Winter v. McMillan

Citations

• 87 Cal. 256
• 25 P. 407
• 1890 Cal. LEXIS 1129

Syllabus

<p>Appeal — Notice— Joinder of Parties. — An appeal from a judgment, and from an order denying a new trial, may be taken by one notice, although all of the parties to the former fail to appeal from the latter; and a notice stating who are appellants and what they respectively appeal from is sufficient.</p> <p>Id. — Double Appeal—Undertakings — Clerk’s Certificate — Dismissal.—A motion to dismiss such appeals on the ground that but one undertaking was filed, instead of two, will be denied, where there is nothing to contradict the clerk’s certificate that “sufficient undertakings on appeal in due form were properly filed. ”</p> <p>Power of Attorney-—Conveyance to Attorney in Fact—Fraud upon Principal. — A power of attorney authorizing the sale of real estate does not authorize the attorney in faict to give away the property, or to convey it to himself and wife for a nominal consideration, and such a conveyance is a fraud on the principal, and a nullity.</p> <p>Quieting Title—Burden of Proof. — In an action to quiet title, the burden rests upon the plaintiff to show title in himself, and if he fails to make out a case, he is not entitled to recover.</p> <p>Id. — Cross-COMH.AINT—Equitable Title.—A cross-complaint is proper in an action to quiet title, When it seeks to enforce an equitable title against the plaintiff as the holder of the legal title.</p> <p>Id. — Execution Sale of Beneficial Interest — Pleading. — Where the defendant in an action to quiet title has acquired the beneficial interest of the owner of the equitable title, by an execution sale, he is entitled to havd it adjudged to him in the action; but in order to have it so adjudged, he must state the facts as fully in his cross-complaint as they should he stated in a bill in equity.</p> <p>Id.—Failure to Answer Cross-complaint — Homestead — Waiver.— In such action, evidence that the plaintiff’s grantors had declared a • homestead on the property is inadmissible, where the grantors have, by failure to answe