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There is no doubt that the reasons assigned by the court for making the order of dismissal were wholly insufficient. The notice of appeal was given in time, was filed in time, and so was the bond filed within the time fixed by law. All of these questions were before the court and decided in the case of Coker v. Superior Court of Colusa Co. 58 Cal. 177. It was there held that— “To effectuate an appeal from the judgment of a justice of the peace, three things are necessary, viz.: The filling of a notice of appeal with the justice, the service of a copy of the notice upon the adverse party, and the filing of a written undertaking; and all these must be done within thirty days after the rendition of the judgment. Sections 974, 978, Code Civil Proc.” Here the notice of appeal was served and filed, and the undertaking on appeal was filed, within the time prescribed by the statute, but not in the order named in the statute. The mere order in which the acts are done is not material; but when done within the time limited, the appeal is perfected. Coker v. Superior Court, supra. The Coker Case is very much in point, and settles the question that the appeal was improperly dismissed on the grounds stated in the order of dismissal. We have shown that the appeal was regularly taken according to the provisions of the Code, and the case was therefore properly in the superior court for trial. Had that court the right to dispose of the appeal in the summary manner in which it did, or was it not the duty of the court, under the circumstances, to dispose of the case on its merits? This court said, in the case of Levy v. Superior Court of Yolo Co. 5 Pac. Rep. 353,“That court [the superior court] can neither give to itself jurisdiction by holding an insufficient undertaking sufficient, nor divest itself of jurisdiction by holding a sufficient bond insufficient.” Neither could the superior court in the case now before us divest itself of the jurisdiction properly vested in it by the appeal by an arbitrary order dismissing the appeal in the manner complained of. The order of the court below dismissing the appeal is hereby annulled, and the cause remanded to the court below to proceed in the same according to the principles contained in this opinion.

We concur: MYRICK, J.; McKEE, J.; THoRNToN, J.

(67 Cal. 455)
HARRIs, Adm'r, etc., v. HARRIs. (No. 9,754.)"

Filed September 24, 1885.

BILL TO QUIET TITLE AND CANCEL DEED-EVIDENCE.

In an action to quiet title to lands which are claimed as part of the estate of a decedent, and to cancel a deed thereof made by him to his father just preceding his death, where the issue arises whether or not the son acquired the land by a previous conveyance from his father without consideration, and as his trustee, to reconvey the same when requested to do so, evidence is admissible of statements made by the son as to the nature of the transaction, and the consideration therefor.

Commissioners' decision. Department 1. Appeal from superior court, Lassen county. C. G. Kelly, M. Marstellar, and Hart & White, for appellant. C. McCloskey and E. V. Spencer, for respondent. Foot'E, C. An appeal from an order refusing the defendant a new trial. The respondent objects to the consideration by this court of the statement on that motion which is incorporated in the transcript. We can see no force in his objection. This was an action to cancel a deed made by a son, just preceding his death, to his father, and to quiet the title of the son's estate to the lands purporting to be by that deed conveyed. It was an issue in the case whether or not the son had acquired these lands by a previous conveyance from his father, without consideration, and as a trustee for the latter, to reconvey them when requested by him so to do. As bearing upon this the plaintiff introduced in evidence two bills of sale of a band of horses, the first from the father to the son, the second from the son back to the father. It also appeared from the plaintiff's evidence that the bills of sale were contemporaneous with the deeds of conveyance; that is, that the father's deed to the son was made in connection with the first, and the son's deed in connection with the second, bill of sale, and that the transfers of the lands and horses by both father and son were, in point of time and other material ways, respectively, so blended together as to be substantially parts of one transaction, where the surrounding circumstances, and statements of the parties at these respective times, became pertinent in their entirety. A motion was made by the plaintiff's counsel to strike out certain parts of A. A. Smith's testimony relative to statements made by James H. Harris, as to the consideration of the first bill of sale; and objection was also made by him to certain questions on this same subject, propounded by defendant's counsel to Smith. This motion to strike out, as also the objections to the questions, were sustained by the court, and excepted to by the defendant, and are assigned as errors in his eleventh, twelfth, thirteenth, and fourteenth specifications thereof. Under the issue above stated, and the evidence as then before the court, a full and fair investigation of the matter was proper, and to that end all of the evidence given by and offered from Smith was pertinent, and the court erred in striking out any part thereof, and in not permitting him to make responsive answers to the questions specified in their entirety. And it should have considered such answers in rendering judgment in the case.

*See note at end of case.

It was proposed to impeach the witness McKissick by the evidence offered of the witness Mrs. Shinn. That evidence should have been admitted. The foundation for it was sufficiently laid. And the questions asked and proposed to be asked Mrs. Shinn, with the abovementioned object in view, were proper.

The order of the court below should be reversed, and the cause remanded for a new trial.

We concur: SEARLs, C.; BELCHER, C. C.

BY THE CourT. For the reasons given in the foregoing opinion the order is reversed, and the cause remanded for a new trial.

NOTE.

1. PAROL TRUSTS IN LAND. An express trust cannot be created by parol, (Ingham v. Burnell, 2 Pac. Rep. 804; Allen v. Withrow, 3 Sup. Ct. Rep. 524;) nor will a voluntary conveyance without consideration raise a resulting trust in favor of persons for whom the grantee agrees by parol to hold the property. Shafter v. Huntington, 19 N. W. Rep. 11. Where lands are purchased by a party who causes them to be conveyed to another instead of to himself, there is no implied trust in favor of the purchaser, and unless the grantee gives back a written declaration of trust, or some contract to convey to the purchaser, he has a legal right to retain what has been deeded to him. Bumpus v. Bumpus, 19 N. W. Rep. 29. See Stebbins v. Morris, 23 Fed. Rep. 360. In a Minnesota case, where there was no written declaration of trust, but the defendant received an absolute conveyance of lands, made to him as grantee under a parol agreement (which was the condition or inducement of the grant) to hold such lands in trust for the wife of the grantor, (it being intended as a provision or advancement for her.) and to collect rents, pay taxes, and incumbrances thereon until opportunity for an advantageous sale, and thereupon to sell and dispose of the same, and account for and pay over to the cestui que trust the net proceeds, it was held that the transaction was invalid as an express trust, and, no fraud or artifice appearing in the inception of the agreement, the mere failure to perform the same did not constitute fraud, or raise a trust ex maleficio in her favor which could be enforced as such; nor was she entitled, upon a sale of the ..and, to recover the proceeds thereof by virtue of the agreement to execute such trust. Randall v. Constans, 23 N. W. Rep. 530. But it was further held that where a valuable interest in property has passed to the grantee on the faith of a contract which he afterwards refuses to perform on his part, equity will provide a remedy (if seasonably sought) by compelling restitution, or affording other appropriate relief to the party entitled. Id.

A. and B. agreed orally that A. should negotiate for the purchase, at a certain price, of a piece of land, the price to be paid and the title taken by B., and that upon a sale the profits should be divided between them. Held, that no trust was created, and that the agreement was not within the statute of frauds. Snyder v. Wolford, 22 N. W. Rep. 255. Where A. was largely indebted, and executed a deed of trust to trustees, who sold the land at auction, and his father-in-law bought it in and assumed payment of the creditors, which was to be made from the in conne of the property purchased, and the father agreed by parol that the purchase was made for tle 'fit Of the Wife of A., and she remained in possession, it was held that the parol agreement did not create a resulting trust in the real estate in her favor, subject only to the incumbrance money bid at the sale. Laughlin v. Mitchell, 14 Fed. Rep. 382. So an oral agreement of a party to purchase with his own money lands of a mining corporation at tax sale, to prevent others from obtaining title thereto, and to hold said lands in trust for the benefit of the trustees and persons interested in the trust, is invalid under the California statute of 1858. St. 1858, p.266, 46; Donohoe v. Mariposa Land & Min. Co. 5 Pac. Rep.

495. When an insolvent debtor procures a conveyance of land purchased to be made to his wife, the husband himself paying the purchase price, no trust results in favor of the latter, but the title vests in the wife, subject only to the rights of the creditors of the husband. Leonard v. Green, 16 N.W. Rep. 399.

2. PAYMENT of PURCHASE MONEY. To take an agreement out of the statute of frauds and establish a resulting trust on the ground of payment of purchase money, the purchase money must be the property of the party paying it at the time of the payment. Ryan v. Dunphy, 1 Pac. Rep. 711; In re Wood, 5 Fed Rep. 443. And when the purchase money of land is paid by A. and the title taken by B., to raise a resulting trust for the benefit of A., the entire purchase money must have been paid by A.; or, if he paid a part only, such part must have been paid for some aliquot part of the property, as a third or fourth, and such part must be ascertained with certainty, and such trust must arise at the time of the purchase; it cannot arise by after advances. In re Wood, 5 Fed. Rep. 443. See Somers v. Overhulser, 7 Pac. Rep. 645. But where A., B., and C orally agree to buy a tract of land, each to contribute one-third of the price and to have an undivided one-third of the land, the title to be taken in the name of C., and the land is purchased and consideration equally contributed as agreed, a resulting trust will arise in favor of A. and B. to the extent of the purchase money contributed by them; and when the entire purchase price was $3,500, $1,000 of which was paid when the deed was delivered, and $500 to be paid in January following, and balance of $2,000 in two years from date of sale, and more than sufficient of the land was sold by C. to meet the deferred payments, the sales of the joint property will inure to the benefit of all. Bear V. Koenigstein, 20 N. W. Rep. 104. See Somers v. Overhulser, 7 Pac. Rep. 3. FRAUD. Where the purchaser at a foreclosure sale of mortgaged land in the possession of parties under contracts for conveyances agrees to carry out the terms of such contracts, and in consideration of such agreement, and on the faith of it, the holders of the contracts take no steps to protect their interest, and allow the property to be sold at a low rate, such agreement, though verbal, will be binding, and a trust created for the benefit of the holder of the contract. Martin v. Morris, 22 N. W. Rep. 525. See Albright v. Oyster, 22 Fed. Rep. 628. Where land is voluntarily, and without any solicitation on the part of the grantee, conveyed to him absolutely, but in reality for the benefit of another, until she attains her majority, when it is to be conveyed to her, the mere refusal of the grantee to perform the contract, and his denial of its existence, however they may conflict with good morals and principles of honor, are not to be regarded as frauds which will authorize an equity court to enforce a parol contract for the creation of an express trust. The frauds having such an effect are those which induce a party to convey property to the trustee, or which consist in the refusal to execute defeasances or other instruments to witness the trust, or which secure the execution of an instrument different from the one agreed, and the like. Browne, St. Frauds, 4% 94,439; Burden v. Sheridan, 36 Iowa, 125; McClain v. McClain, 10 N. W. Rep. 333. See Allen v. Withrow, 3 Sup. Ct. Rep. 517. But when lands are caused by a husband to be conveyed to his wife with the understanding between them, definitely stated, that she will hold the title for him, and convey the property to any one to whom he may sell, or, in case he does not sell, then to him, a court of equity will enforce the trust upon the death of the wife, and compel her heirs to execute it. Bartlett v. Bartlett, 19 N. W. Rep. 691. Where A. and B. purchased lands jointly, but the legal title stood in the name of a third person, and A. and the party having the title quitclaimed their interest to C., who had notice of the equitable interest of B., and promised to convey to him, a conveyance by C. to B. of the latter's interest will be decreed. Byrne v. Ward, 19 N. W. Rep. 750. A., B., C., and D. had an interest in certain lands. D. died, and E. qualified as his executor, and in that capacity agreed with A., B., and C. that the land should be divided and C.’s share conveyed to F. in trust for C.'s children. The division was made, and C.'s share conveyed to F. by absolute deed, reciting a consideration which was not, in fact, paid, under an oral agreement that he would hold it in trust for C.'s children. F. afterwards, without consideration, made an absolute conveyance of the property to A. Held, that the conveyance to F. under the oral agreement made him a trustee for C.'s children, and that A. received the legal title subject to such trust. Albright v. Oyster, 22 Fed. Rep. 628. Where A. entered into a contract with B. for the purchase of certain real estate, for which he was to pay $800 in cash, and assume a mortgage of $400, which was then a lien on the land, and $800 was paid to B., which was the money of A. borrowed from C., and, by agreement, C., to secure himself, took the deed in his own name, and was to use and occupy the land, instead of receiving interest on the loan, until A. could sell certain cattle, and from the proceeds repay him, it was held that C. was a trustee for A.; and where A., in a reasonable time, sold the cattle and tendered him the amount of the loan, and requested a conveyance of the land according to agreement, and C. refused to carry out the agreement, and sold the land to a third party, C. could be compelled to account to A. for the money received, less the mortgage and money loaned. Weekly v. Ellis, 2 Pac. Rep. 96. See Walton v. Karnes, 7 Pac. Rep. 676.

4. PAROL TRUST MAY BE PERFORMED. A parol trust is not an absolute nullity, but simply void at the election of the trustee; and if he elects to perform his 'moral duty in the premises, and does execute the trust, the courts will protect him in doing so, and will protect the beneficiaries, as far as possible, in the enjoyment of the fruits of the executed trust. Karr v. Washburn, 14 N. W. Rep. 189; Cresswell v. McCaig, 9 N. W. Rep. 52. See Hays v. Regar, 1 N. E. Rep. 386.

5. Ev1DENCE. Generally parol evidence is not admissible to prove that a deed abSolute on its face was given in trust for the benefit of the grantor or others. Pavey v. American Ins. Co. 13 N. W. Rep. 925. And where it is sought through the establishment of a trust by parol evidence to defeat the title of one holding the fee of real estate under a deed absolute, the essential facts relied on must be proved with great clearness and certainty, or the attempt will fail. Loose and equivocal facts ought not to control the evidence of deeds. Falsken v. Harkendorf, 7 N. W. Rep. 749; Allen v. Withrow, 3 Sup. Ct. Rep. 524; Laughlin v. Mitchell, 14 Fed. Rep. 382.

6. PLEADING-PRESUMPTION. Where a complainant, in an action to enforce a trust, does not disclose that an alleged agreement creating or declaring a trust over or concerning lands was by parol, it will be presumed to be in writing and valid, within the statute of frauds. Randall v. Constans, 23 N. W. Rep. 530.

(2 Cal. Unrep. 535)
GIRDNER v. BESWICK. (No. 9,843.)

Filed September 24, 1885.

1. NEW TRIAL—WAIVER OF NOTICE OF DECISION. Where a losing party files and serves a notice of intention to move for a new trial, he is presumed to have Waived notice of the decision.

2. NOTICE OF MOTION FOR NEW TRIAL-TIME OF FILING. A notice of intention to move for a new trial must be filed within the time limited by statute (Cal. Code Civil Proc. , 659) or it will be unavailing.

Commissioners' decision. Department 1. Appeal from superior court, Siskiyou county. Wm. I. Nichols and H. B. Warren, for appellant. Wm. McConaughy and J. V. Brown, for respondents. Foot E, C. The plaintiffs recovered judgment in the court below for $2,000 damages for breach of contract. The defendant's counsel in their brief contend that proper notice of an appeal was given from the judgment of the court below, as well as from its order denying a new trial. We do not so understand that notice, and are of opinion that by no fair interpretation can it be held to include notice of appeal from anything except the order made by that tribunal overruling and denying the defendant's motion for a new trial; and the sole question now to be considered by this court is whether or not there exists any merit in the appeal from that order. There were two notices of intention to move for a new trial. The first one, in point of time, was duly and legally filed and served. From the filing and service of that notice the defendant is presumed to have waived that of the decision in the cause. Cottle v. Leitch, 43 Cal. 322. With the exception of the serving, settling, filing, and certifying of a statement, no further action on that motion for new trial was had in the court below. It would serve no useful purpose to declare what effect, even if it be considered as pending and undecided, the first has upon the second motion for a new trial, for the reason that the notice of intention for the latter was not filed until the sixteenth August, 1884,

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