Smith v. Smith

California Supreme Court Sep 3, 1889 No. No. 12955Published

Before: Hayne

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Holding. The court held that a deed absolute in form intended to secure an indebtedness is a mortgage that does not pass title or right of possession, but remanded for a new trial regarding a specific parcel where the plaintiff held independent title and the defendant failed to prove adverse possession.

Issues

Whether a deed absolute in form intended to secure an indebtedness constitutes a mortgage that fails to pass title or right of possession.
Whether the defendant established title to the property through adverse possession.
Whether the trial court erred in consolidating two actions of ejectment.

Disposition. Affirmed in part, reversed in part, and remanded.

Quotations verified verbatim against the opinion

“It results that the deed of 1876 does not give the plaintiff the right to maintain the actions.”

“Upon the whole evidence, we think that it appears, without substantial conflict, that the possession of the defendant was not adverse to the owners of the property.”

Synopsis

Ejectment — Consolidation oe Actions. — Two actions of ejectment for separate pieces of property brought in the same court by the plaintiff against the same defendant may be consolidated.

Mortgage—Effect of Deed Absolute in Fobm Made Merely to Secure the Payment of Money to the Grantee — Possession.—It is the settled rule in California that if a deed absolute in form was made merely to secure the payment of money to the grantee, it is a mortgage, and does not pass the title. Such a deed gives a mere lien upon the property just as if the parties had put their agreement in the form of a mortgage, and consequently does not give the right of possession to the grantee.

Agreement Made through Agent—Repudiation of Part.—If a party makes an agreement through an agent, and claims under it, he cannot repudiate it in part on the ground that the agent exceeded his authority.

Deed to Members of a Firm — Ejectment by One Partner against Intruder. — A deed conveying title to the members of a firm enables one partner to maintain ejectment against an intruder.

Pleading—Affirmative Defense in Ejectment—Whether to be Tried First. — An affirmative defense that the deed relied on by plaintiff was a mortgage is covered by a denial of the plaintiff’s allegation of ownership. It is not an equitable defense, and therefore the plaintiff is not entitled to have it first disposed of.

The Court. A rehearing was granted in this case, and the same has been reargued, but we adhere to our former decision, and adopt the former opinion of Commissioner Hayne as the opinion of the court.

[324]The judgment and order are reversed as to the northwest quarter of section 13, township 2 south, range 13 east, and the cause remanded for a new trial as to said property, and said judgment and order are in all other respects affirmed, the appellant to recover one half of the costs on appeal

Beatty, C. J., and Thornton, J., dissented..

The following is the- opinion of Commissioner Hayne above referred to, rendered in Bank on the 16th of March, 1889:—

Hayne, C. The plaintiff brought two actions of ejectment against the defendant, one for a tract of 280 acres, and the other for a tract of 1,320 acres. The land was all in one county, and the actions were pending in the same court. Upon motion of the defendant, the court ordered the cases to be consolidated. We think that this was proper. The causes of action might have been united. (Code Civ. Proc., sec. 427; Boles v. Cohen, 15 Cal. 151.) And this being so, the court could order a consolidation. (Code Civ. Proc., sec. 1048.) The trial of the consolidated action resulted in a judgment for the defendant, and the plaintiff appeals.

1. Prior to 1874 the plaintiff and one D. G. Smith, his brother, were partners in the business of raising sheep. The title to most of the property stood in the name of D. G. Smith, having been conveyed to him by United States patent. For part of it a patent had not been issued, but D. G. Smith held a certificate of purchase therefor. In 1874 he bought out the interest of the plaintiff in the concern, agreeing to pay him therefor the sum of sixty thousand dollars. A portion of this sum was to be paid at or soon after the execution of the agreement, and promissory notes, each for the sum of five thousand dollars, payable at intervals extending up to 1878, were given for the remainder. After the disso[325]lution, D. G. Smith carried on the business alone, but became involved in financial difficulties, and was unable to pay his debts, among which was the indebtedness represented by said promissory notes. In 1876 he made a deed to the plaintiff of the property .in controversy, and at the same time, made other deeds to plaintiff of lands in other counties, and bills of sale of certain sheep and other personal property. The business of sheep-raising was thereafter conducted in the name of the plaintiff. This condition of affairs continued to the death of D. G. Smith, in 1883. During all this time, and up to the commencement of the actions in 1885, the defendant, who was another brother, lived upon the property with his family, and his position is that he acquired a title by adverse possession.

Smith v. Smith

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