Summary
In Smith v. Smith, 80 Cal. 323, it was held that an affirmative defense that the deed relied on by plaintiff was a mortgage is covered by a denial of the plaintiff's allegation of ownership, and therefore that it was not an equitable defense which the parties could require to be first disposed of.
Summary of this case from Locke v. MoultonOpinion
80 Cal. 323 at 330.
Original Opinion of September 3, 1889, Reported at 80 Cal. 323.
OPINION
THE COURT 330 A second petition for rehearing having been filed, the following opinion was rendered thereon on the 26th of September, 1889:
The Court.
A rehearing herein is denied, but the former judgment of this court is modified so far as to reverse the judgment of the superior court as to the costs taxed therein, leaving said costs to abide the ultimate determination of the action.