¶1— I concur in the judgment, and also in the opinion of Mr. Justice Crockett, except on the point in respect to the admissibility of the testimony of Aughinbaugh to show what was said to him by W. W. Chipman in relation to his deed to E. S. Chipman. It will be admitted by everyone that the delivery of a deed may be verbal, and that it may be made to a stranger for the grantee. In order to give effect to the deed, the better opinion is that it is necessary to show its acceptance by the grantee: 2 Wash, on Real Prop. 580. The defendants were, in my opinion, entitled to prove what the grantor said, in order to show a verbal delivery of the deed to Aughinbaugh for the grantee, without first proving the fact or time of its acceptance' by the latter. Where an ultimate fact is to be established by proof of a series of probative facts, there is no rule of which I am aware requiring proof of the last fact in the series before adducing evidence of the first. The defendants, notwithstanding the exclusion of the evidence of the delivery of the deed, proved that the deed was accepted by the grantee, but after the lien of the Hibberd judgment had attached to the premises in controversy. The error of the court, therefore, in excluding the evidence was not productive of any injury to the defendants.
1 Cal. Unrep. 554
Hibberd v. Smith
Decided March 21, 1870
California Supreme Court · decided 1870-03-21
<p>Judgment Lien — Omission of Christian Name in Docket. — The sole purpose of the judgment docket is to furnish a record which may be conveniently referred to by persons interested in lands on which a lien may be thought to have attached, and the omission of a Christian name in naming there the judgment debtor is not such a departure from the statutory requirements. in that connection as to vitiate the lien.</p> <p>Judicial Sale — Advertisement—Return.—The Title of a Purchaser of real estate at a sheriff’s sale does not depend on and is not affected by the advertisement or the return of the officer to the writ, but rather on the judgment, execution, sale and deed.</p> <p>Deed. — The Delivery of a Deed to a Stranger for the Use of the grantee is a valid delivery, and takes effect from the time of the act by relation, provided tbe deed is afterward accepted by tbe grantee and tbe grantor intended it to take effect as a conveyance.</p> <p>Deed. — A Title by Relation cannot Override an Intervening Conveyance or encumbrance acquired in good faitb.</p> <p>Limitation of Actions — Title Derived from Spanish Government. Tbe term “final confirmation by the government of tbe United States,” as used in the proviso of tbe aet of 1855 amending tbe statute of limitations, includes tbe issuance of tbe patent, and when title is derived from tbe Mexican or Spanish government, tbe statute, in actions for tbe recovery of real estate, does not begin to run until tbe patent issues.</p> <p>Foreclosure Sale — Lien for Deficiency. — The Docketing of a Judgment of foreclosure does not create a lien for tbe deficiency on tbe property of the judgment debtor, but to establish such a lien the deficiency, when ascertained, must be docketed as a personal judgment. From tbe time of so docketing only does such lien commence.</p> <p>Ejectment — Restitution.—A Writ of Execution Issued on a Judgment in ejectment for a restitution of tbe land and for rents and profits need not (tbe writ of restitution having been already executed) recite tbe judgment further than to identify it.</p> <p>Appeal. — Exceptions Taken on the Ground That the Findings are not Supported by or are contrary to tbe evidence are not valid; if findings are open to such objection, tbe party should move for a new trial.</p>
Cited by 1 later decisions — most recently January 1924
1 state decisions
Good law ✅— No negative treatment on recordhow we know
Decided 1870-03-21
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