appeal, as under the decision here made they ZANE, C. J., and JUDD, J., concur. (6 Utah, 215) STEVENS . HIGGINBOTHAM et al. (Supreme Court of Utah. June 13, 1889.) MORTGAGES-CONSIDERATION. When, in a suit to foreclose a mortgage, a third person alleges by cross-bill that the mortgage was without consideration, the burden of proof is on him to establish the fact by a preponderance of evidence: Appeal from district court, First district. Thomas Maloney, for appellant. Kimball & White, for respondents. praying that the same be declared void and for naught held by decree of the court. To this cross-bill the said Stevens filed a demurrer, which being overruled she filed an answer in which she denied all fraud, and reaffirmed the good faith of her note and mortgage. Upon the issue thus formed the parties went to trial. The bill of exceptions contains many assignments of error, some of which are with and some of which are without merit. We have not found it necessary to review the case upon all the points presented at the bar in the argument, because, in looking into the proof, we are satisfied that the case upon the facts was wrongfully determined. The proof of the complainant and her husband is positive and uncontradicted to the effect that they did lend this sum, $3,000, to Higginbotham. They show that they sold a lot in Ogden to D. II. Peery for $2,000, and that Peery paid them the money in cash. This statement Peery fully corroborates. also show that complainant's husband was a photographer, and that in his business he, by economy, had saved up quite a sum of money, and that he kept his money in his house, and did not deposit in any bank, and that of his earnings he furnished $1,000, which, added to the $2,000 they got of Peery, made the sum lent Higginbotham. Higginbotham's wife was a sister of complainant, Mrs. Ste They nected with the transaction which might of themselves, considered apart from the main facts of the case, tend to throw suspicion upon the good faith of the note and mortgage, but, when taken in their proper connection with the other proof, are entirely con JUDD, J. The plaintiff in this case filed her complaint in the district court at Ogden, in which she sets forth that on the 16th day of July, 1883, she loaned to the defendant Higginbotham the sum of $3,000, and took his note for the same, due at 12 months from date, bearing interest at 10 per cent. per annum; that at the same time the said defendant executed to her his mortgage deed upon | certain real estate, situated in Ogden City, to secure the payment of the said note and interest. The note and mortgage are made ex-vens. There are some circumstances conhibits to the complaint. It also appears that about the time said mortgage and note were executed the said Higginbotham was in embarrassed circumstances financially, and that on the 26th of July, 1883, he became and was insolvent by executing a general assignment for the benefit of his creditors; that this as-sistent with fair dealing. The proof shows signment conveyed only personal estate. It further appears that some short time after the execution of the assignment certain of Higginbotham's creditors sued out attachments against his estate, and levied them upon the real estate that he had conveyed by mortgage to the complainant in this cause. Such proceedings were had in the case of those attachment suits as resulted in an order of sale of the land, and the same was sold by the marshal, and bought by defendant King, to whom in due form the marshal executed a deed. Being advised of these proceedings, the complainant, Stevens, made King a defendant to her complaint in this cause. She asks that the court grant her a decree foreclosing the mortgage deed, and or der that the land be sold and the proceeds be applied to the payment of her debt and costs. To her bill Higginbotham made no defense, and a default was duly entered against him. The defendant King filed his answer, in which he set up his title to the land under his deed from the marshal, and also filed a cross-bill, in which he set up that the mortgage to complainant was founded upon no consideration, but really executed by Higginbotham for the purpose of hindering, delaying, and depriving defendant King and other creditors, and that complainant and her husband were ignorant people, and not at all familiar with such transactions as the one in this bill; that they relied upon others for directions in execution and completion of this transaction. The burden of proof to show the mala fides of the transaction was upon King, and he failed to establish the fact; but, on the contrary, we are satisfied that the weight of proof is in favor of the fairness of the note and mortgage. The result is that the decree of the court below is reversed and the cause remanded to the district court at Ogden, with directions to enter a decree of foreclosure of the mortgage, in accordance with the prayer of the plaintiff's bill. The defendant King will pay the cost of this court and that of the court below, except the cost that shall hereafter accrue, which shall be paid out of the proceeds of the sale of the mortgaged premises. ZANE, C. J., and ANDERSON, وه ل concur. (79 Cal. 443) CASTRO v. BARRY. (No. 11,855.) (Supreme Court of California. June 11, 1889.) QUIETING TITLE-PLEADING. 1. Code Civil Proc. Cal. § 738, provides that an action may be brought by any person against an other who claims an estate or interest in real prop-|sary to the use of the former in evidence, is erty adverse to him for the purpose of determin- not to be deemed capable of causing injury, ing such adverse claim. Sections 3412, 3413, Civil set forth the nature of defendant's claim. Code, provide for the bringing of an action to within the provisions of the last section." cancel instruments which may be deemed a cloud In this kind of action, therefore, it is exupon title making an exception in the case of in-pressly provided by statute that if the instrustruments void on their face. Held, that the two actions are different in purpose, and that the for- ment is void upon its face, or when construed mer action may be brought to determine any ad- with another instrument with which it is verse claim whatever, and the plaintiff need not necessarily connected, the relief will not be 2. In an action to determine an adverse claim granted. This provision is the embodiment plaintiff alleged that defendant's claim was found-in statutory form of an old and well-settled ed on a mistake in the description of a deed, the description calling for the course "down the said slough north 72° west, "when the course should have been "north 12° west." Held, that such allegation merely showed that defendant's claim was based on a harmless error of description, as the wrong course was controlled by the direction, to go" down the said slough" to a specified point, and hence defendant could not contend that the complaint was really one to reform a deed. Commissioners' decision. Department 2. Appeal from superior court, Monterey county; JOHN K. ALEXANDER, Judge. Wm. H. Webb, for appellant. Geil & Morehouse, for respondent. HAYNE, C. The complaint in this case alleged in substance that the plaintiff was the owner of certain real property; that the defendant claimed an interest therein adverse to the plaintiff; that such claim was without right; and that the defendant had no right, title, or interest whatever in the property. There were other allegations, which will be noticed below. The prayer was that defendant be required to set forth the nature of his claim; that it be adjudged to be void; and that defendant be enjoined from asserting it. The trial court found the above allegations to be true. Judgment was entered for the plaintiff, and the defendant appeals. rule of equity, and, as a matter of course, in order to obtain the relief, it is necessary that the complaint should state a case within the rule. In the language of SANDERSON, J., in Society v. Ordway, 38 Cal. 681: "In an action to remove a cloud there can be no question but that the facts which show the apparent validity of the instrument which is said to constitute the cloud, and also the facts showing its invalidity, ought to be stated." Suits to determine adverse claims, such as exist in this state, were not known to the old chancery practice, but were provided for by statute. The provision of the Code of Civil Procedure is as follows: "Sec. 738. An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim." Compare section 254 of old practice act, (Laws 1851, pp. 92, 93.) The distinction between the two kinds of action is clear. They are different not merely in form, (for we have no forms of action in the old sense,) but in purpose. In the former case the proceeding is aimed at a particular instrument, or piece of evidence, which is dangerous to the plaintiff's rights, and which may be ordered to be destroyed in whosesoever hands it may happen to be; while in the latter the proceeding is for the purpose of stopping the mouth of a person who has asserted or is asserting a claim to the plaintiff's property. It is not aimed at a particular piece of evidence, but at the pretensions of an individual. It is contended for the appellant, in the first place, that “an action to quiet title, or to remove a cloud from title, will not lie where the facts alleged, if true, would not legally affect the plaintiff's title." But in this the learned counsel overlooks the dis- The statutory action to determine an adtinction between actions to determine ad- verse claim is an improvement upon the old verse claims, which are provided for by the bill of peace. The statute enlarges the class Code of Civil Procedure, and which in this of cases in which equitable relief could forstate are commonly referred to as "actions to merly be sought in the quieting of title. It quiet title," and suits to have an instrument is not necessary, as formerly, that the plaincanceled, or adjudged to be void, which are tiff should first establish his right by an acusually called "actions to remove a cloud." tion at law. "He can immediately upon Suits to have an instrument canceled or ad- knowledge of the assertion of such claim judged to be void were quite common in the require the nature and character of the adold chancery practice, and constituted one of verse estate or interest to be produced, exthe applications of the principle quia timet. posed, and judicially determined, and the 2 Story, Eq. Jur. § 701. This suit is pre- question of title be thus forever quieted." served by the Civil Code, which has the fol- Curtis v. Sutter, 15 Cal. 262, 263. And lowing provision on the subject: "Sec. 3412. see Stark v. Starrs, 6 Wall. 409. Nor is A written instrument, in respect to which it necessary that the adverse claim should there is a reasonable apprehension that if left be of any particular character. As said outstanding it may cause serious injury to a by BALDWIN, J., delivering the opinion in person against whom it is void or voidable, Head v. Fordyce, 17 Cal. 151, the statute may, upon his application, be so adjudged, "does not confine the remedy to the case of and ordered to be delivered up or canceled. an adverse claimant setting up a legal title Sec. 3413. An instrument, the invalidity of or even an equitable title; but the act which is apparent upon its face, or upon the intended to embrace every description of face of another instrument which is neces- claim whereby the plaintiff might be de We concur: FOOTE, C.; VANCLIEF, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order denying a new trial are affirmed. (3 Cal. Unrep. 98) MCGRATH et al. v. HYDE. (No. 11,666.) (Supreme Court of Californi. June 14, 1589.) prived of the property, or its title clouded, the description contained in the deed made or its value depreciated, or whereby the is given in the complaint and in the findplaintiff might be incommoded or damnified ings, and it appears therefrom that the misby the assertion of an outstanding title al- take in the course is immateriai. The wrong ready held or to grow out of the adverse pre-course is controlled by the direction to go tention." See, also, Horn v. Jones, 28 Cal. "down the said slough" to a specified point. 204; Joyce v. McAvoy, 31 Cal. 287, 288. And Courses and distances yield to visible boundthe rule may be even more broadly stated, aries. Spring v. Hewston, 52 Cal. 442; Serviz., that the action may be maintained by rano v. Rawson, 47 Cal. 55; More v. Massini, the owner of property to determine any ad- 37 Cal. 436. It allirmatively appears, thereverse claim whatever, for, if the defendant, fore, both from the complaint and findings, by his answer, disclaims all interest what-that there was nothing requiring reformaever, judgment may, nevertheless, be en- tion, and no basis for the defendant's claim. tered against him, though in such case it As above stated, it was not necessary for the must be without costs. Code Civil Proc. § complaint to set forth the nature of the de739. Compare Brooks v. Calderwood, 34 fendant's claim. But the unnecessary alleCal. 566, and Scorpion Co. v. Marsano, 10 gations merely show that the defendant's Nev. 380, 381. The plaintiff, therefore, is claim was based upon a harmless error of not required to set forth the nature of the description, and do not change the character defendant's claim. People v. Center, 66 Cal. of the action; and the judgment does not 562, 5 Pac. Rep. 263, 6 Pac. Rep. 481; Scor- undertake to reform the deed, but merely pion Co. v. Marsano, 10 Nev. 380, 381; Rail-quiets the plaintiff's title. We therefore adroad Co. v. Oyler, 60 Ind. 392. The defend- vise that the judgment and order denying a ant must set forth his claim if he has one, in new trial be affirmed. view of which the complaint may in one aspect be said to be a bill for discovery. The pleading is very simple, and it is well settled that the allegations above mentioned are sufficient. Rough v. Simmons, 65 Cal. 227, 3 Pac. Rep. 804; Heeser v. Miller, 19 Pac. Rep. 375. It is argued for the appellant, however, that the complaint contains something besides the allegations above mentioned; that it is really a complaint to reform a deed; and that, when so considered, both the complaint and findings are insufficient, because it is neither alleged nor found that the deed sought to be reformed embraced the property in controversy. The complaint, after the allegations above mentioned, proceeded to set forth the nature of the defendant's claim. It alleged that said claim was founded on a mistake in the description of a deed. The mistake was this: Aiter reaching a post on the west bank of Moro slough, the description called for the following course, viz.: Thence down. the said slough north 72° west, 61.50 chains, to a stake in a small slough at a point known as the Bolsita,'" while it was alleged and found that instead of "north 72° west" the course should have Commissioners' decision. Department 2. been "north 12° west." Now, if it had ap- Appeal from superior court, city and county peared that the land in controversy was in- of San Francisco; JOHN F. FINN, Judge. cluded in the deed as made, so as to pass Action by Honora McGrath and James thereby, the plaintiff could not have main-McGrath, her husband, to cancel a deed tained an action under the statute to deter-made by Michael Hyde to Ellen Hyde, his mine an adverse claim; for it has been held wife; the female plaintiff being the daughter that a mistake in the description of a con- and heir of Michael Hyde, who died after the veyance cannot be corrected in such an ac- deed was made. Judgment for plaintiffs, and tion. Brewer v. Houston, 58 Cal. 345. In defendant appeals. such case the legal title would have passed by the conveyance; and the holder of a mere right in equity, to have the conveyance reformed, cannot maintain an action like the present against the holder of the legal title. Von Drachenfels v. Doolittle, 19 Pac. Rep. 518. But, according to the appellant's own statement, this does not appear, and we think that the contrary appears affirmatively; for DEED-DELIVERY. Their A husband signed and acknowledged a deed conveying land to his wife, stating to the notary before whom he acknowledged it that he wished to give the property to her. The wife testified that her husband put the deed on the table, told her what it was, and directed her to put it away, saying that it could be recorded at any time. She stated that she put the deed in the trunk, and at another time said that her husband did so. daughter corroborated her mother, and stated that her father said he would put it away for her mother, and that she could record it any time. An inmate of the house stated that she was in position to have heard any such conversation, if it had occurred, but that she neither saw nor heard anything of the deed, but her testimony was vague as to the continuousness of her presence. Held, that the deed was delivered. E. B. Holladay and S. W. Holladay, (Craig & Meredith, of counsel,) for appellant. M. Cooney, for respondents. HAYNE, C. This was a suit to cancel a deed from a husband to his wife, upon the grounds that the grantor had not sufficient capacity to make it, and that it was not delivered. The trial court found that the grantor had capacity to make it, but that it | saying, in substance: "There is a deed of was not delivered, and rendered judgment that property to you; put it away;" that the for the plaintiffs. The defendant appeals. wife took it up, and looked at it, and, after We think that the finding that the deed was some conversation to the effect that it was not delivered is not sustained by the evi- not necessary to have it recorded then, the dence. The notary who drew the deed tes- husband put it away in his trunk. It furtified that he did so at the request of the ther appears that the husband did not want grantor, without the intervention of any it recorded then, alleging as a reason that he other party; that the grantor instructed him wished to make some improvements on the to draw the deed, and signed and acknowl-property, which we think shows nothing edged it before him, stating at the time that more than that he wished to appear to be "he wished to give the property to his wife." still the owner of the property, so far as outThe wife testifies that her husband came siders were concerned. home one day, when the following occurred: We think that this shows a delivery "He puts a deed on the table, and I says to of the deed. Delivery is a question of inhim, What is this?' and he says, It is a tention. Hibberd v. Smith, 67 Cal. 554, 4 deed to you.' He says: Deeding the West Pac. Rep. 473, and 8 Pac. Rep. 46. The term Mission-Street property all to you,—especial-signifies any manifestation whereby the ly to you.' So I picked it up, and I looked at grantor makes known his intention that the date, and I began to cry. I thought the deed is complete and is to take efthen sure he was going to die, because he fect. It is not necessary that there should deeded the property to me, and I called be any actual manual transfer of the instruMary's attention at the same time, and I ment. In Touchstone it is said: "Delivery said: Here, Mamie, look at this;' and then is either actual, i. e., by doing something he says: It is not recorded, but it will do,' and saying nothing, or else verbal, i. e., by he says, any time, and say nothing now,' saying something and doing nothing, or it he said, but just put it away.'' The may be both; and either of these may make daughter testifies as follows: "I just came a good delivery and a perfect deed." 1Shep. home from town, and father and mother Touch. *57. And it is well settled that no were sitting at the table, and this was before particular form of words is necessary to them, and my mother was in tears, and I manifest the intention. In the language of asked her what was the matter, and she said RYAN, C. J., in Bogie v. Bogie, 35 Wis. 667, that father was just after deeding the prop- "there is no set ritual of delivery; that when erty to her, and with that my father got up, a deed is executed, and the minds of the parand walked away, and I said: What of it?' ties to it meet, expressly or tacitly, in the Well, she said: Oh, he is going to die;' and purpose to give it present effect, the deed is I said: No; that is no reason he is going validly delivered; and that such meeting of to die; it is best he should do it now." minds may be gathered from acts or signs, Question. What was the position of the words or silence, in multitudinous variety of deed? Answer. It was lying on the table circumstances." Now, we think that if after between them. Q. Did your father say throwing the deed on the table, and saying anything? A. He said, after we had got to the grantee, "There is a deed of the through talking, he said: Give it to me, West Mission-Street property to you; put it and I will put it in the trunk, and there is no away," the grantor had done nothing furneed of recording it until afterwards;' and ther, but had left the paper there, it would he said: You can have it recorded at any have been entirely clear that there was a time." The memory of the mother was at perfect delivery. Shelton's Case, Cro. Eliz. fault as to who put the deed in the trunk. 7; Souverbye v. Arden, 1 Johns. Ch. *255. In one place she says that she did, and in an- Was this manifestation of intention, which other place that her husband did. The was complete and sufficient of itself, overdaughter says that her father put it in the come by the fact that the grantor took the trunk, and we assume that such was the deed and put it in his trunk? We think not. fact. The only evidence against this was the The retention of the deed by the grantor is testimony of one Maggie Murphy, who lived not conclusive. There may be a good delivin the house, and testified that she saw the ery, although the grantor has never parted parties "every day at that time," and was in with the possession of the instrument. a position to hear if there had been much Hastings v. Vaughn, 5 Cal. 318; Ruckman conversation, and that she neither saw nor v. Ruckman, 32 N. J. Eq. 261; Otis v. heard anything of the deed at the time. But Spencer, 102 II. 627, 628; Newton v. Bealthe testimony of this witness is so vague as er, 41 Iowa, 334; Scrugham v. Wood, 15 to the continuousness of her presence, and as Wend. 546; Bunn v. Winthrop, 1 Johns. to why she "was in a position" to hear and Ch. *336; Souverbye v. Arden, 1 Johns. Ch. see, that we think it amounts to nothing. *240; Garnons v. Knight, 5 Barn. & C. 692; From the whole testimony, we think that it 4 Kent, Comm. 455. The case of Folly v. appears without substantial conflict that the Vantuyl, 9 N. J. Law, 153, is very like the husband instructed the notary to draw the present. There the obligor executed a bond, deed, signed and acknowledged it, stating and, holding it in his hand, said to the oblithat he intended to give the property to his gee: "Here is your deed; what shall I do wife; went home and threw it on the table, with it? and added: "I will take care of it for you;" and had put it in his trunk. Held a sufficient delivery. See, also, Otis v. Spencer, 102 Ill. 622. In addition to the above it is to be remembered that in cases of a family settlement like the present the law presumes more in favor of delivery than in other cases. Bryan v. Wash, 2 Gilman, 568; Reed v. Douthit, 62 Ill. 352. Taking all the circumstances together, we think that the intention to pass the title was complete, and that the retention of the deed by the grantor was merely for its safe-keeping, which, considering the relation of the parties, was quite natural and proper. The other matters do not require special notice. We therefore advise that the judgment be reversed, and the cause remanded for a new trial. We concur: FOOTE, C.; GIBSON, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment is reversed, and cause remanded for a new trial. (79 Cal. 594) PEHRSON et al. v. IIEWITT et al. (No. 12,518.) (Supreme Court of California. July 1, 1889.) and sued out writs of attachment, which were levied by the sheriff of the county upon the property of defendant Hewitt, set forth in the complaint; that before the commencement of these actions Hewitt filed in the same justice's court certain pretended confessions of judgment in favor of several defendants for certain amounts alleged to be due to each of the defendants, which confessions of judgment were accepted by the several defendants in whose favor they were made. Plaintiffs further allege that said pretended confessions of judgment were made by Hewitt and accepted by defendants with the intent and design of hindering, delaying, and defrauding the plaintiffs and other creditors of Hewitt by a combination among them, by which they were to levy executions upon all the property of Hewitt, and have the same sold for the amount of said confessions to said defendants, or some of them, and that after said sale had been made that Hewitt was to be placed again in full possession and control of the property for his own use and benefit, and fraudulently protected by such proceedings against the claims of plaintiffs, and thus rendering any judgments which plaintiffs might recover against Hewitt ineffectual. It is further averred that executions afterwards issued on the judgments above mentioned, and came into the hands of the defendant Eckels, who was a constable, and that the constable made a pretended levy under the said executions on the property above mentioned; that this levy was made and abandoned prior to the levy of the attachments of plaintiffs above set forth, and that since the abandonment the constable has never had possession or control of any of the property above referred to; that the constable pretends that the levies made by him are in full force, and that he is proceeding to sell said property under these levies. The defendant Hewitt is insolvent and was insolvent when he made the confessions of judgment above stated, and that in furtherance of the above stated agreement by defendants, and to carry out and complete the fraudulent scheme of defendants, did, on the 16th of March, 1886, file his petition in insolvency; THORNTON J. The plaintiffs bring this that this petition was not filed in good faith, action to have certain judgments, and the ex- but for the wrongful and fraudulent purpose ecutions issued thereon, and the levies made of defeating the attachment liens of plaintiffs, under them, vacated and set aside; that an ad- to the end that the pretended levies of the judication in insolvency may be vacated, and executions might hold the property, and a the proceedings dismissed; and for an injunc-sale of the same might be made in such mantion restraining certain defendants, etc., from selling certain property described in the complaint. The defendants contend that the We see no element of fraud by defendants complaint does not state facts suflicient to in the matters averred in the complaint. It constitute a cause of action, and that, there is not averred that the debts for which the fore, the judgment and order denying a new judgments were confessed by Hewitt, in trial should be reversed. The defendants favor of the several defendants, were not demurred to the complaint on the above-stated | justly due by Hewitt to them. Styling the ground. The complaint sets forth that the defendant Hewitt was indebted to the several plaintiffs in several sums for divers matters; that they commenced actions against Hewitt in a justice's court to recover these amounts, fraudulent or not. 2. Where a defendant confesses judgment for debts justly due, it is not fraudulent for the judgment creditors to agree to buy the property levied on under their executions, and give it to the execution debtor if they see fit. 3. Where an insolvent debtor applies for a discharge in insolvency, a court of equity cannot set aside the adjudication in insolvency nor dismiss the proceedings. In bank. Appeal from superior court, Shasta county; AARON BELL, Judge. Wiley & Dozier and F. P. Primm, for appellants. Clay W. Taylor and J. Chadbourne, for respondents. ner as to fraudulently cover it, and protect it from the claims of plaintiffs. confessions of judgments "pretended," as was done by the plaintiffs in the complaint, did not show that they were so. The facts should have been set forth from which it would appear that they were pretended and |