Los Angeles herald., 1891-09-09
THE SUPREME COURT.
TWO INTERESTING DECISIONS ON
SOUTHERN CALIFORNIA CASES.
The Ontario State Bank VS.. John and
Eliza Gerry, and the People VS.. Elem
Parksr-A Defective Information.

Two supreme court decisions were re-
ceived in this city yesterday from San
Francisco. In the case of the Ontario
State bank vs.. John Gerry and Eliza
Gerry, the judgment of the lower court
is reversed in one particular. On No
vember 30, 1887 the defendant, John
Gerry, made promissory note to plain
tiff for $500 and interest, payable in
three months. Gerry was at the time
the holdero a written contract from one
Osborn, who was then the owner of a
lot of land and premises described in
the complaint by which Gerry was en-
titled to a conveyance OF said lot upon
his payment of certain money, and when
Gerry gave said note to plaintiff he as
signed his contract to plaintiff as secur-
ity for the payment of said note. After
ward Gerry paid to Osborn all the money
due on said contract, and, at
Gerry's request, Osborn executed
deed OF conveyance OF said
lot to the defendant, Eliza
Gerry, who was and is the wife of said
defendant, John Gerry, which deed was
recorded July 3, 1888. The defendants
were residing on said lot, and on July
10, 1888, the defendant Eliza duly exc
cuted and had recorded declaration of
homestead on said premises. At that
time she had no knowledge of the
assignment OF the contract to plaintiff.
Said assignment was never recorded,
nor was there any record OF any claim
OF hers OF any character in favor of
plaintiff against said premises. The
present action was commenced March
Z, 1889, to recover a judgment against
John Gerry for the amount due on said
note, and also to enforce lien for the
same ON said premises against both
defendants. The defendants answered,
setting up their homestead rights. The
court below gave judgment against John
Gerry for the amount of the note and
also decreed the sale of the premises and
the foreclosure of all the right, title and
interest of both defendants in and to
the same.
That part of the judgment which de-
crees the sale of the premises is held by
the upper court to be erroneous. The
court seems to have acted upon the
theory that as the wife was not a sub
sequent purchaser for a valuable con-
sideration, therefore, as against her, the
prior unrecorded mortgage was valid.
But the doctrine that unrecorded deeds
and mortgages are good as against sub
sequeht purchasers for valuable con-
sideraton, says the supreme court, does
not apply to koniesteads. The judg
ment, as far as it adjudges the sale OF
the premises and the foreclosure of d e.
fendant's s interest therein is reversed.
PFOPTE Vs PARKER
In the case of the People (respondent)
VS.. Parker (appellant), suit appealed
from Tulare county, the judgment is re-
versed and the cause remanded with in
structions that the information be set
aside. An information was filed in this
case charging the defendant with forgery.
Before pleading he moved to set aside
the information upon the ground
that he had not been legally
committed by a magistrate. Upon
the hearing of the motion it
was shown that G. w. Ditman filed a
sworn complaint before a magistrate
alleging that lone Elem Parker on or
about the Goth OF November, 1890, and
before the filing of this complaint. at
the county of Tulare, state of Califor-
mia, did willfully and unlawfully enter a
barn with intent to commit larceny,
said barn being located on the Simons
ranch in said Kaweah colony, etc.,
Upon the complaint was indorsed the
following commitment: happening to
me that the offense in the above deposi-
ton has been committed, and that there
is sufficient cause to believe the within
named Flem Parker guilty thereof, etc. :"
The information charges that "the said
Elem Parker, on or about the Goth day
OF November, 1890, and before the filing
of this information, at the county and
state aforesaid did willfully and unlaw-
fully and feloniously enter a certain
barn, the property of g. w. Ditman,
etc."
The decision says that the informa-
ton should have been set aside for the
reason that the defendant was never
committed by a magistrate for the
offense charged in the information.