Opinion of the Court-Leonard, J. was taken to the order of the court instructing the witness how to answer, and while the order was in force, no other answer was permissible. When another answer was given, the court, without motion of counsel, could have ordered it stricken out. Witness Bliss, who purchased the lands in question for the C. and T. L. and F. Co., after testifying that before purchase, but with a view of determining its value, in company with Davis, Spooner, Rowland and another man, he went over the land, was asked if Rowland knew at the time that he was looking at the land with a view of purchasing it from Davis, Freeman, Spooner and Patton, and the answer was that he did. He was then asked by counsel for appellants if Rowland, then or at any time before the sale, made known to witness the fact that he had or claimed any interest whatever in the land. Objection was taken to the question. The court held that appellants must first show that Rowland knew that witness was there for the purpose of purchasing the whole tract. Nothing further was shown, and the objection was sustained. This is claimed as error. The question was in no sense proper. Rowland was under no obligation, in law or morals, to inform Mr. Bliss that he claimed an interest in the lands, since he did not, and does not, object to the sale. Had he made known his claim, proof of that fact would have established no rights in his favor; and the fact that he did not volunteer a statement of his claim certainly could not defeat it. Some men might have told Bliss that they owned an interest if such was the fact, but many others would not. It does not appear that at that time appellants had denied his claim in the lands, and if they had not it would have been a strange proceeding on Rowland's part to volunteer the information that he had or claimed an interest. It is next urged that the court erred in refusing to allow appellants to prove by witnesses Spooner and Shanklin that a less number of acres were patented of the Harvey tract than is alleged in the complaint. Such proofs would certainly have been immaterial, because it is admitted in the pleadings that all the lands included in the Harvey tract were sold to the C. and T. L. and F. Co., whether patented Opinion of Leonard, J., on petition for rehearing. or not. If they were patented, Freeman held them in trust for Rowland as well as his associates; and if any were not patented Rowland was interested in such to the extent of one-sixth part under the Harvey deed. It being true, then, that both the patented and the unpatented lands were sold for eight dollars and sixty cents per acre, it was immaterial, for the purposes of this case upon this question, how many acres of the Harvey tract were patented. Finally, counsel for appellants urge that the findings numbers two, four, five, six, eight, twelve, thirteen, fourteen, fifteen and twenty are not supported by the evidence. We have already passed upon the second finding. Of the fourth, objection is taken to the last sentence only. As to that, there is much to sustain it. The testimony is conflicting, and therefore, under well known principles, we cannot disturb it. Besides, if it is incorrect, it is error without injury to appellants, for the reasons before stated; and the same is true as to number six. As to the fifth and eighth, the evidence is also conflicting. We cannot disturb them. Number twenty Whether a techwas or was not Objection is taken to the twelfth and thirteenth, so far as it is found that the parties therein named had notice. We have seen that Paton and Freeman required no notice, and the balance certainly had notice of all the facts that are important in this case. What has been said of number two is equally applicable to number fourteen. Number fifteen is supported by the evidence and pleadings. is objected to so far as a tender is found. nical tender by appellants to respondent made, is not a question for our decision. It is undisputed that appellants, before this action was commenced in Carson, offered then and there to pay respondent certain moneys in satisfaction of his claim, and upon his refusal to accept the money in satisfaction, informed him that the sum offered would be placed in bank subject to his acceptance. The court used the word "tendered" in its popular sense only. The order and judgment appealed from are affirmed. RESPONSE TO PETITION FOR REHEARING. By the Court, LEONARD, J. We concede the correctness Opinion of Leonard, J., on petition for rehearing. of the doctrine announced in Mandeville v. Solomon (39 Cal. 133), and the cases therein cited, that where one tenant in common purchases an outstanding title for the benefit of his co-tenants, the latter must, within a reasonable time, contribute or offer to contribute their proportion of the purchase money. But that principle applies to cases only where the purchasing co-tenant wishes to be paid, and conducts himself accordingly. If he does not desire to be paid by his co-tenants, or conveys to them the idea that they need not pay until convenient, the principle does not apply. Gillson testified that the other co-tenants did not want Rowland to pay; that Davis, Gillson, Spooner and Lockie thought they would sometime find Rowland in a close place, when he would be anxious to sell out. Rowland told Gillson he had a lot of timber he was going to sell, and that in the meantime he would pay interest. Gillson testified that he "eased Rowland off like;" that he and Lockie had been talking about getting Rowland's interest; that Davis, Gillson, Spooner and Lockie wanted Rowland's interest, because they owned other lands in Lake valley, and thought if Rowland kept his interest, their matters would be complicated. Rowland's testimony corroborated Gillson's to the effect that it was understood that it was all right if Rowland did not pay up until it was convenient for him to do so. There is no testimony that appellants ever asked Rowland or respondent to pay any part of the expenses. Appellants could not convey the idea to Rowland that he need not pay until it was convenient, and then allege non-payment within a reasonable time as a reason why he should not recover. We said in our opinion : "It is next urged that the court erred in refusing to allow appellants to prove by witnesses Spooner and Shanklin that a less number of acres were patented of the Harvey tract than is alleged in the complaint." There was a verbal inaccuracy in our statement. We should have said: "It is urged that the court erred in refusing to allow appellants to prove that the title from the State of California had not been obtained for a portion of the Harvey tract." We said it was immaterial. An offer to prove that a portion of the lands described in the complaint Opinion of Leonard, J., on petition for rehearing. were not included in the Harvey tract would have been material, but that was not the offer. It is stated in the complaint that in pursuance of the alleged agreement, Rowland, Gillson, Davis, Spooner and Lockie purchased the possessory right in and to the lands described in the complaint, and there is no denial of this allegation. It is admitted by all the witnesses, that said parties did agree to purchase, and did purchase, Harvey's possessory title, and it is not claimed that there was an agreement to purchase the possessory title to any other lands. It follows, then, that all the lands described in the complaint were included in the Harvey tract, and that was the vital question in this connection; although we did not doubt, from the pleadings, the proof and the findings of the court, to which no exceptions were taken, that it was conceded on all sides that the Harvey tract and the lands described in the complaint were the same; that is to say, that the lands described included the whole Harvey tract. But passing the question of admission in the pleadings, it is sufficient upon this application to refer to the second and third findings of fact by the court. There it is found that "on the twentieth of August, 1872, defendants Davis and Spooner, together with one Thomas Rowland, and John A. Lockie and George Gillson, agreed verbally together to purchase and acquire from one C. W. Harvey the possessory title to and the possession of the lands described in the complaint, and that afterward, in pursuance of said agreement, and for the purpose of acquiring the possession of and title to said lands, said Davis, Spooner, Lockie, Gillson and Rowland took and received a grant, bargain and sale deed of conveyance from said Harvey of said lands, and received possession of the same from said Harvey." No objection was made or exception taken to these findings. Hence it follows as a fact that all the lands described in the complaint were included in the Harvey tract, from which fact the conclusions arrived at in the opinion follow for the reasons there stated. We are satisfied that the opinion is correct, and a rehearing is denied. INDEX. ABANDONMENT. 1. ABANDONMENT OF POSSESSORY TITLE.-If a party abandons the land, or ACCOUNT. See BOOKS OF ACCOUNT.. ACTION. RIGHT OF ACTION BY SURVIVING PARTNER. (See Partnership, 5.) 235. AGREEMENT. 1. AGREEMENT TO EXTEND TIME FOR PAYMENT OF NOTES-ASSIGNMENT OF AUTHORITY OF TRUSTEES TO SELL PROPERTY. (See Trustees, 1.) 306. PAROL AGREEMENT FOR PURCHASE OF LAND-PART PERFORMANCE. (See ALIENS. 1. ALIEN-RIGHT TO POSSESSION OF PUBLIC LAND.-An alien will be pro- ALIENS CANNOT LOCATE OR HOLD MINING CLAIMS BEFORE PATENT. (See PROOF AND EFFECT OF LOCATIONS BY ALIENS. (See Mining Claims, 12.) |