By the Court, Crockett, J.:
The demurrer to the complaint, on the ground that it is ambiguous, and does not state facts sufficient to constitute a cause of action, was properly overruled. The facts on which the plaintiff relies might, perhaps, have been stated with more perspicuity; but enough appears in the complaint to render it easy of comprehension and free from reasonable doubt, which is all that is necessary.
Under the second ground of demurrer, it is objected that if the plaintiff can recover at all, it can only be in her capacity of executrix, and not in her own right, and that the complaint fails to allege any title in her testator to the demanded premises. If this be conceded, the complaint is not necessarily defective. Neither the legal title nor the right of possession may have been in the testator at the time of his death, and yet both may have been since acquired by the plaintiff, in her capacity of executrix, prior to the commencement of the action. After setting forth the will, and alleging that it was duly probated and that letters testamentary were issued to the plaintiff, the complaint avers that “ by virtue thereof (she) possessed herself of the real estate of said testator hereinafter described, and ever since then has been, and now is, the owner seized in fee simple of an estate of inheritance of, in, and to all of said land, both as such executrix and as heir at law of said testator, and is now entitled to the possession thereof.” This is a sufficient averment of seizin and a right of possession in the plaintiff in her capacity of executrix.
The plaintiff and defendants claim title to the premises in controversy under one Bartolomé Bojorques, who, in November, 1851, conveyed to his eight children, as tenants in common, eight ninths, undivided, of the “ Bancho Laguna. de San Antonio,” reserving the remaining one ninth to himself, “to be laid out on that part of said rancho on which I now [603]*603reside.” The deed recites that it was made “ for and in consideration of the natural love and affection of the said party of the first part to his children, the said parties of the second part, and in the further consideration of the sum of four hundred and sixty-one dollars, to him in, hand paid by the said parties of the second part, the receipt whereof is hereby acknowledged.” In a subsequent portion of the deed, it is provided,that the conveyance is made, “subject, however, to the payments, conditions, and agreements specified and contained in a certain indenture of mortgage ” made by said Bartolomé Bojorques to one Short, to secure the payment of four hundred and fifty dollars, witll interest at the rate of ten per cent per month, on which mortgage there was then due four hundred and fifty dollars, and interest from the eighth day of March preceding. • The mortgage included the whole rancho, which contained six square leagues. One of the children named as a grantee in the deed was Theodosia, then the wife of Victor Prudon, from whom, however, she had been separated for some years next prior to the date of the deed, in which she is described by her maiden name, “ Theodosia Bojorques,” and in which there is no reference to her husband. The plaintiff deraigns title under Theodosia, through a deed made by her, in which her husband did not unite, he being then, and for more than a year next preceding the execution of the deed, a non-resident of this State, as the plaintiff alleges. The defendants deraign title under certain other of the children named as grantees in the deed of November, 1851; and there has been no partition of the rancho between the Several tenants in common, though an action is pending for that purpose.
At the trial, the plaintiff* put in evidence the deed from Bartolomé to his children, and offered to prove by parol that it was intended as a deed of gift, and not as a deed of bargain and sale, and that no valuable consideration whatever was paid or agreed to be paid by the grantees. The defend[604]*604ants objected to this proof as incompetent, but the Court . admitted it, and the defendants excepted. The plaintiff then offered in evidence the deed from Theodosia, to which the defendants objected, on the ground that it was not acknowledged .and certified in the form required by law to enable a married woman to convey her separate estate without uniting her husband in the deed; but the Court admitted the deed, and the defendants excepted. These rulings are claimed by the defendants to have been erroneous, and constitute the chief grounds of error relied upon on this appeal.
It becomes material, it is said, to determine whether the deed from Bojorques to his children was a deed of gift, or of bargain and sale, for the reason that in the former case the . estate conveyed to Theodosia became her separate property and might be alienated by her without joining her husband in the deed, under the circumstances alleged to exist in this case; whereas, if the conveyance from her father was a deed of bargain and sale, made upon a valuable consideration, it is claimed that the estate conveyed became community property, and could not be transferred by her separate deed. In determining the character of the deed, resort must, of course, be had to the instrument itself; and if it can be ascertained from the face of it, interpreted in the light of . the surrounding facts, that it was intended to he, in fact, a deed of gift, and that the transaction between Bojorques and his children was a donation, and not a sale, there will be no necessity for the inquiry whether parol evidence was admissible to prove it to be a gift. If the deed itself, viewed in the light of the circumstances under which it was made, establishes the gift, there was no need of proof aliunde on that point.
In Peck v. Vandenberg, 30 Cal. 11, this Court had occasion ' to consider a deed very similar to that now under discussion. . In that ea.se a mother conveyed to her eight children eight ninths of two large tracts of land, reserving one ninth to [605]*605herself) and the deed recited that it was made “in consideration of the natural love and affection which I have and bear to my said children, and for the further sum of five dollars, to me in hand paid before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged.” The only appreciable difference between the recital of the consideration in that deed and in this is, that in the former the money consideration is stated at five dollars, and in the latter at four hundred and sixty-one dollars. In that case the record did not disclose the quantity of land conveyed; but in this case the quantity conveyed to the children was eight ninths of a tract of six square leagues, containing about twenty-five thousand acres, of which more than twenty-one thousand acres was conveyed to the children. In the former case the Court held that the consideration of five dollars, recited in the deed, was merely nominal, and was probably inserted by the scrivener under the belief that some such recital was essential to the validity of the conveyance; and the deed was, therefore, held to be a deed of gift on its face.
I think it is apparent in this case, as in that, on the face of the deed itself, construed in connection with the surrounding facts, that the money consideration named in the instrument was merely nominal, and that the transaction was, in fact, a donation, and not a sale. Here was an old man with a family of eight children, most of whom were married and living apart from him, and who was the owner of about twenty-five thousand acres of land situate in one of the most fertile portions of the State.
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By the Court, Crockett, J.:
The demurrer to the complaint, on the ground that it is ambiguous, and does not state facts sufficient to constitute a cause of action, was properly overruled. The facts on which the plaintiff relies might, perhaps, have been stated with more perspicuity; but enough appears in the complaint to render it easy of comprehension and free from reasonable doubt, which is all that is necessary.
Under the second ground of demurrer, it is objected that if the plaintiff can recover at all, it can only be in her capacity of executrix, and not in her own right, and that the complaint fails to allege any title in her testator to the demanded premises. If this be conceded, the complaint is not necessarily defective. Neither the legal title nor the right of possession may have been in the testator at the time of his death, and yet both may have been since acquired by the plaintiff, in her capacity of executrix, prior to the commencement of the action. After setting forth the will, and alleging that it was duly probated and that letters testamentary were issued to the plaintiff, the complaint avers that “ by virtue thereof (she) possessed herself of the real estate of said testator hereinafter described, and ever since then has been, and now is, the owner seized in fee simple of an estate of inheritance of, in, and to all of said land, both as such executrix and as heir at law of said testator, and is now entitled to the possession thereof.” This is a sufficient averment of seizin and a right of possession in the plaintiff in her capacity of executrix.
The plaintiff and defendants claim title to the premises in controversy under one Bartolomé Bojorques, who, in November, 1851, conveyed to his eight children, as tenants in common, eight ninths, undivided, of the “ Bancho Laguna. de San Antonio,” reserving the remaining one ninth to himself, “to be laid out on that part of said rancho on which I now [603]*603reside.” The deed recites that it was made “ for and in consideration of the natural love and affection of the said party of the first part to his children, the said parties of the second part, and in the further consideration of the sum of four hundred and sixty-one dollars, to him in, hand paid by the said parties of the second part, the receipt whereof is hereby acknowledged.” In a subsequent portion of the deed, it is provided,that the conveyance is made, “subject, however, to the payments, conditions, and agreements specified and contained in a certain indenture of mortgage ” made by said Bartolomé Bojorques to one Short, to secure the payment of four hundred and fifty dollars, witll interest at the rate of ten per cent per month, on which mortgage there was then due four hundred and fifty dollars, and interest from the eighth day of March preceding. • The mortgage included the whole rancho, which contained six square leagues. One of the children named as a grantee in the deed was Theodosia, then the wife of Victor Prudon, from whom, however, she had been separated for some years next prior to the date of the deed, in which she is described by her maiden name, “ Theodosia Bojorques,” and in which there is no reference to her husband. The plaintiff deraigns title under Theodosia, through a deed made by her, in which her husband did not unite, he being then, and for more than a year next preceding the execution of the deed, a non-resident of this State, as the plaintiff alleges. The defendants deraign title under certain other of the children named as grantees in the deed of November, 1851; and there has been no partition of the rancho between the Several tenants in common, though an action is pending for that purpose.
At the trial, the plaintiff* put in evidence the deed from Bartolomé to his children, and offered to prove by parol that it was intended as a deed of gift, and not as a deed of bargain and sale, and that no valuable consideration whatever was paid or agreed to be paid by the grantees. The defend[604]*604ants objected to this proof as incompetent, but the Court . admitted it, and the defendants excepted. The plaintiff then offered in evidence the deed from Theodosia, to which the defendants objected, on the ground that it was not acknowledged .and certified in the form required by law to enable a married woman to convey her separate estate without uniting her husband in the deed; but the Court admitted the deed, and the defendants excepted. These rulings are claimed by the defendants to have been erroneous, and constitute the chief grounds of error relied upon on this appeal.
It becomes material, it is said, to determine whether the deed from Bojorques to his children was a deed of gift, or of bargain and sale, for the reason that in the former case the . estate conveyed to Theodosia became her separate property and might be alienated by her without joining her husband in the deed, under the circumstances alleged to exist in this case; whereas, if the conveyance from her father was a deed of bargain and sale, made upon a valuable consideration, it is claimed that the estate conveyed became community property, and could not be transferred by her separate deed. In determining the character of the deed, resort must, of course, be had to the instrument itself; and if it can be ascertained from the face of it, interpreted in the light of . the surrounding facts, that it was intended to he, in fact, a deed of gift, and that the transaction between Bojorques and his children was a donation, and not a sale, there will be no necessity for the inquiry whether parol evidence was admissible to prove it to be a gift. If the deed itself, viewed in the light of the circumstances under which it was made, establishes the gift, there was no need of proof aliunde on that point.
In Peck v. Vandenberg, 30 Cal. 11, this Court had occasion ' to consider a deed very similar to that now under discussion. . In that ea.se a mother conveyed to her eight children eight ninths of two large tracts of land, reserving one ninth to [605]*605herself) and the deed recited that it was made “in consideration of the natural love and affection which I have and bear to my said children, and for the further sum of five dollars, to me in hand paid before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged.” The only appreciable difference between the recital of the consideration in that deed and in this is, that in the former the money consideration is stated at five dollars, and in the latter at four hundred and sixty-one dollars. In that case the record did not disclose the quantity of land conveyed; but in this case the quantity conveyed to the children was eight ninths of a tract of six square leagues, containing about twenty-five thousand acres, of which more than twenty-one thousand acres was conveyed to the children. In the former case the Court held that the consideration of five dollars, recited in the deed, was merely nominal, and was probably inserted by the scrivener under the belief that some such recital was essential to the validity of the conveyance; and the deed was, therefore, held to be a deed of gift on its face.
I think it is apparent in this case, as in that, on the face of the deed itself, construed in connection with the surrounding facts, that the money consideration named in the instrument was merely nominal, and that the transaction was, in fact, a donation, and not a sale. Here was an old man with a family of eight children, most of whom were married and living apart from him, and who was the owner of about twenty-five thousand acres of land situate in one of the most fertile portions of the State. He conveys to all his children eight ninths of this laige estate in equal portions, reserving to himself only one ninth, including his homestead, and recites on the face of the deed that it is made “ for and in consideration of the natural love and affection of the said party of the first part "to his children, the parties of the second part;” and then adds, as a further consideration, the [606]*606paltry sum of four hundred and sixty-one dollars, which is recited to have been paid to him by the children, equal to _ about fifty-eight dollars for each child; and each of whom was receiving, under the conveyance, about two thousand seven hundred acres of valuable land. If the recital of this paltry money consideration, so insignificant as compared with the value of the estate, is to convert the transaction into one of bargain and sale, no reason is perceived why the same result would not have . ensued if the sum named had been one dollar or one cent for each of the children, instead of fifty-eight dollars. The disproportion between the price named and the value of the estate would only have been a trifle greater in the one case than in the other; but in either case is so enormously large as clearly to indicate that the money consideration did not, in fact, enter into the transaction as one of its material elements. It was clearly the intention of Bojorques to donate this large and valuable estate to his children in equal portions, and not to sell it to them. Hence we find the conveyance to his married daughters is made to them in their own names, excluding their husbands; and in the case of Theodosia, she is named by her maiden name, and her husband is not referred to. The parties to the deed must be presumed to have known that under the law, as it then was and now is, all property acquired by the wife during the marriage, by gift, bequest, devise, or descent, became her separate estate, and that all acquired otherwise became the common property of the husband and wife, and was subject to disposition by the husband without the consent of the wife. It is clear that Bojorques, in conveying this valuable property to his married daughters, had no intention to convey it, practically, to their husbands; and particularly in the' case of Theodosia, who had been, for some years, living apart from' her husband. But if we should hold that the insertion in the deed of an inconsiderable money consideration by the scrivener who drew it up [607]*607had the effect to convert the transaction into one of sale, I am convinced we would give an effect to this deed which never entered into the minds of the parties to it at the time it was made. When Bojorques conveyed to Theodosia her portion of the land, he little dreamed that he was'virtually conveying it to her husband, .Prudon, from whom she had been separated for six years. Our statute, which provides that all property acquired by the wife during the marriage, otherwise than by gift, bequest, devise, or descent, shall be common property, and subject to disposition by the husband, could not have been intended to work so flagrant a wrong as would result in this case were we to hold that the deed from Bojorques to his married daughters was in fact, and was intended to be a deed of bargain and sale, and not of gift. But enough appears on the face of the conveyance, when construed in connection with the condition of the parties, their relations to each other, and other circumstances, to render it apparent that the transaction was in fact a donation, and not a sale, in the true sense of the statute defining the rights of husband and wife; and this, too, without the aid of parol evidence to show the actual intention of the parties and the precise facts of the transaction. Some stress, however, is laid upon that clause of the deed which recites that the conveyance is made subject'to'the “ payments, conditions, and agreements ” contained in the mortgage to Short; and counsel insists that in accepting the deed the grantees became personably liable for, and assumed the payment of the mortgage debt, and that this rendered the transaction a sale, and not a gift. The mortgage to Short is not before us, and we are ignorant of its contents, except that it included the whole rancho, and was made to secure the payment of four hundred and fifty dollars, with interest at ten per cent per month from March 8th, 1851. This recital is but a declaration of the grantor that the whole tract was then subject to the mortgage to Short; and such recitals are usually inserted [608]*608in deeds conveying mortgaged premises, in order to rebut a presumption that the existence of the mortgage had been concealed from the grantee. But a recital of this character imposes no obligation on the grantee to pay the mortgage debt unless there be some other clause in the deed indicating that such was the understanding and agreement of the parties. Deeds are construed most strongly against the grantor, and in the absence of any provision importing that the grantee shall assume upon himself the payment of a prior mortgage upon the premises, no such obligation arises. I find nothing in this deed indicating such an understanding.
I am aware that in Tustin v. Faught, 23 Cal. 241, this particular deed from Bojorques to his children was under consideration, and was held to be a deed of bargain and sale, and not a deed of gift. But from the report of the case this point does not appear to have been argued by counsel, or carefully considered by the Court. The opinion of the Court, by Mr. Justice Crocker, does not attempt an analysis of the deed, and, on this point, is unsatisfactory. I think the Court fell into an error in deciding on the character and legal effect of the instrument.
The next point urged by the appellant is, that the deed from Theodosia to Salmon, Bliss, and Touchard is inoperative and void as a conveyance, because of a defect in the certificate of acknowledgment. The statute of February 14th, 1855 (Stats. 1855, p. 12), provides in what manner a married woman may convey her separate estate, in the -absence of her husband. It requires the acknowledgment to be made before the District Judge of the county in which the land is situate, and only authorizes such a conveyance to he made by the wife, when the husband was not, and for one year next preceding the execution of the instrument had not been bona fide, residing in this State. The second section requires that the Judge taking the acknowledgment shall, £< before he certify the same, be satisfied by [609]*609the oaths of at least two credible, disinterested citizens of this State, that the husband of such married woman does not, and for one year next preceding the day of acknowledgment has not, resided in this State, which fact, and the names of the witnesses by whom-the same was proved, shall be recited in the certificate of acknowledgment.” The acknowledgment in this case was taken before the proper Judge, whose certificate is dated February 26th, 1859, and states that the deed was acknowledged by the wife on the 22d February, 1859, and that he is satisfied by the oaths of four credible, disinterested citizens of this State (whose names are given), that Victor Prudon, the husband of said Theodosia, “ does not now reside, and for one year next preceding the 22d day of February A. D. 1859, has not resided, within the State of California.” The only objection taken to this certificate is, that it does not state, as is alleged, that on the twenty-second of February (the day of the acknowledgment) the husband was not a resident of this State. It is conceded that the certificate states, that on thó twenty-sixth of February, and for one year ‘next preceding the twenty-second of February, Prudon was not a resident of this State; but it is said there is nothing in the certificate to show that on the twenty-second (the day of the acknowledgment) he was not residing in this State. This 'objection is hypercritical and untenable. If such fine-spun technicalities as this should prevail in interpreting certificates of acknowledgment, there would be but little safety -in land titles. The certificate was manifestly intended to speak as of the day of acknowledgment; and when it says Prudon is not “ now ” a resident, it must be referred to the day of the acknowledgment, and not to the date of the certificate, four days later. The statute contemplates that some time may possibly elapse after the acknowledgment, and [610]*610before the certificate, in order to make the necessary, proofs as to the non-residence of the husband, and until the proof is made the transaction is continuous, and is finally terminated by the completed certificate, which speaks as of the day of the acknowledgment. This certificate is clearly good. '
Another point made by the appellant is that the deed from Bojorques to his children was inoperative to vest the legal title in them until after the one ninth reserved by him had been definitively located so as to include his homestead. But there is no force in this proposition. There is nothing in the deed to indicate that the actual location of the one ninth was intended as a condition precedent to the vesting of the title. On the contrary, that clause of the deed was designed to be only a specification, in general terms, of the manner in which the reserved one ninth should be thereafter located on a final partition between Bojorques and his children. The provision for the location contains none of the elements of a condition precedent.
The only remaining ground of error relied upon is that there was no proof of the ouster complained of. But the answer puts in issue the plaintiff’s title and right of possession; and even-on this appeal it is insisted that the plaintiff has neither title nor right of entry, whilst it is not denied that the defendant is in the exclusive possession, holding for himself alone, and not for himself and the plaintiff, as' one of his cotenants., Under all the authorities this-is sufficient proof of ouster. (Owen v. Morton, 24 Cal. 373; Carpentier v. Gardiner, 29 Cal. 163; Marshall v. Shafter, 32 Cal. 194; 10 Wend. 414; 2 Greenl. Ev., Sec. 318.)
Judgment affirmed.
Mr. Justice Temple, being disqualified, did not participate in the decision of this case.