Volume 25 — California Reports

<p>Appeal from the District Court, Sixteenth Judicial District, Calaveras County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Sixteenth Judicial District, Calaveras County.</p> <p>The facts are stated in the opinion of the Court.</p>

Application to the Supreme Court for writ of mandate. In January, 1863, one Stayton was in the possession of a tract of land in the County of San Joaquin, described as the northeast quarter of section twenty-seven, the west half of the northwest quarter of section twenty-six, the southwest quarter of the southeast quarter of section twenty-two, and the southwest quarter of the southwest quarter of section twenty-three, township four north, range five east, Mount Diablo…

<p>Appeal from the County Court, Santa Clara County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>Plaintiff recovered judgment in the Court below, and defendants appealed.</p>

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>The facts are stated in the opinion of the Court.</p>

This was an action of ejectment to recover possession of a tract of land in Santa Clara County. Plaintiff recovered judgment in the Court below, and defendants appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the County Court, City and County of San Francisco.</p> <p>The facts are stated in the opinion of the Court.</p>

The lease mentioned in the opinion of the Court was executed by both Manuel Vera and Preston, the defendant. December 1st, 1861, Vera died, and Walls was appointed administrator of the estate on the 23d day of May, 1863.

The following is the contract of sale executed by Streeter to Rush: “ Know all men by these presents, that I, John Streeter, of the Town of Suisun, in the County of Solano, and State of California, of the first pari, for and in consideration of the sum of eight hundred dollars, lawful money of the United States, to me paid by Hiram Rush, of the same town and State, of the second pari, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents…

<p>Name of Grantor in Deed.—If the grantor’s true name is recited in the body of a deed, and he also acknowledges it by his true name, the fact that he signs it by a wrong name does not invalidate the conveyance.</p> <p>Auctioneers—Their Compensation for Services.—One representing himself as the owner of real estate, who employs an auctioneer to sell the same under an agreement that in the event of a sale the auctioneer shall receive for his services a percentage on the amount bid, cannot, after a sale by the auctioneer, avoid paying him for his services because the purchaser refuses to take the property, owing to a real or alleged defect in the title.</p> <p>Idem.—The auctioneer in such case is entitled to compensation for his services, unless there is a special agreement that it shall depend on the consummation of the sale.</p>

This action was commenced on the 26th day of January, 1863. The complaint alleged that the ouster took place on the second day of January, 1858. Defendant Martin demurred to the complaint, because it did not state facts sufficient to constitute a cause of action. The Court overruled the demurrer.

<p>Certiorari to the Board of Supervisors of Sacramento County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Fifth Judicial District, Tuolumne County.</p> <p>The note given by Brunton to Jones, the plaintiff, on the 7th of November, 1857, and to secure which he executed the mortgage, was for the sum of two thousand two hundred and forty-three dollars and eighty-nine cents, and was payable three years from date.</p> <p>In October, 1860, Brunton died, and James Parsons was appointed administrator of his estate.</p> <p>This action was commenced October 24th, 1862. The defendant, Reed, was made such, because he had purchased the property at a tax sale, and had obtained a tax deed. He demurred to the complaint, and the demurreT was sustained.</p> <p>The defendants set up in then: answer, that at the time of the execution of the mortgage the ditches were the partnership property of Brunton, Parsons, and Gleason; that the partnership was largely indebted in an amount exceeding the value of its property, and that the partnership property was sold for the purpose of liquidating the partnership debts, and settling up the affairs of the partnership.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>The facts are stated in the opinion of the Court.</p>

The complaint averred that defendant Musser was Treasurer of Trinity County, and that there was then in the County Treasury about seven thousand dollars, raised and set apart by authority of law, for the special purpose of building or purchasing suitable buildings for a County Court-house and jail; that defendant McCammon was elected a Supervisor in November, 1860, and that his term of office expired on or before November 16th, 1863; that A. J. Price was elected his…

The following is a copy of the instrument to which reference is made in the deed from Shaddon to Hicks: “ Heleno, Chief of Indians, to Thomas Shaddon: “ New Helvetia, 13th May, 1848. “ Before me, John Sinclair, Justice of the Peace of this District, and also before the witnesses whose signatures appear at the foot of this instrument, personally appeared Heleno, Chief of the Christian Indians called Moquelumnes, and declared that for himself, his heirs, and executors, and in…

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>The facts are stated in the opinion of the Court.</p>

. The judgment in this case was rendered July 16th, 1863. A statement on motion for new trial was made and filed, and on the 16th day of November, 1863, an order was made denying a new trial. On the 4th day of March, 1864, an appeal was taken from the judgment and from the order denying a new trial. No statement on appeal was made, but the respondents’ attorneys stipulated that the statement on motion for a new trial might be also used as the statement on appeal.

The Court below found as facts that on the 31st day of January, 1857, an order was made in the case of Knowles et al. v. Inches and Galderwood, that a preliminary injunction issue upon plantiffs’ filing an undertaking in the sum of one thousand dollars. That the undertaking was filed on the fifth clay of February following, and the writ of injunction issued, which was served on defendant Inches on the 11th day of February following.

The following is the certificate of acknowledgment of the deed from Vallejo to Wohler, dated December 20th, 1851: “ State of California, County of Napa. “ On this, the twentieth day of December, A. D. one thousand eight hundred and fifty-one, personally appeared before me, the undersigned, Recorder in and for the county aforesaid, Salvador Vallejo, known to me to be the person described in and who executed the foregoing instrument, who acknowledged to me that he executed the…

<p>Appeal from the District Court, Eleventh Judicial District, Placer, County.</p> <p>This action was first brought in Justice’s Court, on a promissory note for two hundred dollars,' dated September 15th, 1857, due one day from date, and bearing interest at two and a half per cent per month, and executed by defendant Bounds to John Buckhart.</p> <p>Buckhart, on the 16th of August, 1858, indorsed the note to Priest, who, on the 6th of January, 1859, indorsed it to Stewart, who, on the 19th of September, 1859, indorsed it to McQ-owan, who, on the 17th of July, 1861, indorsed it to Buckhart, by whom, on the samé day, it was indorsed to plaintiff. =</p> <p>Plaintiff recovered judgment in the County Court, and defendant appealed.</p>

The three judgments, the assignment of which formed the consideration mentioned in the contract upon which this suit was brought, were rendered on the 30th day of January, 1854. When this case was called for trial in the Court below, plaintiff moved the Court for judgment in conformity with the prayer of the complaint. The Court sustained the motion and gave judgment accordingly. Defendant appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Sixth Judicial District, Sacramento County.</p> <p>The facts are stated in the opinion of the Court.</p>

The Court below sustained the demurrer to the complaint, plaintiff declined to amend, judgment was rendered for defendant, and plaintiff appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Eleventh Judicial District, Placer County.</p> <p>. The facts are stated in the opinion of the Court.</p>

' Backus, the principal in the hond, was not served with process. The sureties appealed from the judgment. The other facts are stated in the opinion of the Court.

On the trial in the Court below, when plaintiff offered the lease from Ord to her in evidence, defendant objected to the same because there was a subscribing witness. The Court sustained the objection. The other facts are stated in the opinion of the Court.

The following is the contract entered into between the members of the Richardson Company and those composing the Buffalo Company: “ Goodyear’s Bar, Nov. 16,'1856. “ Know all men by these presents, that we the undersigned, do bargain with each other as follows, viz: We of the first part, known as the Richardson Company, do agree with those of the second part, known as the Buffalo Company, to run a bed rock tunnel on the ground of the first mentioned company, on Fir Cap Hill,…

<p>Appeal from the District Court, Third Judicial District, Alameda County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Sixth Judicial District, Sacramento County.</p> <p>The facts are stated in the opinion of the Court.</p>

May 1st, 1861, the plaintiff leased to A. L. Knox and S. S. Drake a tract of land, and house thereon. The lease was in writing, and executed by both parties, and the lessees were to have the premises for seventeen months, and pay therefor the sum of fifty dollars. Knox & Drake entered into possession of the premises under the lease, as tenants of plaintiff, and held the same until the first day of November, 1862, when they let the defendant into possession, and left.

The facts are stated in the opinion of the Court. E. W. F. Sloan, for Appellants, on the question of the former judgment in bar, cited: Gregory v. Burrall, 3 Edw. Ch. C. 417 ; Hughes v. Blake, 1 Mason, 518 ; Penrie v. Dunn, 4 John. Ch. 142 ; Hunt v. Terrill’s Heirs, 7 J. J. Marsh, 68 ; Wilcox v. Balger, 6 Ham. Ohio, 409.

Defendants recovered judgments in the Court below, and plaintiff appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco. - .</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Third Judicial District, Santa Clara County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Description of Property in Tax Prooebdinss. — Neither an assessment for ' taxes nor a tax deed are necessarily void because, in. describing the land assessed, a false call has been inserted in the description in the assessment roll or tax deed.</p> <p>Description oe Land in Assessment Boll.—An assessment of land is not void by reason of mistake in description, unless it contains such a falsity in the desig- , nation or description of the land assessed as might probably mislead the owner and prevent him from ascertaining that his land had been assessed. 1</p> <p>Northerly means North.—-The term "northerly,” when used in a grant or conveyance, unless controlled by monuments mentioned in the description, means due north.</p>

<p>Appeal from the Seventh Judicial District, Solano County.</p> <p>The facts are stated in the opinion of the Court.</p>

' Plaintiff recovered judgment, and defendant appealed. The other facts are stated in the opinion of the Court. ■ J. G. McCullough, Attorney-General, for Appellant, cited Sherbourne v. Yuba County, 21 Cal. 113, and Hoffman v. San Joaquin Co. 21 Cal. 426.

<p>Appeal from the District Court, Third Judicial District, Santa Clara Comity.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Tenth Judicial District, Yuba County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, Butte County.</p> <p>The facts are stated in the opinion of the Court.</p>

In 1845 the Mexican Government granted to the defendant, Mary Love, (then Mary Bennett,) a tract of land lying in the present County of Santa Clara. The land was confirmed to her by the United States District Court, and she afterwards married defendant, Harry Love. In 1857 both defendants executed to H. S. Washburne their note for two hundred dollars for surveying said tract of land.

Defendants recovered judgment in the Court below, and plaintiffs appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Fifth Judicial District, Tuolumne County.</p> <p>The facts are stated in the opinion of the Court.</p>

This action was brought to recover the sum of four hundred and fifty dollars, due from the defendants to the plaintiff for the rent of a store in the City of San Francisco. The rent was two hundred and twenty-five dollars per month, and the sum sued for accrued for the months of September and ■ October, 1862.

<p>Action for Causing Death.—A civil action for damages for the death of a person, per se, cannot be maintained by any one at common law.</p> <p>Who mat Maintain Action for Death of Person.—In this -State a civil action for damages for the death of a person can be maintained only by the administrator or executor of the deceased.</p>

Plaintiff recovered judgment for all the land described in the complaint, and defendants appealed. The other facts are stated in the opinion of the Court. /K ,

The defendants recovered judgment in the Court below, and plaintiff appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Tenth Judicial District, Yuba County.</p> <p>The facts are stated in the opinion of the Court.</p>

The following are the pleadings in this action. The complaint and answer were verified: Benjamin H. Hutton, plaintiff, complains of Joseph L. Reed, Henry Steil, and Charles F. Wehn, defendants ; and for cause of action says, that heretofore, to wit: on the first day of January, A. D. 1862, the plaintiff was the owner in fee, entitled to the possession, and in the possession of that certain piece or lot of land, situate, lying, and being in the City and County of San…

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Second Judicial District, Santa Barbara County.</p> <p>The facts are stated in the opinion of the Court.</p>

The defendant’s ditch was excavated on the side of the mountain above plaintiff’s ditches, and took the water from the same stream at a point about three fourths of a mile above plaintiff’s ditches. The defendant used the water for working his claim, and then allowed it to- flow into plaintiff’s ditches down another ravine about a mile distant from the one where it was diverted. Defendant recovered judgment and plaintiff appealed.

This was an appeal taken by F. A. Hornblower, Public Administrator of El Dorado County, from an order of the Probate Court of that county, appointing J. H. Potter administrator of the estate of James Boyd, deceased. The appeal was dismissed on motion of respondent’s attorney. Appellant afterwards, and at the same term, moved the Court to set aside the order dismissing the appeal.

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p>

The judgment in this case, after reciting the amount found due from the principal, which was thirty-one thousand and forty-eight dollars, reads as follows : “It is, therefore, by the Court ordered and adjudged, that the plaintiff in this action have judgment against the said J. E. Galloway, and judgment is hereby ordered in favor of the plaintiff, against the said Galloway in this action, for the sum of fifteen thousand dollars, ($15,000,) and all the plaintiff’s costs in…

The following is the indictment: “José Gasseo is accused by the Grand Jury of Tuolumne County by this indictment of the crime of going away with the property of another, with intent to steal,” etc., committed as follows: “ That the said José Gasseo, at the County of Mariposa, on the 24th day of August, 1863, and previous thereto, was the hired servant, as laborer and farm servant, of Edward C. Bell, his master and employer; and that as such hired servant he was intrusted by…

Petition to the Supreme Court for a writ of prohibition to the County Judge of the City and County of San Francisco. Plaintiff recovered judgment in the Justice’s Court in San Francisco against the Omnibus Railroad Company for the sum of two hundred dollars, for having charged him six and one quarter cents each for four tickets for passage, and defendant appealed to the County Court. In the County Court plaintiff moved that the appeal be dismissed, which motion was denied.

In 1854, Mitchell, the plaintiff, recovered a judgment against Jacob H. Gardenhire, and on the same day assigned it to Terry & Perley by an assignment in writing, which was deposited with the Clerk of the Court. In 1856 Mitchell took out execution on the judgment, and placed the same in the hands of Kirk, the Sheriff, who levied on property claimed by a son of Gardenhire. Mitchell and four others indemnified the Sheriff, and he sold the property.

On the 24th day of September, 1861, A. Y. Easterby recovered judgment in the District Court for Napa County, against James Glassford, for five thousand seven hundred dollars and ninety-nine cents, and an execution was issued thereon and placed in the hands of J. S. Stark, the Sheriff of Napa County, who levied on, and on the 4th day of October, 1861, sold to plaintiff, Lay, at Glassford’s ranch, two thousand and eleven sacks of wheat.

The answer was filed by the defendants, Nichols, and they alone appealed. Defendant, Hughes, made no defense. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Third Judicial District, Santa Clara County.</p> <p>The facts are stated in the opinion of the Court.</p>

The facts are stated in the opinion of the Court. Robinson & McConnell, and C. G. W. French, for Appellants, cited sections fifty-two to sixty-eight of the Act to regulate the settlement of the estates of deceased persons, and In the Matter of the Estate of Pacheco, 23 Cal. 476, and Cooper v. Lowerre, 1 Barb. Ch. R. 45, and Harrison v. McMahon, 1 Bradford, 282.

<p>Appeal from the District Court, Sixth Judicial District, Sacramento County.</p> <p>i The facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Fifth Judicial District, San Joaquin County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Statute of Limitations.—The period of limitation in this State, to bar a right of entry upon real estate, commenees to run from the 22d of April, 1855.</p> <p>Estoppel at Common Law.—At common law a purely equitable estoppel, or purely equitable title, could not be entertained, even if it were represented upon the record.</p> <p>Estoppels in Pais must be Pleaded.—Under our system of practice equitable estoppels and defenses can be entertained in actions at law, but they must be specially stated in the answer.</p> <p>Evidence of Estoppel.—If an equitable estoppel, relied on in an action of ejectment, is not specially set up in the answer, evidence to sustain it should be rejected.</p> <p>Argument in Supreme Court.—The respondent on an appeal to the Supreme Court is at liberty to suggest any ground that he may choose, to show that the ruling of the Court below was right, whether the grounds suggested were advanced in the discussion before the Court below or not, while the appellant is confined to the objections urged in the Court below.</p>

The plaintiff recovered judgment in the Court below, and defendant appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Thirteenth Judicial District, Mariposa County.</p> <p>The facts are stated in the opinion of the Court.</p>

The case of Greely v. Townsend and Powelson has not been reported, as it did not involve any point of law not already passed on. It was an action of ejectment brought to recover possession of the western half of Fifty-vara Lot Number One Thousand One Hundred and Eighty-eight, in the City and County of San Francisco.

<p>Appeal from the District Court, Seventh Judicial District, Napa County.</p> <p>The facts are stated in the opinion of the Court.</p>

Judgments were rendered in the District Court, Fifth Judicial District, San Joaquin County, in favor of the plaintiffs. The defendants appealed, and the judgments were reversed by the Supreme Court at the April Term, eighteen hundred and sixty-four. The cases are not reported, the judgments having been reversed on the authority of Terry v. Megerle, 24 Cal. 609. The facts in these cases were similar to those of Terry v. Megerle.

<p>Application to the Supreme Court for writ of mandate.</p> <p>The facts are stated in the opinion of the Court.</p>

Plaintiff recovered judgment in the Court below, and defendant appealed. The other facts are stated in the opinion of the Court.