without the aid of his wife.

The present right of possession depends on this title, and the question is, which party holds the title. The conveyance of Bellamy to his children, in December, 1852, transferred the title to them, unless it passed to Redman under the Sheriff’s deeds, executed in March of the same year. The Court held' the Sheriff’s deeds void, and the ground doubtless was that they were, executed immediately after the sale, without waiting the expiration of the time given by law for redemption. This ground is unquestionably sufficient to sustain the ruling. “ The real question,” says Mr. Chief Justice Field, in Gross v. Fowler, 21 Cal. 392, “ is one of power. Had the Sheriff authority to execute the deed at the time ? And to this there can be but one answer. His power did not arise until the six months had elapsed.” This leaves the title and consequent right to possession in the plaintiff, Maria.