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a change of venue, based upon his residence Department 1 Appeal from Superior in Sacramento county. It was denied because Court, San Diego County; C. N. Andrews, two other defendants resided in Los Angeles Judge. county. The suit is brought by plaintiff to Action by Alma L. Boal and husband and secure support and maintenance from her another against A. G. Gassen. Judgment husband, defendant Garrett. The complaint for defendant, and plaintiffs Alma L. Boal alleges that the defendant Garrett recorded and husband appeal. Affirmed. a deed of certain real property to his code- Harrison G. Sloane, Morganstern, McGee, fendants, but that such deed was never de Henning & Hendee, and Wood & Wood, all livered and that title did not pass. Plaintiff of San Diego, for appellants. Hunsaker & seeks to remove said cloud upon the record as Britt, W. E. Mitchell, and John A. Powell, all ancillary to her action for support. Garrett's of Los Angeles, for respondent. codefendants answer and disclaim.

[1, 2] The complaint shows that defendant SLOSS, J. The cause having been tried, Garrett has ample property to maintain the the court made its findings of fact and conplaintiff other than that covered by the deed clusions of law, and entered a judgment to his codefendants. Therefore plaintiff is granting certain relief to the plaintiff Alma not injured by the cloud upon the record title, L. Boal. On the defendant's motion, made and cannot sue to remove the same. As no under section 663, Code of Civil Procedure, cause of action is stated against the codefend- the court altered and amended its concluants of Garrett, his motion for a change of sions of law, and entered a different judg. venue should have been granted. Remington ment. Alma L. and J. Mills Boal appeal Sewing Machine Co. v. Cole, 62 Cal. 311 ; from the second judgment. Sayward v. Houghton, 82 Cal. 628, 23 Pac. The findings are, in effect, as follows: Al. 120; McKenzie v. Barling, 101 Cal. 459, 461, ma L. Boal was, on December 1, 1911, the 36 Pac, 8.

owner of a parcel of land in San Diego Order reversed.

county. On that day she and her husband,

J. Mills Boal, made and delivered their promWe concur: MELVIN, J.; VICTOR E. issory note for $75,000, payable September SHAW, Judge pro tem.

16, 1913, to the defendant, A. G. Gassen, and secured the same by a deed of trust convey.

ing the above-mentioned land to Title Insur(178 Cal. 132)

ance & Trust Company, as trustee. The note BOAL et al. v. GASSEN. (L. A. 4168.) contained a provision for accelerating the (Supreme Court of California. April 15, 1918.) due date of the principal on nonpayment of

interest. In December, 1912, plaintiffs were 1. MORTGAGES 32(2)-DEED AS MORTGAGE -INTENT.

in default in payment of interest, and were An instrument, though in the form of an unable to raise funds to pay such interest absolute conveyance, will be treated as a mort- or the principal of their note. "The defendgage, if in fact it was given as security for ant was aware of their financial condition. performance of an obligation; the question being one of intent.

The plaintiffs had theretofore conveyed the 2. MORTGAGES 38(1) - PAYMENT CONVEY- land to one Bradbeer for convenience in neANCE TO MORTGAGOR.

gotiating a loan. The land was, on DecemA deed by a mortgagor covering the prop- ber 19, 1912, worth $250,000, and there was erty mortgaged under a trust mortgage, given then due from the Boals to Gassen $76,293.by the mortgagor to the creditor on the threat of foreclosure if he did not, held, under the cvi.

98. Prior to the last-named date the said dence, not a mortgage, but a transfer in pay- plaintiffs had endeavored, but without sucment and extinguishment of the mortgage debt. cess, to obtain from Gassen an extension on 3. MORTGAGES 32(5)-DEED AS MORTGAGE their debt. About December 14th Gassen -EVIDENCE

notified them that, upon their failure to pay The continued existence of a debt is a circumstance tending to show that a conveyance is an installment of interest to fall due Decema mortgage.

ber 16th, he would elect to declare the prin4. CANCELLATION OF INSTRUMENTS 59 cipal due, unless they would convey the prop

SETTING ASIDE RESTORATION OF STATUS erty to him upon the consideration that he Quo.

would cancel and satisfy the note and exeWhere a deed by a mortgagor to the creditor was set aside as having been obtained without cute to Bradbeer a certain option, which will adequate consideration and under undue influ- | be described hereinafter, and that, unless ence, it was not error to restore the creditor to said plaintiffs should pay the note or make his former condition, giving him the benefit of such conveyance, he would dirert the trusthe security of the mortgage, which was given tee to sell under the deed of trust. On or up in consideration of the conveyance.

about December 18th the Boals and Brad5. CANCELLATION OF INSTRUMENTS 57 EQUITABLE RELIEFSALE OF PROPERTY.

beer "assumed to enter into" an agreement Whero an absolute deed given by a mort- whereby plaintiff's were to convey the propgagor to the creditor was set aside, and the erty to Gassen in payment of the note, and mortgage restored, it was not error to direct Gassen agreed to execute to Bradbeer an opa sale of the property by a commissioner appointed by the court, instead of by the trustee tion for the sale, on or before January 1, named in the original mortgage.

1914, of said land to Bradbeer for $136,240,

which was $45,000 in excess of the debt, to-, tled to have the property sold; and that a gether with incidental expenses. The plain- commissioner should be appointed to make tiffs were unable to secure funds with which such sale. These conclusions are, in subto pay the debt, and they thereupon agreed stance, embodied in the second judgment, to accept the terms proposed by Gassen, and the one which is attached to this appeal, to execute the necessary instruments, but [1, 2] The appellants' contention is that such agreement and the execution and deliv- the court was right in the first instance in ery of the instruments thereupon executed holding that the conveyance of December, "was not the free and willing act of plain- 1912, was a mortgage. But this claim is entiffs or either of them, but was induced by tirely without support in the findings of fact. all of the circumstances surrounding the It is familiar law that an instrument, though condition of the parties.” The deed to the in the form of an absolute conveyance, condefendant was thereupon executed and de stitutes and will be treated as a mortgage, livered. The defendant canceled the note if in fact it was given as security for the and executed a release to plaintiffs, caused performance of an obligation. Lee v. Evans, the trustee to make a reconveyance of the 8 Cal. 430; Hodgkins v. Wright, 127 Cal. property to Bradbeer, and executed in fa- 690, 60 Pac. 431. The question is one of the vor of Bradbeer an option as above outlined. intention of the parties. But the findings, The plaintiffs at the same time signed a which we have summarized, contain nothing writing in which they declared and acknowl, which in any way indicates that the deed edged, in the most direct and explicit words, of December, 1912, was, so far as the under. that their obligation and indebtedness to Gas- standing, agreement, or intention of the parsen was extinguished; that they owed him ties is concerned, given to the defendant as nothing; that the conveyance to him was ab- security for a debt. The situation plainly solute; and that the land was held by him set forth is that Gassen insisted upon the free of any claim or interest on the part of transfer of the property in payment and exany of said plaintiffs. Except as stated, Gas- tinguishment of his debt, and that the plainsen gave to plaintiffs no consideration for tiff's yielded to his demand. Nobody ever the conveyance so made to him. On March thought that Gassen was getting a new or 11, 1914 (after the commencement of this ac- continuing security. tion), the plaintiff's made to Gassen a writ [3] The appellants rely upon the indings ten offer to pay him $94,000, being the sum that Mrs. Boal is the owner of the land, and due on December 19, 1912, with interest and that she and her husband are indebted to expenses, and defendant refused to accept Gassen. The continued existence of a debt the same, claiming to be the owner of the is, no doubt, a circumstance tending to show land. Plaintiffs have not paid anything on that a conveyance is a mortgage. Montgomaccount of said indebtedness. It was found ery v. Spect, 55 Cal. 353. But when the ind. that "there is now due and owing by plain- ings in this case are read as a whole, it is tiffs J. Mills Boal and Alma L. Boal to de perfectly obvious that the declarations of fendant, Gassen,” the principal of the prom- ownership and indebtedness were in reality issory note, with interest and sums paid for conclusions based upon the more specific taxes, aggregating $97,812.82. The plaintiff facts which led the court to the belief that did not at any time prior to the commence the transaction of December, 1912, was not, of this action tender to defendant any sum in equity, binding upon the appellants. In of money, or attempt in any manner to re other words, the court found that the debt scind the transaction of December, 1912. remained because the parties, although in

The conclusions of law first drawn from tending and agreeing that it should be exthese facts were that the deed executed by tinguished, had dealt under conditions which plaintiffs to Gassen on December 19, 1912, entitled the parties of the one part to avoid is a mortgage; that plaintiff Alma L. Boal their agreement. The theory of the trial is the owner of the land; that she and J. court evidently was that the transaction had Mills Boal owe the defendant $97,812.82; been induced by undue influence, as defined and that said defendant has no interest in in subdivision 3 of section 1575 of the Civil the land except a mortgage lien as security Code. for the payment of said sum. Judgment was [4, 5] The judgment finally entered gives entered accordingly.

to the appellants at least as much as they The conclusions, as amended following de have a right to ask. If the transaction of fendant's motion, were that the deed and December, 1912, is to fall, the defendant other instruments executed by plaintiffs in must be entitled to the benefit of the secuDecember, 1912, were obtained without ade- rity which he gave up in that transaction. quate consideration and under undue influ- | His note is overdue and unpaid, and the ence, and were voidable at plaintiffs' elec- judgment gives him no more than he could tion, upon the condition that defendant claim under the original and unquestioned should be restored to his rights under the contract, when it decrees a sale under the promissory note originally held by him, and deed of trust. We are unable to see that erthe deed of trust given to secure the same; ror was committed or that the interests of that the sums due on the note are secured the appellants were prejudiced by the action by the deed of trust, and defendant is enti of the court in directing a sale by a commis

.

sioner appointed by it, instead of by the The action was one relating to the rescistrustee named in the deed of trust. See sion of a contract for the exchange of real More v. Calkins, 85 Cal. 177, 190, 24 Pac. property and the recovery of the land of 729.

plaintiffs alleged to have been secured by Whether, on the facts found, the plaintiffs fraud. Chronologically the following facts were entitled to any relief at all, is open to appear from the record before us: The origi. serious doubt. But, since the defendant nal complaint was filed May 22,

1908; makes no complaint of the judgment, this amended complaint December 15, 1908; and question does not call for consideration. the case came on regularly for trial June 13, The judgment is affirmed.

1911. The decree was filed June 17, 1912,

and the judgment roll was filed on the folWe concur: SHAW, J.; RICHARDS, lowing day. There was no attempted apJudge pro tem.

peal from the judgment. The court denied

the motion for a new trial August 19, 1914, (178 Cal. 178)

and notice of appeal from said order was KURTZ et ur, v. CUTLER et al. (L. A. 4233.) filed October 16, 1914, having been served up(Supreme Court of California. April 17, 1918.) on the attorneys for respondents on some 1. APPEAL AND ERROR 753(2) - APPEAL earlier day of the same month. Following GROUNDS FOR DISMISSAL.

the clerk's certificate to the judgment roll in Lack of specifications of error is not a the printed transcript before us are 50 pages ground for dismissal. 2. EXCEPTIONS, BILL OF 26-AMBIGUITY

of matter under the title "Bill of ExcepSETTLEMENT IN FAVOR OF PARTY ALLEGING tions,” purporting to be an assignment of ERROR.

errors and specifications of the particulars An ambiguity created by filing, marks on of insufficiency of evidence. This bill does purported bill of exceptions, showing that it was indorsed as filed on two different dates, will not purport to have been signed by an attorbe settled against the party seeking to estab- ney, settled by any judge, nor formally filed lish error.

in the action. It is followed by that which 3. EVIDENCE O 44 JUDICIAI NOTICE - RE- apparently is a reproduction of a document TIREMENT FROM OFFICE.

The Supreme Court is bound to take judi- fully entitled in the action and bearing the cial cognizance of the fact that the judge who designation “Statement on Motion for New denied motion for new trial retired from office Trial." This seems to be a statement of the on a certain date.

testimony received at the trial and the pro4. JUDGES 31 POWERS AFTER EXPIRATION OF TERM-DIMINUTION OF RECORD.

ceedings thereon. It covers more than 400 The judge who denied motion for new trial pages of the printed transcript. Counsel for could not, after termination of his term, make respondents stipulated on April 10, 1914, that an order in diminution of the record, even if it was a true and correct "bill of exceptions” counsel for the parties so stipulated, since ju- which might be settled by the court. It purrisdiction cannot be conferred by consent.

ports to have been settled "within the time Department 2. Appeal from Superior and as required by law" and bears the name Court, Santa Barbara County; E. P. Un- of Hon. E. P. Unangst, judge of the superior angst, Judge.

court, under date of April 11, 1914. There Action by Eugene Kurtz and wife against appear to have been two filing marks on this William C. Cutler and another. From an or- document, for the printed copy shows that it der denying his motion for new trial, R. G. was indorsed as filed April 23, 1914, and Putnam appeals. Affirmed.

March 4, 1915. Ben S. Hunter, of Los Angeles, for appel- [2, 3] If we regard the printed transcript lant. B. F. Thomas, of Santa Barbara, and alone these indorsements create an ambiguity Haas & Dunnigan, of Los Angeles, for re- i which we must settle against the party seekspondents.

ing to establish error. It is impossible to

tell when the documents were filed or when MELVIN, J. Defendant Putnam appeals either of them received the clerk's indorsefrom an order of the superior court denying ment. While the term "bill of exceptions" his motion for a new trial.

is used in the order of settlement, it is not [1] This case has been before us twice-clear whether that order refers to the docuonce on motion to dismiss, and again on moment so entitled or to the one designated as tion to affirm on the record. The first mo “Statement on Motion for New Trial." The tion was denied because the lack of specifica- location of the copy of this order would intions of error is not a ground for dismissal, dicate, however, that it was meant to apply and the other was denied without prejudice only to the latter paper, and that, therefore, because the court declined to make the in- | there is no authenticated bill or statement spection of the record which would be involv- containing any specifications of error. But in ed until the case should be regularly before any view of the matter we are bound to take us on appeal. It has now reached that posi- official cognizance of the fact that Judge Untion, and we will examine the transcript in angst retired from office in January, 1915, the light of the contention of respondents and that, therefore, if the last filing mark that there is no record upon which the court was the correct one, there was no record on may consider any alleged errors.

file when he denied the motion for a new

trial. Upon such a conclusion we would , above set forth, we act the more readily be have no specifications of error before us up cause we have carefully read the briefs, and on which we could act, and, therefore, could upon examination of the case find the condo nothing but affirm the order for want of tentions of appellant without merit. a proper record.

The order is affirmed. If we inspect the affidavits and stipulation of facts filed upon the motion to affirm,

We concur: VICTOR E. SHAW, Judge the real history of the record becomes clear. pro tem. ; WILBUR, J. Both the proposed “Bill of Exceptions” and the proposed “Statement on Motion for New

(178 Cal. 160) Trial” were served by copies, under one cov COOPER et al. v. HUNTINGTON et al. er, upon counsel for respondents. Subsе- HELLMAN COMMERCIAL TRUST & SAV. quently the proposed "Bill” was left by the

INGS BANK V. CONDON et al. clerk upon the desk of one of the judges of

(L. A. 4181, 4182.) Santa Barbara county, and the "Statement” (Supreme Court of California. April 16, 1918. was sent to Judge Unangst at San Luis Obis

Rehearing Denied May 16, 1918.) po after counsel had agreed to certain

1. VENDOR AND PURCHASEB 109_RESCISamendments and the said amendments bad

SION-FAILURE OF CONSIDERATION-PARTIAL been inserted in an engrossed bill and a cer CONSUMMATION. tificate of the correctness, signed by counsel, Where a flood had washed away a substanhad been attached thereto. This document, of contract of purchase by payment of any of

tial portion of land before partial consummation as engrossed, submitted to the judge and ap- the purchase price, the vendees could withdraw proved by him did not contain the matter in- from a supplemental contract settling a suit for cluded in the original document called a rescission of the original contract of sale for “Bill of Exceptions.” In other words, the false representations, though they had taken

possession. judge never had before him the specifications

2. VENDOR AND PURCHASER 119_RESCISof error and of insufficiency of evidence, be SION-ESTOPPEL. cause the missing paper was not discovered A vendor who, by holding out promises, inby the clerk until long after the judge's duced vendees to postpone efforts to rescind, term of office had expired. He denied the

cannot insist on laches as a bar to rescission. motion for new trial on August 19, 1914. 3. VENDOR AND PURCHASER CX 36(2)—VALID

ITY OF CONTRACT-REPRESENTATIONS. The record then before him contained noth Representations amounting to a promise that ing amounting either in form or substance a water company by means of its improved fato specifications of errors of law or insuffi. cilities could and would furnish the vendees ciency of evidence. After discovery of the case within the rule that assurance by a ven

the agreed quantity of water, would bring the missing paper and after the termination of dor that land to be sold is well watered during Judge Unangst's term of office, in March, 1915, the irrigation season, is not a mere opinion. he made an order amending the statement 4. PLEADING em 279(4)_SUPPLEMENTAL Com

PLAINT-NEW MATTER. on motion for new trial by adding thereto

Where, after commencement of action to rethe specifications of error and insufficiency scind contract to purchase land for false repin form as contained in the proposed “Bill of resentations as to water supply, about four Exceptions" originally served on counsel for acres of the ten purchased were washed away by plaintiffs. This he did after receipt of a let- flood, plaintiff was properly permitted to file a ter from the attorney for appellants contain- being the allegation of new matter accruing aft

supplemental complaint averring such fact; it ing the statement that the paper had been er commencement of action entitling plaintiff to omitted inadvertently from the engrossed additional relief. bill. This letter was indorsed by L A. Lew

Department 2. Appeal from Superior is with the names of attorneys for respond. Court, Los Angeles County; G. W. Nicol, ents, but it appears by affidavit that he acted Judge. under a misapprehension regarding the con

Action by Hattie 0. Cooper and others tents of the letter, and that he had no au- against H. H. Huntington and others and by thority to represent respondents or their the Hellman Commercial Trust & Savings counsel. Subsequently the new filing mark Bank against T. J. Condon and others. was made.

From the judgment rendered in the first ac[4] Whether we act upon the record con- tion, defendants appeal, and from the judgtained in the transcript or regard the document rendered in the second action, plaintiff ments filed on motion to affirm as still be

appeals. Judgments affirmed. fore the court and available in the preparation of an opinion, the result is the same.

Sheldon Borden and George H. Moore, both The order must be sustained. The former of Los Angeles, for appellants. Kemper judge could make no order in diminution of Campbell, Frank P. Doherty, W. J. Clark, the record even if counsel for the parties Edward E. Leighton, and Leighton & Peairs, stipulated that he might do so. Jurisdic

all of Los Angeles, for respondents. tion may not be conferred by stipulation. He was utterly without power in the prem MELVIN, J. These two cases involve subises.

stantially the same questions of law and In atfirming the order for the reasons fact, and will, therefore, be treated in one

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

opinion. The appeals are from the judg- was in their favor, and the findings were ments.

like those in the other case. The court also The Hellman Commercial Trust & Savings found that the improvements made by the Bank, formerly known as Merchants' Bank & Coopers were of the value of $450, and that Trust Company, was the nominal owner of there was a partial failure of consideration the properties involved in both actions, in two particulars: (1) Because of the lack which were certain lots of “tract 1292" in of a water supply; and (2) by reason of the the San Fernando valley in Los Angeles damage done by a flood in February, 1914. county. This corporation, which we will in explanation of the latter finding we designate as “the bank," was in reality a should call attention to the fact that, as aptrustee for the equitable owners, Huntington pears from the record, negotiations for setand Brookins.

tlement were had between the vendor and The Condon Case. Under date of March vendees after the Coopers filed their com25, 1912, the bank entered into a contract plaint. This resulted in an arrangement for with T. J. Condon for the sale to him of lots a settlement on the basis of a reduction of 16 and 17 in the tract for $3,500, in four in- $300 in the purchase price in favor of the stallments of $875 each, with certain interést vendees. A letter embodying these terms on deferred payments. The sum of $75 was was written by Mrs. Cooper and her attorpaid by the vendee at the time of the ex- ney and received the sanction of the real ecution of the agreement. By the terms of owners of the land. A check for the amount the contract the bank promised to grant to of the agreed initial installment under this Condon without cost to him 143 miner's inch- new alleged contract of sale was sent, but es of continuous flow of water, and "a 10- payment thereon was stopped for the reason, 240 interest in the reservoir and complete dis- as it appears, that a flood had washed away tributing system.” The water was described the soil from a substantial portion of the as a part of that conveyed to the bank by a land described in the contract. The alleged designated deed of certain date from the Te-agreement embodied in the letter and its injunga Company. The deed in question con- dorsement, which latter was made in Februveyed to Condon's vendor 33 inches continuary, 1914, was set up by supplemental an. ous flow, subordinate, however, to rights of swer, to meet the allegations of a suppleprevious purchasers to 333 inches.

mental complaint filed by the Coopers. On June 18, 1913, the bank filed its com- [1] We are of the opinion that before par. plaint to quiet title as against Oondon, and tial consummation of this contract by a payone month later the vendee served notice of ment of any of the purchase price under it, rescission of the contract, and verified and the Coopers were in a position to withdraw filed his answer and a cross-complaint. In from it. Without reviewing the testimony in the latter he prayed rescission of the agree. detail, it is sufficient to say that before purment upon the ground that at and prior to chase of the properties by the Coopers and the time of the execution of the contract it was Condon, the vendor and its representatives falsely represented that the vendee should assured them that there was and would conhave "a plentiful supply of water for do- tinue to be a constant supply of water to the mestic purposes, irrigation, and fire protec- amount indicated by the contracts of sale. tion, yiz. 143 miner's inches continuous flow.” They were told that there was an abundance In the answer the bank set up the deed from of water, and that in Tejunga Canyon there the Tejunga Company, and pleaded laches of was.a dam and reservoir, with ample supply the vendee in failing to seek rescission for of water to irrigate all San Fernando valley. more than a year after knowledge of the The evidence amply justified the finding of facts of which he complained. The trial the court "that at times there was not sufficourt found that false representations had cient water for domestic use, and there has been made to the vendee, on which he relied, never been sufficient water for irrigation at and that he had not been guilty of laches. all times of the year when irrigation was

Cooper Case. The bank agreed to sell to necessary for the raising of crops." Hattie 0. Cooper and her son Jos. L. Cooper [2] But appellants insist that even concedlots 31 and 32 for $3,250 in certain installing these representations to have been made, ments, the initial payment, which was made, the proof of laches in each case is so clear being $1,000. The agreement was dated that the respondents must be held to have May 28, 1912. The clauses with reference to accepted their contracts in spite of the scarwater were the same as those in the Condon city of water, and that they were not in pocontract. On May 27, 1913, the vendees serv- sition to rescind because each was in default ed notice of rescission, tendering a quitclaim in payments due under the respective agreedeed to the property, demanding, however, ments when the notices of rescission were return of the $1,000 and $800 which they al- given. Undoubtedly, the vendees realized leged had been expended by them in im- that they were not getting the water supply provements on the land. On May 28th they promised by the vendor and its agents, and filed their complaint in a suit for rescission is nothing had been done further by Consimilar in all essential particulars to the don and the Coopers there would have been

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