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ALLEX, P. J. Action to recover posses ownership and right of possession may be sion of certain unpatented mining claims. sustained upon either of two theories: First, Defendants had judgment. Plaintiffs in due that plaintiffs failed in their deraignment of time appealed, upon a statement, from the title from the original locators; or, second, order denying a new trial.

that all rights under the original location The only questions presented upon this ap had lapsed by reason of the failure to do the peal relate to the action of the trial court in annual assessment work required by the fedadmitting certain testimony and as to the eral statutes in order to perpetuate the possufficiency of the evidence to support certain sessory right, and that defendants exercising material findings. The complaint is in the a right of citizenship had entered thereon usual form, alleging plaintiffs' ownership, and made a subsequent location before repossession, and right of possession on Decem sumption of work by appellants. The first ber 30, 1903, of three unpatented lode mining theory, in so far as the "Bonanza" claim is claims, designated as the “Bonanza," "Blos concerned, derives its support alone from the som," and "Lucinda," and of plaintiffs' ouster testimony of one Acosta, which is to the eftherefrom by defendants. The answer is a fect that he never knowingly or voluntarily denial of the ownership and right of posses made any conveyance of this mine to plainsion in plaintiffs, and of the ouster. Under tiffs, and never knew that he had any title these issues the court found that on the date to the mine and never made any claim of named plaintiffs were not the owners or en ownership thereto; that his only contract titled to the possession of said mining claims, with the plaintiffs was that if they would although they were in actual possession; pay him $100 in settlement of a claim of that plaintiff's had not performed the annual $630, which he held against certain trustees, assessment work thereon for three years; he would give them a receipt in full; that and that defendants had made valid loca- | pursuant to this agreement he went with tions of such claims after forfeiture by plaintiffs to the town of Hedges, where sevplaintiffs and had taken peaceable possession eral papers were spread upon a counter ; and continued work thereon up to the com that when he signed one plaintiffs took it mencement of the trial.

away and presented him with another; that Plaintiffs deraigned title through mineral

in that way he signed two, three, or four locations, the validity of which is not ques- papers; that no notary or other officer ever tioned, and through deeds from such locators made known to him the contents of the paand intermediate owners. The court, under pers so signed, or asked him any questions in objections, permitted the defendants to in

relation thereto; that personally he did not troduce testimony tending to vitiate two know or care what he was signing, but simdeeds affecting plaintiffs' title to the "Bo

ply wanted to get his money and get away nanza" claim. This action of the court is

from the mine; that he never had knowledge assigned as error, because no question of of any deed having been made to him by fraud was raised by the answer. The recent such trustees until he received that informadecision of Chrast v. O'Connor, 83 Pac. 238, tion in court upon the trial. If the court ac41 Wash. 360, would seem to settle this ques cepted Acosta's statements as true, which tion adversely to appellants. That decision fact is suggested by the findings, it would is based upon Mather v. Hutchinson, 25 Wis. follow that the possession of the deed from 27, where it is held that, under a complaint | Acosta was obtained by the plaintiffs surrepaverring ownership in general terms, the de titiously. A deed, the possession of which is fendant must be allowed to prove anything fraudulently or wrongfully obtained from the which would defeat the title offered by the grantor, without his knowledge, consent, or plaintiff. The reason assigned is most con acquiescence, is no more effectual to pass vincing, for plaintiff not being required to set

title to a supposed grantee than if it were a up his dera ignment of title he might upon total forgery. Devlin on Deeds, $ 267, and the trial prove under such general averment cases cited. The validity of the deed from any source of title available. Any other rule Acosta to plaintiffs depends upon his due exapplying to defendants would require them ecution thereof and voluntary delivery. That to foreknow and avoid, by specific allega such deed be voluntary, it is essential that tions, a title which plaintiff was not bound the character of the instrument be known, as to disclose at all. This rule has support, al. well as that the act of delivery should be inso, in Cooper v. Miller, 113 Cal. 216, 45 Pac.

tended by the party. If the delivery be not 325; Goldberg v. Bruschi, 146 Cal. 710, 81 voluntary, the instrument is a nullity, unless Pac. 23; and Sparrow v. Rhoades, 76 Cal. some act is shown in respect thereto which 211, 18 Pac, 245, 9 Am. St. Rep. 197.

would estop the grantor from denying its The court found that the plaintiffs were validity, or by some subsequent act a ratifinot the owners or entitled to possession of cation is established. There is nothing in the mining property on December 30, 1903, the record from which it may be claimed nor were they on said date ousted therefrom that plaintiffs were, by the conduct of Acosby defendants. These findings are attacked ta, led to do what they otherwise would not by appellants upon the ground that there is have done to their pecuniary prejudice—this no evidence in the record sufficient for their being said to be the vital principle of equitasupport. The findings of the court as to ble estoppel. Carpy v. Dowdell, 115 Cal. 677,

91 P.-11

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47 Pac. 695. If Acosta's statements be true, for the court to know whether or not the under the contract with plaintiffs the paly mineral ground which they claim to have rement of the $100 made by plaintiffs was not located and own was at the date of relocaupon the faith of any conveyance, nor was tion open thereto. Sertion 2324, Rer. St. l'. it intended that a conveyance should enter S. Il'. s. Comp. St. 1.901, p. 1127), provides into the transaction connected with the pay that, upon a failure to comply with the conment of money to him. Neither can it be ditions relative to the annual assessment said that, with knowledge of the transaction work, the claim or mine "shall be open to rebrought home to him, Acosta ever acquiesced location in the same manner as if no locain said deed or ratified the same.

tion of the same had ever been made; proAs to the "Blossom" mine, the record dis vided, that the original locators, their heirs, closes that the title thereto was never in assigns, or legal representatives, have not reAcosta; that as early as 1891 the owners of sumed work upon the claim after failure and stil mine joined in a conveyance of the before such location." There is little room "Blossom" mine to a corporation known as for controversy as to the default upon the the "Blossom Mining & Jilling Company.” If part of the owners under the original locathe plaintiffs ever acquired any title to this tion in the performance of the annual assessparticular mine, it was through a conveyance

ment work for the three years preceding the directly to them by the Blossom Mining & relocation. Whoever were the successors to Milling Company, authorized by the board of the ownership of the original locators, if directors in 1902. It appears from the tes they failed for three years to perform the an. timony of the secretary that, notwithstand nual assessment work, the mines and claims ing the authorization at the date last named became open to relocation. It is determined and the physical signing of the deed pursu in Contreras v. Merck, 131 Cal. 214, 63 Pac. ant thereto by the president and secretary of 336, that the principal fact at issue was the the corporation, the secretary retained pos ownership of the mine; that it was not nec:session of the deed and put the same in the essary for plaintiff to allege forfeiture or minute book of the corporation, where it abandonment by defendant. If this be the remained until long after the commencement rule, as applying where the issue of ownerof this action, when the officers acknowledg ship is raised by the answer with the preed the same, and it was placed upon record. sumptive denial upon the part of plaintiff, From this evidence the court was justified in no reason is apparent why the same should an implied finding that the conduct and acts not apply to the issues raised by a complaint of the parties in 1902 did not amount to a and answer. If the original locator, or his delivery; nor does it appear from the record successors in interest, be in default in such that an immediate delivery was intended, annual assessment work, they are no longer notwithstanding the secretary was also one the owners of the exclusive possessory right; of the grantors; nor is there anything shown and the defendant should be permitted to indicating that plaintiffs ever paid to the

show that such exclusive possessory right corporation anything of value for this prop has terminated, and that after such terminaerty, or ever acquired any equitable interest tion he peaceably entered upon the premises therein.

and relocated the same. The mere naked As to the "Lucinda" claim, nothing appears

possession of mineral land does not guaranty in the record supporting plaintiffs' claim of any rights as against a subsequent locator ownership and right of possession. If, there entering in good faith and making a valid fore, these plaintiffs, without color of title, location of the property. Horswell v. Ruiz, entered into the possession of any of these 67 Cal. 112, 7 Pac. 197. mineral claims without relocation or initiat It is further claimed by appellants that ing any right thereto, the same was open to

there is no evidence connecting any of the relocation at any time after the legal owners defendants, other than Clark, with the relowere in default in the annual assessment cation, or title to these claims. We think work. It is contended, however, by appel this point need not be considered further lants, that evidence of the nonperformance than to suggest that the plaintiffs have made of the annual assessment work was inadmis all of these defendants parties and have alsible because no claim of forfeiture was al leged that they had ousted plaintiffs from leged in the answer. Under a general denial the possession and were the present occuor its equivalent, each party to a contested pants of the premises. They allege that the action claims the title out of which the right

Salamanca Gold Jininy & Milling Company of possession springs, and the court deter is a corporation, and no finding in that remines which of the two holds it. Marshall

gard was necessary. v. Shafter, 32 Cal. 197. It must be conceded

A careful examination of the record cu that, if the defendants' title is in issue, they vinces us that there is no prejudicial error are entitled to prove those facts which tend apparent therein, and the order is affirmed. to support it, and it is essential in determine ing defendants' ownership in the case at bar We concur: SHAW, J.; TAGGART, J.

(5 Cal. App. 668)

promissory note of $4,500, executed by said KEIFER v. MYERS. (Civ. 343.)

J. H. Keifer and his wife, which said note (Court of Appeal, Second District, California. was also secured by a mortgage of real esJune 3, 1907. Rehearing Denied by tate. That said laundry company during the Supreme Court Aug. 1, 1907.)

time said Keifer was a stockholder had beSALES-SALE DISTINGUISIIED FRON PLEDGE. come largely indebted to George R. Myers Plaintiff's transfer of 198 shares of cor

for money's by him loaned to said company. porate stock to defendant was a pledge and not a sale, where, when the transfer was madle,

That said R. II. Myers had loaned and adthey executed an agreement reciting the trans Vanced, and would thereafter loan and adfør, that defendant was the owner of the stock,

Vance, divers sums of money to discharge a that it was pledged to a bank as additional security for plaintiff's debt, that the company was

part of the indebtedness of the said company indebted to M.. that plaintiff had loaned and in order to save it from bankruptcy, and to would lend money to the company, that plaintiff pay such of the operating expenses as might desired an option to purchase 198 shares of the

be necessary for the best interests of the stock, and binding defendant to sell within one year, upon plaintiff reimbursing defendant for company. That said Keifer desired an opinoney paid the bank for plaintiff, for one-half tion to purchase 198 shares of said stock, and the money advanced the corporation by M. and wherein said R. H. Myers covenanted and defendant: there being no other consideration

agreed to sell to said Keifer, within one year, for the transfer, and none of plaintiff's liabilities being canceled.

time being made the essence of the contract, | Ed. Yote.--For cases in point, see Cent. Dig. | 198 shares of said stock, upon Keifer making vol. 43, Sales, 8 14.]

payment to R. H. Myers of: First, all monAppeal from Superior Court, Los Angeles

ey's paid to said bank by R. II. Vyers on ac

count of the notes of said Keifer, for the County; Waldo M. York, Judge.

payment of which said stock was held as Action by J. H. Keifer against R. H. My

collateral security; second, one-half of all ers. Plaintiff appeals from a judgment of

moneys theretofore or thereafter, up to the nonsuit. Reversed.

exercise of the option, advanced to said coinLynn Helin and E. S. Williams, for appel

pany by R. H. Myers, less any payments lant. W. R. Hervey and R. H. Myers, for made thereon by said company; third, onerespondent.

half of all moneys theretofore loaned to said

laundry company by said George R. Myers, SHAW, J. Appeal from a judgment of less any payments made thereon by said nonsuit. At the time in question, the Sani company; and, fourth, interest on said sums tary Laundry Company was a corporation at 7 per cent. per annum. It was further with a capital stock of $10,000, divided into provided that an accounting for any divi. 100 shares of the par value of $100 each. Of dends paid upon said stock should be made this stock the appellant, J. H. Keifer, owned and credited to said Keifer at the time of his 198 shares, one George R. Myers owned 198 exercising said option to purchase. R. H. shares, and the remaining four shares were Nyers covenanted to advance to the company owned by three other persons, who, with from time to time such sums of money, not said Keifer and said George R. Vyers, con exceeding $1,000, as might be necessary to stituted the board of directors of said cor save the company from bankruptcy. At the Ixoration. The corporation was in financial same time, and with the consent of appeldistress, and it appears that neither appel lant, an agreement in writing was made belant nor said George R. Myers was in a po tween said bank and said R. H. Myers, sition to extend it the aid needed. The ap whereby the bank agreed to deliver the 198 pellant had borrowed from the Broadway shares of stock so pledged to it by Keifer to Bank & Trust Company $1,500, evidenced by the said R. H. Myers at any time upon his two promissory notes, and as security for paying the sum of $1,000, to be applied on their payment had, in addition to giving a Keifer's indebtedness to said bank, and the mortgage upon certain real estate owned by delivery to the said bank of an agreement on him, deposited his 198 shares of stock in the part of R. II. Myers to pay any deficiency, pledge with said bank as collateral security. not exceeding $750, which might remain upThe laundry company was largely indebted on Keifer's notes after exhausting the real to said George R. Myers for moneys which estate so held by it as security for the payhe had loaied it. Under these conditions, ment thereof. the respondent, R. H. Myers, and J. H. It will be noted, by this agreement with Keifer entered into negotiations, which, on the bank, R. II. Jyers assumes no obligation December 3), 1.903, culminated in a transfer whatever. There was no other consideraof respondent's 198 shares of stock to said R. tion for said transfer than that mentioned H. Jyers, and contemporaneously therewith in the agreement. It appears that R. II. Mythe execution of an agreement in writing, ers did pay upon said indebtedness of Keifer wherein it was recited that said Keifer bad the sum of $71-1.92, and no more, and that sold, assigned, and transferred to R. II, Jy from the proceeds of the real estate so held ers 198 shares of stock, and that R. H. Myers by the bank the sum of $2,510 Wils paid on was the owner and holder thereof. That the principal, together with $260 interest said stock was pledged to said bank as addi thereon. From time to time after December tional security for the payment of a certain 29, 1903, which was the date of both the

agreement made between Keifer and Myers obligation to protect his own property, and and that between Myers and the bank, not Keifer's--a proposition which borders though neither was delivered until the 30th upon absurdity. of December, 1903, R. H. Myers advanced to The fact that the agreement giving Keifer said laundry company divers sums of money, the right to repurchase and the transfer of part of which was paid by said company. the stock were contemporaneous (Weiseham Keifer did not exercise his option to repur V. Hocker, 54 Pac. 464, 7 Okl. 250; Clark v. chase the stock within the year, but on Jan Woodruff [Mich.) 51 N. W. 357;1 Watkins v. uary 24 and January 27, 1905, he offered to Williams, 31 S. E. 388, 123 N. C. 170); that repurchase and redeem said stock under the the stock had a substantial value, and Myers terms of said agreement, and asked respond neither paid nor agreed to pay anything in ent to render him a statement and account consideration of its transfer to him (Hushof the amount due thereon, which he, in eon v. llusheon, 71 Cal. 407, 12 Pac. 410; writing, tendered and offered to pay. No ob Rubo v. Bennett, 85 Ill. App. 473); that jection was made to this tender. Respond none of Keifer's existing liabilities were canent claimed that the transaction constituted celed, and Myers assumed no part thereof unan absolute sale, and that appellant, having der the terms of the agreement; that as a failed to exercise his option within the year,

condition of retransfer Keifer was to pay had lost the right to purchase the stock. On one-half of the company's unpaid indebtedthe other hand, appellant contends that the ness to George R. Myers and one-half of the transfer was a pledge of stock.

money which respondent had loaned the com"The motion for nonsuit admits the truth pany, which shows that to this extent at of plaintiff's evidence and every inference of

least the stock was transferred as security fact that can be legitimately drawn there (sections 2986, 2387, Civ. Code) for existing from, and upon such motion the evidence debts of the company for a part of which should be interpreted most strongly against Keifer was liable (Ahern v. McCarthy, 107 defendant.” Hanley V. California, etc., Co., Cal. 386, 40 Pac. 482; Farmer v. Grose, 42 127 Cal. 232, 59 Pac. 577, 47 L. R. A. 597; Cal. 169); that no fixed price was specified as Goldstone v. Merchants', etc., Storage Co., a consideration for the repurchase, but the 123 Cal, 625, 56 Pac. 776. The record shows amount was to be as much as would reimthat the agreements dated December 29, burse R. H. Myers for one-half of such sums 1903, were delivered on the following day, on as he might advance and which might rewhich date the certificate of stock represent

main unpaid, including one-half of the amount ing the 198 shares of stock which Keifer had due from the company to George R. Myers; pledged to the bank was withdrawn and a that Keifer was chargeable with interest new certificate for said stock issued to R. H. and to be credited with dividends-all are Myers and by him redeposited with said

circumstances which tend, some of them very bank. The agreement whereby Keifer was

strongly, to prove that the transfer was a given the right to repurchase the stock and pledge, and not a sale of the stock. the transfer of the stock to R. H. Myers con Respondent lays much stress upon the stituted one and the same transaction. "Sev. words used in the agreement, but the use of eral contracts relating to the same matters,

the words "sold, transferred, and assigned," between the same parties, and made as parts

and the recital that Myers is the owner of of substantially the one transaction, are to

the stock, cannot change the character of the be taken together. Civ. Code, $ 1612." Cur transaction. For the purpose of ascertaining tin v. Ingle, 137 Cal. 95, 69 Pac. 836, 1013.

the real contract made by the parties, the It appears that R. H. Myers paid no consid

court looks beyond the terms of the instrueration whatever for the transfer of the ment. Hodgkins v. Wright, 127 Cal. 688, 60 stock; that he assumed no obligation what

Pac. 431. ever to pay anything upon Keifer's indebted The judgment is reversed. ness to the bank, nor did he secure the release of Keifer's obligations as a stockholder

We concur: ALLEN, P. J.; TAGGART, J. of the company, or assume or agree to pay

(5 Cal. A. 665) them. If the company failed to pay George

WILLMON V. PECK et al. (Civ. 280.) R. Myers, Keifer was still liable for his proportion of its indebtedness, notwithstanding

(Court of Appeal. Second District, California.

June 3, 1907.) the loss of his stock. There was no cancel

1. SPECIFIO PERFORMANCE - CONTRACTS-ENlation or surrender of the evidence of any of

FORCEABLE – CERTAINTY — DESCRIPTION OF Keifer's indebtedness. The only obligation SUBJECT-MATTER. assumed by R. H. Myers was to advance

To warrant the specific performance of a

contract for the conveyance of land, the agreemoney to the company only in case it became

ment to convey must not only be in writing necessary to save the company from bank

and subscribed by the party to be charged, but ruptcy. Such contingency might never arise; the writing must contain such a description of but, if any advances were made, it was pro

the property, either in terms or by reference,

that it can be ascertained without resort to vided that Keifer should pay one-half there

parol evidence. of upon a repurchase of the stock. If Myers [Ed. Xote.-For cases in point, see Cent, Dig. was the owner of the stock, instead of the vol. 44, Specific Performance, $$ 69-82.) pledgee, as be claims, the covenant was an

190 Mich. 83.


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, parol 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, $8 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,

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 12 of the only block numbered 61 located in the city of San Pedro, which east 12 of said block comprised lots 7 to 12, both inclusive. Neither defendant had or clained 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 12 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 12 of said block was exhibited to the plaintiff by said agent, who pointed out to him upon the ground that portion of said east 12 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 12 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, puyable 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 plaintill a receipt reading as follows: “San Pe

dro, February 3, 1903. Received from J. C. Willmon one hundred dollars part payment on lot 5 and 6, block 61, San Pedro. Full price $1,500.00. Geo. H. Peck." Plaintire thereafter tendered the balance of the purchase price and demanded a conveyance of lots 5 and 6, as designated upon said so called subdivision of the east 12 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 12 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 12 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 12 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 pary 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 par 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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