Opinion of the Court-Shafter, J.

tion of the plaintiff, by striking out the name of Clark; and that judgment was thereupon rendered against his codefendants, leaving [out] the said defendant Clark. Now, upon application of counsel for the plaintiff, it is ordered, adjudged and decreed," etc. The appeal is taken from this judgment against Clark and from the order by which the judgment was awarded.

The proposition of the appellant comes to this: That the record establishes a voluntary discontinuance or abandonment of the action as to Clark. The argument, generally stated, is, that the first judgment was substantially in conformity to the mandate; that the plaintiff moved to modify or amend the judgment by striking out the name of Clark and three others; and, furthermore, that he procured the judgment against the remaining four to be turned or resolved into several judgments against each of them, thereby, as is contended, manifesting an intention to abandon all further proceedings in the action as to Clark. The counsel of the respondent, however, does not assent to but controverts the facts upon which the reasoning proceeds.

First. The judgment first entered upon the remittitur was not, in our opinion, in conformity to the mandate of the Supreme Court. In the first place, the judgment was entered against eight of the defendants [35] only. In the second place, it was entered against the eight jointly. The answers were several-the findings were several and, in the absence of any stipulation of parties, the joint judgment was erroneous, and any party prejudiced by the error could have appealed. (Winans v. Christy, 4 Cal. 70; McGarvey v. Little, 15 Cal. 31.) And the Supreme Court took that view of the law when it directed judgment to be entered upon the special findings. It does not appear that that form of judgment was departed from on stipulation, nor by reason of any interposition of the plaintiff. He did nothing, so far as the record shows, except move for judgment "in conformity with the mandate;" and the judgment that he got was very far from conforming to the mandate. Thereafter, according to the record, the

Opinion of the Court-Shafter, J.

plaintiff moved to "modify the judgment" by making a fresh "application and motion for judgment in conformity with the mandate of the Supreme Court." In view of this specification, it is manifest the plaintiff was dissatisfied with the judgment as it stood, on the ground that it met the mandate neither in form nor in substance. We gather from the specification that it was the fixed purpose of the appellant to stand upon the mandate as the test of his right and of the form in which the judicial vindication of it should be pronounced upon the record. But the judgment entered ministerially upon this motion was a wider departure from the requirements of the mandate than the one which it was the purpose of the motion to supplant. The new judgment was several to be sure, but it was against four defendants. only. And for this eccentricity the plaintiff is in no manner responsible upon the record. There are then no acts of discontinuance or abandonment by the plaintiff, but a persistent seeking on his part for the relief adjudged by the Supreme Court instead.

There is an apparent conflict between the recitals of the several judgment against Clark-the third in the seriesand the recitals contained in the first and second judgments respectively. By the recitals of the first judgment it was

entered upon the plaintiff's motion for judgment in [36] conformity to the *mandate," and the recitals of the second judgment are to the same effect. Each of these judgments may be said to state the facts of its own history, and the third judgment undertakes to recapitulate them. It recites that the first judgment "was entered in pursuance of the direction of the Supreme Court." Whether it was so entered or not is a question of law and not a point of fact. We have the judgment and the mandate both before us, and hold that the first judgment is not in pursuance of the mandate, except it be in a very limited sense. We consider that the Clerk in entering up the third judgment fell into a mistake of law in this respect. The third judgment recites also that the first judgment "was, on motion of the plaintiff, amended by striking out the name of the said de

Opinion of the Court-Shafter, J.

fendant Clark, and judgment was thereupon entered against his co-defendants, leaving out the said defendant Clark."

These judgments are all in pari materia, and counsel have so treated them by bringing them all into the record, and by arguing upon each of them as illustrated by the others. The judgments were entered by the Clerk as a ministerial officer (McMillan v. Richards, 12 Cal. 468); and if entered by judicial direction, it comes to the same thing. The recital in a judgment that a party defendant against whom the judgment is entered appeared in the action is prima facie evidence only of the fact; and we consider the Clerk's recital in the third judgment, that the first was amended by "striking out Clark's name on the plaintiff's motion," to be so far within the rule that it may at least be confronted with the recital in the second judgment, which gives a very different version of the character and object of the plaintiff's motion. Again: At the time the third judgment was applied for and ordered, the Court had nothing before it bearing. upon the question in hand, of which we have any knowledge, except the second judgment and its recitals; and they constitute the basis, as we must presume, on which the several judgment against Clark was ordered. The recitals of the third judgment were not ordered by the Court-nor was it necessary to insert them. They were put in by the Clerk, and are nothing more than his exposition of *the [37] motion antedating the several judgment and fully set forth therein. The result is, that there are in our judgment. no facts in the record which per se work a discontinuance of the action as to Clark, and none showing that the action was abandoned as to him by the plaintiff. The plaintiff had a several verdict against Clark. The Supreme Court had adjudged the plaintiff was entitled to a separate judgment, and the plaintiff, after two unsuccessful applications, secured the entry of such judgment for the first time, on the 2d of May, 1864. We cannot adjudge that the plaintiff had lost his right to have judgment entered on the grounds stated except upon the clearest demonstration, and the whole force of the record is the other way.

85 Cal. 284.

Points decided.

Second. There is another view of the matter which may be very briefly stated. If there is any state of facts under which the entry of the third judgment can be vindicated, we must presume that that state of facts existed at the time the entry was ordered, and that the order was made on the ground of them. The files and affidavits used at the hearing are not inserted in the transcript. For anything we can know to the contrary, there may have been a stipulation among the files, or one may have been brought forward by affidavit, fully accounting for all the phenomena put as the basis of the argument submitted for the appellant—and conserving also the plaintiff's right to a several judgment against Clark--and by direct expression.

The order and judgment are affirmed.

BENJ. H. RAMSDELL v. JANE E. FULLER AND
RAYMOND SUMMERS.

1 SEPARATE ESTATE OF WIFE.-Property purchased during coverture with
funds which constitute a part of the separate estate of the wife, will also
be her separate estate.

CLOUD UPON THE TITLE OF A MARRIED WOMAN'S PROPERTY.-A mortgage executed by the grantee of the husband upon property purchased [38] with funds belonging to the "separate estate of the wife, and deeded to the wife during coverture, is a cloud upon the wife's title which a Court of equity will remove.

1 PROPERTY PURCHASED DURING COVERTURE.-The presumption is that property conveyed to the wife for a money consideration is common property; but this presumption may be rebutted by showing that it was purchased with money belonging to her separate estate.

2 PURCHASE FROM HUSBAND OF PROPERTY DEEDED TO WIFE.-Parties purchasing of the husband real estate deeded to the wife for a money consideration during coverture, do so at their peril. The record of the deed to the wife is notice to all the world that the land may be the separate property of the wife, and is sufficient to put purchasers upon inquiry. MORTGAGE ON SEPARATE ESTATE OF WIFE.-If land is purchased with funds belonging to the separate estate of the wife, and the deed, expressing a money consideration, is executed to the wife during coverture, and re

1. Approved, Peck v. Vandenberg, 30 Cal. 36.

2. Peck v. Vandenberg, 42, 55, 60; cited, Peck v. Brummagim, 31 Cal. 448; Higgins v. Higgins, 46 Cal. 263; distinguished, Vassault v. Austin, 36 Cal. 698-700.

Argument for Appellant.

corded, and the husband afterwards sells the land, the wife not joining in the deed, and his grantee executes a mortgage on the same to one who has no notice other than the record of the deed to the wife that it was purchased with the separate funds of the wife, the mortgage will be set aside by a Court of equity, although the deed on its face did not state that the consideration paid was the separate estate of the wife. The fact that the title stands in the name of the wife is sufficient to put parties dealing with land upon inquiry.

APPEAL from the District Court, Fourth Judicial District, City and County of San Francisco.

The facts are stated in the opinion of the Court.

Walter Vandyke, for Appellant.

Section nine of the Act defining the rights of husband and wife, provides that "the husband shall have the entire management and control of the common property, with the like absolute power of disposition as of his own separate estate."

Under this provision of our statute it is not questioned, as I understand, that the husband, Silas Fuller, had a perfect right to convey the premises to Lawrence at the date of his deed, provided it were common property.

The statute says: "All property acquired after the marriage, by either husband or wife, except," etc., "shall be common property." There is no exception in regard to such property as may be so acquired by the separate funds. of either. The legal title to such property is in the community, although in equity it may be the separate property of one or the other. Suppose the property b purchased in the name of the husband, or both, but [39] with the wife's separate funds, although, as in the present case, nothing to show that fact on the face of the deed, it will hardly be claimed that he could not convey the legal title of the same to an innocent purchaser for value, unencumbered of the wife's claim to such property. If so, then the husband in the present case could convey the legal title, for the statute and our decisions say that it makes no difference in whose name it stands so that it be acquired by purchase.