Ganceart v. Henry

Citations

• 98 Cal. 281
• 33 P. 92
• 1893 Cal. LEXIS 907

Syllabus

<p>Action to Redeem—Deed Intended as Mortgage—Pleading—Maturity of Debt—Cause of Action.—A complaint which seeks to have an absolute deed declared a mortgage, and to permit the plaintiff to redeem therefrom, but which fails to show that the money averred to have been borrowed by the plaintiff from the defendant is due and payable, fails to state a cause of action.</p> <p>Pleading—Sustaining of Demurrer—Amendment—Waiver of Error.—The amendment of a complaint after the sustaining of a general demurrer thereto is a waiver of any error in the sustaining of the demurrer.</p> <p>Id, — Effect of Deed as Evidence—Proof of Superior Equity by Parol—Conflicting Evidence—Review upon Appeal.—A deed of conveyance, absolute on its face, is some evidence that the transaction is what it purports to be, and in order to establish an equity superior to the deed and authorize a determination that the deed was given as security for an existing debt, the testimony, if parol in character, should establish a clear case; and where the evidence is conflicting, a finding that the deed was not intended as a mortgage cannot be disturbed upon appeal.</p> <p>Refusal to Strike Out Pleading — Order not Deemed Excepted to—Absence of Party—Bill of Exceptions — Review upon Appeal.—An order refusing to strike out a pleading is not deemed excepted to unless made in the absence of the party complaining; and an assignment of error in such refusal will not be considered upon appeal, where the record fails to show either that the appellant excepted to the ruling of the court, or that he was absent when the ruling was made, and no bill of exceptions was prepared embodying the action of the court.</p> <p>Id.—Judgment-roll.—In the absence of a bill of exceptions, embodying the notice of motion to strike out a pleading, the motion and order of the court refusing such motion, do not become a part of the judgment-roll under section 670 of the Code of Civil Procedure.</p>