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ALLEN, P. J. Action to recover posses- | ownership and right of possession may be sion of certain unpatented mining claims. Defendants had judgment. Plaintiffs in due time appealed, upon a statement, from the order denying a new trial.

The only questions presented upon this appeal relate to the action of the trial court in admitting certain testimony and as to the sufficiency of the evidence to support certain material findings. The complaint is in the usual form, alleging plaintiffs' ownership, possession, and right of possession on December 30, 1903, of three unpatented lode mining claims, designated as the "Bonanza," "Blossom," and "Lucinda," and of plaintiffs' ouster therefrom by defendants. The answer is a denial of the ownership and right of possession in plaintiffs, and of the ouster. Under these issues the court found that on the date named plaintiffs were not the owners or entitled to the possession of said mining claims, although they were in actual possession; that plaintifs had not performed the annual assessment work thereon for three years; and that defendants had made valid locations of such claims after forfeiture by plaintiffs and had taken peaceable possession and continued work thereon up to the commencement of the trial.

Plaintiffs deraigned title through mineral locations, the validity of which is not questioned, and through deeds from such locators and intermediate owners. The court, under objections, permitted the defendants to introduce testimony tending to vitiate two deeds affecting plaintiffs' title to the "Bonanza" claim. This action of the court is assigned as error, because no question of fraud was raised by the answer. The recent decision of Chrast v. O'Connor, 83 Pac. 238, 41 Wash. 360, would seem to settle this question adversely to appellants. That decision is based upon Mather v. Hutchinson, 25 Wis. 27, where it is held that, under a complaint averring ownership in general terms, the defendant must be allowed to prove anything which would defeat the title offered by the plaintiff. The reason assigned is most convincing, for plaintiff not being required to set up his deraignment of title he might upon the trial prove under such general averment any source of title available. Any other rule applying to defendants would require them to foreknow and avoid, by specific allegations, a title which plaintiff was not bound to disclose at all. This rule has support, also, in Cooper v. Miller, 113 Cal. 246, 45 Pac. 325; Goldberg v. Bruschi, 146 Cal. 710, 81 Pac. 23 and Sparrow v. Rhoades, 76 Cal. 211, 18 Pac. 245, 9 Am. St. Rep. 197.

The court found that the plaintiffs were not the owners or entitled to possession of the mining property on December 30, 1903, nor were they on said date ousted therefrom by defendants. These findings are attacked by appellants upon the ground that there is no evidence in the record sufficient for their support. The findings of the court as to 91 P.-11

sustained upon either of two theories: First, that plaintiffs failed in their deraignment of title from the original locators; or, second, that all rights under the original location had lapsed by reason of the failure to do the annual assessment work required by the federal statutes in order to perpetuate the possessory right, and that defendants exercising a right of citizenship had entered thereon and made a subsequent location before resumption of work by appellants. The first theory, in so far as the "Bonanza" claim is concerned, derives its support alone from the testimony of one Acosta, which is to the effect that he never knowingly or voluntarily made any conveyance of this mine to plaintiffs, and never knew that he had any title to the mine and never made any claim of ownership thereto; that his only contract with the plaintiffs was that if they would pay him $400 in settlement of a claim of $650, which he held against certain trustees, he would give them a receipt in full; that pursuant to this agreement he went with plaintiffs to the town of Hedges, where several papers were spread upon a counter; that when he signed one plaintiffs took it away and presented him with another; that in that way he signed two, three, or four papers; that no notary or other officer ever made known to him the contents of the papers so signed, or asked him any questions in relation thereto; that personally he did not know or care what he was signing, but simply wanted to get his money and get away from the mine; that he never had knowledge of any deed having been made to him by such trustees until he received that information in court upon the trial. If the court accepted Acosta's statements as true, which fact is suggested by the findings, it would follow that the possession of the deed from Acosta was obtained by the plaintiffs surreptitiously. A deed, the possession of which is fraudulently or wrongfully obtained from the grantor, without his knowledge, consent, or acquiescence, is no more effectual to pass title to a supposed grantee than if it were a total forgery. Devlin on Deeds, § 267, and cases cited. The validity of the deed from Acosta to plaintiffs depends upon his due execution thereof and voluntary delivery. That such deed be voluntary, it is essential that the character of the instrument be known, as well as that the act of delivery should be intended by the party. If the delivery be not voluntary, the instrument is a nullity, unless some act is shown in respect thereto which would estop the grantor from denying its validity, or by some subsequent act a ratification is established. There is nothing in the record from which it may be claimed that plaintiffs were, by the conduct of Acosta, led to do what they otherwise would not have done to their pecuniary prejudice-this being said to be the vital principle of equitable estoppel. Carpy v. Dowdell, 115 Cal. 677,

47 Pac. 695. If Acosta's statements be true, under the contract with plaintiffs the payment of the $400 made by plaintiffs was not upon the faith of any conveyance, nor was it intended that a conveyance should enter into the transaction connected with the payment of money to him. Neither can it be said that, with knowledge of the transaction brought home to him. Acosta ever acquiesced in said deed or ratified the same.

As to the "Blossom" mine, the record discloses that the title thereto was never in Acosta; that as early as 1891 the owners of said mine joined in a conveyance of the "Blossom" mine to a corporation known as the "Blossom Mining & Milling Company." the plaintiffs ever acquired any title to this particular mine, it was through a conveyance directly to them by the Blossom Mining & Milling Company, authorized by the board of directors in 1902. It appears from the testimony of the secretary that, notwithstanding the authorization at the date last named and the physical signing of the deed pursuant thereto by the president and secretary of the corporation, the secretary retained possession of the deed and put the same in the minute book of the corporation, where it remained until long after the commencement of this action, when the officers acknowledged the same, and it was placed upon record. From this evidence the court was justified in an implied finding that the conduct and acts of the parties in 1902 did not amount to a delivery; nor does it appear from the record that an immediate delivery was intended, notwithstanding the secretary was also one of the grantors; nor is there anything shown indicating that plaintiffs ever paid to the corporation anything of value for this property, or ever acquired any equitable interest therein.

As to the "Lucinda" claim, nothing appears in the record supporting plaintiffs' claim of ownership and right of possession. If, therefore, these plaintiffs, without color of title, entered into the possession of any of these mineral claims without relocation or initiating any right thereto, the same was open to relocation at any time after the legal owners were in default in the annual assessment work. It is contended, however, by appellants, that evidence of the nonperformance of the annual assessment work was inadmissible because no claim of forfeiture was alleged in the answer. Under a general denial or its equivalent, each party to a contested action claims the title out of which the right of possession springs, and the court determines which of the two holds it. Marshall v. Shafter, 32 Cal. 197. It must be conceded that, if the defendants' title is in issue, they are entitled to prove those facts which tend to support it, and it is essential in determining defendants' ownership in the case at bar

for the court to know whether or not the mineral ground which they claim to have relocated and own was at the date of relocation open thereto. Section 2324, Rev. St. U. S. IU. S. Comp. St. 1901, p. 1427], provides that, upon a failure to comply with the conditions relative to the annual assessment work, the claim or mine "shall be open to relocation in the same manner as if no location of the same had ever been made; provided, that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location." There is little room for controversy as to the default upon the part of the owners under the original location in the performance of the annual assessment work for the three years preceding the relocation. Whoever were the successors to the ownership of the original locators, if they failed for three years to perform the annual assessment work, the mines and claims became open to relocation. It is determined in Contreras v. Merck, 131 Cal. 214, 63 Pac. 336, that the principal fact at issue was the ownership of the mine; that it was not necessary for plaintiff to allege forfeiture or abandonment by defendant. If this be the rule, as applying where the issue of ownership is raised by the answer with the presumptive denial upon the part of plaintiff, no reason is apparent why the same should not apply to the issues raised by a complaint and answer. If the original locator, or his successors in interest, be in default in such annual assessment work, they are no longer the owners of the exclusive possessory right; and the defendant should be permitted to show that such exclusive possessory right has terminated, and that after such termination he peaceably entered upon the premises and relocated the same. The mere naked possession of mineral land does not guaranty any rights as against a subsequent locator entering in good faith and making a valid location of the property. Horswell v. Ruiz, 67 Cal. 112, 7 Pac. 197.

It is further claimed by appellants that there is no evidence connecting any of the defendants, other than Clark, with the relocation, or title to these claims. We think this point need not be considered further than to suggest that the plaintiffs have made all of these defendants parties and have alleged that they had ousted plaintiffs from the possession and were the present occupants of the premises. They allege that the Salamanca Gold Mining & Milling Company is a corporation, and no finding in that regard was necessary.

A careful examination of the record c vinces us that there is no prejudicial error apparent therein, and the order is affirmed.

We concur: SHAW, J.; TAGGART, J.

(5 Cal. App. 668)

KEIFER v. MYERS. (Civ. 343.) (Court of Appeal, Second District, California. June 3, 1907. Rehearing Denied by Supreme Court Aug. 1, 1907.)

SALES-SALE DISTINGUISHED FROM PLEdge.

I'laintiff's transfer of 198 shares of corporate stock to defendant was a pledge and not a sale, where, when the transfer was made, they executed an agreement reciting the transfor, that defendant was the owner of the stock, that it was pledged to a bank as additional security for plaintiff's debt, that the company was indebted to M.. that plaintiff had loaned and would lend money to the company, that plaintiff desired an option to purchase 198 shares of the stock, and binding defendant to sell within one year, upon plaintiff reimbursing defendant for money paid the bank for plaintiff, for one-half the money advanced the corporation by M. and defendant; there being no other consideration for the transfer, and none of plaintiff's liabilities being canceled.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 43, Sales, § 14.]

Appeal from Superior Court, Los Angeles County; Waldo M. York, Judge.

Action by J. H. Keifer against R. H. MyPlaintiff appeals from a judgment of

nonsuit. Reversed.

Lynn Helm and E. S. Williams, for appellant. W. R. Hervey and R. H. Myers, for respondent.

SHAW, J. Appeal from a judgment of nonsuit. At the time in question, the Sanitary Laundry Company was a corporation with a capital stock of $40,000, divided into 400 shares of the par value of $100 each. Of this stock the appellant, J. H. Keifer, owned 198 shares, one George R. Myers owned 198 shares, and the remaining four shares were owned by three other persons, who, with said Keifer and said George R. Myers, constituted the board of directors of said corporation. The corporation was in financial distress, and it appears that neither appellant nor said George R. Myers was in a position to extend it the aid needed. The appellant had borrowed from the Broadway Bank & Trust Company $4,500, evidenced by two promissory notes, and as security for their payment had, in addition to giving a mortgage upon certain real estate owned by him, deposited his 198 shares of stock in pledge with said bank as collateral security. The laundry company was largely indebted to said George R. Myers for moneys which he had loaned it. Under these conditions, the respondent, R. H. Myers, and J. H. Keifer entered into negotiations, which, on December 30, 1903, culminated in a transfer of respondent's 198 shares of stock to said R. H. Myers, and contemporaneously therewith the execution of an agreement in writing. wherein it was recited that said Keifer had sold, assigned, and transferred to R. II. Myers 198 shares of stock, and that R. H. Myers was the owner and holder thereof. That said stock was pledged to said bank as additional security for the payment of a certain

promissory note of $4,500, executed by said J. H. Keifer and his wife, which said note was also secured by a mortgage of real estate. That said laundry company during the time said Keifer was a stockholder had become largely indebted to George R. Myers for moneys by him loaned to said company. That said R. H. Myers had loaned and advanced, and would thereafter loan and advance, divers sums of money to discharge a part of the indebtedness of the said company in order to save it from bankruptcy, and to pay such of the operating expenses as might be necessary for the best interests of the company. That said Keifer desired an option to purchase 198 shares of said stock, and wherein said R. H. Myers covenanted and agreed to sell to said Keifer, within one year, time being made the essence of the contract, 198 shares of said stock, upon Keifer making payment to R. II. Myers of: First, all moneys paid to said bank by R. H. Myers on account of the notes of said Keifer, for the payment of which said stock was held as collateral security; second, one-half of all moneys theretofore or thereafter, up to the exercise of the option, advanced to said company by R. H. Myers, less any payments made thereon by said company; third, onehalf of all moneys theretofore loaned to said laundry company by said George R. Myers, less any payments made thereon by said company; and, fourth, interest on said sums at 7 per cent. per annum. It was further provided that an accounting for any dividends paid upon said stock should be made and credited to said Keifer at the time of his exercising said option to purchase. R. H. Myers covenanted to advance to the company from time to time such sums of money, not exceeding $4,000, as might be necessary to save the company from bankruptcy. At the same time, and with the consent of appellant, an agreement in writing was made between said bank and said R. H. Myers, whereby the bank agreed to deliver the 198 shares of stock so pledged to it by Keifer to the said R. H. Myers at any time upon his paying the sum of $1,000, to be applied on Keifer's indebtedness to said bank, and the delivery to the said bank of an agreement on the part of R. II. Myers to pay any deficiency, not exceeding $750, which might remain upon Keifer's notes after exhausting the real estate so held by it as security for the payment thereof.

It will be noted, by this agreement with the bank, R. II. Myers assumes no obligation whatever. There was no other consideration for said transfer than that mentioned in the agreement. It appears that R. II. Myers did pay upon said indebtedness of Keifer the sum of $714.92, and no more, and that from the proceeds of the real estate so held by the bank the sum of $2.540 was paid on the principal, together with $260 interest thereon. From time to time after December 29. 1903, which was the date of both the

not Keifer's-a proposition which borders upon absurdity.

agreement made between Keifer and Myers | obligation to protect his own property, and and that between Myers and the bank, though neither was delivered until the 30th of December, 1903, R. H. Myers advanced to said laundry company divers sums of money, part of which was paid by said company. Keifer did not exercise his option to repurchase the stock within the year, but on January 24 and January 27, 1905, he offered to repurchase and redeem said stock under the terms of said agreement, and asked respondent to render him a statement and account of the amount due thereon, which he, in writing, tendered and offered to pay. No objection was made to this tender. Respond

ent claimed that the transaction constituted an absolute sale, and that appellant, having failed to exercise his option within the year, had lost the right to purchase the stock. the other hand, appellant contends that the transfer was a pledge of stock.

"The motion for nonsuit admits the truth of plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom, and upon such motion the evidence should be interpreted most strongly against defendant." Hanley v. California, etc., Co., 127 Cal. 232, 59 Pac. 577, 47 L. R. A. 597; Goldstone v. Merchants', etc., Storage Co., 123 Cal. 625, 56 Pac. 776. The record shows that the agreements dated December 29, 1903, were delivered on the following day, on which date the certificate of stock representing the 198 shares of stock which Keifer had pledged to the bank was withdrawn and a new certificate for said stock issued to R. H. Myers and by him redeposited with said bank. The agreement whereby Keifer was given the right to repurchase the stock and the transfer of the stock to R. H. Myers constituted one and the same transaction. "Several contracts relating to the same matters, between the same parties, and made as parts of substantially the one transaction, are to be taken together. Civ. Code, § 1642." Curtin v. Ingle, 137 Cal. 95, 69 Pac. 836, 1013. It appears that R. H. Myers paid no consideration whatever for the transfer of the stock; that he assumed no obligation whatever to pay anything upon Keifer's indebtedness to the bank, nor did he secure the release of Keifer's obligations as a stockholder of the company, or assume or agree to pay them. If the company failed to pay George R. Myers, Keifer was still liable for his proportion of its indebtedness, notwithstanding the loss of his stock. There was no cancellation or surrender of the evidence of any of Keifer's indebtedness. The only obligation assumed by R. H. Myers was to advance money to the company only in case it became necessary to save the company from bankruptcy. Such contingency might never arise; but, if any advances were made, it was provided that Keifer should pay one-half thereof upon a repurchase of the stock. If Myers was the owner of the stock, instead of the pledgee, as he claims, the covenant was an

The fact that the agreement giving Keifer the right to repurchase and the transfer of the stock were contemporaneous (Weiseham v. Hocker, 54 Pac. 464, 7 Okl. 250; Clark v. Woodruff [Mich.] 51 N. W. 357;1 Watkins v. Williams, 31 S. E. 388, 123 N. C. 170); that the stock had a substantial value, and Myers neither paid nor agreed to pay anything in consideration of its transfer to him (Husheon v. Husheon, 71 Cal. 407, 12 Pac. 410; Rubo v. Bennett, 85 Ill. App. 473); that none of Keifer's existing liabilities were canceled, and Myers assumed no part thereof under the terms of the agreement; that as a condition of retransfer Keifer was to pay one-half of the company's unpaid indebtedness to George R. Myers and one-half of the money which respondent had loaned the company, which shows that to this extent at least the stock was transferred as security (sections 2986, 2387, Civ. Code) for existing debts of the company for a part of which Keifer was liable (Ahern v. McCarthy, 107 Cal. 386, 40 Pac. 482; Farmer v. Grose, 42 Cal. 169); that no fixed price was specified as a consideration for the repurchase, but the amount was to be as much as would reimburse R. H. Myers for one-half of such sums as he might advance and which might remain unpaid, including one-half of the amount due from the company to George R. Myers; that Keifer was chargeable with interest and to be credited with dividends-all are circumstances which tend, some of them very strongly, to prove that the transfer was a pledge, and not a sale of the stock.

Respondent lays much stress upon the words used in the agreement, but the use of the words "sold, transferred, and assigned," and the recital that Myers is the owner of the stock, cannot change the character of the transaction. For the purpose of ascertaining the real contract made by the parties, the court looks beyond the terms of the instrument. Hodgkins v. Wright, 127 Cal. 688, 60 Pac. 431.

The judgment is reversed.

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2. EVIDENCE-PAROL EVIDENCE-ADMISSIBIL- | dro, February 3, 1903. Received from J. C.

ITY.

Under Civ. Code. § 1741, providing that a contract for the sale of land must be in writing. where the description in a contract for the sale of land was definite, certain, and complete, parc evidence was inadmissible to show that the subject of the contract was entirely a different piece of land from that described therein.

Ed. Note.--For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1778-1780.]

Appeal from Superior Court, Los Angeles County; D. K. Trask, Judge.

Action by J. C. Willmon against George H. Peck and others for specific performance of a contract to purchase real estate. From a judgment for defendants, plaintiff appeals. Affirmed.

D. M. McDonald and Harris & Harris, for appellant. Frank Karr, and Wellington

Clark, for respondents.

SHAW, J. Plaintiff appeals from a judgment rendered in favor of defendants in an action for the specific performance of a contract to purchase real estate. At the time of the transaction, George H. Peck was the owner of the east 1⁄2 of the only block numbered 61 located in the city of San Pedro, which east 1⁄2 of said block comprised lots 7 to 12, both inclusive. Neither defendant had or claimed any interest in the west 12 of said block, which comprised lots 1 to 6, both inclusive. It appears from parol testimony that some time prior to February 3, 1903, the date of the alleged purchase, a real estate broker, as the agent of said George H. Peck, and at his request, made a rough pencil sketch of said east 1⁄2 of said block 61, showing the same to be divided into lots numbered 1 to 14, both inclusive, which sketch was shown to said George H. Peck and posted in his office. This sketch or subdivision of the east 2 of said block was exhibited to the plaintiff by said agent, who pointed out to him upon the ground that portion of said east 1⁄2 of said block corresponding to lots designated as 5 and 6 upon said rough pencil sketch so made by said agent. This sketch was never filed for record, nor was it produced at the trial, though the said agent then made and exhibited a copy of said sketch as nearly as he could reproduce the same, which, like all of the foregoing parol testimony, was received in evidence over the objections of the defendants. No survey was ever made of the east 1⁄2 of said block for the purpose of subdividing it. It was agreed between plaintiff and said agent acting for defendant George H. Peck that plaintiff would purchase lots 5 and 6, as designated on said pencil sketch, whereupon plaintiff gave to said agent his check, payable to said George H. Peck, for $100, as a deposit upon the purchase price of said lots, which check said Peck received and cashed, and thereupon delivered to said plaintiff a receipt reading as follows: "San Pe

Willmon one hundred dollars part payment on lot 5 and 6, block 61, San Pedro. Full price $1,500.00. Geo. H. Peck." Plaintiff thereafter tendered the balance of the purchase price and demanded a conveyance of lots 5 and 6, as designated upon said socalled subdivision of the east 1⁄2 of block 61, which deed also described said lots by metes and bounds, and upon a refusal of said demand brought this action.

Both the check and the receipt describe the property sold as being "lots 5 and 6, block 61, city of San Pedro," both of which lots are in the west 1⁄2 of said block, and neither of which was owned by either of the defendants. The lots involved in this action are admittedly not the ones so described, but are lots 5 and 6 as delineated upon the alleged pencil sketch of what was represented to plaintiff as being Peck's subdivision of the east of block 61; and, while the trial court permitted parol evidence tending to prove that the lots sold were other than those so described in the writing, it, in effect, found that such evidence was valueless; and as a conclusion of law the court found, inasmuch as parol testimony could not be received for the purpose of supplying the description of real estate in the contract for the sale thereof, that said contract was fatally defective for want of description of the lands claimed to be covered thereby, and that said defects could not be supplied by parol evidence. In making this finding the court arrived at the same result, though in a roundabout way, as though it had excluded the testimony in the first instance. The evidence was improperly admitted, and, having been admitted, "it was entitled to no weight whatever, and should be given none in arriving at a conclusion as to the sufficiency of the evidence." Hoult v. Baldwin, 78 Cal. 410, 20 Pac. 864.

The conclusion of the trial court was undoubtedly correct. The land described in the receipt, lots 5 and 6, block 61, in the city of San Pedro, is situated in the west 1⁄2 of said block; but it was not these lots, the conveyance of which the plaintiff sought to enforce, but other lots situated in the east 12 of said block, and which he sought to identify and describe by parol testimony. The law seems well settled that, in order to warrant the specific performance of a contract for the conveyance of real property, the agreement to convey must not only be in writing and subscribed by the party to be charged, but the writing must also contain such a description of the property agreed to be sold, either in terms or by reference, that it can be ascertained without resort to parol evidence. Marriner v. Dennison, 78 Cal. 208, 20 Pac. 386; Craig v. Zelian, 137 Cal. 106, 69 Pac. 853. Where there is an incomplete description, parol evidence not inconsistent therewith may be offered in aid thereof, not,

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