15 Cal. 127, Pixley v. Huggins

Citation15 Cal. 127
Opinion JudgeFIELD, Judge
Party NamePIXLEY v. HUGGINS et als.
AttorneyHall & Huggins, for Appellants. J. A. McDougall, of Counsel. Pixley & Smith, for Respondent.
Judge PanelJUDGES: Field, C. J., delivered the opinion of the Court. Baldwin, J., and Cope, J., concurring.
Case DateJanuary 01, 1860
CourtSupreme Court of California

Page 127

15 Cal. 127

PIXLEY

v.

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 deed from the Sheriff, put on record, would create doubts as to the validity, as against the judgment creditor, of the previous transfer to plaintiff.

4 Idem, Test of.--The true test by which the question, whether a deed would cast a cloud upon the title of the plaintiff may be determined, is this: Would the owner of the property in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof would be necessary, the cloud would exist; otherwise, not.

Injunction against Judgment, Rule of Allowance.--The rule inhibiting one Court from restraining the enforcement of the judgment of another and coordinate Court, does not apply to a proceeding brought, not to stay execution issued against the property of the judgment debtor, but to prevent a sale of the property of plaintiff under the claim that it is the property of the debtor.

1 Cited, Landers v. Bolton, 26 Cal. 420 .

2 Cited, McDonald v. Badger, 23 Cal. 398; Porter v. Pico, 55 Cal. 176; Schuyler v. Broughton, 65 Cal. 253; People v. Center, 66 Cal. 566. See 2 Sawy. 414; 3 Sawy. 26; 4 Neb. 150 .

3 Approved, Fulton v. Hanlow, 20 Cal. 484; Culver v. Rogers, 28 Cal. 527; Budd v. Long, 13 Fla. 301, 302. Distinguished, Crowley v. Davis, 37 Cal. 270, 271 .

4 Approved, Curtis v. Sutter, post 264; San Francisco v. Beideman, 17 Cal. 461; Englund v. Lewis, 25 Cal. 357; Marriner v. Smith, 27 Cal. 653; Ramsdell v. Fuller, 28 Cal. 42; Thompson v. Lynch, 29 Cal. 190; Arrington v. Liscom, 34 Cal. 389; Cohen v. Sharp, 44 Cal. 30 .

COUNSEL

Hall & Huggins, for Appellants.

J. A. McDougall, of Counsel.

I. The premises in controversy became community property by force of the deed from Larkin to the wife of Moulton. In the absence of proof that it was separate property, the law presumes it to be common property. (Act defining rights of Husband and Wife, sec. 2; Haines v. Carter, 5 Cal. 111; Smith v. Smith, and Meyer v. Kinzer and Wife, 12 Cal.)

II. The deed from Moulton and wifedid not pass the title to plaintiff as against the lien of the defendants' judgment. The deed as recorded, not being properly acknowledged by her, did not operate as notice to subsequent creditors of the husband. (Act concerning Conveyances, secs. 22-25; 7 Cal. 274; 9 Id. 592 .)

III. The allegations of the bill do not entitle plaintiff to an injunction. There are no facts stated showing how he will be irreparably injured. (De Witt v. Hayes, 2 Cal. 463 .) The bill avers that a sale under the execution of defendants would be illegal and pass no title. This negatives the idea of injury. Besides, if Moulton had no title, the sale would pass none, and injunction would not lie, if at all, until after the sale, and to prevent a deed being made by the Sheriff to the purchaser. But even a deed would not cast cloud on the title, if Moulton had no title, as the sale was of his interest only. (Waldron v. Marsh, 5 Cal. 119; De Witt v. Hayes, 2 Id. 463; Robinson v. Gaar, 6 Id. 273; Burnett v. Whitesides, 13 Cal. 156 .)

IV. Suit should have been brought in the Fifth District Court, where the judgment was rendered, and from which the execution issued. (Rickett v. Johnson, 8 Cal. 34; Chipman v. Hibbard, Id. 268;...

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126 practice notes
  • 180 Cal. 103, L. A. 4727, Spencer v. City of Los Angeles
    • United States
    • California United States State Supreme Court (California)
    • February 28, 1919
    ...the sale was to take place was voluntary, the court said ( 124 Cal. 341, [57 P. 152] ): "Under the rule stated in Pixley v. Huggins, 15 Cal. 128, many times approved by this court, the deed would cast a cloud upon plaintiff's title. It has been recently held here that where an officer ......
  • 86 Cal. 134, 13596, Roth v. Insley
    • United States
    • California United States State Supreme Court (California)
    • October 2, 1890
    ...2d ed., sec. 248, and cases in footnote; Shattuck v. Carson , 2 Cal. 588; Guy v. Hermance , 5 Cal. 73; 63 Am. Dec. 85; Pixley v. Huggins , 15 Cal. 127; Fulton v. Hanlow , 20 Cal. 450; Porter v. Pico , 55 Cal. 166.) Even a void execution sale of plaintiff's homestead would have worked an inj......
  • 34 F.2d 470 (W.D.Tex. 1929), 203, Roxana Petroleum Corp. v. Colquitt
    • United States
    • Federal Cases United States District Courts 5th Circuit United States District Courts. 5th Circuit. Southern District of Texas
    • February 16, 1929
    ...and the granting of relief as prayed for, and cite as in support of such contentions, the following authorities: Pixley v. Huggins, 15 Cal. 128; Devine v. Los Angeles, 202 U.S. 313, 26 S.Ct. 652, 50 L.Ed. 1046; Rich v. Braxton, 158 U.S. 375, 15 S.Ct. 1006, 39 L.Ed. 1022; Ashburn v. Graves (......
  • 46 F. 224 (D.Mont. 1891), Northern Pac. R. Co. v. Cannon
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • April 6, 1891
    ...complete at law as in equity, and he cites in support of this view Van Wyck v. Knevals, 106 U.S. 370, 1 S.Ct. 336, and Pixley v. Huggins, 15 Cal. 128. In the first of these the supreme court says, (see opinion, page 365, 106 U.S., and page 337, 1 Sup.Ct.Rep:) 'the legal title under the gran......
  • Request a trial to view additional results
126 cases
  • 180 Cal. 103, L. A. 4727, Spencer v. City of Los Angeles
    • United States
    • California United States State Supreme Court (California)
    • February 28, 1919
    ...the sale was to take place was voluntary, the court said ( 124 Cal. 341, [57 P. 152] ): "Under the rule stated in Pixley v. Huggins, 15 Cal. 128, many times approved by this court, the deed would cast a cloud upon plaintiff's title. It has been recently held here that where an officer ......
  • 86 Cal. 134, 13596, Roth v. Insley
    • United States
    • California United States State Supreme Court (California)
    • October 2, 1890
    ...2d ed., sec. 248, and cases in footnote; Shattuck v. Carson , 2 Cal. 588; Guy v. Hermance , 5 Cal. 73; 63 Am. Dec. 85; Pixley v. Huggins , 15 Cal. 127; Fulton v. Hanlow , 20 Cal. 450; Porter v. Pico , 55 Cal. 166.) Even a void execution sale of plaintiff's homestead would have worked an inj......
  • 34 F.2d 470 (W.D.Tex. 1929), 203, Roxana Petroleum Corp. v. Colquitt
    • United States
    • Federal Cases United States District Courts 5th Circuit United States District Courts. 5th Circuit. Southern District of Texas
    • February 16, 1929
    ...and the granting of relief as prayed for, and cite as in support of such contentions, the following authorities: Pixley v. Huggins, 15 Cal. 128; Devine v. Los Angeles, 202 U.S. 313, 26 S.Ct. 652, 50 L.Ed. 1046; Rich v. Braxton, 158 U.S. 375, 15 S.Ct. 1006, 39 L.Ed. 1022; Ashburn v. Graves (......
  • 46 F. 224 (D.Mont. 1891), Northern Pac. R. Co. v. Cannon
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • April 6, 1891
    ...complete at law as in equity, and he cites in support of this view Van Wyck v. Knevals, 106 U.S. 370, 1 S.Ct. 336, and Pixley v. Huggins, 15 Cal. 128. In the first of these the supreme court says, (see opinion, page 365, 106 U.S., and page 337, 1 Sup.Ct.Rep:) 'the legal title under the gran......
  • Request a trial to view additional results