71 Cal. 38, 11428, Berniaud v. Beecher

Docket Nº:11428
Citation:71 Cal. 38, 11 P. 802
Opinion Judge:BELCHER, Judge
Party Name:ROSINA BERNIAUD, Appellant, v. J. L. BEECHER, Respondent
Attorney:J. C. Byers, and L. W. Elliott, for Appellant. J. A. Louttit, for Respondent.
Judge Panel:JUDGES: Belcher, C. C. Foote, C., and Searls, C., concurred.
Case Date:September 21, 1886
Court:Supreme Court of California
 
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71 Cal. 38

11 P. 802

ROSINA BERNIAUD, Appellant,

v.

J. L. BEECHER, Respondent

No. 11428

Supreme Court of California

September 21, 1886

Department Two

Hearing in Bank denied.

Appeal from a judgment of the Superior Court of San Joaquin County, and from an order refusing a new trial.

COUNSEL:

J. C. Byers, and L. W. Elliott, for Appellant.

J. A. Louttit, for Respondent.

JUDGES: Belcher, C. C. Foote, C., and Searls, C., concurred.

OPINION

BELCHER, Judge

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This is an action to quiet the plaintiff's title to the west half of a block of land in the city of Stockton. The plaintiff is an insane woman, and sues by her duly appointed guardian ad litem. The answer denies that the plaintiff is the owner of the premises described in the complaint, or of any part thereof, or has or ever had any interest therein; and it alleges, among other things, that the plaintiff died many years before the commencement of the action, and that the cause of action is barred by the provisions of section 319 of the Code of Civil Procedure.

To establish her title, the plaintiff offered in evidence a decree of foreclosure of mortgage and a sheriff's deed of the land to R. Berniaud, made in pursuance of a sale under the decree.

The note, to secure the payment of which the mortgage was given, was made payable to R. Berniaud or his duly appointed agent. The mortgage [11 P. 803] granted and conveyed the property "unto the said R. Berniaud, and unto his heirs and assigns forever." The sheriff's return of sale showed that the property sold was struck off to R. Berniaud,. .. . and he, the said R. Berniaud, was then and there declared the purchaser thereof. It further showed that a certificate of sale was issued to the purchaser, "in consideration of which certificate so given the said R. Berniaud, by his agent, A. C. Bradford, has given and executed to the undersigned his receipt, which is hereto attached, for the amount of said purchase-money," etc. The receipt referred to was signed "R. Berniaud, by A. C. Bradford, attorney in fact."

The complaint in the foreclosure proceeding alleged

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that the plaintiff was a resident of Philadelphia, Pennsylvania, and was verified by the partner of the attorney who filed it. The verification, among other things, stated: "That the reason that this affidavit is not made...

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