Rosenthal v. Merced Bank

The Court. Rosenthal and wife brought this action to quiet their title to lot 7 in block 147 in the city of Merced. The complaint was in the usual form. Defendant answered, and, in addition to denials, alleged that since July 20, 1893, it has been the owner in fee [200]simple of said premises, “ on which said last-mentioned date the said plaintiffs made, executed, acknowledged, and delivered to defendant their certain deed in writing, a copy of which said deed is hereto annexed, marked exhibit A, and hereby referred to and made a part hereof; and on the 11th of October, 1893, in an action then pending before the superior court of Merced county, between the same parties hereto, by the judgment of said court, duly given and made, it was adjudged and decreed that said deed transferred and conveyed said premises described in the complaint herein to defendant, and said judgment has never been reversed, annulled, or set aside, and the same is now a final judgment of said court.” Said exhibit A, attached to said answer, purports to be a copy of a deed signed by A. Rosenthal and Betsy Rosenthal, said signatures being followed by the words “ Signed, sealed, and delivered in the presence of Samuel C. Bates,” but nó acknowledgment appears thereon. The plaintiffs did not file or serve an affidavit denying the genuineness and due execution of said deed under the provisions of section 448 of the Code of Civil Procedure.

The cause was tried by the court, and findings and judgment were in favor of the plaintiffs, and from said judgment the defendant appeals upon the judgment-roll, including a bill of exceptions. A preliminary recital under the head of findings of fact and conclusions of law states, among other things, that “the defendant failed and refused to introduce any evidence whatever in said cause.”

The following are in substance the facts found, viz: That plaintiffs are, and since prior to the year 1877 have been, husband and wife; that on March 10, 1877, Charles Crocker was the owner in fee of said lot, and on that day granted and conveyed the same to the plaintiff, A. Rosenthal, and his brother, D. Rosenthal, and that said deed was duly recorded in said year; that on and prior to June, 15, 1882, the plaintiffs resided with their family in a dwelling-house upon said lot, and [201]