Sparrow v. Rhoades

Foote, C. This is an action of ejectment. The court below, sitting without a jury, gave judgment in favor of the defendant, from which, upon the judgment roll only, the plaintiff appeals.

The points made for the reversal of the judgment are, that under the general denial of the answer to the allegations of the complaint, it was inadmissible to introduce any evidence to show that the consideration of the deed upon which the plaintiff based his title and right of entry was illegal and the deed void; and that the finding of the court upon such evidence was outside of the issues made by the pleadings, and should be disregarded, in which event judgment would necessarily have been given for the plaintiff.

The finding complained of, which is conceded to have been supported by sufficient .evidence, is to the effect that the real consideration of the deed under which plaintiff claimed was three hundred dollars, and an agreement by the plaintiff that he would, as a pre-emptor, procure a title from the United States to a part of the land embraced in the deed, and reconvey the same to the defendant, who was in possession of it. This, of course, involved the taking of an oath required by section 2262 of the Revised Statutes of the United States, with a present intention to violate it.

Under a general denial in an action of ejectment the defendant has a right to introduce in evidence any fact which might show or tend to show that the plaintiff had no right of entry when the suit was brought. (Kimball [211]v. Gearhart, 12 Cal. 50; Bell v. Brown, 22 Cal. 672; Willson v. Cleaveland, 30 Cal. 201; Bell v. Bed Rock T. & M. Co., 36 Cal. 219; Semple v. Cook, 50 Cal. 29.)

“ In an action to recover possession of land, if the complaint is in the usual form, merely averring that the plaintiff is the owner in fee of the premises described and entitled to their possession, and that the defendant unlawfully withholds the same, the general denial admits proof of anything that tends to defeat the title which the plaintiff attempts to establish on the trial.” (Pomeroy’s Remedies and Remedial Rights, sec. 679.)

The deed which the plaintiff introduced as the evidence of his title and right of entry to the premises of which he sought possession was void, because the statute expressly declares it to be so. (Section 2262 of the Revised Statutes, supra.)

Under the general denial of the answer, evidence was admissible to show that the title, which on the face of the deed appeared to have passed to the plaintiff, could not have done so, and that the deed was worthless as a muniment of title, or, as that under which a right of entry accrued to the plaintiff, even although the fact that the deed was void by reason of an illegal consideration was not set up by special plea in confession and avoidance.