A DIGEST OF The Decisions of the Supreme Court OF THE STATE OF CALIFORNIA, CONTAINED IN THE SIXTEEN VOLUMES OF REPORTS, FROM THE FORMATION OF THE COURT, IN 1850, UNTIL JANUARY, 1861. WITH A COMPLETE LIST OF CASES AFFIRMED, REVERSED, QUALIFIED, COMMENTED IN TWO VOLUMES-VOL. II. BY HENRY J. LABATT, COUNSELOR AT LAW. SAN FRANCISCO: H. H. BANCROFT & COMPANY. 1861. Entered according to Act of Congress, in the year of our Lord 1861, by In the Clerk's Office of the District Court of the United States in and for the Northern District TOWNE & BACON, PRINTERS, EXCELSIOR OFFICE, 536 Clay Street, San Francisco. LACHES. Laches.-Land in general. 1. Where a promissory note is signed by two persons in the same manner, with nothing on the face of the note to show that one was merely a surety, he cannot set up in defense that he was such, and that the plaintiff had not sued in due time, and had given no notice of demand and protest. Kritzer v. Mills, 9 Cal. 23. of law, and the possession of the owner not disturbed, it is difficult to perceive how any thing further than nominal damages can be recovered for the injury caused by the attachment. Heath v. Lent, 1 Cal. 411. 3. An agent authorized by power of attorney to wind up and adjust the affairs of a mercantile house in New York, which had been conducted in the name of his principal, derives no authority from such. power to bind his principal by a promissory note given for the purchase of real estate in San Francisco. Fisher v. Salmon, 1 Cal. 413. 2. L. advanced to H. four hundred and seventy-six dollars, and received from H. for collection an order for the amount upon a party indebted to him. The order not being collected, L. returned it to H., 4. Where a note was given on the sale and took H.'s note for the amount ad- of real estate, and the vendor had neither vanced. In a suit on the note H. set up title, color of title, nor possession: held, as a defense, laches on the part of L., in that the consideration of the note might be not presenting the order, by means of enquired into as between the original parwhich the debt was lost: held, that if ties, and there being no consideration, that there were any laches, they were waived the payee could not recover against the by the execution of the note. Leonard maker; and that a guaranty on the note v. Hastings, 9 Cal. 237. without a consideration was not liable. See ERRORS, MISTAKE, NEGLIGENCE. Ib. 414. I. In general. II. Public Land. III. Pueblo Land. LAND. IV. Water Lots in San Francisco. VIII. Warranty. IX. Vendor's Lien. X. Estoppel. I. IN GENERAL. 5. A party already having the legal and equitable title, cannot sue for a further conveyance. Truebody v. Jacobson, 2 Cal. 82. 6. Caveat emptor applies to sales of real estate where there is no fraud or warranty. Salmon v. Hoffman, 2 Cal. 141. 7. Though a deed executed by an agent having power to convey in his own name be inoperative as a conveyance, it will be good as an agreement to convey, and the principal may be decided to convey. Ib. 142. 8. It is incumbent on him who asks the interposition of a court of equity to enforce a specific performance for the conveyance of land, that not only his possession, but that all his conduct in relation to the purchase be in good faith. Conrad v. Lindley, 2 Cal. 175. 9. A parol promise to pay for improvements upon land is not within the statute of frauds. Godeffroy v. Caldwell, 2 Cal. 292. 1. In an application for an order to incorporate a college under the act of 1850, 10. The authority by act of the legislait is necessary that subscriptions of real ture to a city or county to erect a court estate, if such subscriptions must not be house and jail, would necessarily embrace cash under the statute, should define the the power to purchase the land on which boundaries or situation of the lands pro- to erect them. Dewitt v. City of San posed to be given, and their value estab- Francisco, 2 Cal. 295. * lished. Ex parte The California Col lege, 1 Cal. 330. 2. Where land is attached by process 11. A power of attorney given "to at *The above law is repealed by the corporation act. In general. tend to all business affairs appertaining to real or personal estate," is too indefinite to sustain a transfer of real estate, more particularly that acquired long subsequent to its execution. Lord v. Sherman, 2 Cal. 501. 12. Where an assignment does not in terms convey real estate, and cannot be fairly construed so to do, it is inadmissible to prove a conveyance previous to a given date, and the equitable ownership of the land in question. Ib. 502. 13. A purchaser under an implied warranty quietly to possess and enjoy, while he retains possession, cannot resist the payment of the purchase money, however defective the title, and has no right to a rescission of his contract. Fowler v. Smith, 2 Cal. 569. 19. A power of attorney confirming all sales, leases and contracts of every description, confers the power to sell land. 1b. 20. The statute of frauds contains no provision with regard to the dissolution of agreements or contracts under seal for the sale of lands. Beach v. Covillaud, 4 Cal. 317. 21. Questions as to the performance of the conditions contained in a grant, can only be made by the grantor, and not by a mere naked trespasser. Buckelew v. Estell, 5 Cal. 108. 22. Lands held by no other tenure than possession may be the legitimate subjects of control; and sometimes in equity, chattel interests or personal property are made the subject of specific performance. Johnson v. Rickett, 5 Cal. 220. 14. Where one has an outstanding deed, which improperly clouds the title of 23. The State has the most perfect the true owner, on the application of the right to determine what shall constitute latter, chancery will cancel and annul the evidence of title as between her own citideed, and will on like application inter-zens, to all lands within her boundaries, pose and prevent a sale, and the conse- and the act in question does only this in quent execution of an improper deed. reference to a portion of them. Nims v. Shattuck v. Carson, 2 Cal. 589; Guy v. Palmer, 6 Cal. 13. Hermance, 5 Cal. 75. 15. In an action to recover the purchase money of land, founded on a contract, in which the plaintiff contracted to deliver a warranty deed for the land; the defendant in his answer denied that the plaintiff was the lawful owner or that he had any title to the land, it was held that to have enabled him to rescind the contract the defendant was bound to aver and to show a paramount title in another, and failing in this, his defense to the action was defective. Thayer v. White, 3 Cal. 228; Riddell v. Blake, 6 Cal. 262. 16. A deputy sheriff may execute a deed for land sold under execution, but in the name of the sheriff, otherwise it is decisive against the party claiming under it. Lewes v. Thompson, 3 Cal. 266. 17. The statute regulating sheriff's sales of real estate does not design to invest the purchaser with a title until six months after the sale. Duprez v. Moran, 4 Cal. 196; Cummings v. Coe, 10 Cal. 531. 24. A bill in the nature of a bill of peace, and praying for a discovery against joint and several trespassers on real estate, will not lie in favor of a plaintiff out of possession, claiming title to the land. Ritchie v. Dorland, 6 Cal. 40. 25. It would be a great hardship to require a party in every instance to enclose his lands by a substantial fence; such enclosure would be evidence of possession, but the evidence of it would not be conclusive as against other acts of possession. O'Callaghan v. Booth, 6 Cal. 65. 26. If by construction of a railroad through the enclosure of a farmer, it is made necessary to construct fences on either side of the road to protect his crops, the cost of such fences must be included in the compensation to be paid by the railroad company. Sacramento Valley R. R. Co. v. Moffatt, 6 Cal. 75. 27. A sale of land at auction where no note or memorandum is made by the auctioneer, and no writing exists between the parties, is void by the statute of frauds. People v. White, 6 Cal. 75. 18. Under the code it is competent for the plaintiff to recover real property with damages for withholding it, and the rents 28. Prima facie the governor of Caliand profits, and in the same action and as fornia, under the Mexican dominion, had one cause of action. Sullivan v. Davis, the power to make a grant of mission 4 Cal. 292. lands to an individual, and a demurrer to |