OPINION
Gantt,
P. J.
This is
an action of ejectment for the southeast quarter of section
4, township 55, range 26. Ouster laid January 1, 1882.
Damages claimed, $ 1,600. Monthly rents, $ 30. The suit was
commenced February 28, 1887.
Defendant
filed the following answer:
"Defendant,
for first amended answer to the plaintiff's petition
herein, denies each and every allegation therein.
"For
a further defense, defendant says, that Mary Fairchild, the
wife of the plaintiff, in the year 1856, or thereabouts,
became the purchaser of the land in controversy, from one
Mitchell Gray, who was the patentee from the United States
government; that said Mary Fairchild at the time of the
purchase of said land, and for a number of years prior
thereto, was separated from the husband, and doing business
in her own name, and represented herself as an unmarried or
single woman, and in which way she purchased said land, and
soon thereafter, in 1857, sold and conveyed said land to one
Jacob Mowder, representing herself as a woman authorized to
do business in her own name, and make her own conveyances,
and that, although she had been married, her husband had
absolutely abandoned her and taken up his permanent abode in
California; relying upon such representations the said Jacob
Mowder purchased said land from her and paid her therefor the
sum of $ 300; that said Mitchell Gray made said Mary
Fairchild a deed to her own sole and separate use to said
land; that, by proper conveyances from said Jacob Mowder and
his grantees, the defendants became the owners of said land,
without any knowledge of, or concerning, said Mary Fairchild,
or the plaintiff, or that they had or claimed any interest or
title to the said land, the defendant paying for the said
land the sum of $ 1,280; that said Jacob Mowder purchased
said land from said Mary Fairchild in good faith, believing
from her conduct and course of life, that she was entitled to
convey as an unmarried woman.
"For
a further defense to plaintiff's petition, the defendant
says: That on or about the year 1856 the plaintiff's
wife, Mary Fairchild, purchased the land in controversy from
one Mitchell Gray; that said Mitchell Gray was the owner of
said land from the United States, and made and delivered a
deed for same to said Mary Fairchild; that at the time said
Mary Fairchild purchased said land, and for a large number of
years prior thereto, the plaintiff wholly abandoned the said
Mary Fairchild as her husband, and moved away to the state of
California, where he was permanently located, with no
intention of ever returning to his said wife and family; that
he had renounced all marital rights and obligations towards
said Mary Fairchild; that said plaintiff has resided in the
state of California from that time on up to the present time,
and still resides there; that in 1857 the said Mary Fairchild
sold and conveyed in her own name the land in controversy to
one Jacob Mowder, representing to him that her said husband
had wholly and permanently abandoned her; that said Jacob
Mowder, relying upon said representations, purchased said
land in good faith, knowing and believing that her husband,
the plaintiff, had wholly abandoned her, and paid the sum of
$ 300; that said Mowder was put in possession of said land as
the owner thereof, and, by proper and legal conveyances from
said Jacob Mowder and his grantees and assigns, the defendant
became and is the owner in fee simple of said land; that from
1857 to the present time the said Jacob Mowder and his
grantees have been in actual, open, notorious, adverse and
continuous possession of said land, claiming the same.
Defendant having fully answered asks to be discharged with
his costs."
Plaintiff,
to maintain the issues on his part, introduced the following
evidence:
Agreement
of parties as follows: "It is hereby agreed between the
parties to the suit that the defendant's paper title to
the land in controversy as shown by the deed records of
Caldwell county is as follows: Deed from Mary Fairchild to
Jacob Mowder, dated, May 23, 1857; recorded, January 6, 1858;
warranty deed; consideration, $ 300. Deed from Jacob Mowder
and wife to Levy Beck, dated, January 16, 1858; recorded,
October 9, 1858; warranty deed; consideration, $ 300. Deed
from Levy Beck and wife to Charles W. Mowder, dated, August
10, 1869; recorded, November 16, 1869; consideration, $
1,200; warranty deed. Warranty deed from Charles W. Mowder
and wife to C. C. McWilliams and Brutus Cook, dated, January
24, 1880; recorded, February 6, 1880; consideration, $ 1,400.
Warranty deed from C. C. McWilliams and wife and Brutus Cook
and wife to Timothy Toomay, dated, October 6, 1881; recorded,
June 14, 1882; consideration, $ 1,200. Deed from Timothy
Toomay and wife to David Creswell, the defendant, dated, June
13, 1885; recorded, August 3, 1885; consideration, $ 1,280.
It is further agreed that on the trial of said cause the
foregoing admissions may be submitted to the court as
evidence of such conveyances, in lieu of the original deeds
or copies thereof."
Plaintiff
then read deposition of Ebenezer Fairchild, who testified
"My name is Ebenezer Fairchild. Sixty-four years of age.
Reside in Salmon Falls township, Eldorado county, California.
I am plaintiff in this suit. Was married in March, 1842, to
Mary Davis, a daughter of Dennis Davis. We first resided at
her father's in Pike county, Illinois. About the first of
April, 1843, her father moved to Caldwell county, Missouri,
and we went with him. We lived there until spring of 1847,
when we moved back to her father's place in Pike county,
Illinois, and staid until spring of 1850. We came back to
Caldwell county, Missouri, in spring of 1850, and I then left
my wife and child at her father's, and I came to
California. My object in coming to California was on account
of gold excitement and for the purpose of making money and
bettering our condition. The arrangement between my wife and
myself was that if I thought it advisable when I got there I
was to send her money to come, and she was to come here. I
corresponded with her about once a month up to 1856. In 1851,
sent her five or six letters with specimens of gold in them;
in 1852, sent her three letters with from $ 1 to $ 5 in gold
coin in them, and a check for $ 50. In 1853 sent her a check
for $ 100. In 1856, in response from a letter received from
her, I sent her two bills of exchange for $ 250, each. (Here
is introduced the letters and records of said bills of
exchange marked 'plaintiff's exhibits "A,"
"B" and "C"' and attached and made a
part of deposition.) This money was sent to pay her passage
to California. There were three children born of our marriage
-- one born in 1846 and died same year, named Elizabeth Ann,
Johanna, born April 10, 1848, and Willard Edgar, born
December 22, 1850. The first and third born in Caldwell
county, Missouri, and second, Pike county, Illinois. Last I
hear from my wife and...
