Smith v. Smith

Citations

• 80 Cal. 323
• 22 P. 186
• 1889 Cal. LEXIS 912

Syllabus

<p>Ejectment — Consolidation oe Actions. — Two actions of ejectment for separate pieces of property brought in the same court by the plaintiff against the same defendant may be consolidated.</p> <p>Mortgage—Effect of Deed Absolute in Fobm Made Merely to Secure the Payment of Money to the Grantee — Possession.—It is the settled rule in California that if a deed absolute in form was made merely to secure the payment of money to the grantee, it is a mortgage, and does not pass the title. Such a deed gives a mere lien upon the property just as if the parties had put their agreement in the form of a mortgage, and consequently does not give the right of possession to the grantee.</p> <p>Agreement Made through Agent—Repudiation of Part.—If a party makes an agreement through an agent, and claims under it, he cannot repudiate it in part on the ground that the agent exceeded his authority.</p> <p>Deed to Members of a Firm — Ejectment by One Partner against Intruder. — A deed conveying title to the members of a firm enables one partner to maintain ejectment against an intruder.</p> <p>Pleading—Affirmative Defense in Ejectment—Whether to be Tried First. — An affirmative defense that the deed relied on by plaintiff was a mortgage is covered by a denial of the plaintiff’s allegation of ownership. It is not an equitable defense, and therefore the plaintiff is not entitled to have it first disposed of.</p>