15 Cal. 127, Pixley v. Huggins

Citation:15 Cal. 127
Opinion Judge:FIELD, Judge
Party Name:PIXLEY v. HUGGINS et als.
Attorney:Hall & Huggins, for Appellants. J. A. McDougall, of Counsel. Pixley & Smith, for Respondent.
Judge Panel:JUDGES: Field, C. J., delivered the opinion of the Court. Baldwin, J., and Cope, J., concurring.
Case Date:January 01, 1860
Court:Supreme Court of California

Page 127

15 Cal. 127



HUGGINS et als.

Supreme Court of California

January, 1860

Page 128

[Copyrighted Material Omitted]

Page 129

Appeal from the Twelfth District.

Bill to enjoin a Sheriff's sale of real estate, on the ground that it would cloud the title of plaintiff. The case was sent to a Referee, who reported a judgment for plaintiff. The report was confirmed by the Court, and final judgment entered, perpetually enjoining defendants from selling or in any way interfering with the property. Defendants appeal. The facts sufficiently appear in the opinion of the Court. The complaint put the case on the ground that plaintiff was the owner of the property, and that a sale under the judgment against Moulton would necessarily cloud the title, and irreparably injure and disturb plaintiff in the quiet enjoyment of the property.

Judgment affirmed.

1 Husband and Wife, Community Property under Control of Husband.--L. conveys real property by deed to the wife of M. for $ 4000, which sum is recited in the deed as the consideration. Subsequently, M. and wife convey, by their joint deed, the property to plaintiff, for the consideration recited therein, of $ 9500. This deed was acknowledged by both husband and wife, and of the acknowledgment two certificates were indorsed by the Notary, both of which were sufficient in form as to the acknowledgment of the husband, but only one of them was sufficient as to the acknowledgment of the wife: the other was defective. The deed was recorded with the defective certificate, the other being omitted. Later still, defendants, H. & H., recovered judgment against M., which was duly docketed, and became from the time of its docketing, a lien on his property in the county in which was situated the property embraced in the deed from L. to M. and wife. Upon this judgment, execution was issued, placed in the hands of the Sheriff, who levied it on the property in said deed, and advertised for sale all the right, title, and interest which M. had therein at the time said judgment became a lien, etc. Plaintiff files his bill to enjoin this sale. Held, that an injunction lies; that the property acquired under the deed from L. to the wife of M. became community property, and as such, was subject to the absolute disposition of the husband, and passed in full title to plaintiff under the deed to him.

2 Idem, Deed in Name of Wife.-- Held, further, that the fact that the deed from L. was taken in the name of the wife alone, created no inference that the property was her separate property, the deed having been made on a purchase; that the fact of purchase excludes the supposition of acquisition by gift, bequest, devise, or descent, and that, in the absence of proof that the property was purchased with the separate funds of the wife, the presumption that it is community property is absolute and conclusive; that the husband could sell the property by his sole deed without the concurrence or consent of his wife, and that the fact that the deed was recorded with the defective certificate of her acknowledgment was immaterial, and that her signature was unnecessary, and added nothing to the validity or completeness of the transfer to plaintiff.

Deed, Effect of Want of Registration.--Judgment creditors of the vendor in a deed, who become such after the execution and delivery of the deed, cannot object to the operation of the deed against their judgment that it was not on record, unless a sale has been made under such judgment before the deed is recorded. But if a sale has taken place, the purchasers at such sale, without notice, actual or constructive, of the deed, may invoke the protection of the Registry Act.

3 Injunction, Jurisdiction of Court.--The jurisdiction of a Court to enjoin a sale of real estate is coextensive with its jurisdiction to set aside and order to be canceled a deed of such property. It is not necessary for its assertion in the latter case that the deed should be operative, if suffered to remain uncanceled, to pass the title, or that the defence to the deed should rest in extrinsic evidence, liable to loss, or be available only in equity. It is sufficient to call into exercise the jurisdiction of the Court that the deed casts a cloud over the title of the plaintiff. As in such case, the Court will remove the cloud, by directing a cancelation of the deed, so it will interfere to prevent a sale, from which a conveyance creating such cloud must result.

4 Cloud on Title, what Constitutes.--Every deed from the same source through which plaintiff derives his real property, must, if valid on its face, necessarily cast a cloud upon the title.

4 Idem, Sheriff's Deed.--And a deed from a Sheriff upon an execution sale against the vendor of plaintiff would have the same effect in casting a cloud upon the title, as if the deed were made directly by such vendor. Such a...

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