Martin v. Splivalo
Before: Belcher
Synopsis
Ejectment—Deed—Consideration need not be Proved. —In an action of ejectment, the deed under which the plaintiff claims title to the premises in controversy, if regular in form and properly executed, is admissible in evidence without allegation or proof of the payment of the consideration for its execution.
Id.—Agreement to Assume Mortgage—Condition—Legad Title— Possession. — An agreement by the grantee in a deed, forming part of the consideration therefor, to assume and pay a mortgage previously executed on the land by the grantor, does not constitute a condition upon the breach of which the title would revest in the grantor. Such a deed vests the legal title in the grantee, and his right to the possession of the land conveyed cannot be defeated by showing that he had failed to pay the mortgage.
Id.—Action or Unlawful Detainer—Abatement.—In an action of ejectment in which the plaintiff bases his right to recover the possession of the premises in controversy on a deed from the defendants to him, the pendency of an action brought by the plaintiff against the defend- ■ ants for an unlawful detention by them of the same premises, after the expiration of an alleged lease, cannot be pleaded in abatement.
Id.—Finding—Rental Value.—A finding that the rental value of a piece of land is twenty-five dollars a month is equivalent to a finding that the rental value is three hundred dollars a, year.
Belcher, C. C. This is an action of ejectment for the possession of certain real property in Santa Clara County.
The plaintiff claims title to the demanded premises , under a deed executed to him by the defendants on the fourteenth day of July, 1877. The deed purports to have been made in consideration of five dollars, the receipt of which is acknowledged, “ and the assumption by the party of the second part of the indebtedness hereinafter recited.” The recital referred to is as follows: “Sard premises are subject to a deed of trust executed by the parties of the first part to James de Fremery, Robert B- Swain* and Alexander Campbell, Sen., dated the fifteenth day of February, 1872, A. D., and recorded in the office of the county recorder of said county of Santa Clara, in liber 23 of deeds, at pages 409 and following, given to secure the payment of the promissory note of said Stephen Splivalo to the San Francisco Savings Union, a corporation, for the sum of ten thousand dollars and interest, having even date with said deed of trust, and referred to therein; and all indebtedness secured by said deed of trust is to be assumed and paid by the party of ■ the second part, as part of the consideration for this conveyance.”
By their answer the defendants deny that the plaintiff paid the five dollars, named as consideration for the deed, or any part thereof; and they allege “that plaintiff has not taken said promissory note up, and has not as[613]sumed or paid the same, or any part thereof, to said 'San Francisco Savings Union/ or to any other person or party whatever, and defendants have never received any consideration or value from plaintiff for said deed of conveyance, and the same is null and void as against these defendants, and each of them”; and they also allege the pendency of another action in the same court between the same parties and for the same cause.
At the trial the plaintiff offered his deed in evidence, and its admission was objected to by the defendants, upon the ground that the plaintiff had neither alleged in his complaint nor proved "that the obligations therein contained and provided to be performed on the part of the plaintiff, as the consideration therefor, viz., the assumption and payment of the indebtedness therein mentioned to the San Francisco Savings Union, was accomplished or performed prior to the commencement of this action, or at any time, or at all.”
The objection was overruled, and an exception reserved.
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