THOMAS BODLEY v. PARTHENIA S. FERGUSON and MATHEW FALLON et als., 30 Cal. 511

By the Court, Shafter, J.: This action is brought to recover the possession of nine hundred and thirty-two and a half acres of land, situate in the County of Santa Clara and parcel of a grant of one league made by the Mexican Government to Clara Maria Ortega Gilroy, in the year 1838, she being then and since the wife of John Gilroy. Both parties claim under Mrs. Gilroy—the plaintiff through a deed executed by her and her husband to Miguel Gilroy, on the 18th of November, 1858, and the defendants through an alleged equitable title, older than the admitted legal title of the plaintiff.

The facts found by the Court, in so far as they bear on the defendants’ 'equity, are as follows: “ On or about the 24th day of June, 1852, said Clara Maria Ortega Gilroy, with the consent and co-operation of her said husband, bargained and sold for a full and valuable consideration to her then and there paid in the gold coin of the United States, to J. B. Allen and F. A.

Smith the premises described in the complaint; * * * and at the same time full and complete possession thereof was duly delivered to them by said Gilroy and wife; * * * and from that time to the commencement of this action the said Allen and Smith, and the defendants Ferguson and Fellow, who have succeeded to all the rights which Allen and Smith acquired by said purchase, have had the full, quiet and peaceable possession thereof as owners, and their title thereto has been at all times freely acknowledged and confirmed by the said Gilroy and wife. * * * That Allen and Smith put improvements upon the land of the value of ten thousand dollars and upwards, and that defendants, who succeeded to their title in 1856, entered into possession in that year, and erected dwelling houses and fences, planted orchards and made lasting and valuable improvements thereon at a further cost of ten thousand dollars, and that defendants have resided upon the premises from that time to the present with their families, having the land wholly inclosed with a substantial fence.” That the plaintiff acquired the legal title in 1863 with full notice of all the facts constituting the defendants’ equity.

That the land at the date of the plaintiff’s purchase was worth one hundred thousand dollars, and that the consideration paid by him was little more than nominal. There can be no doubt that the findings support the equitable defense set up in the answer, nor that they entitle defendants to the relief prayed for therein. The findings show a contract to convey on the part of Mrs. Gilroy, to which contract her husband assented; full payment of the purchase money; possession taken by the véndees, and extensive improvements by them, and by the defendants who claim under them by assignment.

For do we understand the counsel of the appellant to contend that the judgment is not according to the legal effect of the facts as found. The error complained of is that the' facts were found on incompetent testimony, to the admission of which objection was made at the trial. Proof, of contract of married woman. The position taken by counsel is, that the alleged contract could be proved only by an instrument in writing executed and acknowledged in conformity to the Act of April 17th, 1850, defining the rights of husband and wife. This position, however, is not tenable.

The Act of April 17th applies only to the separate property of women married subsequent to the passage of the Act, and to property acquired after the passage of the Act by women married before its passage in.this State, or married out of the State and residing and acquiring property in it thereafter. That was one of the points determined in Ingoldsby v. Juan, 12 Cal. 564, and the correctness of the decision as to that point has never been judicially questioned. The case was referred to as authority in Morrison v. Wilson, 13 Cal. 496 ; and in Maclay v.

Love, 25 Cal. 383, it was treated as presenting a true exposition of the statute. The construction given to the Act in Ingoldsby v. Juan, is well borne out, in our judgment, by the fourteenth and fifteenth sections; but if we regarded the question as a doubtful one, we should not now be inclined to re-open it. The Act of the 16th of April, 1850, “ concerning conveyances,” has no bearing upon the question of evidence under consideration. Mrs.

Gilroy, under the civil law, was competent to contract to convey her separate property, and to convey it, with the bare assent of her husband, (12 Cal. 564,) and her capacity to do both or either was preserved and guarded by the treaty; and she could neither be deprived of the power, nor be unreasonably interfered with in its exercise by either statute or constitutional provision. The Act of April 16th, 1850, prescribes a method by which married women can convey their separate property, but'it points out none in which their contracts to convey must be made or evidenced.

Nor can it be claimed that the method of conveying and that of contracting to convey, were intended by the Legislature to be identical; for the thirty-eighth

section of the Act expressly withdraws executory contracts to convey from its operation. The only statute in this State bearing upon the process by which a woman—married and acquiring separate property anterior to the cession—can bind herself by contract to convey, is the Statute of Frauds, and its provisions apply indifferently to all persons having the capacity to make contracts of that character. Cases of part performance of contracts to convey are excepted from the operation of the statute, and may be proved by parol. (Sec. 10.) Power of married woman to contract.

The Act adopting the common law, passed April 13th, 1850, did not take away the capacity of Mrs. Gilroy to contract concerning her property, for that would be to make the Act paramount to the treaty and the Constitution; and her capacity being given, the only tests to which her contracts can be subjected are those applicable by the common law to contracts at large. The cases of Selover v. American Rus. Co., 7 Cal. 274, Barrett v. Tewksbury, 9 Cal. 15, and Maclay v.

Love, were all considered as following within the Act defining the rights of husband and wife, and were determined with sole reference to its provisions. That Act not only prescribes how a married woman shall convey, but dictates a special process in conformity to which alone she can contract to convey, and the numerous cases cited by counsel from other States were decided under statutes containing kindred provisions. It is a matter of no moment that the contract of Mrs. Gilroy as found, did not run, in terms, to Allen and Smith and their heirs.

The finding is that she bargained and sold the land to them for a full and valuable consideration. The rule that a fee simple passes only by a deed running to the grantee and his heirs, was of feudal origin; and if on foot in this State at the date of Mrs. Gilroy’s contract, it must be considered as operating only upon cases following within its letter. It was long since settled that the rule was not applicable to devises, and we know of no ground upon which it can be extended to contracts to convey.

In all cases of contract the intention of parties is to be determined by the language used, taken in its ordinary sense unembarrassed by any mere technical rules; and the terms of the contract now in question clearly call for the largest estate that can be had in land. Judgment affirmed. Mr. Justice Rhodes expressed no opinion.