Secord

Action to quiet title, commenced by Joseph Kelly and prosecuted by the administrator of his estate, substituted upon suggestion of his death.

Defendant claims title by mesne conveyance from the wife of Kelly. In a former partition suit in which Kelly and his wife were parties plaintiff, it was adjudged by the interlocutory decree that “said Joseph Kelly and his wife Catharine Kelly are the owners of an undivided -g-lfx part of said Rancho Milpitas.” By the final decree was awarded to “ Joseph Kelly and his wife Catharine Kelly jointly” the lands in controversy. Defendant, by cross-complaint, attacks these decrees, averring that Catharine Kelly was the owner of the land in fee at and during the time of the partition suit; that the final decree was mistakenly drawn, that the judge was deceived in signing it, and that both the interlocutory and final decrees “ were frauds upon the rights of said Catharine.” He asks for a reformation of the decree, and an adjudication in his favor as to the ownership of the land.

The appeal is from the judgment alone, and was taken more than sixty days after its rendition. No question as to the sufficiency of the evidence can be considered. (Code…