
    [L. A. No. 742.
    Department Two.
    August 8, 1901.]
    JESSE HUNTER, Appellant, v. JANE ELIZABETH MILAM, Respondent.
    Appeal—Judgment — Lapse of Time—Dismissal. — An appeal from the judgment, taken too late, cannot be considered, and must be dismissed.
    Id. — Review of Order Denying New Trial. — Upon appeal from an order denying a new trial, the point that the judgment is erroneous, and not supported by the findings, cannot be considered; but the review must be confined to alleged insufficiency of the evidence, and errors of law excepted to at the trial.
    Id. — Action to Set Aside Deeds and to Quiet Title—Laches and Limitation — Support of Findings — Affirmance of Order Denying New Trial."—' Where the decision in an action to set aside deeds from plaintiff to his wife, and to quiet his title, on the alleged ground that her marriage to him was discovered to be invalid, was against the plaintiff, and was based upon findings of laches and limitation, among other facts, and an appeal from the judgment was too late, an order denying a new trial must be affirmed, where it appears that the findings were sustained by the evidence, and there were no prejudicial errors of law.
    Id. — Finding of Marriage — Specification of Incompetbncy.—A finding merely to the effect that at a certain date a marriage was solemnized between plaintiff and defendant, and the certificate of marriage recorded, which fact was proven and not disputed, cannot be successfully assailed under a specification of insufficiency of the evidence to justify it, because the evidence shows that the defendant was then the wife of another, and was incompetent to enter into a marriage with the plaintiff.
    Id. — Construction of Findings — “ Exclusive Possession ” under Legal Title — Family Residence. — A finding that the plaintiff “ for more than ten years suffered the legal title and exclusive possession to remain in defendant,” is to be construed with another finding, that plaintiff and defendant occupied the premises as a family residence, and the “ exclusive possession ” referred to is not intended to exclude the residence of the husband with the wife. Where the two findings, taken together, show the real facts, the “exclusive possession,” in the sense understood by the court, is not against the evidence.
    Id. — Conclusion of Law—Title in Fee-simple. — A finding that by the first deed of a certain date “ defendant became vested with an absolute title in fee-simple to said premises,” is properly placed among the conclusions of law from facts previously found.
    
      Id. — Evidence—Decebe Refusing to Annul Marriage — Res Ad judicata — Validity of Marriage — Ruling without Prejudice. — The admission in evidence of a decree refusing to annul the marriage between the parties, at the suit of the husband, is not necessarily erroneous, whether it is res adjudieata of the validity of the marriage or not; and where it appears that the action was barred by laches and limitation, any error of the court in ruling that the judgment was an estoppel as to the validity of the marriage is without prejudice..
    Id. — Intention of Plaintiff — Exclusion of Evidence — Harmless Error. — The erroneous exclusion of evidence of the plaintiff, as to his intention in making the second deed, is harmless, where the plaintiff, both before and after such exclusion, fully testified as to such intention.
    APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. M. T. Allen, Judge.
    The facts are stated in the opinion of the court.
    Knight & Harpham, and Works & Lee, for Appellant.
    Goodrich & McCutchen, Ben Goodrich, and S. A. W. Carver, for Respondent.
   THE COURT.

This is an action to have set aside and declared void two deeds executed by plaintiff to defendant, conveying to the latter a certain lot of land, and to quiet plaintiff’s title thereto. Judgment went for defendant, and plaintiff appeals from an order denying his motion for a new trial. He also attempted to appeal from the judgment, but such attempted appeal was taken too late, and cannot be considered.

The first deed was executed and delivered to respondent on December 28, 1878, and was on that day recorded, and by it the land was conveyed to respondent in fee-simple. The second deed was executed and delivered April 4,1884, and conveyed the same land to respondent during her natural life, “and in case she survives said party of the first part, then to her, and her heirs and assigns forever,” and was also on the day of its execution duly recorded. This action was commenced on February 14,1896, which was nearly eighteen years after the execution and recordation of the first deed, and over twelve years after the execution and recordation of the second deed. The decision of the court below was based, among other things, on the laches of plaintiff and the bar of the statute of limitations, under subdivision 4 of section 338 of the Code of Civil Procedure.

A marriage was solemnized between plaintiff and respondent on July 3, 1862, and they lived together as husband and wife from that time until the year 1883, when they separated. It may be briefly stated, for a general understanding of the case, that appellant contends that the marriage was not valid, for the alleged reason that some four or five years before its solemnization respondent had been married to one Joseph Milam, who was then still alive, and she had not been divorced from him; that appellant did not know these facts, and supposed that his marriage to respondent was valid, until some time in the year 1883; that he made the first deed supposing that respondent was his legal wife, and would not otherwise have made it; and that he made the second deed with the understanding that respondent would destroy the first deed. All these alleged facts respondent denied.

A great deal of appellant’s argument is directed to the point that the judgment is erroneous as a matter of law; but as there is no appeal from the judgment, we can only consider attacks made upon the findings as not supported by the evidence, and alleged errors of law occurring during the trial, to which exceptions were taken. We cannot inquire whether or not the findings support the judgment.

There are only two attempted specifications of the particulars in which the findings are not sustaii ed by the evidence. It is specified, first, as follows: “The evidence is insufficient to justify the first finding, because the evidence shows that on the third day of July, 1862, the defendant was the wife of one Joseph Milam, and was incompetent to enter into a marriage with plaintiff.” Assuming that this is a sufficient specification, the said first finding is merely to the effect that on July 3, 1862, a marriage was solemnized between the parties and the certificate of marriage recorded, which facts were proven and not disputed. The second specification is, that “the evidence is insufficient to justify the tenth finding, because the evidence shows,” etc. The only part of the tenth finding which is vulnerable to this attack is that in which it is found that plaintiff “ for more than ten years thereafter suffered the legal title and exclusive possession to remain in defendant”; and this part of it is certainly supported by the evidence, with the exception, perhaps, of the expression, “ and exclusive possession.” It is not quite clear as to which ten years are referred to; but it is clear that the court did not mean that during the ten years immediately following the date of the first deed defendant was in the exclusive possession, in the sense that plaintiff did not live with her on the premises; for in the fifth finding the court finds that “soon after the execution of this deed [the first one], plaintiff and defendant moved upon the premises described in the complaint as their home, and continued to occupy the same as a family residence until 1883.” It is therefore immaterial how the said expression, used in the tenth finding, should be construed. The two findings, taken together, show the real facts.

As to errors of law occurring at the trial, the main one is the alleged error in admitting in evidence the judgment roll in a former case of the present plaintiff versus the present defendant, described as Jane Elizabeth Milam, sometimes known as Jane Elizabeth Hunter.” That action was brought in August, 1892, to have annulled the marriage between plaintiff and defendant. The case was tried in the superior court, and judgment was rendered for defendant, the court holding that the marriage was valid, and upon appeal to this court, the judgment was affirmed. (See Hunter v. Hunter, 111 Cal. 261.) The objection urged is, that the judgment in that case does not estop appellant from again asserting the invalidity of the marriage; but if that be admitted, it does not follow that the judgment roll was not admissible for any purpose. But even if erroneously admitted, it would not affect the grounds of laches and statute of limitations on which the judgment was based; neither, in this view, is it of consequence that the court found, as a matter of law, that the judgment was an estoppel as to the validity of the marriage, The only other exception to the rulings upon admissibility of evidence is to the sustaining of an objection of respondent to a question asked appellant on the witness-stand as to his intention in executing the second deed.' This ruling could have done no harm, for appellant, both before" and after this question, fully explained what his reasons were for making the second deed. The foregoing are all the matters of any consequence which are presented on the appeal from the order denying a new trial. It may be noticed, however, that the finding, “that by said deed of December 28, 1878, defendant became vested with an absolute title in fee-simple to said premises,” is clearly one of the conclusions of law, among which it properly appears in the record. No doubt a finding of title is in some connections a finding of fact, but not so in the case at bar, where it is a mere conclusion from the facts already found. (Savinqs and Loan Society v. Burnett, 106 Cal. 514.)

The appeal from the judgment is dismissed and the order denying a new trial is affirmed.  