vol. 3, § 1212: "When any person having a | auswer to the complaint denying most of its subsequent interest in the premises, and who is therefore entitled to redeem, for the purpose of protecting his interest, and who is not the debtor primarily and absolutely liable for the mortgaged debt, pays off the mortgage. he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far as may be necessary in equity for his own benefit. He is subrogated to the rights of the mortgagee to the extent necessary for his own equitable protection." And the court held further that this equitable result follows, though a receipt was given speaking of the mortgaged debt as having been fully paid, and sometimes even though the mortgage itself was actually discharged and satisfied of record. In Schaeffer v. McClosky, 101 Cal. 576, 36 Pac. 196, it was held that one who is forced to pay the debt of another, in order to protect his own interest, and who is not a mere volunteer or intermeddler, is in equity to be subrogated to the debt. See Hines v. Ward, 121 Cal. 115, 53 Pac. 427. In Darrough v. Herbert Kraft Company Bank, 125 Cal. 272, 57 Pac. 983, the court held that where the owner of the mortgaged premises paid off a senior lien thereon without actual knowledge of the junior lien, the latter shall derive no advantage over the senior lien; and that it will be presumed that such owner made the payment for his own benefit, and not for the benefit of the junior lien holder, and for the protection of his interests, equity will treat such owner as the assignee of the original senior lien holder, and will revive and enforce such senior lien for his benefit. Respondent does not seriously controvert these principles, but he contends, among other things, that appellants, for various reasons, have not, by their pleadings, shown that they are entitled to invoke these rules. Conceding the sufficiency of the pleadings, it seems to us that, in claiming to be the successors in interest of the Argalls, the only interest in controversy, appellants have failed to show a superior equity to the rights claimed by plaintiff. It appears that the Argalls conveyed their interest to defendant company May 31, 1899; that defendant company mortgaged the property October 25, 1899, and that the deed of the Argalls was recorded January 12, 1900. Appellants do not allege or show by evidence the date of their conveyance by which they became successors in interest of the Argalls and the other makers of the Blanchard mortgage. Claiming, as they did, that their right was superior to that of the plaintiff, the burden was on them to prove it. Plaintiff did not know, and could not know, the source of defendants' title or interest. The evidence is that Blanchard filed his complaint to foreclose on November 5, 1899; decree of foreclosure and sale was entered February 23, 1900; the commissioner made sale March 31, 1900; the complaint for redemption was filed June 24, 1901. There was an allegations. Findings of fact were waived and by consent a decree was entered adjudging that "plaintiffs herein redeemed the premises * * * as successors in interest of the judgment debtors in the action aforesaid." In their answer to plaintiff's complaint in the present action, appellants allege that "at the time of the commencement of this action, they were, ever since have been, and now are the owners of that certain quartz mine," etc. They, therefore, make no claim to ownership prior to the commencement of this action, which was July 24, 1902, and the earliest date any interest is shown in them is June 24, 1901. It would thus appear, and the trial court might well have inferred, that appellants in the present action-F. F. Britton and Mrs. A. L. Emerson, became successors of the interests conveyed to them, including the Argall interest, long after the Argalls had conveyed to the defendant company and long after their conveyance was recorded and had inured to the benefit of the mortgagee of defendant company. When, therefore, appellants assumed to redeem as the successor in interest of the Argalls, they had constructive notice that the Argalls had already conveyed their interest to defendant company and that defendant company had mortgaged that interest to plaintiff's assignor. So far as appears they may also have had actual notice of the deed, and Mrs. Emerson, so far as appears, may also have had actual notice of the mortgage. Appellant Britton testified that he "did not know anything about this particular mortgage in controversy," but he said nothing about the deed. There is no fraud or bad faith alleged or shown in the conveyance by the Argalls to defendant company; there is neither allegation nor proof of mistake by appellants or that they were misled in any way in becoming successors in interest of the judgment debtors in the Blanchard foreclosure. As to 11/20 interest in the property, they secured title which the court by its decree recognized and protected by declaring it to be subject to the senior mortgage and by refusing to subject it to plaintiff's lien. As to 9/20, the Argall interest, the court held it subject to plaintiff's mortgage lien, and in effect held that by redeeming from the senior mortgage sale, and paying off the judgment debt, appellants thereby discharged the lien of that mortgage upon the Argall interest. We are unable to discover any equitable principle upon which the senior mortgage should be kept alive for the benefit of appellants or which would enable them to enforce a lien upon the Argall interest under the facts disclosed. We are quite convinced that the equitable principles invoked by appellants cannot be made to serve such object. It is perhaps proper to add that the case of Frates v. Sears, 144 Cal. 246, 77 Pac. 905, relied upon by respondent, does not entirely meet the situation here, and it is not necessary to resort to the rule there es tablished. In that case when the junior mortgagee, who had not been made a party to the foreclosure of the senior mortgage, brought his action to foreclose and made the senior mortgagee a party (who was the purchaser at his foreclosure sale), the latter failed in enforcing his prior lien because, when he answered, his mortgage debt had become barred by the statute of limitations. In the present case the senior mortgage was not barred when the answer was filed. The reasoning may go further, but the point decided in Frates v. Sears was that the lien of the senior mortgage is lost, if, when he asserts it against the foreclosure of the junior mortgage, his mortgage debt is barred. Respondent also relies upon the point that as soon as the Argall deed was delivered to the defendant company it commenced to feed the mortgage of plaintiff, although not recorded until later, and that the neglect of defendant company to record this deed cannot affect the rights of plaintiff. Numerous authorities are cited in support of the proposition. We neither affirm nor deny its soundness, in this particular case, but prefer to rest the decision upon the ground above stated. The judgment and order are affirmed. I concur: BUCKLES, J. Action by Walter E. Logan against J. C. McMullen. From a judgment in favor of defendant, plaintiff appeals. Affirmed. C. S. Farquar, for appellant. Dudley Kinsell, for respondent. HARRISON, P. J. Action to recover for services as broker for the purchase of certain real estate. tain real estate. A judgment of nonsuit was rendered against the plaintiff, and he has appealed therefrom. At the trial, after testifying that he was a real estate broker, and that he had had several interviews with the defendant regarding the property referred to in the complaint, the plaintiff offered in evidence the following instrument as a note or memorandum in writing requisite under section 1624, Civ. Code, for his recovery, viz.: "Oakland, Cal., July 31. 03. Walter E. Logan: Sir-If you can purchase N. W. corner of 13th and Franklin streets 75x100 for $42.000 I think we would be ready to purchase same by Monday next. J. C. McMullen;" and in connection therewith offered to prove that, acting under it. he went to San Francisco on Friday, July 31st, and had an interview with the owners of the property, and showed them this instrument, and got from them "an offer" that they would accept $42,000; that the proposition was made that it was to be "arranged" I concur in the judgment: McLAUGH on Monday; that a few minutes before noon LIN, J. (4 Cal. App. 154) LOGAN V. MCMULLEN. (Court of Appeal. First District, California. July 23, 1906.) 1. BROKERS-EMPLOYMENT-MEMORANDUM. A letter, written to a broker advising him that if he could purchase certain described real estate the signer thought he would be ready to purchase the same on the succeeding Monday, at a specified price, was not a sufficient note or memorandum of a contract to employ the broker to purchase the property required by Civil Code, § 1624. [Ed. Note. For cases in point, see vol. 8. Cent. Dig. Brokers, § 44.] 2. SAME-PERFORMANCE OF SERVICE. Where a broker was employed to purchase certain real estate for his customer, his contract was not performed unless he procured an enforceable contract from the owners to make the sale or brought the parties together so that his employer would have an opportunity to secure such contract. [Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Brokers, § 65.] 3. SAME. A broker for the purchaser of real estate cannot call upon his employer to come to the place of business of the vendor, and there make the contract, or negotiate for its terms. [Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Brokers, §§ 69, 75-81.] 4. TRIAL OFFER OF EVIDENCE-REJECTION. An offer of evidence which, taken in its entirety, fails to show a cause of action, is properly rejected. Appeal from Superior Court, Alameda County; S. P. Hall, Judge. on the next day, Saturday, the defendant stated to him that he would go with him. to San Francisco on the next outgoing narrow gauge train, to which he replied that he could not go on that train but would go on the next broad gauge train and would meet him at the owner's office; that he went over, and remained there for three hours, but the defendant did not make his appearance; that thereafter the defendant met him and stated that he recognized that he had rendered services in the matter, and that he would be compensated therefor. The defendant objected to the introduction of the instrument on the ground that it is incompetent and irrelevant: that it does not comply with the requirements of section 1624, Civ. Code: that it does not purport to employ or authorize the plaintiff to purchase the real estate for the defendant or to act as his broker. The court sustained the objections, to which ruling the plaintiff excepted; and the plaintiff. admitting that there was no other writing or authorization of employment, and offering no other evidence, the defendant moved for a nonsuit upon the ground that the evidence did not sustain any of the allegations of the complaint. The court granted the motion, to which the plaintiff excepted. The court properly sustained the objections of the defendant to the above instrument. It does not purport to be an employment of the plaintiff as a broker or agent for the purchase of the real estate, but is rather to be construed as merely a propo the purpose of securing a contract, and his failure to do so did not operate to relieve the plaintiff from the necessity of bringing the vendor to Oakland if he did not secure a valid agreement for a sale. The plaintiff did not offer to show the purpose for which the defendant was to go to San Francisco; and as by the terms of the above instrument the defendant was not to be ready for the purchase until the following Monday, and as the plaintiff's proposition to the owners was that the matter was to be "arranged" on Monday, there does not seem to have been any necessary connection between the trip to San Francisco and the purchase of the lot. By declining to accept the defendant's proposition to go by the first narrow guage train, and not receiving from him any acceptance of his own counter proposition to go that there was any meeting of their minds or any agreement between them to go to San Francisco. The facts which the plaintiff offered to show in connection with the instrument were insufficient to render the instrument admissible. Inasmuch as he was not entitled to compensation by virtue of the agreement unless he had obtained a contract from the vendors, or brought them and the defendant together, the whole of the evidence offered would be incompetent to establish any cause of action against the defendant. An offer of evidence which, taken in its entirety, fails to show a cause of action, is properly rejected by the court. "The offer must be complete in itself, and must not omit facts without which the facts offered are not relevant." Chamberlain v. Vance, 57 Cal. 75. As the instrument in writing was excluded there was no evidence before the court in support of the allegations of the complaint, and the court had no alternative but to grant the nonsuit. The judgment is affirmed. sition to him to ascertain whether it could be purchased at the designated price; but whatever construction is to be given to its terms, inasmuch as the plaintiff did not purchase the property or obtain from the owners an agreement for its sale which could be enforced by the defendant, the latter did not become liable to him for any services as broker or agent in the matter. If the plaintiff would assume that, by virtue of the instrument, he was authorized to act as broker for the defendant for the purpose of effecting a purchase of the property for him, and would claim compensation for his services, it was his duty to procure from the owners and deliver to the defendant a valid contract for its sale which could be enforced by the defendant; or, if he should obtain from the owners a verbal agreement to make 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 opportunity to secure such contract. Zeimer v. Antisell, 75 Cal. 509, 17 Pac. 642; Waterman v. Boltinghouse, 82 Cal. 659, 23 Pac. 195: Gunn v. Bank of California, 99 Cal. 350, 33 Pac. 1105; Mattingly v. Pennie, 105 Cal. 516, 39 Pac. 200, 45 Am. St. Rep. 87. The conditions under which a broker for the purchase or sale of real estate is entitled to commissions are stated in the case last cited as follows: "In order to entitle a broker under such a contract to recover commissions where no sale has actually been consummated, it is incumbent upon him to prove that he found a purchaser ready, willing, and able to buy the property on the terms fixed: and either that he procured from that person a valid contract binding him to purchase the property upon those terms, or that he brought the vendor and the proposed purchaser together so that the vendor might have secured such contract if he desired. On no other terms can he recover. The readiness and willingness of a person to purchase the property can be shown only by an offer on his part to purchase; and unless he has actually entered into a contract binding him to purchase, or has offered to the vendor and not simply to the broker to enter into such a contract, he cannot be considered a purchaser." The broker must perform all of the services thus required of him before he can claim compensation from his employer. His principal is under no obligation to assist him in their performance or to relieve him from a full compliance with his duty. The broker for the purchaser cannot call upon his principal to go to the place of business of the vendor, and there make the contract or negotiate for its terms. He is employed for the very purpose of relieving his principal from taking any trouble in the matter, and he must either bring to him a perfected contract, or the vendor in person, ready, able, and willing to make the contract. The defendant was under no obligation to hunt up the owners, or go to San Francisco for We concur: COOPER, J.; HALL, J. (4 Cal. App. 55) PEPPER v. NEIMAN. 1. MUNICIPAL CORPORATIONS STREET IM- A resolution of intention to make a street improvement, which, in its title, declares the intention of the municipal authorities to improve a portion of a street, and which states in its body that it is the intention to construct a cement curb along each line of the roadway of the street between designated points, except along such portions of the line of the roadway on which a cement or granite curb has already been constructed, etc., does not provide for two distinct lines of work, one along each boundary of the roadway, but describes the improvement of the street between the points specified. 2. SAME-POSTING NOTICE - STATUTES-CON STRUCTION. St. 1891, p. 196, c. 147, § 3, providing that a notice of a contemplated street improvement cial line and grade)," etc. "(2) That a cement sidewalk six feet in width be constructed along each side of said Flower street," etc. "(3) That a cement gutter be constructed along each side of said Flower street," etc. shall be posted along the line thereof at not, curb has already been constructed to the offimore than 100 feet in distance apart, requires notices not more than 100 feet apart longitudinally along the line of the improvement, and notices posted on either side of a street intended to be improved are notices posted on the line, so that if such notices are not more than 100 feet apart, measuring the distance along the center of the improvement, the statute is cou plied with, and diagonal measurements are not to be considered. [Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 787.] Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge. Action by Enoch Pepper against F. Neiman. From a judgment for plaintiff, defendant appeals. Reversed. Bicknell, Gibson, Trask, Dunn & Crutcher, and S. M. Haskins, for appellant. Enoch Pepper, in pro. per. and H. S. Rollins, for respondent. PER CURIAM. This is a suit to quiet plaintiff's title to three lots in the city of Los Angeles fronting on Flower street. The defendant in his answer claims a lien upon each lot-upon two for the sum of $75.29 each, and upon the other for the sum of $80.61-under a street assessment for the cost of the improvement of a portion of Flower street. The answer sets up seriatim all the proceedings required by the street improvement act; and, in a cross-complaint repeating these allegations, the defendant seeks to foreclose his liens. It is stipulated and found by the court that all the proceedings for the improvement of the street and assessment of the lots were regular, except the posting of the notices of the contemplated work or improvement on the ground, as to which it is stipulated and found: That the length of the portion of the street improved is 4,583 feet, and the width of the street between curb lines 56 feet; that the number of notices posted was 52 in all; and, that they were posted alternately on the east and west sides of the street. It appears, therefore, from the stipulation and findings that the distance between the notices, measured diagonally across the street, is something over 100 feet, though less if measured longitudinally with the street, and on this ground the court held the assessment to be void. The resolution of intention in the present case is entitled: "An ordinance of the mayor and council of the city of Los Angeles, declaring their intention to improve a portion of Flower street, and determining that bonds shall be issued to represent the cost thereof." In the first section it is provided: "That it is the intention of the city council of the city of Los Angeles to order the following work to be done, to wit: "(1) That a cement curb be constructed along each line of the roadway of said Flower street from the southerly curb line of Sixth street to the northerly curb line of Pico street (excepting along such portions of the line of said roadway upon which a cement or granite It is contended by the appellant that the work described in the ordinance of intention is the improvement of Flower street between the points specified, and by the respondent that there were two distinct lines of work provided for, one along each boundary of the roadway. Assuming the latter to be the case, it would follow that the distances between the notices along the line of each improvement would be much in excess of 100 feet. But we do not think that the ordinance can be so construed. As expressed in the title, the intention was to improve a part of Flower street, and in the first section of the ordinance "the line of said roadway" is referred to. We are of the opinion, therefore, that the case is the same in this respect as was the case in Dowling v. Hibernia Sav. & L. Society, 143 Cal. 425, 77 Pac. 141, where the roadway was included in the improvement proposed. The fact remains, however, that the distance between the notices, measured diagonally across the road, was over 100 feet; and the question thus arises, whether this was a sufficient compliance with section 3 of the street improvement act, which provides that the notices shall be "posted along the line of said contemplated work or improvement at not more than one hundred feet in distance apart." St. 1891, p. 196, c. 147. The question is not without difficulty; but, on the whole, we are of the opinion that the section requires notices not more than 100 feet longitudinally along the line of the improvement; that the entire street is the line referred to; that notices posted on either side are notices posted on the line, and if such notices are not more than 100 feet apart, measuring the distance along the center of the improvement, the section is complied with, it matters not upon which side of such center line the notices are actually posted; and that the diagonal measurements are not to be considered. It is ordered that the judgment be reversed. (4 Cal. App. 117) DORRIS et al. v. McMANNUS et al. (Civ. 212.) (Court of Appeal. Third District, California. July 20, 1906.) QUIETING TITLE-EVIDENCE. Defendants in an action to quiet title, having pleaded such claim as they had, and introduced no evidence in support thereof, findings that it was without right and adverse to plaintiffs are authorized without any evidence by plaintiffs other than to show their title. [Ed. Note. For cases in point, see vol. 41, Cent. Dig. Quieting Title, § 89.] Appeal from Superior Court, Modoc County; N. D. Arnot, Judge. Action by P. S. Dorris and another against Laura J. McMannus and others. Judgment for plaintiffs. Defendants Laura J. McMannus and another appeal. Affirmed. Chas. W. Slack and John W. Bourdette, for appellants. G. F. Harris, Gillis & Tapscott, and Jaimeson & Adams, for respondents. CHIPMAN, P. J. Action to quiet title. Plaintiffs had judgment, from which and from the order denying their motion for a new trial defendants Laura McMannus and Martha S. McConnell appeal. There are numerous defendants, none of whom appeal, except the defendants Laura McMannus, Martha McConnell, and Charles Bohnert; the latter of whom appealed on separate transcript (No. 207, Sac. No. 1,339). We affirmed the judgment and order in that appeal on May 15, 1906. (Cal. App.) 86 Pac. 909. The present appeal is presented by different counsel, who urge points not made in the Rohnert appeal, and, for this reason alone. we again examine the case. The complaiur is unverified, and contains the usual averments that defendants claim an estate or interest in the lands adverse to plaintiffs, and that such claim is without right. Plaintiffs further aver "that by means of the false representations and pretenses aforesaid of the said defendants, and each and every of them, the plaintiffs, and each of them, are greatly embarrassed in the free enjoyment, use and disposition of their said described lands." and that plaintiffs' interest in said lands is "greatly depreciated by reason of the probability of title in the said defendants. or some of them, resulting from and growing out of said false and pretended claims of the said defendants." Defendant McMannus answered, denying generally the allegations of the complaint; also averring that. on December 14, 1900, this defendant commenced an action against Presley A. Dorris and Carlos J. Dorris, copartners as P. A. Dorris & Bro. (through whom plaintiffs deraign title), upon a promissory note executed by them, which action is now pending; that in the event defendant obtains judgment in said action, she intends to institute suit to set aside the conveyance of the lands described in the complaint, on the ground that when transferred to plaintiff said lands belonged to the said Presley A. and Carlos J. Dorris, and that the said transfers to plaintiffs were procured to be made for the purpose of hindering and delaying the creditors of the said Presley A. and Carlos J. Dorris. Defendant prayed that the action as to her be not tried until the said action upon the said promissory note is tried and determined, and that defendant recover her costs. Defendant McConnell in her answer denied the averments of the complaint specifically, except that she did not deny that she claimed some interest in the property adverse to plaintiffs. She alleged a similar defense to that set up by defendant McMannus, as a creditor of P. A. and C. J. Dorris; she denied that her claim or interest was without right, but neither she nor defendant McMannus specifically alleged or claimed any interest in the land, and neither of them set forth any title or claim otherwise than such as might arise, should they become judgment creditors of P. A. and C. J. Dorris, partners, as P. A. Dorris & Bro. The court found that since June 29, 1900, plaintiffs have been and now are the owners of the title in fee simple of the land in question; "that the said defendants and each of them, claim an estate therein, adverse to plaintiffs." but that such claim is without right. The court then finds the facts speciffeally negativing the allegations of fraud in the transfer to plaintiffs, and also, by way of deraignment of plaintiffs' title, tracing it through one Jerome Churchill, who for many years prior to June 29, 1900, had loaned the said firm of the Dorrises large sums of money, and had held deeds to the said land and other property belonging to the said Dorrises as security therefor; that the said firm was unable to pay this large indebtedness, and on the date last named the said Churchill and the members of said firm had a full settlement by which it was agreed that the title should remain in said Churchill to all said property in consideration of the said Churchill fully discharging all claims against said firm, and that thereupon on said date said members of said firm released and quitclaimed all their interest in said property to said Churchill; that the said Churchill paid full consideration "and more than said property was worth;" that the said transfer was not fraudulent, nor for the purpose of delaying creditors of said firm, but was made "in good faith for a good and valid and ample consideration.". The court also found that on the date of the transfer of said lands to plaintiffs, to wit, on June 29, 1900, neither P. A. nor C. J. Dorris, nor the said copartnership, "had any right, title, interest, or estate, either legal or equitable, in said real estate, *** but that *** the whole thereof, both legal and equitable, belonged to and was vested in fee in the said Jerome Churchill;" that "by the false and pretended claims of defendants [naming all of them] *** plaintiffs plaintiffs * * * are greatly embarrassed in the free enjoyment, use, and disposition of their said real estate," and are thereby rendered unable to sell or dispose of the same except at greatly depreciated values and at great loss to plaintiffs. 1. Appellants contend that the allegation of the complaint as to defendants' claim of interest in the land adverse to that of plaintiffs was essential in this form of actionciting Lawrence v. Getchel (Cal.) 4 Pac. 544, and cases from other, jurisdictions; and that the allegation having been denied, it was incumbent on plaintiffs to prove it-cit |
