De Espinosa v. Gregory , 40 Cal. 58 ( 1870 )

Temple, J.,

delivered the opinion of the Court:

Judgment was entered in the District Court for the plaintiff on the pleadings. The action is to quiet title, and the complaint, which is verified, is in the usual form. Exception is taken to the form of the denial in the answer. It commences by stating that the defendant, for answer, says he denies, etc. It is claimed that this is not a denial, but only an assertion on the part of the defendant that he denies. We do not understand that the Court based its decision on this ground. Decisions sustaining this view are found among the earlier cases of New York under the code, and are often quoted as authority here. We take this occasion to overrule those cases as authority in this State. We do not see any point in the argument that, instead of being a denial, it is merely an assertion that he denies. The preliminary statement is intended merely as an introduction, and is equivalent to saying that the defendant for his answer sets up the following defence or defences. First he denies, or admits, or avers, as the case may be; and, in our opinion, the form of expression is entirely unexceptional, and not even open to cavil. If for his defence he says he denies the allegations of the complaint, the Court will not call in question the fact of denial.

The action is brought to quiet plaintiff’s title to certain real estate, and the defendant claims an interest in the prenr ises through a deed from José Antonio Espinosa, dated Octaber 16, 1867. The plaintiff derives title to the premises, in part through a deed from the same José Antonio Espinosa, dated September 7, 1860. This deed is upon its face an absolute conveyance, but the answer alleges that it was executed and, delivered for the sole purpose of securing a certain sum of money which was then a subsisting debt due from Espinosa to the grantee named in the deed. In effect, that the deed was intended as a mortgage, and therefore did not convey the title from Espinosa. It does not appear when the debt secured by this conveyance became due, and the presumption would therefore necessarily arise that it was due immediately, or upon demand, and therefore was barred by the Statute of Limitations at the time this action was commenced.

We have held all that the rights of the mortgagor and mortgagee in such cases are mutual, and that when the debt is barred tbe right to redeem is also barred, and we held in tbe case of Hughes v. Davis, decided at tbis term of tbe Court, that tbe mortgagor in sucb cases retains a right of redemption only ; tbe legal title being in tbe mortgagee. So far as tbe answer shows, therefore, tbe title of plaintiff has become absolute.

Tbe answer admits that tbe plaintiff is in possession of a portion of tbe premises sued for, and denies her possession as to tbe remainder. It was incumbent upon her not only to establish her title, but also her possession, as well as tbe invalidity of tbe defendant’s claim. It was, therefore, error to enter judgment upon tbe pleadings in her favor as to that portion of tbe premises not admitted to be in her possession

Judgment reversed and cause remanded.