Smith v. Brannan

Citations

• 13 Cal. 107

Syllabus

<p>A jttby Being waived, it is immaterial whether an action under Section 254 of the Practice Act, is an equitable or a legal proceeding.</p> <p>An executory agreement between a landlord and tenant, that, after the title to the premises is settled, hy a suit tobe prosecuted by the former against third persons, the tenant may purchase, docs not destroy the relation of landlord and tenant.</p> <p>To maintain a suit to quiet title, by a party in possession, it is enough that he claims under a deed which creates an equitable estate, or even a right of possession.</p> <p>A deed, recorded January 30th, 1850, hy a person acting as Recorder, hy virtue of an election hy the people, without authority of law, 'is not properly recorded.</p> <p>To make the copy of an unrecorded deed evidence, the loss of the original being shown, the testimony of the subscribing witnesses to the deed, if such there be, should be had, at least to the fact of the execution of the paper, unless they are shown to be without the jurisdiction of the Court.</p> <p>To admit evidence of notice of a prior unrecorded deed, to defeat a subsequent deed, there must first be proof of the prior deed. There can be no notice where there is no title.</p> <p>Whether the conditions of a deed are complied with or not, is matter between the grantor and grantee, with which third persons have nothing to do.</p> <p>The fact that the record is erroneous in stating that the parties waived a jury, cannot be shown by an affidavit of the Judge who tried the cause.</p> <p>It would seem that a party cannot try his cause before a Judge without objection, and, after losing it, complain that the case was not tried by a jury.</p>