MARIA DE JESUS BERNAL, and her Husband JUAN T. PEREZ v. PHILIP GLEIM, JOHN DOE, and RICHARD ROE, 33 Cal. 668

By the Court, Rhodes, J. : Some time between the years 1846 and 1849 George W. Bellamy and his wife entered upon and inclosed the land in controversy, and otherwise subjected it to their will and control. On the 27th of October, 1861, Bellamy mortgaged the land to Reid and Davis; and on the 15th of December, 1852, Bellamy and his wife united in a conveyance of the land to their children, who were then minors, but the deed was not acknowledged by the wife, as required by the Act of the 17th of April, 1850, in order to pass her separate estate.

Between the 25th of October, 1851, and the 5th of October, 1852, two judgments were entered against Bellamy, the one in favor of one W. C. Jones, for a certain sum of money, and the other in favor of Reid and Davis, for the foreclosure of their mortgage; and an execution having been issued on the first judgment and an order of sale on the other, the Sheriff, by virtue thereof, sold the premises to J. W. Red-man on the 5th day of March, 1852, and on that day executed and delivered to him the Sheriff’s deeds for the premises.

The seventh finding is that “ The family i. e. the plaintiff, Maria, her said husband (George W. Bellamy) and their children, continued in possession until October, 1854, when they were removed from the possession by one Thomas Bodlev, who was then acting Under-Sheriff of Santa Clara County.” Redman entered into possession in October, 1854, after Bellamy and wife and their children were dispossessed, and remained in possession until the year 1860, and at the commencement of this action the defendants were in possession under mesne conveyances from Redman.

The children of Bellamy remained minors until 1864, and in 1865 they reconveyed the premises to the plaintiff Maria, their mother. The case may be disposed of without investigating the questions touching the grant made by the Prefect. The discussion will be limited to matters having a relation to the prior possession of Bellamy and wife, or, more accurately speaking, the title arising by presumption of law from the fact of possession.

We agree with the Court below, that the premises were either the separate property of Bellamy, or the common property of him and his wife, and that it is unnecessary to determine to which class it belonged. He, therefore, was competent to convey or mortgage the premises, without the aid of his wife. The present right of possession depends on this title, and the question is, which party holds the title. The conveyance of Bellamy to his children, in December, 1852, transferred the title to them, unless it passed to Redman under the Sheriff’s deeds, executed in March of the same year.

The Court held' the Sheriff’s deeds void, and the ground doubtless was that they were, executed immediately after the sale, without waiting the expiration of the time given by law for redemption. This ground is unquestionably sufficient to sustain the ruling. “ The real question,” says Mr. Chief Justice Field, in Gross v. Fowler, 21 Cal. 392, “ is one of power. Had the Sheriff authority to execute the deed at the time ? And to this there can be but one answer. His power did not arise until the six months had elapsed.” This leaves the title and consequent right to possession in the plaintiff, Maria.

The Court below held that “ as Redman, the grantor of the defendants, entered into possession under them (the Sheriff’s deeds), he and the defendants entered, and the defendants are in possession, under color of title, and the mere prior possession of the said plaintiff, as the wife of the said George W. Bellamy, cannot prevail against the possession of the defendants, taken under claim and color of title derived from said Bellamy.” We do not understand that the plaintiff claims and certainly she cannot rely on, prior possession in herself.

The possession of premises occupied by both husband and wife, which are either their common property or the separate property of the husband, is deemed in law to be the possession of the husband. The Sheriff’s deeds do not amount to color of title. “ Color of title” is defined in Wright v. Mattison, 18 How. 56, “ to be that which in appearance is title but which in reality is no title.” It is that which the law will consider. prima facie a good title, but which, by reason of some defect, not appearing on its face, does not in fact amount to title.

An absolute nullity, as a void deed, judgment, etc., will not constitute color of title. (Jackson v. Woodruff, 1 Cow. 276; Jackson v. Frost, 5 Cow. 346; La Froinbois v. Jackson, 8 Cow. 583; Jackson v. Waters, 12 John. 365; Livingston v. Peru Iron Company, 9 Wend. 511.) Redman not having entered under color of title, we need not inquire what would have been the effect of the entry had it been made in that manner.

It is insisted that as Bellamy and his family were dispossessed by the Under-Sheriff in 1854, it will be presumed that he acted under legal process, and it is claimed, that by that act, the force of the prior possession was broken. A writ of assistance would not cure or help a void deed. A process in another action against the present plaintiff is suggested. The reply is, a former recovery was not pleaded, and therefore was not in issue. The Court under the authority of Lyons v.

Leimback, 29 Cal. 139, and other cases, in which the statute of 1861, respecting defective findings, is considered, is not authorized to presume the finding of a fact not within the issues. We could not indulge in the presumption for another reason. It is found that Redman entered under the Sheriff’s deeds, and he will not he presumed to have entered in any other manner or under another title. Judgment reversed and cause remanded, with directions to enter judgment for the plaintiffs for the possession of the premises.