COLES v. SOULSBY, 21 Cal. 47

Field, C. J. delivered the opinion of the Court Cope, J. and Horton, J. concurring. This is an action to recover of the defendant the sum of $7,890, being the amount of certain proceeds received by him from an interest in a quartz vein belonging to the plaintiff. The interest constituted the separate property of the plaintiff, who is a married woman, and the proceeds were received by the defendant previous to her marriage. The complaint is special and verified, and it is admitted that on the trial the plaintiff proved her case as it is there stated.

The answer, with the exception of an averment as to an offset of three hundred dollars, amounts only to a denial of the allegations of the complaint. The defense upon which the defendant relied on the trial was an accord and satisfaction. To establish this, he first introduced in evidence three deeds, executed subsequently to the marriage of the plaintiff. The first deed was a quitclaim from the defendant to the plaintiff of the interest in the quartz vein, from which the proceeds claimed in the action were received, and of a lot of ground in the city of Sonora. It was dated on the thirteenth of January, 1860.

The second deed bore the same date, and was from the plaintiff and her husband to the defendant, conveying the same property to him in trust during his life, to pay over the rents, issues, and profits to her; upon his death the property to revert to her; but if she died before him, leaving no heirs, then the property to vest in him.

The third deed was dated August 23d, 1860, and was from the defendant to the plaintiff and her husband, stating that in consideration of natural love and affection, and for the sum of one dollar, he conveyed to them all his interest in the property, and surrendered all trusts and powers set forth in the second deed above mentioned. The defendant then introduced, against the objection of the plaintiff, evidence showing that the third deed was given and received in full settlement of all matters of difference between the parties, and proved admissions of the plaintiff to the same purport, made since its execution.

Upon this evidence the verdict and judgment passed for the defendant; and the question presented by appeal is, whether the evidence was admissible. The objections urged to its admissibility rest substantially upon three grounds: 1st, that the defense of accord and satisfaction was not pleaded; 2d, that it tended to show an alienation and surrender of a demand of a married woman by parol; and 3d, that it tended to contradict and vary the recitals of the deed as to its consideration. The first ground is well taken. The doctrine of the cases of Gavin v. Annan (2 Cal. 494) and McLarren v.

Spalding (Id. 510) were overruled by Piercy v. Sabin (10 Id. 22) and Glazer v. Cliff (Id. 303). In our practice, a denial, whether general or special, only puts in issue the allegations of the complaint. The difference between a general and special denial in this respect is only in the extent to which the allegations are traversed. ? Hew matter must be specially pleaded; and whatever admits that a cause of action, as stated in the complaint, once existed, but at the same time avoids it—that is, shows that it has ceased to exist—is new matter.

It is that matter which the defendant must affirmatively establish.J Such are release, and accord and satisfaction. Defenses of this character must be distinctly set up in the answer, or evidence to establish them will be inadmissible. This view disposes of the appeal and necessitates a reversal of the judgment; but as by an amendment to the answer the defense of an accord and satisfaction may be set up on a second trial, it becomes important to pass upon the other questions raised.

The statute, it is true, provides that a married woman cannot make any sale or other ahenation of her separate property, except by an instrument in writing. (Act defining the Rights of Husband & Wife, sec. 6.) But in this provision the statute has reference to property other than money. It does not contemplate that every time a married woman pays her money for articles purchased she must execute an instrument in writing in order to make a valid transfer of the money.

In the present case, the money was in the hands of the defendant, and the plaintiff could as well consent by parol to its retention by him as she could have paid it to him without writing if it had been at the time in her possession. It is not a valid objection to the admissibility of the evidence, that it showed a consideration different from that expressed in the deed. The consideration clause of a deed is not conclusive. It estops the grantor from alleging that he executed the deed without consideration.

It cannot be contradicted so as to defeat the operation of the conveyance according to the purposes therein designated, unless it be on the ground of fraud, but with this exception it is open to explanation and may be varied by parol proof. A limitation, it is true, is placed by some adjudicated cases upon the character of the proof admitted; that it must be restricted to establishing a consideration of the same species with that expressed. (Garret v. Stewart, 1 McCord, 514.) The limitation, however, does not appear to rest upon any sound principle. (See Bennett v. Solomon, 6 Cal. 135; McCrea v.

Purmort, 16 Wend. 460; Bullard v. Briggs, 7 Pick. 537.) Judgment reversed and cause remanded.