Opinion
Civ. No. 739.
January 8, 1910.
APPEAL from a judgment of the Superior Court of Kern County, and from an order denying a new trial. Paul W. Bennett, Judge.
The facts are stated in the opinion of the court.
Matthew S. Platz, for Appellant.
F. D. McClure, for Respondent.
The complaint was in the usual and ordinary form in an action for determining conflicting claims to real property. The defendants by their answers denied plaintiff's ownership and possession of the property, and alleged that she was a married woman, the wife of one N.C. Farnum; that the premises described were property of the community, and that defendants had acquired title thereto by virtue of a sheriff's deed, executed pursuant to sale upon execution based upon a judgment in favor of defendants and against the husband. The court found in favor of plaintiff upon all of the issues. The sufficiency of the evidence to support the findings is not questioned; at least, there are no specifications of error in relation thereto. In any event, the findings have ample support.
Upon the trial, plaintiff introduced in evidence a deed, dated in 1902, which conveyed to her the premises described. It was admitted that she was a married woman at the time and the wife of N.C. Farnum. The presumption that the premises so conveyed were her separate estate attached under section 164, Civil Code. Proof of the vesting of the legal title carried with it the right of possession. There is no evidence in the record tending to overcome the presumption of the separate character of the estate.
It is claimed by appellant that the court erred in sustaining an objection to the testimony of a witness who said he had examined the records of the defendant bank as to moneys had by N.C. Farnum from the bank, and in connection with which he was asked to state what the aggregate amount of that was. We see no error in this action of the court. It was not claimed by defendant in its pleadings that the money borrowed from the bank was used in the purchase of the property, nor was the materiality of such proffered evidence apparent upon its face. We find no statement of counsel as to what he expected to prove by the question, and, in the absence of any statement apprising the court that the same was intended as a basis of proof material to the action, the court was warranted in sustaining the objection. The mere fact that the husband had borrowed money from the bank upon the representation that he owned the property, or that he had purchased materials out of which the improvements upon the premises were constructed, in no degree tended to affect the separate character of the estate presumptively conveyed by the deed.
We are unable to appreciate the force of appellant's contention that the court erred in not first determining the right of plaintiff to sue before hearing the cause upon its merits. The only evidence offered in the case was that which tended to show the separate character of the property, and, therefore, the right of plaintiff to maintain the action. The answer was not in the nature of a plea in abatement, but went to the merits of plaintiff's claim, and, if true, was a bar to her action.
The specifications of error relative to the admission of the declaration of homestead declared by plaintiff after the acquirement of the property are of no consequence. The property being the separate property of the wife, and defendant having acquired no interest therein by virtue of its execution sale, could in no wise be prejudiced by any regularity or irregularity in connection with the homestead declaration.
We perceive no error in the record prejudicial to appellant, nor any merit in the appeal. The judgment and order are, therefore, affirmed.
Shaw, J., and Taggart, J., concurred.