Tryon v. Sutton

Citations

• 13 Cal. 490

Syllabus

<p>ls no motion be made in the Court below to correct a clerical error disclosed by the pleadings, the error will be corrected in the Supreme Court at Appellant's cost.</p> <p>Mere indefiniteness of description in a mortgage is no objection to its enforcement as it is written, whatever the effect of the'sale under such a description. The mortgagor cannot complain.</p> <p>There is little, if any, practical difference between the Court ruling out testimony upon the strength of a fact proven to the Court, and permitting the case to go to the jury', and then denying effect to such testimony, upon proof of the same fact.</p> <p>A married woman cannot make an assignment of a mortgage without the concurrence of the husband. [The property was common.—Rep.]</p> <p>By the common law, a note payable to the wife is prima fade the property of the husband, and can be indorsed by him, but not by her alone.</p> <p>A party dealing with a feme is bound to inqu-re into her rights and powers. The fact that papers are drawn directly to the wife does not estop either husband or wife from refusing effect to her sole act.</p> <p>The case might be different if the husband represented the wife to be a feme sole, and with authority to deal as such with the common property, or assented to a transfer by her; but the fact that a note or mortgage is executed to her is not conclusive proof of any such representation.</p> <p>Where the complaint avers that the note and mortgage sued on were made to “E,” a married woman, and by her assigned to plaintiff, lie cannot recover, because the right to assign was in the husband; and this, too, where the proof was that both husband and wife assigned the note and mortgage. In chancery cases the party must recover according to tine pleadings, and not the proof, where there is a variance.</p>