Statement of Facts. [No. 3,924.] JEANETTE ESLINGER v. GEO. M. ESLINGER. COMMUNITY PROPERTY.—Where a woman, living upon public land of the United States, married, and the husband thereafter filed a declaratory statement upon it in his own name, and made the required proof, and was allowed to enter and purchase the land in his own name; and, subsequently, the husband and wife by their joint deed sold the land, and, with the proceeds, the husband purchased other land: held, that the land so purchased was community property. DISCRETION OF COURT IN DIVIDING COMMUNITY PROPERTY.-Where a divorce is granted on the ground of extreme cruelty, the guilty party is entitled to receive only so much of the community property as the Court may deem just under the facts of the case; and the discretion of the Court in dividing the property is subject to revision on appeal. DIVISION OF PROPERTY IN CASE OF DIVORCE.-The inference to be derived from sections 146 and 147 of the Civil Code is, that if a divorce is granted on the ground of adultery or extreme cruelty, the injured party is entitled to more than one half of the common property. APPEAL from the District Court of the Tenth Judicial District, Sutter County. The plaintiff brought this action to obtain a divorce from from her husband, and asked to be restored to the possession of certain lands which she claimed as her separate property. At the trial it was stipulated that the plaintiff and defendant intermarried in November, 1865; that at that time the plaintiff "owned" and "lived upon a possessory claim" of 160 acres of land, valued at $300; that after the marriage, the plaintiff and defendant lived together upon the land until 1869; that in the meantime the defendant filed a declaration of pre-emption upon it in his own name, was allowed to enter and purchase it, and, in September, 1869, the plaintiff and defendant by their joint deed sold the land for $1,600, paid the Government with $200 of the money, and, on the same day, with the remaining $1,400, the defendant purchased, in his own naine, the eighty-eight acres of land in controversy. The Court found that the eighty-eight acres last mentioned were acquired during coverture, and was community property. A decree was entered divorcing the parties, and directing the land to be equally divided between them. The plaintiff appealed. Opinion of the Court. The other facts are stated in the opinion. H. L. Pierson and S. C. Denson, for Appellant, argued that the husband acted as the trustee for the wife in perfecting title to the 160-acre tract, that the property became her separate property, and the 88-acre tract, having been purchased with the proceeds of the sale of the other tract, was also the separate property of the wife; citing George v. Brown, 15 Cal. 322; Lewis v. Johns, 24 Cal. 98; Ramsdell v. Fuller, 28 Cal. 37; Lewis v. Lewis, 18 Cal. 654; Ewald v. Corbett, 32 Cal. 493; and they contended that if the property should be regarded as community property, the peculiar circumstances of the ease required a larger portion to be awarded the wife, in accordance with the Civil Code, Sections 146, 147, and 148. R. E. Whiteside, J. O. Goodwin and IV. C. Belcher, for Respondent, argued that the plaintiff did not possess the qualifications of a pre-emptor, and that the Government did not recognize the relation of trustee and cestui que trust in the disposition of the public lands, and that the pre-emption purchaser must possess the qualifications required by the law, and must not only make the entry and purchase in his own name, but must take an oath that he does so for his own exclusive use and benefit, and that the property, therefore, could not be the separate property of the plaintiff. By the COURT: On the facts disclosed by the record, we are of opinion that the tract of land containing eighty-eight acres is community property, and was properly so treated by the Court below. But the divorce was granted on the ground of extreme cruelty, alleged in the complaint to have been perpetrated by the husband on the wife. The acts of cruelty specified were frequent beatings; and it is alleged that on one occasion he "kicked, choked and bit her, and stripped and flogged her on her naked person with a switch or rod four feet long, whereby she was bruised all over her body, Opinion of the Court. and the blood made to flow freely from the wounds thus made." On this point the Court finds "that the allegations of extreme cruelty are true." The evidence is not before us, but enough appears from the findings to show that the cruelty was of an aggravated character. Section 147 of the Civil Code provides that when a divorce is granted on this ground, the party in fault shall be entitled only to such portion of the community property as the Court in its discretion may deem just under the facts of the case. The next section provides that the order of distribution of the community property "is subject to revision on appeal in all respects, including the exercise of discretion by the Court below." In this case the Court below awarded to the plaintiff one half of the community property remaining after the payment of the community debts. But we are of opinion that, under all the circumstances, she ought to have been awarded a larger share. Section 146 of the Civil Code requires that the community property shall be equally divided between the parties; but the next section makes an exception to the general rule by providing that if the divorce be granted on the ground of adultery or extreme cruelty, the guilty party shall receive only such portion as the Court shall deem just under the facts of the case. The inference is that in the excepted cases the injured party is to receive, as a general rule, more than one half of the property, and as much more as the Court shall deem just. Under the circumstances of this case, we think the Court ought to have awarded to the wife three fourths of the community property after the payment of the community debts. Judgment reserved and cause remanded with an order to the Court below to modify its judgment in accordance with this opinion. Statement of Facts. [No. 3,955.] PIO PICO v. J. H. COLEMAN, CARLOS OLVERA, AND MARIA MARTINEZ. DEED-RULE OF CONSTRUCTION.-In construing a deed, all its parts must be consulted, and it must be read in the light of surrounding circumstances, and the intention the parties arrived at in this way. APPEAL from the District Court of the Seventeenth Judicial District, Los Angeles County. * The action was brought to quiet title to a tract of land known as the Rancho Paso de Bartolo or Ranchito containing 8,000 acres, and for the construction, or, if necessary, the reformation of a deed. The deed, which is in Spanish, and is dated May 5th, 1855, recites a consideration of one dollar, and as translated, contains the following language: "I, Pio Pico, * contract, cede, sell and convey to Maria Martinez, her heirs and successors forever, a piece or tract of land that contains, from east to west, 865 varas, and from north to south 294, situate to the north of my principal residence and habitation; which land that I cede, I sell and convey with (cayo terrene que cede, vendo y evangeno, con el derecho) the right, title and interest, claim or demand that * * I have * * -*- in and to all that tract of land known by the name of * * * * Paso de Bertolo and San Rafael," etc. The Court found that at the date of the deed the grantee was living on the land described by varas; that the deed was made in pursuance of a verbal agreement for the conveyance of that tract only; that after receiving the deed, and prior to 1865, she enclosed the tract of 865 varas by 294 varas, claiming it to be the only land conveyed to her; that in 1868 Pico, with the knowledge of Martinez, had the tract surveyed, claiming it to be the only land conveyed by the deed; that Martinez never at any time set up any claim to any lands outside the tract; that the plaintiff has constantly resided on the rancho, cultivating it and herding stock upon it without interruption; that on the 8th of February, 1870, Martinez executed a deed to defendants Coleman and Olvera, "conveying the CAL. REPS. XLVII—–5. Argument for Respondent. entire ranchito, the premises in controversy, for the consideration of $2,000;" that the rancho in 1855 was worth from $50,000 to $80,000; that the agent of Martinez informed Olvera that he was selling the land described in the deed from Pico, the tract of 865 varas by 294 varas; and that the plaintiff has had the actual, continued and exclusive possession of the ranchito, except the tract described, down to the commencement of this action. As conclusions of law, the Court found that the deed to Martinez conveyed to her the whole rancho; that an action to correct any mistake in deed is barred by the statute of limitations, and that under the statute (Hittell, 4,355), "by the statute of limitations, the plaintiff is the owner of all the lands on said ranchito, which, for a period of five years next prior to the bringing of this action, were protected by a substantial inclosure, or were usually cultivated or improved by him or his tenants, and as to so much of the rancho, plaintiff is entitled to maintain this action, to-wit: amounting to some 1,800 acres." Judgment was rendered that the plaintiff's title be quieted accordingly. The plaintiff moved for a new trial, which was denied. He also moved for judgment in accordance with the prayer of the complaint, and the motion having been refused he appealed from the judgment and from the orders denying his motions. Glassell, Chapman and Smith, for Appellant, argued that the deed from Pico to Martinez was intended to convey only the tract described by varas, and that it was so understood by the parties, and acted upon by them for a long term of years. They cited Moore v. Magrath, 1 Cowper 9, and Thorpe v. Thorpe, 1 Lord Raymond 235, and Civil Code, Sec. 1647. They also argued that the construction of the deed by the parties was conclusive, and cited Sneed v. Osborne, 25 Cal. 619; Hastings v. Stark, 36 Cal. 122; Ratcliff v. Grey, 40 N. Y. 510; Rochelle v. Adam, 7 Cowen 761, and S. C. 6 Wend. 470. Volney E. Howard & Sons, John Currey, Kewen & Howard and Henry E. Highton, for Respondents, contended that the |