Elias v. Verdugo

Citations

• 27 Cal. 418

Syllabus

<p>Evidence contradicting Admissions in Pleadings.—If the complaint in an action against husband and wife to foreclose a mortgage executed hy the husband alone, avers that the mortgagor, at the time of its execution, owned the land described in the mortgage as a tenant in common with another person, each owning an undivided one half, and the defendants in their answers admit this allegation, but set up as an affirmative defense a claim to a homestead, evidence to show a parol partition prior to the execution of the mortgage is irrelevant.</p> <p>Parol Partition oe Land.—A parol partition of land owned by tenants in common, could be made in California before the adoption of the common law; but the agreement for such partition should be satisfactorily proved, and each tenant in, common should have Resigned to him and enter upon and possess a specific part of the land in severalty.</p> <p>Homestead.—A homestead cannot be carved out of land held in joint tenancy or by tenancy in common.</p> <p>Decree in Foreclosure Suit. — If any of the parties defendant in an action to foreclose a mortgage claim title to the mortgaged premises, or any portion thereof, adversely to the title mortgaged, their rights under such adverse title should he saved in the decree.</p>