Turner v. White

Hayne, C. The action was brought to set aside a deed from the defendant James White to the defendant Martha White, as being in fraud of creditors. But at the trial, the plaintiff abandoned his charge of fraud; and both court and counsel seem to have come to the conclusion that the property was not really included in it; and the action appears to have proceeded as an action to quiet the plaintiff’s title.

The plaintiff’s theory was, that he acquired the title [300]through a sale under execution against the defendant James White. The defendant’s theory, as developed by the evidence, was, that James White never had any interest in the property. The validity of the execution proceedings not being questioned, it will be seen that the ownership of James White, at the time of the execution sale, was a central point in the case. But this point must be resolved in favor of the plaintiff upon the pleadings. The complaint alleges that at the time of the levy James White was the owner. The only thing approaching to a denial is the following: “ Defendants deny that the plaintiff is the owner or in possession of the property in his complaint described, but aver that it is the property of the defendant Martha S. White; denies that the plaintiff ever was the owner of any of said property.”

With reference to the averment that “ it is the property of the defendant Martha S. White,” it is sufficient to say that at most it speaks only from the time of the commencement of the action, and is not at all inconsistent with the allegation that at some prior time James White was the owner.

With reference to the remainder of the paragraph quoted, we were at first inclined to treat it as sufficient, upon the ground that the allegation of the plaintiff’s ownership was the ultimate fact alleged, and that the averments of how he acquired the title were averments of mere evidence, which need not be denied. But after consideration, we do not think the allegation in the complaint can be so treated. It is perfectly true that, in general, an allegation that a party is, the owner of real property is an allegation of an ultimate fact, and not of a conclusion of law. (Payne v. Treadwell, 16 Cal. 242; Garwood v. Hastings, 38 Cal. 217; Ferrer v. Home Mut. Ins. Co., 47 Cal. 431.) But as held in Levins v. Rovegno, 71 Cal. 273, the same averment or statement may be of a fact or of a conclusion, according to the context. Now, in the present case, the complaint first avers the [301]