Gage v. Downey

Citations

• 79 Cal. 140
• 21 P. 527
• 1889 Cal. LEXIS 685

Syllabus

<p>Appeal — Dismissal — Notice op Motion for New Trial. — Motion to dismiss the appeal in this case because no notice of motion for new trial appeared in the record, denied upon the authority of Pico v. Oolm, 78 Cal. 384.</p> <p>Mortgage — Decree of Sale — Presumption prom Lapse op Time.—In the absence of proof that property decreed to be sold upon foreclosure of a mortgage in 1856 was ever sold, it may be conclusively presumed, in an action of ejectment commenced in 1883, that the mortgage debt was paid, and that the property was never sold.</p> <p>Husband and Wipe — Action for Separate Property — Judgment—Bes Adjudicata. — A judgment in favor of a widow against the administrator and heirs of her deceased husband, establishing her right to certain land as having been acquired by her husband’s investment of her separate funds, and compelling a conveyance to her of such land, conclusively determines that that land belonged to her as her separate estate, and that the estate of the husband had no title to it acquired from any other source; and a title acquired by the husband from another source cannot prevail as to any portion of the land included in the judgment.</p> <p>Id.—Pleading — Description op Lands — Deraignment op Title___ Beference made in the complaint in an action to adjudge certain lands to be the separate property of the wife to a particular grant of land which was mortgaged to the husband for a loan of the wife’s money, and under which the husband acquired title, and also to a homestead which was set off to the mortgagor, and mortgaged to the husband to secure said loan, and to the mortgagor’s “right” to the property described, are mere matters of description to identify the land claimed by the wife, and should not be regarded as setting forth a particular deraignment of title as the sole ground of the action. Such action challenges the husband’s title to the land described, derived from any source, and title from another source which would defeat the wi