Svetinich v. Sheean

VAN DYKE, J. This is an action to quiet title to a certain lot in the city of Yallejo, Solano county. The title claimed hy the plaintiff is founded upon a sheriff’s deed. The plaintiff, September 30, 1895, obtained a judgment against the defendant Eliza Sheean, in the city and county of San Francisco, and upon this judgment levied upon the right, title, and interest of said defendant Eliza Sheean in and to said lot, and under said judgment and levy, March 2, 1896, a sale was made by the sheriff of Solano county of said interest to the plaintiff in said action, [217]who is the plaintiff here. ¡No redemption having been made, the deed in question was executed October 17, 1896. Defendants, answering, denied any title in the plaintiff, and alleged that the title and ownership of said, property are in the defendant Timothy Sheean; and said Timothy Sheean, in a separate answer and by way of cross-complaint, sets forth that said lot was purchased by his separate means, and, although the deed was taken in the name of himself and his wife, it was his separate property and so understood at the time. The court finds that the said Timothy Sheean permitted said deed of conveyance to be made to said Timothy Sheean and Eliza Sheean jointly, solely in order to enable the better management and care thereof, and not as a gift in whole or in part to said Eliza Sheean; that the said Timothy Sheean was absent from home a great deal of the time in the service of the United States as an officer in the navy; that the said Timothy Sheean is the owner of said property in fee simple to his own separate use and benefit, and that the defendant Eliza Sheean has no interest or estate therein; that the plaintiff had notice and knowledge of the rights and estate of defendant Timothy Sheean in said property, and notice and knowledge that any title, estate, or interest therein or thereto held by said Eliza Sheean was held in trust for defendant Timothy Sheean.

The evidence abundantly supports the findings.

The first error assigned by the appellant is the refusal by the court to allow the plaintiff to testify as to a conversation had with Mrs. Sheean, in the absence of her husband, as to the ownership of the property. What Mrs. Sheean may have said in the absence of her husband could not bind him, nor affect his title to the property. Besides, the plaintiff, on being recalled, was allowed, without objection, to state as follows: “I am the purchaser of said property under the execution sale..... Down to the time of the sheriff’s sale I did not know that the defendant Timothy Sheean claimed that the undivided one-half thereof standing in his wife’s name was held by her in trust for him, or that he claimed said one-half to be his own property. I had no notice of that from any source. ¡Nobody told me anything of the kind. The only information I had about it was from Mrs. Sheean, who told me that she owned the property—