possession, or estoppel in pais.175 At common law, an adverse possession of fifty years, though with knowledge of a better title, constitutes a good defense against that title.176

It is a universally ac

§ 3788. Statute, how construed. cepted rule that Statutes of Limitations are to be strictly construed. General words in the statute must receive a general construction, and if there be no express exception the courts can make none.' 177 The clause in the Statute of Limitations which provides that civil actions shall be commenced within certain periods therein prescribed "after the cause of action shall have accrued," does not imply, in addition, the existence of a person legally competent to enforce it by suit. The statute must run in all cases not therein expressly excepted from its operation.178 An equitable action to set aside a fraudulent deed of real estate, when the effect would be to restore the possession to the defrauded party, is an action for the recovery of real estate, and governed by the Statute of Limitations applicable to such actions.179

§ 3789. Statute, how pleaded. There is no technical rule observed by the Court of Chancery as to the form of a plea of the Statute of Limitations. A plea which sets up an adverse possession of forty years, while the period required by the statute of the state to bar a recovery is twenty years, is good; nor is it necessary to make any express reference to the statute of the state. 180 It must be pleaded at the proper time, with no day of grace thereafter. 181 If an action of ejectment is in the name of the plaintiff who has sold pending the action, the

175 Doran v. C. P. R. R. Co., 24 Cal. 245; Jackson v. Porter, 1 Paine, 457. The Statute of Limitations begins to run against the patentee of public lands from the United States from the date of the issuance of the patent, and not from the date of final payment for the land. Steele v. Boley, 7 Utah, 64; overruling S. C., 6 id. 308.

176 Alexander v. Pendleton, 8 Cranch, 462; Ewing v. Burnet, 11 Pet. 41; affirming 1 McLean, 266.

177 Tynan v. Walker, 35 Cal. 634; 95 Am. Dec. 152.

178 Id.

179 City of Oakland v. Carpentier, 13 Cal. 540.

180 Harpending v. Reformed Dutch Church, 16 Pet. 455.

181 Cooke v. Spears, 2 Cal. 409; 56 Am. Dec. 348; to the same effect, Meeks v. Hahn, 20 Cal. 620; and American Co. v. Bradford, 27 id. 360.

defendant can not plead the Statute of Limitations as against the vendee of the plaintiff.182

§ 3790. Title by adverse possession. A person in the adverse possession of land for five years, claiming to own the same exclusive of any other right, thereby acquires a fee-simple title to the same; and if he is then ousted, even by the party having the paper title, he can recover possession at any time before his right of action is barred by five years' adverse possession.183 The party claiming title by virtue of five years' adverse possession may give in evidence his acts and declarations made or done at any time while in possession, for the purpose of showing the character in which he claimed.184 Occupancy for the period prescribed by the Code of Civil Procedure, as sufficient to bar an action for the recovery of the property, confers a title thereto denominated a title by prescription, which is sufficient against all.185 The lapse of time limited by statute not only bars the remedy, but it extinguishes the right, and vests a perfect title in the adverse holder.188

§ 3790a. Ejectment - consolidation of actions. Two actions of ejectment for separate pieces of property brought in the same court by the plaintiff against the same defendant may be consolidated. 187

§ 3790b. The same — affirmative defense. An affirmative defense that the deed relied on by the plaintiff was a mortgage is covered by a denial of the plaintiff's allegation of ownership. It is not an equitable defense, and, therefore, the plaintiff is not entitled to have it first disposed of.188

3790c. The same

issue as to cotenancy.

A deed from a widow granting all of her individual estate in a tract of land

182 Moss v. Shear, 30 Cal. 468. What such a plea should state in ejectment, see Sharp v. Daughney, 33 id. 505; Vassault v. Seitz, 31 id. 225.

183 Cannon v. Stockmon, 36 Cal. 535; 95 Am. Dec. 205.

184 Id.

185 Cal. Civil Code, § 1007; see, also, Thompson v. Felton, 54 Cal. 547; Parker v. Metzger, 127 N. Y. 386; 24 Am. St. Rep. 458.

186 Leffingwell v. Warren, 2 Black, 605; Arrington v. Liscom, 34 Cal. 381; Grimm v. Curley, 41 id. 250.

187 Smith v. Smith, 80 Cal. 323.

188 Id.

which was the community property of herself and her deceased husband is taken subject to the right of the widow to have the land set apart by the probate court as a homestead for herself and her minor child, and her grantee can not take as a tenant in common in such manner as to defeat such right, but the right of such grantee, if not defeated, is at least suspended during the period of the occupancy of the property as a homestead. In ejectment against such grantee by the widow and minor child, where the complaint avers title in the plaintiffs and ouster by the defendant, and the answer denies each and every material allegation of the complaint, and pleads the bar of the Statute of Limitations, such pleading contests the right of the defendant to possession as a tenant in common with the infant plaintiff.189

legal defense

§ 3790d. The same damages. In an action of ejectment, a cross-complaint to quiet title presents only a legal, and not an equitable, defense, and the verdict of the jury in such action as to the amount of the damages suffered by the plaintiff is not advisory but conclusive, except as against the power of the court to grant a new trial.190

189 Phelan v. Smith, 100 Cal. 158. 190 Mills v. Fletcher, 100 Cal. 142.

SUBDIVISION SIXTH.

IN ACTIONS CONCERNING REAL PROPERTY.

CHAPTER I.

FORECLOSURE OF MORTGAGES AND LIENS.

§ 3791. Denial of mortgage by purchaser from mortgagor. Form No. 910.

[TITLE.]

The defendant [purchaser] answers to the complaint:

That he has no information or belief sufficient to enable him to answer the allegations in plaintiff's complaint as to whether the defendant [mortgagor] ever executed the bond and mortgage described in the complaint, or whether the defendant [mortgagee] ever assigned said supposed bond and mortgage to the plaintiff, or whether he is now the lawful owner or holder thereof; and, therefore, this defendant denies that said defendant [mortgagor] at any time executed said alleged bond or mortgage, and denies that said defendant [mortgagee] at any time assigned said alleged bond or mortgage to the plaintiff, and denies that plaintiff is now the owner or holder of said alleged bond or mortgage.

3792. Conditional deed. Where the answer, while averring that the deed was a conditional deed, admits that the money was received by defendant on the understanding that, if the money was repaid in six months, with interest, plaintiff was to reconvey, and does not specifically deny that the money was loaned, it was held that it virtually admitted the loan.1 The allegation in the answer, that unless the money was returned, the property should remain in the plaintiff, does not change the nature of the contract.2

1 Lee v. Evans, 8 Cal. 424.

§ 3793. Condition against public policy. A person who conveys land upon an unlawful condition subsequent, and then purchases it back, and executes a mortgage for the purchase money, can not resist the enforcement of the mortgage on the ground that the condition subsequent was against public policy, or that there was a want of consideration.3

§ 3794. Denial of condition. In a foreclosure action, the complaint set forth the condition of the bond, and alleged that the mortgage was executed "with the same conditions as the bond." The answer denied that the mortgage contained the condition, repeating it as stated in the complaint; it was held insufficient on demurrer. It was not a denial that the mortgage contained, by reference to the bond or otherwise, substantially the same condition. To raise that issue, the defendant should have denied the deeds, or set forth the condition of the mortgage in haec verba, that the court might see what it was.1

§ 3795. Denial of delivery. Although an answer denies the delivery of a bond and mortgage, still their possession by plaintiff is evidence of delivery."

§ 3796. Disclaimer. In a foreclosure action, a defendant who is not alleged to be personally liable, and who disclaims all interest in the mortgaged premises, can not demand a judgment against the plaintiff on a note, a bond, or a covenant.

§ 3797. Duress of wife. The execution by the wife of a mortgage, under compulsion and undue influence of her husband, does not render the mortgage void, but only voidable; and if the mortgage is given to secure an antecedent debt, and the mortgagee has no notice of such compulsion and undue influence, the mortgage can not be avoided on that ground."

3 Patterson v. Donner, 48 Cal. 369.

4 Dimon v. Dunn, 15 N. Y. 498.

5 Blankman v. Vallejo, 15 Cal. 638. An answer alleging nondelivery by the mortgagor and want of consideration for the execution of the mortgage states good defenses. Ault v. Blackman, 8 Wash. St. 624.

6 National Fire Ins. Co. v. McKay, 21 N. Y. 191; compare Agate v. King, 17 Abb. Pr. 159.

7 Connecticut Life Ins. Co. v. McCormick, 45 Cal. 580.