Ganceart v. Henry

California Supreme Court May 16, 1893 No. 14554Published

Before: Searls

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Holding. The court affirmed the judgment for the defendant, holding that the plaintiff waived any error regarding the demurrer by amending the complaint and that the trial court's findings on the nature of the deed were supported by conflicting evidence.

Issues

Did the court err in sustaining the demurrer to the original complaint?
Did the court err in refusing to strike out the defendant's amended answer and cross-complaint?
Was the evidence sufficient to support the finding that the deed was an absolute sale rather than a mortgage?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court below found in favor of defendant, and we are not authorized, under such circumstances, in disturbing the findings.”

“A deed of conveyance absolute on its face is certainly some evidence that the transaction is what it purports to be, viz., a sale.”

Synopsis

Action to Redeem—Deed Intended as Mortgage—Pleading—Maturity of Debt—Cause of Action.—A complaint which seeks to have an absolute deed declared a mortgage, and to permit the plaintiff to redeem therefrom, but which fails to show that the money averred to have been borrowed by the plaintiff from the defendant is due and payable, fails to state a cause of action.

Pleading—Sustaining of Demurrer—Amendment—Waiver of Error.—The amendment of a complaint after the sustaining of a general demurrer thereto is a waiver of any error in the sustaining of the demurrer.

Id, — Effect of Deed as Evidence—Proof of Superior Equity by Parol—Conflicting Evidence—Review upon Appeal.—A deed of conveyance, absolute on its face, is some evidence that the transaction is what it purports to be, and in order to establish an equity superior to the deed and authorize a determination that the deed was given as security for an existing debt, the testimony, if parol in character, should establish a clear case; and where the evidence is conflicting, a finding that the deed was not intended as a mortgage cannot be disturbed upon appeal.

Refusal to Strike Out Pleading — Order not Deemed Excepted to—Absence of Party—Bill of Exceptions — Review upon Appeal.—An order refusing to strike out a pleading is not deemed excepted to unless made in the absence of the party complaining; and an assignment of error in such refusal will not be considered upon appeal, where the record fails to show either that the appellant excepted to the ruling of the court, or that he was absent when the ruling was made, and no bill of exceptions was prepared embodying the action of the court.

Id.—Judgment-roll.—In the absence of a bill of exceptions, embodying the notice of motion to strike out a pleading, the motion and order of the court refusing such motion, do not become a part of the judgment-roll under section 670 of the Code of Civil Procedure.

Searls, C. Appeal from a judgment in favor of defendant, and from an order denying a motion for a new trial.

The action was brought to have an absolute deed executed by plaintiff to defendant October 4, 1886, conveying a lot of land in the town of Alamo, county of Contra Costa, California, adjudged to be a mortgage, and to permit the plaintiff to redeem, and to require the defendant to execute a deed of conveyance to the plaintiff.

The complaint, in apt language, set out in substance that on the fourth day of October, 1886, defendant loaned him four hundred dollars, plaintiff to pay interest thereon at one (I) per cent per month, and that as security for the payment thereof to defendant, he, the said plaintiff, executed to defendant a deed of bargain and sale, absolute in form, but understood and agreed to be and operate as a mortgage, etc. The complaint failed to show when the four hundred dollars averred to have been loaned fell due, or that it was in fact due and payable. Defendant demurred to the complaint, which demurrer was sustained by the court with leave to plaintiff to amend, and in due time he filed an amendment to his complaint. Defendant answered denying all the allegations of the complaint, averred ownership of the conveyed property in himself. He also filed a cross-complaint showing ownership of the premises in himself, possession in ' plaintiff under a lease, from month to month, a wrongful holding over, etc., and asked for judgment of restitution, etc. De[283]fendant filed his answer and cross-complaint on the fifth day of August, 1890, and afterward on the 15th of September, 1890, without leave of the court, so far as appears, he served aud filed an amended answer and cross-complaint.

Plaintiff moved to strike out these amended pleadings upon the grounds that they were filed without leave of the court, and that they were sham aud irrelevant, etc. The motion to strike out was denied by the court, and the ruling is assigned as error.

The cause was tried by the court without the intervention of a jury, and the findings negative the theory of the plaintiff that a loan was made to him by defendant, and the deed given as security therefor, and uphold the position of defendant that the transaction was an absolute sale and conveyance absolute, etc. The first error assigned by appellant is that the court erred in sustaining the demurrer to the complaint. There are two answers to this contention: 1. The court did not err in sustaining the demurrer. The complaint failing to show that the money, averred by plaintiff to have been by him borrowed from the defendant, was due and payable, non constat but that the action was prematurely brought. 2. By amending liis complaint after demurrer sustained plaintiff waived the error, if any, in the ruling by the court. (Gale v. Tuolumne W. Co., 14 Cal. 26.)

Ganceart v. Henry

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