Gassen v. Hendrick

McKinstry, J. On the third day of June, 1871, Clarence L. Carr made a deed to Thomas H. Bush of one undivided half of a certain twenty-acre tract of land. The deed was not recorded until the eighth day of July, 1885.

On the tenth day of August, 1878, the said Clarence L. Carr signed a deed of the whole tract, with other lands, to Elizabeth R. Carr, his mother, for the recited consideration of eight hundred dollars. This last deed was acknowledged and was duly recorded August 15, 1878.

It is contended by appellants: 1. That, as the deed to Elizabeth R. Carr was in consideration of a pre-existing indebtedness, she was not a purchaser for a valuable con[446]sideration; 2. That it was not made to appear by those claiming under Elizabeth It. Carr that she was a purchaser “in good faith”; 3. That the deed from Clarence L. to Elizabeth was not proved to have been delivered.

1. A conveyance in consideration of the cancellation of pre-existing indebtedness is a conveyance for a valuable consideration within the meaning of section 1214 of the Civil Code. (Frey v. Clifford, 44 Cal. 335; Schluter v. Harvey, 65 Cal. 158.)

2. Even if it be conceded (for the purpose of this decision) that the burden of proving prima facie the negative,— that she or they had no notice of the prior deed to Bush,—was on those claiming under Elizabeth R. Carr, still there was evidence of facts tending to establish that she had no notice, which, in the absence of direct evidence of notice, was sufficient to justify the finding of the court that she was a purchaser in good-faith.

3. The court below found that the deed from Clarence L. to Elizabeth R. Carr was executed on the day it bears date. The statement on motion for a new trial contains no specification that the evidence is insufficient to sustain the finding of the execution or delivery of the deed.

The plaintiffs (appellants) objected generally to the reading in evidence of the deposition of Alice E. Carr, on the ground “ that the witness has refused to answer the interrogatories put on behalf of the plaintiff herein, and concerning material matter affecting the rights of the parties to this suit, and that the deposition is not full or complete, or responsive to the question put to the witness by plaintiffs in the commission upon which the evidence was taken.” And upon like grounds the plain-, tiffs subsequently moved to strike out the deposition.