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vol. 3, § 1212: "When any person having a auswer to the complaint denying most of its subsequent interest in the premises, and who allegations. Findings of fact were waived is therefore entitled to redeem, for the pur- and' by consent a decree was entered adjudgpose of protecting his interest, and who is not ing that "plaintiffs herein redeemed the premthe debtor primarily and absolutely liable ises * * * as successors in interest of the for the mortgaged debt, pays off the mort- judgment debtors in the action aforesaid." gage. he thereby becomes an equitable as- In their answer to plaintiff's complaint in signee thereof, and may keep alive and en- the present action, appellants allege that "at force the lien so far as may be necessary the time of the commencement of this action, in equity for his own benefit. He is sub- they were, ever since have been, and now are rogated to the rights of the mortgagee to the owners of that certain quartz mine," etc. the extent necessary for his own equitable They, therefore, make no claim to ownership protection.” And the court held further that prior to the commencement of this action, this equitable result follows, though a receipt which was July 24, 1902, and the earliest date was given speaking of the mortgaged debt any interest is shown in them is June 24, as having been fully paid, and sometimes 1901. It would thus appear, and the trial even though the mortgage itself was actually court might well have inferred, that appeldischarged and satisfied of record. In Schaef- lants in the present action-F. F. Britton and fer v. McClosky, 101 Cal. 576, 36 Pac. 196, Mrs. A. L. Emerson, became successors of it was held that one who is forced to pay the interests conveyed to them, including the the debt of another, in order to protect his Argall interest, long after the Argalls had own interest, and who is not a mere volunteer conveyed to the defendant company and long or intermeddler, is in equity to be subrogated after their conveyance was recorded and had to the debt. See Hines v. Ward, 121 (al. inured to the benefit of the mortgagee of 115, 53 Pac. 427. In Darrough v. Herbert defendant company. When, therefore, appelKraft Company Bank, 125 Cal. 272, 57 Pac. lants assumed to redeem as the successor in 983, the court held that where the owner interest of the Argalls, they had constructive of the mortgaged premises paid off a senior notice that the Argalls had already conveyed lien thereon without actual knowledge of their interest to defendant company and that the junior lien, the latter shall derive no defendant company had mortgaged that inadvantage over the senior lien; and that it terest to plaintiff's assignor. So far as alwill be presumed that such owner made the pears they may also have had actual notice payment for his own benefit, and not for the of the deed, and Mrs. Emerson, so far as benefit of the junior lien holder, and for the appears, may also have had actual notice of protection of his interests, equity will treat the mortgage. Appellant Britton testified such owner as the assignee of the original that he "did not know anything about this senior lien holder, and will revive and en- particular mortgage in controversy," but he force such senior lien for his benefit.

said nothing about the deed. There is no Respondent does not seriously controvert | fraud or bad faith alleged or shown in the these principles, but he contends, among oth- conveyance by the Argalls to defendant comer things, that appellants, for various rea- pany; there is neither allegation nor proof sons, have not, by their pleadings, shown that of mistake by appellants or that they were they are entitled to invoke these rules. Con- misled in any way in becoming successors ceding the sufficiency of the pleadings, it in interest of the judgment debtors in the seems to us that, in claiming to be the suc- Blanchard foreclosure. As to 11/20 interest cessors in interest of the Argalls, the only in the property, they secured title which the interest in controversy, appellants have failed court by its decree recognized and protected to show a superior equity to the rights claim- by declaring it to be subject to the senior ed by plaintiff. It appears that the Argalls mortgage and by refusing to subject it to conveyed their interest to defendant company plaintiff's ļien. As to 9/20, the Argall interMay 31, 1899; that defendant company mort- est, the court held it subject to plaintiff's gaged the property October 25, 1899, and that mortgage lien, and in effect held that by the deed of the Argalls was recorded January redeeming from the senior mortgage sale, 12, 1900. Appellants do not allege or show and paying off the judgment debt, appellants by evidence the date of their conveyance by thereby discharged the lien of that mortgage which they became successors in interest of upon the Argall interest. We are unable to the Argalls and the other makers of the discover any equitable principle upon which Blanchard mortgage. Claiming, as they did, the senior mortgage should be kept alive for that their right was superior to that of the the benefit of appellants or which would enplaintiff, the burden was on them to prove it. able them to enforce a lien upon the Argall Plaintiff did not know, and could not know, interest under the facts disclosed. We are the source of defendants' title or interest. quite convinced that the equitable principles The evidence is that Blanchard filed his com- invoked by appellants cannot be made to serve plaint to foreclose on November 5, 1899; de- such object. It is perhaps proper to add that cree of foreclosure and sale was entered Feb- the case of Frates v. Sears, 144 Cal. 246, 77 ruary 23, 1900; the commissioner made sale Pac. 905, relied upon by respondent, does not March 31, 1900; the complaint for redemp- entirely meet the situation here, and it is tion was filed June 24, 1901. There was an not necessary to resort to the rule there es

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tablished. In that case when the junior mort- ! Action by Walter E. Logan against J. C.
gagee, who had not been made a party to the McMullen. From a judgment in favor of
foreclosure of the senior mortgage, brought defendant, plaintiff appeals. Affirmed.
his action to foreclose and made the senior

('. S. Farquar, for appellant. Dudley Kinmortgagee a party (who was the purchaser at

sell, for respondent. his foreclosure sale), the latter failed in enforcing his prior lien because, when he an- IIARRISOX, P. J. Action to recover for swered, his mortgage debt had become barred services as broker for the purchase of cerby the statute of limitations. In the present ; tain real estate. A judgment of nonsuit was case the senior mortgage was not barred rendered against the plaintiff, and he has when the answer was filed. The reasoning appealed therefrom. At the trial, after tesmay go further, but the point decided in tifying that he was a real estate broker, Frates 1. Sears was that the lien of the and that he had had several interviews with senior mortgage is lost, if, when he asserts the defendant regarding the property reit against the foreclosure of the junior mort- ferred to in the complaint, the paintiff gage, his mortgage debt is barred.

offered in evidence the following instrument Respondent also relies upon the point that as a note or meinorandum in writing requias soon as the Argall deed was delivered to site under section 1024, Civ. Code, for his the defendant company it commenced to feed recovery, viz.: "Oakland, Cal., July 31, 0:3. the mortgage of plaintiff, although not record- Walter E. Logan: Sir-If you can purchase ed until later, and that the neglect of defend- W. W. corner of 13th and Franklin streets ant company to record this deed cannot af- 70x100 for $12.000 I think we would be fect the rights of plaintiff. Numerous author- ready to purchase same by Monday next. ities are cited in support of the proposition. J. C. McMullen;" and in connection thereWe neither ailirm nor deny its soundness, in with offered to prore that, acting under it. this particular case, but prefer to rest the he went to San Francisco on Friday, July decision upon the ground above stated. 31st, and had an interview with the owners The judgment and order are aflirmed.

of the property, and showed them this in

strument, and got from them "an offer" that I concour: BUCKLES, J.

they would accept $12,000; that the propo

sition was made that it was to be "arranged" I concur in the judgment: MCLAUGHI- on Monday; that a few minutes before noon LIX, J.

on the next day, Saturday, the defendant stated to him that he would go with him

to San Francisco on the next outgoing nar(4 Cal. App. 154)

row gauge train, to which he replied that LOGAN v. MCMULLEN.

he could not go on that train but would (Court of Appeal. First District, California. | go on the next broad gauge train and would July 23, 1906.)

meet him at the owner's office; that he 1. BROKERS-EMPLOYMENT-MEMORANDUM. went over, and remained there for three

A letter, written to a broker advising him hours, but the defendant did not make his that if he could purchase certain described real estate the signer thought he would be ready | appearance; that thereafter the vlefendant to purchase the same on the succeeding Monday,

met him and stated that he recognized that at a specified price, was not a sufficient note he had rendered services in the matter, and or memorandum of a contract to employ the broker to purchase the property required by

that he would be compensated therefor. The Civil Code,' $ 1624.

defendant objected to the introduction of [Ed. Note. For cases in point, see vol. 8,

the instrument on the ground that it is inCent. Dig. Brokers, $ 44.)

competent and irrelevant; that it does not 2. SAME-PERFORMANCE OF SERVICE.

comply with the requirements of section Where a broker was employed to purchase | 1624, Civ. Code; that it does not purport to certain real estate for his customer, his con; employ or anthorize the plaintiff to purchase tract was not performed unless he procured an enforceable contract from the owners to make the real estate for the defendant or to act the sale or brought the parties together so as his broker. The court sustained the obthat his employer would have an opportunity jections, to which ruling the plaintiff exto secure such contract. [Ed. Note. -For cases, in point, see vol. 8, there was no other writing or authorization

cepted; and the plaintiff, admitting that Cent. Dig. Brokers, $ 65.) 3. SAME.

of employment, and offering no other eviA broker for the purchaser of real estate

dence, the defendant moved for a nonsuit cannot call upon his employer to come to the upon the ground that the evidence did not place of business of the vendor, and there make

sustain any of the allegations of the comthe contract, or negotiate for its terms.

plaint. [Ed. Yote.-For cases in point, see vol. 8,

The court granted the motion, to Cent. Dig. Brokers, $$ 69, 75-81.]

which the plaintiff exceptel. 4. TRIAL_OFFER OF EVIDENCE-REJECTION.

The court properly sustained the ubje An offer of evidence which, taken in its tions of the defendant to the above instruentirety, fails to show a cause of action, is ment. It does not purport to be illl emplosproperly rejected.

ment of the plaintiff as a broker or agent Appeal from Superior Court, Alameda for the purchase of the real estate, but is County; S. P. Hall, Judge.

rather to be construed as merely a proposition to him to ascertain whether it could , the purpose of securing a contract, and his be purchased at the designated price; but failure to do so did not operate to relieve whatever construction is to be given to its the plaintiff from the necessity of bringing terms, inasmuch as the plaintiff did not the vendor to Oakland if he did not secure purchase the property or obtain from the a valid agreement for a sale. The plaintiff owners an agreement for its sale which could did not offer to show the purpose for which be enforced by the defendant, the latter did the defendant was to go to San Francisco; not become liable to him for any services and as by the terms of the above instrument as broker or agent in the matter. If the the defendant was not to be ready for the plaintiff would assume that, by virtue of the purchase until the following Monday, and instrument, he was authorized to act as as the plaintiff's proposition to the owners broker for the defendant for the purpose was that the matter was to be "arranged" on of effecting a purchase of the property for | Monday, there does not seem to have been him, and would claim compensation for his any necessary connection between the trip services, it was his duty to procure from the to San Francisco and the purchase of the owners and deliver to the defendant a valid lot. By declining to accept the defendant's contract for its sale which could he enforced proposition to go by the first narrow guage by the defendant; or, if he should obtain train, and not receiving from him any acfrom the owners a verbal agreement to make ceptance of his own counter proposition to go the sale, and bring the owners and the defend- by the broad gauge train, it does not appear ant together, so that the latter would have an that there was any meeting of their minds opportunity to secure such contract. Zeimer

or any agreement between them to go to San V. Antisell, 75 Cal. 509, 17 Pac. 642; Water- | Francisco. The facts which the plaintiff man v. Boltinghouse, S2 Cal. 639, 23 Pac. offered to show in connection with the in193; Gunn v. Bank of California, 99 Cal. strument were insufficient to render the in3.30, 33 Pac. 1105; Mattingly v. Pennie, 105 strument admissible. Inasmuch as he was Cal. 516, 39 Pac. 200, 45 Am. St. Rep. 87. not entitled to compensation by virtue of the The conditions under which a broker for agreement unless he had obtained a conthe purchase or sale of real estate is entitled tract from the vendors, or brought them to commissions are stated in the case last and the defendant together, the whole of cited as follows: "In order to entitle a the evidence offered would be incompetent broker under such a contract to recover com- to establish any cause of action against the missions where no sale has actually been defendant. An offer of evidence which, taken (onsummatel, it is incumbent upon him to in its entirety, fails to show a cause of acprove that he found a purchaser ready, will- tion, is properly rejected by the court. "The ing, and able to buy the property on the offer must be complete in itself, and must terms fixed; and either that he procured not omit facts without which the facts offrom that person a valid contract binding fered are not relevant.” Chamberlain y. him to purchase the property upon those Vance, 57 Cal. 75. As the instrument in terms, or that he brought the vendor and writing was excluded there was no evithe proposed purchaser together so that dence before the court in support of the allethe vendor might have secured such contract gations of the complaint, and the court had if he desired. On no other terms can be re- no alternative but to grant the nonsuit. cover. The readiness and willingness of a The judgment is affirmed. person to purchase the property can be shown only by an offer on his part to pur

We concur: COOPER, J.; HALL, J. chase; and unless he has actually entered into a contract binding him to purchase, or

(4 Cal. App. 55) has offered to the vendor and not simply

PEPPER V. NEIMAN. to the broker to enter into such a contract,

(Court of Appeal, Second District, California. he cannot be considered a purchaser.” The

July 6, 1906. Rehearing Denied broker must perform all of the services thus

Aug. 30, 1906.) required of him before he can claim com- 1. MUNICIPAL CORPORATIONS STREET IM pensation from his employer. His princi


CONSTRUCTION. pal is under no obligation to assist him in

A resolution of intention to make a street their performance or to relieve him from a improvement, which, in its title, declares the full compliance with his duty. The broker intention of the municipal authorities to improve for the purchaser cannot call upon his prin

a portion of a street, and which states in its

body that it is the intention to construct a cipal to go to the place of business of the

cement curb along each line of the roadway vendor, and there make the contract or ne- of the street between designated points, except gotiate for its terms. He is employed for

along such portions of the line of the roadway the very purpose of relieving his principal

on which a cement or granite curb has already

been constructed, etc., does not provide for two from taking any trouble in the matter, and distinct lines of work, one along each boundary he must either bring to him a perfected con- of the roadway, but describes the improvement tract, or the vendor in person, ready, able,

of the street between the points specified. and willing to make the contract. The de.


STRUCTION. fendant was under no obligation to hunt St. 1891, p. 196, c. 147, § 3, providing that up the owners, or go to San Francisco for a notice of a contemplated street improvement

shall be posted along the line thereof at not , ('urb has already been constructed to the offimore than 100 feet in distance apart, requires cial line and grade)," etc. “(2) That a cenotices not more than 100 feet apart longitudinally along the line of the improvement, and

ment sidewalk Six feet in width be connotices posted on either side of a street intended

structed along each side of said Flower to be improved are notices posted on the line, street," etc. "(3) That a cement gutter be so that if such notices are not more than 100

constructed along each side of said Flower feet apart, measuring the distance along the center of the improvement, the statute is ('our

street," etc. plied with, and diagonal measurements are not It is contended by the appellant that the to be considered.

work described in the ordinance of intention [Ed. Note.-For cases in point, see vol. 36, is the improvement of Flower street between Cent. Dig. Municipal Corporations, § 787.]

the points specified, and by the respondent Appeal from Superior Court, Los Angeles that there were two distinct lines of work County; N. P. Conrey, Judge.

provided for, one along each boundary of Action by Enoch Pepper against F. Nei

the roadway. Assuming the latter to be man. From a judgment for plaintiff, de- the case, it would follow that the distances fendant appeals. Reversed.

between the notices along the line of each

improvement would be much in excess of Bicknell, Gibson, Trask, Dunn & Crutcher, and S. M. Haskins, for appellant.

100 feet. But we do not think that the ordiEnoch

nance can be so construed. As expressed in Pepper, in pro. per. and H. S. Rollins, for

the title, the intention was to improve a part respondent.

of Flower street, and in the first section of

the ordinance "the line of said roadway” is PER CURIAM. This is a suit to quiet

referred to. We are of the opinion, therefore, plaintiff's title to three lots in the city of

that the case is the same in this respect as Los Angeles fronting on Flower street. The

was the case in Dowling v. Hibernia Sav. defendant in his answer claims a lien upon

& L. Society, 143 Cal. 425, 77 Pac. 141, where each lot—upon two for the sum of $75.29

the roadway was included in the improveeach, and upon the other for the sum of

ment proposed. $80.61—under a street assessment for the cost

The fact remains, however, that the disof the improvement of a portion of Flower

tance between the notices, measured diagostreet. The answer sets up seriatim all the

nally across the road, was over 100 feet; and proceedings required by the street improve

the question thus arises, whether this was ment act; and, in a cross-complaint repeat

a sufficient compliance with section 3 of ing these allegations, the defendant seeks to

the street improvement act, which provides foreclose his liens. It is stipulated and found

that the notices shall be "posted along the by the court that all the proceedings for the

line of said contemplated work or improveimprovement of the street and assessment of

ment at not more than one hundred feet the lots were regular, except the posting

in distance apart.” St. 1891, p. 196, c. 147. of the notices of the contemplated work or

The question is not without difficulty; but, improvement on the ground, as to which it

on the whole, we are of the opinion that the is stipulated and found: That the length

section requires notices not more than 100 of the portion of the street improved is

feet longitudinally along the line of the im4.583 feet, and the width of the street be

provement; that the entire street is the line tween curb lines 56 feet; that the number of

referred to; that notices posted on either notices posted was 52 in all; and, that they

side are notices posted on the line, and if were posted alternately on the east and west

such notices are not more than 100 feet sides of the street. It appears, therefore,

apart, measuring the distance along the from the stipulation and findings that the

center of the improvement, the section is distance between the notices, measured diag.

complied with, it matters not upon which side onally across the street, is something over

of such center line the notices are actually 100 feet, though less if measured longi

posted; and that the diagonal measurements tudinally with the street, and on this ground

are not to be considered. the court held the assessment to be void.

It is ordered that the judgment be reThe resolution of intention in the present

versed. case is entitled: “An ordinance of the mayor and council of the city of Los Angeles, declaring their intention to improve a portion

(4 Cal. App. 117) of Flower street, and determining that bonds

DORRIS et al. v. MCMANNUS et al. (Civ. shall be issued to represent the cost there

212.) of.” In the first section it is provided:

(Court of Appeal, Third District, California. "That it is the intention of the city council

July 20, 1906.) of the city of Los Angeles to order the fol

QUIETING TITLE-EVIDENCE. lowing work to be done, to wit: "(1) That

Defendants in an action to quiet title, hara cement curb be constructed along each ing pleaded such claim as they had, and introline of the roadway of said Flower street duced no evidence in support thereof, findings from the southerly curb line of Sixth street

that it was without right and adverse to plain

tiff's are authorized without any evidence by to the northerly curb line of Pico street (ex

plaintiffs other than to show their title. cepting along such portions of the line of

[Ed. Note.-For cases in point, see vol. 41, said roadway upon which a cement or granite Cent. Dig. Quieting Title, $ 89.]

Appeal from Superior Court, Modoc Coun- property adverse to plaintiffs. She alleged a ty; N. D. Arnot, Judge.

similar defense to that set up by defendant Action by P. S. Dorris and another against | McMannus, as a creditor of P. A. and C. J. Laura J. Velannus and others. Judgment | Dorris; she denied that her claim or interfor plaintiffs. Defendants Laura J. McMan- est was without right, but neither she nor nus and another appeal. Affirmed.

defendant McMannus specifically alleged or Chas. W. Slack and John W. Bourdette, for

claimed any interest in the land, and neither appellants. G. F. Harris, Gillis & Tapscott,

of them set forth any title or claim otherand Jaimeson & Adams, for respondents.

wise than such as might arise, should they

become judgment creditors of P. A. and C. CHIPMAN, P. J. Action to quiet title.

J. Dorris, partners, as P. A. Dorris & Bro. Plaintiffs had judgment, from which and

The court found that since June 29, 1900, from the order denying their motion for a

plaintiffs have been and now are the owners new trial defendants Laura McMannus and

of the title in fee simple of the land in quesMartha S. McConnell appeal.

tion; "that the said defendants and each of There are numerous defendants, none of

them, claim an estate therein, adverse to whom appeal, except the defendants Laura

plaintiffs,” but that such claim is without McMannus, Martha McConnell, and Charles

right. The court then finds the facts specifBohnert; the latter of whom appealed on

tcally negativing the allegations of fraud separate transcript (No. 207, Sac. No. 1,339).

in the transfer to plaintiffs, and also, by way We aflirmed the judgment and order in that

of deraignment of plaintiffs' title, tracing it ippeal on May 15, 1906. (Cal. App.) SO

through one Jerome Churchill, who for many Pac. 90). The present appeal is presented by

years prior to June 29, 1900, had loaned the different counsel, who urge points not made

said firm of the Dorrises large sums of monin the Rohnert appeal, and, for this reason

cy, and had held deeds to the said land and alone. We again examine the case. The com

other property belonging to the said Dorrises plaint is unverified, and contains the usual

as security therefor; that the said firm was verments that defendants claim an estate

unable to pay this large indebtedness, and or interest in the lands adverse to plaintiffs,

on the date last named the said Churchill and that such claim is without right. Plain

and the members of said firm had a full tiffs further aver “that by means of the settlement by which it was agreed that the false representations and pretenses aforesaid

title should remain in said Churchill to all of the said defendants, and each and every

said property in consideration of the said of them, the plaintiffs, and each of them, Churchill fully discharging all claims against are greatly embarrassed in the free enjoy

said firm, and that thereupon on said date ment, use and disposition of their said de- said members of said firm released and quitscriber lands," and that plaintiffs' interest

claimed all their interest in said property to in said lands is "greatly depreciated by rea

said Churchill; that the said Churchill paid son of the probability of title in the said

full consideration "and more than said propdefendants. or some of them, resulting from

erty was worth;" that the said transfer was and growing out of said false and pretended

not fraudulent, nor for the purpose of delay(laims of the said defendants.” Defendant

ing creditors of said firm, but was made "in Melannus answered, denying generally the

good faith for a good and valid and ample allegations of the complaint; also averring consideration.". The court also found that that, on December 14, 1900, this defendant

on the date of the transfer of said lands to commenced an action agilinst Presley A.

plaintiffs, to wit, on June 29, 1900, neither Dorris and Carlos J. Dorris, copartners as

P. A. nor C. J. Dorris, nor the said copartP. A. Dorris & Bro. (through whom plain

nership, "had any right, title, interest, or tiff's ceraign title), upon a promissory note

estate, either legal or equitable, in said real

estate, * executed by then, which action is now pend

* * but that


* the whole ing; that in the event defendant obtains thereof, both legal and equitable, belonged to judgment in said action, she intends to insti

and was vested in fee in the said Jerome tute suit to set aside the conveyance of the

Churchill;" that "by the false and pretended lands described in the complaint, on the

claims of defendants [naming all of them] ground that when transferred to plaintiff

* * * plaintiffs * * * are greatly emsaid lands belonged to the said Presley A.

barrassed in the free enjoyment, use, and and Carlos J. Dorris, and that the said disposition of their said real estate," and are transfers to plaintiffs were procured to be thereby rendered unable to sell or dispose made for the purpose of hindering and delay- of the same except at greatly depreciated ing the creditors of the said Presley A. and values and at great loss to plaintiffs. Carlos J. Dorris. Defendant prayed that 1. Appellants contend that the allegation the action as to her be not tried until the of the complaint as to defendants' claim of said action upon the said promissory note interest in the land adverse to that of plainis tried and determined, and that defendant tiffs was essential in this form of action recover her costs. Defendant McConnell in citing Lawrence v. Getchel (Cal.) 4 Pac. her answer denied the averments of the com- 544, and cases from other, jurisdictions; and plaint specifically, except that she did not that the allegation having been denied, it deny that she claimed some interest in the was incumbent on plaintiffs to prove it-cit

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