Poledori v. Newman

Citations

• 116 Cal. 375
• 48 P. 325
• 1897 Cal. LEXIS 555

Syllabus

<p>Acknowledgment—Deed of Married Woman—Action to Correct Defective Certificate — Pleading — Evidence — Finding — Relief beyond Specific Allegations.—In an action to correct a defective certificate of acknowledgment of a deed by a married woman, where the complaint sets forth the conveyance, and its proper acknowledgment to the notary, and alleges that the notary, in affixing his certificate, omitted to certify therein “that, upon examination without the hearing of her husband, he had made her acquainted with the contents of the said deed, but used for his acknowledgment a blank form appropriate to certifying the acknowledgment of an unmarried woman, ” and the answer takes issue upon the averments of the complaint, and evidence was received without objection which supports a finding that the deed was properly executed and acknowledged, but that the notary in affixing his certificate “omitted to certify therein that, upon examination without the hearing of her husband, the said notary had made her acquainted with the contents of the said deed, and that thereupon she acknowledged to him that she executed the same, and that she did not wish to retract said execution,” the court is authorized to have the certificate corrected in accordance with the findings, including the acknowledgment that she did not wish to retract said execution, although not specifically pleaded in the complaint.</p> <p>Id.—Relief upon Answer—Case Made by Complaint—Defective Allegation of Particulars—Failure to Object.—Under section 580 of the Code of Civil Procedure, the court, where there is an answer, may grant any relief consistent with the ease made by the complaint, and embraced within the issue; and the case made by the complaint herein, as well as the issue between the parties, is the right of plaintiff to have the defective acknowledgment corrected, and the relief granted was consistent therewith; and though the failure of the complaint to allege all the particulars in which the defect co