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Alverson v. Jones and Bogardus.

property; that defendant Jones, on the 25th day of November, 1857, recovered a judgment in the District Court of El Dorado county, for the sum of $427 95, and costs of suit, against her husband, William Alverson; that the debt upon which said judg ment was rendered was not contracted, in whole or in part, by her; that Jones had execution issued on said judgment and placed in the hands of defendant Bogardus, as the sheriff of said county, and he levied upon her said real estate (stable and lot,) and had advertised the same for sale to satisfy said execution. The complaint prays for an injunction to restrain the sale, and for a release from said levy.

To this complaint the defendants demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The Court sustained the demurrer, and gave judgment for the defendants. From which judgment the plaintiff appealed to this Court.

Brumfield and Sanderson & Newell for Appellants.

The only question presented by this case is made by a demurrer to the complaint upon the ground "that the same does not state facts sufficient to constitute a cause of action." The Court below sustained the demurrer upon the ground that the plaintiff had a complete and adequate remedy at law, and was not therefore entitled to the aid of the Court of Equity.

This judgment upon the demurrer is assigned as error.

The facts alleged in the complaint show conclusively that the title to the property, which is the subject-matter of the action, was, at the time of the levy by defendants, and long prior thereto, vested in the plaintiff as a "sole trader," and never was at any time vested in the plaintiff's husband, and that the defendants were proceeding to sell the same under an execution against her husband, for debts incurred by him upon his individual account, subsequent to the time at which the plaintiff became a "sole trader."

Has, then, the plaintiff a right to invoke the protection of a Court of Equity before such sale has taken place?

The sale, followed by a deed after the expiration of six months, would cast a cloud upon the plaintiff's title.

Had these acts been already consummated, a Court of Equity, upon bill filed for that purpose, would cancel and annul the sheriff's deed, because the same was a cloud upon the plaintiff's title. Carroll v. Safford, 3 Howard S. C. Rep., 441; Oakley v. Trustees of Williamsburg, 6 Paige, 262; Petit v. Shepherd, 5 Paige, 493. A Court of Equity will interpose to prevent that, which, being done, they would remedy. Such is the doctrine of this Court as laid down in the case of Shattuck v. Carson & Brockman, 2 Cal. R., 588.

Alverson v. Jones and Bogardus.

This case in its legal features is similar to the one at bar, and decisive of it. See, also, Palmer v. Boling, 8 Cal. R., 384.

John Hume for Respondents.

If the facts stated in the complaint are true, then a sale of the property, by virtue of the judgment against William Alverson, could in no way cloud the title of plaintiff. The complaint shows that William Alverson never had or claimed any title to the property, and that the same was never in his possession. It discloses no pretence of any claim to the property on the part of William Alverson which could cloud the title, or upon which any person could found a belief that William Alverson had any interest in the property.

The case of Shattuck v. Carson, 2 Cal., 588, has been relied upon by plaintiff. The case at bar differs from that case in this: in that case the party whose supposed interest was about to be sold had once been the owner of the property. A deed made by Griffith, who in that case had been the owner of the property, would doubtless have created a cloud upon the title, and a Court of Equity would have compelled its cancellation. In the case at bar, a deed made by William Alverson, who never owned or claimed the property, could create no cloud whatever.

Before equity will interfere to order the cancellation of a conveyance, such conveyance must create a cloud upon the title. O'Connor v. Corbett, 3 Cal., 370; Dunlap v. Kelsey, 5 Cal., 181; Nelson v. Lauson, 5 Cal., 114; Ord v. McKee, 5 Cal., 515.

In the case of Palmer v. Boling, 8 Cal., 384, this Court seems to decide what shall be deemed to create a cloud upon title, and says in that case that the proposed deed would be prima facie

evidence of title.

If the facts stated in the complaint in the case here presented are true, then the proposed sale would give neither prima facie nor any other evidence of title.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring.

The defendants insist that the deed of the sheriff would be no cloud upon the title of the plaintiff, and this is the only question in the case.

In the case of Shattuck v. Carson, (2 Cal. Rep., 588,) the property was sold by one Griffith to plaintiff, by regular deed, in February, 1852, and after this sale the property was levied upon as the property of Griffith. This Court decided that the deed of the sheriff would have been a cloud upon the title of Shattuck. In that case the entire title had passed, by deed, from Griffith to Shattuck; and Griffith had no interest in the land that could pass to the purchaser by the sale and deed of the sheriff. In the case of Petit v. Shepherd, (5 Paige, 501,) where the lien of

Stafford v. Lick.

a judgment had expired, and the debtor then sold the property, it was held that a bill to restrain the creditor from selling under the judgment would lie.

But we think this case a much stronger one than either of the two above mentioned. By section second of the "Act defining the rights of Husband and Wife," (Wood's Digest, 487,) it is provided that "all property acquired after the marriage, by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property." And by section ninth the husband has the absolute power of disposition of the common property, during the marriage, as of his own separate estate.

The right of the wife to acquire property by purchase, during the marriage, can only exist as an exception to the general rule, as laid down in section second. This exception exists in the case of a sole trader under the statute. The property in this case having been conveyed to the plaintiff during the marriage, was prima facie common property, and subject to the disposition of the husband. A sale and deed by the sheriff would convey to the purchaser a prima facie title, which the plaintiff would have to overcome by proof. In a suit by the purchaser under execution, to recover possession of this property, he would have, on his part, to prove: first, the marriage; second, the conveyance to the wife; third, the conveyance to him; fourth, possession in defendants. This would give him a prima facie right to recover. To overcome this prima facie case, the wife would have to show that she was a sole trader at the time of the conveyance to her; and to prove that she was such, she must show that she complied with the conditions prescribed by the statute. In her answer she would have to set up this claim as new matter, and sustain it by proof.

Judgment reversed, and cause remanded.

STAFFORD et al. v. LICK et al.

Contracts for the sale of land were, under the Mexican law, and by the custom of California, required to be in writing, and although all the forms prescribed were not strictly followed, still it was necessary that the instrument should contain the names of the parties, the thing sold, the date of the transfer, and the price paid. The following instrument held not to be a conveyance: "By this present I give ample and sufficient power to Don Jose de Jesus Noe to use or dispose of my lot, which I hold granted, as may best seem to him; and, in testimony, I give the present power, in the place of Yerba Buena, the 6th day of October, 1846."

APPEAL from the District Court of the Twelfth Judicial District, County of San Francisco.

Stafford v. Lick.

This was an action in ejectment, for an unimproved fifty-vara lot, numbered 195, situated on the south side of Pacific street, between Sansome and Montgomery, in San Francisco, upon a title derived directly from Maximo Z. Fernandez, the grantee under the municipal government of Yerba Buena. The defendants answer separately, and each sets up title to an undivided half of the lot; also claiming under Fernandez, by purchase from Jesus Noe. The instrument under which Noe claimed title, and the defendant through him, is in the Spanish language, and is as follows:

"Por el precente doy poder amplio y bastante á Don José de Jesus Noé para que use ó disponga de mi solar que tengo concedido como mejor le paresca; y para que conste doy el precente poder en el punto de Yerba Buena el dia 6 de Octubre, de 1846." [TRANSLATION.]

"By this present I give ample and sufficient power to Don José de Jesus Noé to use or dispose of my lot, which I hold granted, as may best seem to him; and, in testimony, I give the present power, in the place of Yerba Buena, the 6th day of October, 1846. MAXIMO Z. FERNANDEZ."

The case was tried in the Court below, before a jury, and the Court instructed the jury "that if the jury found that there was a local custom to convey land by simple writing of parties, without witnesses, or other formalities, and that Noé paid Fernandez a consideration for the transfer of the premises, the instrument 'B' (the instrument above set forth) was sufficient to transfer the title to Noé; but if no such custom or consideration was proved, then the instrument would not be sufficient." To which charge of the Court the plaintiffs excepted. The jury returned a verdict for the defendants, and judgment was entered accordingly. The plaintiff moved the Court to set aside the judgment and grant a new trial, on the following grounds:

"1. Insufficiency of the evidence to justify the verdict, and that it is against law.

"2. Error in law occurring at the trial and excepted to by the plaintiffs."

Which motion was denied, and the plaintiffs appealed to this Court.

Gregory Yale for Appellants.

The legal effect of the instrument under which defendants claim title must be determined according to the law in force at the time of its date, supposing its genuineness to be established by Noé.

Conceding that the system of law prevailing in California at the date of the paper was quite as liberal in the latitude extend

Stafford v. Lick.

ed to parties wishing to sell real estate as the common law, we look in vain for any term or expression, technical or popular, which tends to manifest the intention of Fernandez to transfer his proprietary interest in the lot to Noé. But, on the contrary, the very terms used exclude such an intention.

The fundamental principle governing such a sale, under the Mexican law, is to be found in an authoritative definition of the nature and effect of the contract of sale:

"Sale is a contract by which one engages to transfer the full property of a thing to another, who engages to pay the price therefor." Schmidt's Civil Law of Spain and Mexico, 130, Art. 595.

To such a contract certain legal clauses are added, the observance of which is required of the contracting parties, unless they have expressly agreed to change or modify them.

"Art. 445. În every onerous contract, he who transfers or sells a right to another, obligates himself by this act to make such transfer or sale effective. For this reason he is bound to defend, at his own expense, the purchaser in any suit which may be brought against him for the thing sold, if thereto required before the publication of the process."

Other authors on the civil law give the same definition of a sale, with the superadded or implied obligation of the vendor. "The contract of sale is a contract by which one of the contracting parties, called the seller, enters into an obligation with the other to cause him to have freely, by a title of proprietor, a thing, for the price of a certain sum of money, which the other contracting party, called the buyer, on his part obliges himself to pay." Pothier on Obligations, by Cushing, 1.

"Of that which constitutes the substance of the sale," the author says: "Three things are necessary to the contract of sale, a thing which makes the object of it, a price agreed, and the consent of the contracting parties." Ib., 3.

"Of the second requisite, the price necessary to a contract of sale, there are three qualities: 1. It ought to be a serious price. 2. It should be certain and determined, or at least capable of determination. 3. It should consist of a sum of money." Ib., 11. These principles as to the subject or thing sold, apply indifferently to movable or personal property, or to immovables, as real estate is denominated in the civil law. Schmidt 42.

The contract of sale is further denominated an onerous contract to both parties. It is a sort of an agreement which men make use of among themselves, and it is made with the consent of both parties, for a certain price which the seller and purchaser agree upon. "From this definition it follows: 1. That the purchase and sale is perfect or complete by the consent of both parties. 2. That everything in commerce, or that which is not prohibited, may be sold and purchased. 3. That the price ought to

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