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need not wait for years or forever. It may at once take lieu lands and sell them to its citizens or to the persons authorized by statute to receive them. It makes no difference to the state as to whether it sells the sixteenth and thirty-sixth sections or lands in lieu thereof, because the price is the same in either case. When the reservation existsno matter how long it may continue-and the state is deprived of the lands in place, it immediately has the right to select and take other lands in lieu of the lands withheld from it. This right continues as long as the withdrawal or reservation continues. We know of no decision or rule of law that requires the state to try the question as to the time the United States may desire to keep the land in reserve. The view we have taken seems to us to be the view of common sense and justice. Under it the state will get no more land than it is entitled to, and the United States will be deprived of no more of its public domain than if the state had waited and taken the section in place. The statute is to be given a liberal construction, so as to do justice and promote its objects and purposes.

While there are few decisions bearing upon the question that are directly in point, there are decisions which tend to sustain the view we have taken. In a decision rendered by Secretary Smith April 13, 1895 (20 Land. Dec. Dep. Int. 327), it appeared that the state of California had made a lieu selection in lieu of an unsurveyed sixteenth section included within a withdrawal. The Commissioner of the General Land Office had rejected the selection, holding that the law granting the lieu right must be held to apply only to reservations created by an act of Congress or by proclamation of the President, and not to a mere temporary withdrawal of lands pending an investigation as to the character of the trees growing thereon. From this decision the state appealed, so that the matter came up before the Secretary squarely upon the question of law. The Secretary in his opinion held that the state might take other lands, and said: "It is not necessary that the reservation of said section 16 be of a permanent character to justify indemnity selection made by the state." In Wolsey v. Chapman, 11 Otto (U. S.) 755, 25 L. Ed. 915, a construction was given to section 8 of an act to appropriate the proceeds of the sales of public lands and to grant pre-emption rights. 5 Stat. p. 455, c. 16. The section contained the proviso "that to each of the said states which has already received grants for said purposes there is hereby granted no more than the quantity of land which shall, together with the amount such state has already received as aforesaid, make 500.000 acres; the selections in all the states to be made within their limits respectively in such a manner as the Legislature thereof shall direct, and located in parcels conformable to sectional

divisions and subdivisions of not less than 320 acres in one location on public land, except such as is or may be reserved from sale by any law of Congress or proclamation of the President of the United States." The Supreme Court of the United States, in discussing the clause, said: "There seems to be no good reason why the selections of the preemptioner should be restricted within narrower limits than those of the state, and we cannot believe it was the intention of Congress to give a state the power to take lands under section 8 which had actually been reserved by the United States for any purpose whatever." In Wolcott v. Des Moines Nav. Co., 5 Wall. (U. S.) 681, 18 L. Ed. 689, the question was as to whether or not certain lands, which were within the limits of a grant made while they were withdrawn under authority of the Land Department of the United States, passed by the grant to the railroad company. The granting act contained a proviso that "any and all lands heretofore reserved by competent authority should not pass by the grant." and the court held that the temporary withdrawal of them by the order of the Commissioner was such a reservation as excluded them from the grant. In Northern Pacific Railroad Company v. Musser Sauntry Land, etc., Co., 168 U. S. 604, 18 Sup. Ct. 205, 42 L. Ed. 596, the question was whether a departmental withdrawal of certain lands within the indemnity limits of a railroad grant until it should be seen if they should be needed to satisfy that grant was a reservation, and the court held that it was. In the opinion it is said: "The withdrawal by the Secretary in aid of the grant to the state of Wisconsin was valid, and operated to withdraw the odd-numbered sections within its limits from disposal by the land officers of the government under the general land laws. The act of the Secretary was in effect a reservation." The following cases have more or less bearing upon the question: Riley v. Welles, 14 Sup. Ct. 1166, 154 U. S. 578, 19 L. Ed. 648; Dubuque Co. v. Des Moines R. R. Co., 109 U. S. 329, : Sup. Ct. 188, 27 L. Ed. 952; Bullard v. Des Moines Co., 122 U. S. 167; Wilcox v. Jackson, 13 Pet. (U. S.) 498, 16 L. Ed. 264.

Under section 3398 of the Political Code, the surveyor general is the general agent of the state for the location in the United States land office of the unsold portions of the 500.000 acres of land granted to the state for school purposes, and the sixteenth and thirty-sixth sections granted for the use of public schools, and lands in lieu thereof. When any person desires to purchase any portion of these lands, and makes the proper affidavit as prescribed in the Code, it is the duty of the surveyor general to file such application. Section 3406 of the Political Code provides as follows: "Duty of Surveyor General on Application for Purchase. The surveyor general must, whenever application is made to

him for any portion of the lands mentioned in section 3398, communicate with the United States land office, and ask that the lands described in the application be accepted in part satisfaction of the grant under which it is sought to be located." It is thus made by the section the ministerial duty of the surveyor general by reason of his office to communicate with the United States land office, and ask that the lands described in the application be accepted in part satisfaction of the said grant to the state. It is not our business to anticipate the rulings of the United States Land Department upon the question herein decided, nor as to whether or not they will receive the application and grant the lieu land in place of the said sixteenth section. We must presume that the officers of the Land Department will obey the law, and we cannot in this decision anticipate any of its rulings.

It follows from what has been said that a writ of mandate should issue. directing and commanding the defendant, as surveyor gen eral and ex officio registrar of the state land office, and as locating agent of the state of California, to receive and file the plaintiff's application on payment of the lawful filing fee therefor, and thereupon to communicate with the United States land office, and ask that the lands described in plaintiff's application be accepted in part satisfaction of the grant under which said lands are sought to be located; and it is so ordered.

We concur: HALL, J.; KERRIGAN, J.

(6 Cal. App. 163)

KEATING V. MORRISSEY. (Civ. 340.) (Court of Appeal. Third District, California. July 31, 1907. On Rehearing, Aug. 29, 1907. Rehearing Denied by Supreme Court Sept. 26, 1907.)

1. BILLS AND NOTES-ACTION ON NOTE-PRIMA FACIE CASE-BURDEN OF PROOF.

Offer and receipt in evidence of a note sued on constituted prima facie proof that the note was given for a sufficient consideration, as

provided by Code Civ. Proc. § 1963, subd. 21, and Civ. Code, § 1614.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 7. Bills and Notes. § 1816.]

2. SAME-WANT OF CONSIDERATION-BURDEN OF PROOF.

Where a note sued on is offered in evidence, the burden of proving want of consideration is on the defendant, as provided by Civ. Code, § 1615.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 7. Bills and Notes, § 1654.]

3. CONTRACTS-CONSIDERATION-FORBEARANCE OF PROSECUTION OF ANOTHER FOR FELONY.

A note executed in consideration of a promise of the payee to refrain from prosecuting another for felony is void as opposed to public morals and public policy.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 11. Contracts, § 633.]

4. SAME FORBEARANCE OF CIVIL ACTION EVIDENCE.

Defendant's son, while acting as plaintiff's agent for the loaning of her money, executed a

note in his own name to plaintiff for part of the money loaned, and then executed in the names of fictitious persons other notes to plaintiff for the balance. After he had absconded, plaintiff discovered the fraud, and went to defendant, who executed the note sued on for the entire amount. Held, that such facts were sufficient to support a finding that defendant's note was made in consideration of plaintiff's forbearance to sue the son on his own note, and was not therefore void as a contract to refrain from prosecuting the son for forgery.

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Where a note sued on is proved and offered in evidence, it raises a presumption that it is based on a sufficient consideration, in the absence of evidence to the contrary.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 1653.]

6. APPEAL-EVIDENCE-REVIEW.

Where there was evidence justifying a finding that the consideration for a note sued on was plaintiff's forbearance to sue the maker's son in a civil action on certain other indebtedness, and such finding by a jury was sus tained by the trial judge, it could not be set aside on appeal, because there was other evidence that the note was given to save defendant's son from prosecution for forgery.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3948-3950.]

Appeal from Superior Court, San Joaquin County; F. H. Smith, Judge.

Action by Mary L. Keating against Mary J. Morrissey. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, she appeals. Affirmed.

Arthur L. Levinsky, for appellant. Ashley & Neumiller, for respondent.

HART, J. This is an action upon a promissory note for the sum of $5,041, with interest at the rate of 5 per cent. per annum. Said note was made and delivered by the defendant to the plaintiff in the county of San Joaquin on the 16th day of July, 1902, payable one year after date. The case was tried by jury, a verdict returned in favor of plaintiff for the sum of $5,631.33, representing the principal and interest on said note, and a judgment entered accordingly. The answer sets out with minute particularity the circumstances which, it is alleged, attended the transaction resulting in the execution of the note, the substance of all which is that said note was secured from the defendant by the plaintiff by means of threats or duress, and that therefore there was no valid consideration for the same. The defendant prosecutes this appeal from the order denying her motion for a new trial, upon a bill of exceptions.

The defense relied upon for the defeat of the action, as must be inferred from the allegations of the answer, as we have briefly stated them, was that the note which forms the basis of the suit was without sufficient or any consideration. We will proceed to an examination of the record for the purpose of determining this question. The undisputed

facts of the case, as developed by the proofs, are: Several years prior to the execution of the note which is the subject of this suit, the plaintiff made Walter Morrissey, a son of the defendant, her agent, with full power to negotiate loans of money for her. While so acting in that capacity for plaintiff, said Morrissey loaned, or pretended to have loaned, certain sums of money to different parties, taking in the name of plaintiff what purported to be their promissory notes therefor. These notes. 14 in number, were delivered to the plaintiff by Morrissey. All of these notes, with the exception of one which was made so as to mature one year after the date of its execution, were made payable "one day after date," and represented amounts varying from $150 to $800; the sum total of the money so claimed to have been loaned being $5,041. Some of these notes were made in the year 1899, others in the year 1900, and one in the year 1901. Three of these notes bear upon the backs thereof an indorsement, signed by the plaintiff, acknowledging the receipt of the interest which had accrued thereon. The plaintiff did not, at the several times at which she received said notes from Morrissey, either personally or by reputation, know persons bearing the names represented by the signatures subscribed to the notes. A short time before the making and delivery of the note by the defendant to the plaintiff. Morrissey, without previously apprising the plaintiff or any of his other acquaintances of his intention to do so, departed from San Joaquin county, or at least could not be found at his home or in that county. The plaintiff was desirous of securing the payment of the interest which was due upon the notes. and, not being able to find her agent, and, as stated, not knowing anything of or about the parties who were represented to have made the notes, proceeded to make an investigation into the matter. She sought the aid and advice of a Mr. Crane, of Stockton, and, as he was not acquainted with any persons of the names attached to the notes as representing the makers thereof, the great register and the tax roll of the county were carefully examined, with the result that neither contained the names attached to the notes. Thereupon the plaintiff called at the residence of the defendant and obtained from her the note, to secure the payment of which this action was instituted.

At the trial, the plaintiff offered, and the same was received in evidence. the note in dispute, and then rested her case. This constituted, of course, prima facie proof of all that the note purported to be. The presumption is that the note was given for a sufficient consideration. Section 1963, subd. 21, Cole Civ. Proc.: section 1614. Civ. Code. The burden of proving want of consideration suificient to support the note was upon the defendant. Section 1615, Civ. Code. The defendant, having been sworn as a witness, gave testimony directed to the support of the

allegations of her answer, stating that on both occasions of the visit of the plaintiff at her residence the latter declared that she had investigated the great register and tax roll of the county, and that neither contained names corresponding with those attached to the notes delivered to her by Walter Morrissey; that she submitted to the defendant for inspection the 14 notes, said they were forgeries, and Walter was guilty of forgery, and, unless she was reimbursed or indemnified against the loss which it was probable she would sustain through the criminal acts of said Walter, she would cause him to be arrested and prosecuted for a felony and punished therefor by imprisonment in the state penitentiary. The defendant further testified that when the conversations occurred she was and had been for some time prior thereto in ill health, and, keenly realizing the humiliation and chagrin which the disgrace occasioned by the prosecution of her son upon a felony charge would entail upon herself and her family, and influenced by no other motive or consideration, readily agreed, on the occasion of the first interview between plaintiff and herself, to adjust the matter. On the following day. so defendant testified, the plaintiff returned to the residence of the former, and, presenting to her a printed blank form of a promissory note, requested her to fill it out and sign it, at the same time repeating her threat to prosecute Walter unless the note was given by defendant. The defendant thereupon filled out the note for the sum of $5,041, with interest at the rate of 5 per cent., and attached her signature thereto. Upon the suggestion of the plaintiff, the note was executed for the sum of $5,041, although the interest due on the 14 notes turned over to plaintiff by Walter Morrissey amounted to the sum of $600. Plaintiff waived her right to said interest, saying to the defendant that she would be satisfied with a note for the principal sum so obtained from her by Walter. A majority of these 14 notes called for interest at the rate of 8 per cent. per annum: the remainder provided for interest at the rate of 9 and 10 per cent. One of the 14 notes, so delivered to plaintiff by said Walter, purported to have been executed by "W. A. Morrissey" and one "Geo. L. Brown," and the defendant, while under crossexamination as a witness, admitted that her son's name was "W. A. Morrissey," and that the signature to the note of which we are speaking appeared to be in the handwriting of her son. The defendant's version of the transaction was corroborated to some extent by her daughter, who testified that, being in a room adjoining the one in which occurred the conversation between the parties on the day upon which the note was made, she overheard the plaintiff say "that, if a paper was not signed, she would have my brother Walter arrested." At the conclusion of the testimony thus given on behalf of the defendant. the defense rested.

The plaintiff was sworn as a witness in rebuttal, and not only denied making the threats to which the defendant and her daughter testified or using any language from which it might be inferred that she threatened to prosecute Walter for or even accused him of committing forgery, but also gave, in full and in detail, what she claimed to have been said by both herself and the defendant during the course of the only conversations held between the parties involving the transaction resulting in the execution of the note. She was exhaustively cross-examined, but nothing was thus brought out showing affirmatively or otherwise that there was not a valid consideration for the note. In other words, there was nothing stated by her as a witness which tended affirmatively to overcome the presumption of a consideration. Among other things, she declared that the defendant, in the first conversation, said that she had previously made efforts to secure for Walter the necessary money with which to reimburse the plaintiff, thus showing. at least, that the defendant knew of the financial transactions between her son and the plaintiff, and that she had before the conversations formed an intention to aid Walter in discharging his obligation to plaintiff. This part of the conversation was not disputed.

It is only elementary to say that the jury, or court trying an issue of fact, as the exclusive judge of the weight of all evidence submitted upon such issue and of the credibility of the witnesses, has the right to discredit the witnesses or disregard altogether evidence offered in support of a material issue in the case. And in the case at bar it was within the exclusive province of the jury to declare whether the evidence offered to overcome the presumption of consideration for the note was of sufficient strength to do so or not. Having determined that it was not, the verdict so returned is, as to the facts, unimpeachable, so far as this court is concerned. A court or jury is not bound to believe an interested witness as against a presumption, if the latter satisfies its mind. Code Civ. Proc. § 2061. subd. 2; Adams v. Hopkins, 144 Cal. 36, 77 Pac. 712; People v. Milner, 122 Cal. 179, 54 Pac. 833. In the last-mentioned case, the court, through Mr. Justice Henshaw, thus states the rule: section 2061, subd. 2, of the Code of Civil Procedure, jurors are to be instructed 'that they are not bound to decide in conformity with the declarations of any number of witnesses which do not produce conviction in their minds, against a less number, or against a presumption or other evidence satisfying their minds.' In this is a distinct recognition of the facts: (1) That a presumption is evidence; and (2) that it is evidence which may outweigh the positive testimony of witnesses against it. It has been said that disputable presumptions are allowed to stand, not against the facts they represent,

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but in lieu of proof of the facts, and that, when the fact is proven contrary to the presumption, no conflict arises, but the presumption is simply overcome and dispelled, citing Savings, etc., Soc. v. Burnett, 106 Cal. 514, 39 Pac. 922. This is true. Against a proved fact, or a fact admitted, a disputable presumption has no weight; but, where it is undertaken to prove the fact against the presumption, it still remains with the jury to say whether or not the fact has been proven. and, if they are not satisfied with the proof offered in its support, they are at liberty to accept the evidence of the presumption."

It is, of course, at once to be conceded that a note executed in consideration of a promise to refrain from prosecuting a person for a felony would be absolutely void, for such a contract would be opposed to public morals, as well as public policy. In fact, such a consideration in this case, if a forgery had been committed by Walter, would itself constitute or involve the commission of a crime. But, as we have indicated, the jury found against the contention of the defendant as to the circumstances under which the note was given, and we are bound by that finding. It is also to be admitted that, if there is shown by the evidence, either by presumptive, or positive proof, any valid consideration. whatever for the note-if for instance, the note was signed upon an agreement or promise upon the part of the payee that she would refrain from instituting suit on the one note of the fourteen bearing the signature of Walter Morrissey-there would then be in law a sufficient consideration for the support of the note, for "the law will not attempt to measure the amount or weigh the quantum of the consideration." Whelan v. Swain, 132 Cal. 391, 64 Pac. 560; Pillans v. Mierop, Lang. S. C. L. Cont., p. 177. We think the evidence, both circumstantial and direct, fairly warrants the inference that Mrs. Morrissey, in executing the note, was influenced by the consideration that, for so doing, the plaintiff would forbear bringing a civil ac tion against her son for the recovery of the money due plaintiff from him. If the facts of the transactions between plaintiff and Walter were such as the record seems to indicate them to have been, it is just as logical to infer that Mrs. Morrissey was almost as much in dread of the consequences of a civil as a criminal action, for it is only a response to the natural sentiment and love of a mother that she should spare no efforts to save her son from the disgrace and loss of confidence of the public generally which would follow the exposure through a lawsuit of bad faith and dishonesty in him in his business dealings with another party. Besides, the desire to save herself and family and family name from being linked with transactions of a shady nature or involving fraud or the elements of a public crime would serve as a strong incentive or induce

ment in a mother to prevent the institution of a civil action which would expose to the public the questionable circumstances giving rise to the suit. But, as we have declared, we are not called upon to hunt for the specific reasons which moved the defendant in signing the note. It is enough to know that, after all the evidence was introduced and considered, the jurors, guided presumably by all the criteria by which the law says they must be governed in weighing evidence, decided that the presumption of a sufficient consideration for the support of the instrument was not dispelled, or that such presumption satisfied their minds as against the other evidence which failed to possess such persuasive power.

We have consulted with painstaking care all the authorities cited by counsel representing both sides of this controversy. There is no conflict between the views here and those expressed in the cases to which our attention has been called. There is a large number of specifications of alleged error, involving rulings of the court in the reception and rejection of evidence and in the giving and refusal of instructions. It would require unnecessary labor to give all the assignments of error special notice. We may say, however, that we have given much time to an examination of the record and to a consideration of all the points urged, and we may state, generally, that we think the court-carefully, fully, and correctly declared to the jury the law applicable to the issues and the facts, and that in the rulings upon the reception and rejection of evidence we find nothing which in any degree prejudiced the rights of appellant. It is noticeable that in all instances where questions were propounded to a witness and to which objections were sustained, the same questions to the same witness were at some other time during her examination allowed. The rulings of the court were therefore not erroneous. We think the case was fairly tried, and that the appellant therefore suffered no prejudice either from the rulings of the court upon the admission and rejection of testimony, or from the giving and refusing of instructions.

The order is affirmed.

We concur: CHIPMAN, P. J.; BURNETT, J.

On Rehearing.

HART, J. In his petition for a rehearing, counsel for appellant insists that this court was justified in declaring that the evidence introduced both upon the part of the defendant and the plaintiff, after the proof of the note upon which the action was brought, was sufficient to and did overcome the presumption of a consideration for said note. He calls our attention to certain language used in the case of Adams v. Hopkins, 144 Cal. 36, 77 Pac. 712. which, he claims, sustains his contention that upon the evidence

as shown by the record the case should be reversed, because said presumption was, in truth, overcome. The language referred to reads: "It will be presumed that there was a good consideration for the written release, in the absence of evidence to the contrary." The rule as thus stated is undoubtedly sound and applicable to all disputable presumptions of fact. In truth, their very characterization by the Code provision as "disputable presumptions" carries with it necessarily the right to controvert them by other evidence and the complete exhaustion of their force when evidence has been introduced sufficient to destroy the verity of the facts for which, until then, the law, for reasons of expediency, makes them responsible vouchers. The presumption of a consideration is, indeed, enough to support the note, in the absence of evidence to the contrary. But in whom is vested, under our system, the exclusive province of determining when there is evidence to the contrary? There must be, as counsel will concede, a determination by somebody that there is in fact evidence to the contrary. The fact that the record here seems to show "evidence to the contrary" is not enough, so far as our power over the verdict and findings is concerned. It must have been "evidence to the contrary" to which the proper tribunal has given such weight as to enable it to say that such "evidence to the contrary" has overcome and dispelled the presumption. The learned counsel's argument would be valid and might be sound addressed to a jury or court trying the facts, but. when addressed to this court, it overlooks the constitutional provision limiting the power of the appellate courts of this state to the determination of questions of law alone, and that, therefore, the Supreme and this court would clearly transcend their appellate jurisdiction, as outlined by the Constitution, were they to engage in the business of indiscriminately setting aside verdicts of juries and findings and judgments of trial courts upon the ground of the insufficiency of the evidence to sustain them, except, of course, in such cases only in which it can truly be said that. as a matter of law, the evidence is not strong enough to uphold such verdicts, findings, or judgments. However differently the record evidence may strike different minds, it is evident that the jury trying the issues of fact did not think the evidence was strong enough to overcome the presumption, and it is equally evident that the trial judge, who presided at the hearing of the cause, and who heard the evidence, was of the same opinion when he made the order denying appellant's motion for a new trial. The weight of the evidence and the credibility of the witnesses were matters peculiarly within the duty of the jury to determine, and, having decided the facts against the appellant, and having, it is clearly apparent, in reaching their conclusion, disregarded or discredited the testimony of

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