Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 31 Cal. 398 at 403.
Appeal from the District Court, Third Judicial District, Santa Cruz County.
There were a large number of defendants. The plaintiff and several of them claimed title under the deed from Donna Martina Castro, wife of Louis Depeaux, to her eight children. This deed did not contain the name of her husband as a grantor, nor was it signed by him. On the deed, and below the acknowledgment of the wife, was the following:
" I have read the foregoing, and fully agree with the conveyance therein made by my wife.
Louis Depeaux."
The deed was executed August 29th, 1850, and the indorsement signed by the husband was cotemporaneous with it, both being parts of the same transaction.
On the 22d day of January, 1855, Louis Depeaux, and Martina Castro, his wife, executed and acknowledged a joint deed of the entire property to the Rev. Joseph Saduc Alemany, and Rev. John Francis Lleberia. The defendants, Thomas Courtis, in his own right and as administrator of the estate of Juan Ingoldsby, Mary E. J. Slade, Henry Laurence, Cyrus Coe, and John Wilson, claimed under this last deed. The Court below decided in favor of the validity of the first deed in making the partition, and the defendants last named appealed.
COUNSEL:
William H. Letcher, John Wilson, and Selden S. Wright, for Appellants.
R. F. Peckham, D. S. Payne, and J. R. McConnell, for Respondents.
JUDGES: Sawyer, J.
OPINION
SAWYER, Judge
By the Court, Sawyer, J., on petition for rehearing:
All the appeals in the first of these cases, ante, 207, were dismissed for reasons given in the opinion filed in the case. It has not even been suggested in the petition for rehearing that they were improperly dismissed. No ground for rehearing being shown, the application is denied.
In the second case, it is claimed that the Court overlooked an important point made in appellants' brief, that an averment in the answer of Courtis of the ownership of one sixth conveyed to him since the commencement of suit is insufficiently denied in the replication, and therefore admitted; also, that it appears from the pleadings that one ninth interest is in appellants, and that on this ground a rehearing should be granted and the judgment reversed. The point was not overlooked. In the appellant's opening argument of sixty printed pages, in which the real point made in the Court below, and upon which appellants relied, on appeal, is most thoroughly and ably discussed, and where the point now brought to our notice should have been made, if made at all, it was not raised, or in the remotest degree alluded to. Nor is it suggested anywhere in the record. Neither did the respondents, in their one hundred and ten printed pages of brief, allude to any such point. At the close of appellants' brief in reply, when the respondent had no opportunity to answer, the point is brought forward for the first time either in the record or argument, and as an apology for presenting the point at all, which is virtually acknowledged to be without merit, it is stated that the respondents had not met them fairly on the merits, and they were forced into the position. The point thus presented did not escape our attention or consideration, although we might well have passed it by on those grounds alone. Upon referring to the statement on appeal we found, " it was admitted by all the parties to this suit, that if title to the whole of said premises described in the complaint was vested in Joseph S. Alemany and John Lleberia by the deed of Martina Castro," etc., then defendant Courtis by mesne conveyances had acquired one sixth thereof as administrator of Ingoldsby and he in his own right, and each of the other appellants had respectively acquired certain other specified interests. " And it is hereby agreed that, if title to the whole of said premises was not so vested in Joseph S. Alemany and John Lleberia, then no error was committed in this case by either the Court or referee, to the prejudice of any of the parties proposing this statement."
Here is, then, an express stipulation in the record that, unless the title to the whole of said premises passed by the deed in question, " no error was committed in the case by either the Court or referee to the prejudice of any of the parties proposing this statement" --that is to say, any of the appellants--and the record is made up in the Court below on that hypothesis, and it was on that theory that the case was so ably argued in this Court. We held that the whole title did not pass by the deed, for the reason that eight ninths passed by the prior deed from Martina Castro and her husband to her children--the deed upon the validity of which the whole controversy hinges. What became of the one ninth which had not been before conveyed, and which, therefore, did pass, it is not important for us to notice. In view of the stipulation above referred to, it was of no consequence, so far as this appeal and the questions made in the record is concerned, what became of it. It was not necessary for the respondents to shape the statement of record with reference to that interest. For these reasons and others disclosed by the record, which it is unnecessary to take up further time in pointing out, we though ourselves justified, after deciding the real questions made in the Court below and presented by the record and argued in this Court, in saying, in our former opinion, " we find nothing more in appellants' briefs of sufficient plausibility to require notice." The questions decided were fully considered, and we do not propose to go over them again. If the counsel for appellants, who was counsel in the case of Ingoldsby v. Juan, will examine his own brief and the transcript on file in the record of that case in this Court, he will find that we spoke advisedly when we undertook to state what the record shows with reference to the question made on the acknowledgment before Per Lee, County Judge.
Rehearing denied.