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the owner, a very large amount of vexatious and curbs set on and in front of the adand expensive litigation would be wholly joining lot, and would have done so if the avoided. In this case the owners were not payments had not been made, but it was not liable to laborers and material men for more admitted that they, or any of them, would than the balance of the contract price after have filed good liens.” Respondents contend deducting all proper credits, and the cost that until liens are filed there is no privity of completing the work in the manner re- between the owner and subcontractors; that quired by the contract. In ascertaining this no money was due them from the owners, balance the court rightly excluded the item and none could be paid until after liens were of $150, the price of the stable sold to the filed, complying with all the essential recontractors. It appears to have preceded quirements of the statute. As a general the commencement of the work, and there proposition, that is true, and fully supports fore within the express letter of the statute, the position hereinbefore taken touching the though it does not appear that respond- payments made by the owners to the conents were or could have been injured by the tractors. But the admission above quoted payment.

is very broad. It concedes that the claims I am unable to ascertain from the findings of these laborers and material men whether the court considered the $1,000 paid correct; that they were entitled to file liens by the lumber transaction as a payment. therefor, except as to work on the adjoining Respondents' counsel insist that it is not a lot, and would have filed them, but for the payment, as against them. It is true Mr.

payment. The qualification that it is not adKennedy, in his testimony, spoke of it as mitted that they would have filed "good an "offset." The name given to a transac- liens" does not change the situation. Being tion, especially by a nonprofessional wit- entitled to file liens for the amount of their ness, does not change its character. The several claiins, and it appearing that they contract required the contractor to furnish would have filed them, we cannot assume, all materials, and neither the contract nor at the expense of the owner, that they would the law restricts him as to the person from have so defectively prepared them as to whom he shall purchase them. The lumber render them invalid. The presumption is was delivered to and used by the contractor the other way.

Actions to enforce liens unin the erection of the building. No question der the mechanic's lien law, though statutois made as to the price paid for the lumber, ry, are in their essential features equitable. nor that any injury or injustice did or could If liens had been filed the laborers would accrue therefrom to responuents. The Ken- have been entitled to the first lien, and paynedy-Shaw Lumber Company had no inter- ment in full, while the material men would est in the erection of this building. They have shared in the remainder of the fund had the right, for their own protection, to pro rata with respondents, and the fund require that the owner should become per- would have been diminished by additional sonally liable. Suppose that one of these costs and attorneys' fees if the settlement respondents

should have pursued that had not been made. Respondents were therecourse, and had been paid by Kennedy with fore benefited, instead of injured, by the the consent of the contractor. Could the settlement made, though not so largely benother have objected? The statute is not efited as they would be if they compel the aimed at transactions such as this. The owner to pay a like sum to them in addi. "prior or subsequent indebtedness, offset, or tion to what they are equitably entitled to. counterclaim in favor of the reputed owner The same offer was made to respondents, and against the contractor," mentioned in but, whether before or after their liens were the statute, applies to dealings of a different filed, does not appear. As to the work done character, and was intended to prevent upon the adjoining lot, it was all included in transactions between the owner and con- the one contract for a lump sum, and it cantractor by which the contractor's ability to not be divided so as to apportion it between pay for material might be diminished or de the two lots. The work upon the adjoining stroyed. Material men are not privies to the lot was all of a character for which a lien contract, and can have no possible interest is given by the statute, (Code Civil Proc., in it, further than above indicated.

$ 1191,) and when materials have been fur. I also think that appellants should be al. nished under a single contract for buildings lowed the amount paid to the laborers and or improvements on two or more contiguous to the other material men. The bill of ex- lots owned by the same person a lien may ceptions contains the following: "It was ad- be filed against all, (Lyon v. Logan, 68 Tex. mitted by Mr. Eells, who represented the 521, 5 S. W. Rep. 72.) The fund sought plaintiffs on the trial, that the various claims to be reached by respondents in part accrued on account of which the defendants, Ken- from work and materials bestowed upon nedy, paid a pro rata to the various me- the adjoining lot, and, they can file a chanics and material men for materials and valid lien upon one lot under such contract, work performed previous to the abandonment (a point not argued or decided,) I fall to see of said contract were correct, and the par- | why all laborers and material men may not ties were entitled to file a lien, except for file valid liens upon the lot upon which the the artificial stonework, and for the fences | building was erected, and upon which alone respondents fled their liens. Besides, a con- Jarch 24, 1870, (St. 1870, p. 352;) and Act clusive answer to the exception contained in

March 27, 1872, limiting the effect of said

curative act in the matter of school lands to the admission of respondents is that the

the amount of 320 acres for any one purchar record does not show that any of the claims er did not apply, the application having been · settled and paid by appellants were for work made before the passage of the curative act. done upon the "adjoining lot." I think these

2. The act of 1872 was superseded by Pol.

Code, 8 3573, which is substantially the same payments should have been allowed to de

as Act March 24, 1870. fendants in reduction of the fund.

3. Act Cong. March 1, 1877, (19 Stat. 267,) It is also urged by respondents that the

known as the “Booth Act," "relating to incontract does not conform to the require. | fornia," and confirming to the state the titles

demnity school selections in the state of Caliments of the statute, because it was signed to these lands selected by the state, was only by Mrs. Kennedy, while the court found equivalent to a grant of the lands to the state that her husband, John F. Kennedy, was the

as of the date of listing, and the title thus

ratified was within the effect of the curative owner in fee. The statute does not require

act of March 24, 1870, and was thereby that the contract be signed by the owner. validated, as though the lands belonged to the It is sufficient if signed by the reputed owner, state at the time of the passage of the act. and it was found that Mrs. Kennedy was the

4. Under Code Civil Proc. 8 338, subd. 4,

which provides that an action for relief on reputed owner. Besides, the owner, not hav.

the ground of fraud or mistake must be begun ing given notice as required by the statute in three years after the cause accrues, and that he would not be responsible for the im

that the cause is not deemed accured until provements upon his property, is as conclu

the discovery by the aggrieved party of the

facts constituting the fraud or mistake, & sively bound, so far as laborers or subcon- relator suing in the name of the state to cantractors are concerned, as though he had cel a patent of lands for fraud of the purmade the contract.

cbaser is not an aggrieved party, within the The contract described the adjoining lot as

meaning of the section, so that his ignorance

of the fraud can exeinpt the action from its running 42 feet "westerly," while in the provisions. memorandum “easterly" was inserted in- 5. In such action by the state to cancel stead. The error did not destroy the suffi

the patent for fraud of the applicant to pur.

chase, the averinent in relator's complaint that ciency of the memorandum. It was de

the "false statement" of the applicant was not scribed as “the lot adjoining" the lot first known to the officers of the state is not suffidescribed; and, as a misdescription does not cient to exempt the action from the provision avoid a contract of this character, (Yancy v.

of the above section. Morton, 94 Cal. 558, 29 Pac. Rep. 1111,) the Department Appeal from superior error was capable of correction by proper court, Sonoma county. averment and proof.

Action by the people, on the relation of The payments by the owners to the labor- William Eadie, to cancel a patent to land. ers and material men (other than the re- From a judgment for defendant, plaintiff ap spondents) were alleged in the answer, but peals. Affirmed. there was no finding as to the fact of payment. The findings, as made, however, do

Atty. Gen. Hart, John T. Carey, and B. F. not support the judgment, inasmuch as the

Bergen, for appellant. J. A. Cooper and facts found show a balance in the hands of

Chas. E. Wilson, for respondent. the owners much less than the amount of the liens adjudged to the respondents, the HARRISON, J. Action to cancel a patent judgment being based upon an erroneous issued by the state of California, in 1876, to conclusion of law that the materials supplied A. W. Macpherson for certain lands in Mendo by plaintiffs were furnished at the special in.

cino county. It is alleged in the complaint stance and request of the owners. The judg. that the lands in question are agricultural ment and order appealed from should be re- lands, which were listed to the state Feb versed.

ruary 15, 1870, in lieu of a section 36,-that

section then supposed to be within the ex. We concur: TEMPLE, O.; BELCHER, C. terior limits of a reservation, but subse

quently ascertained to be excluded there PER CURIAM. For the reasons given in from; that said selection was confirmed to the foregoing opinion, the judgment and or. the state by the provisions of the act of conder appealed from are reversed.

gress approved March 1, 1877, entitled "An act relating to indemnity school selections in the state of California;" that Macpher

son made application September 23, 1868, to PEOPLE ex rel. EADIE V. NOYO LUMBER

the stato surveyor general to purchase the CO. (No. 15, 110.)

lands in lieu of said school section, and that

on March 20, 1870, his application was ap(Supreme Court of California. Sept. 1, 1893.)

proved by the surveyor general, and that STATE SCHOOL Lieu LANDS-APPLICATION TO PUR- thereupon he paid to the county treasurer of

CHASE - CURATIVE ACT-CANCELLATION OF PAT-
ENT-LIMITATION.

Mendocino county 20 per cent of the pur

chase money, with the first year's interest 1. Defects in an application to purchase state school lieu lands, made September 23,

on the balance, and received from the reg1868, were cured by the curative act of ister of the said land office a certificate of purchase thereof; that on the 21st of Sep | “Booth Act," the title to these lands was tember, 1876, upon paying the balance of confirmed to the state. “This statute was the purchase money and surrender of said a full and complete ratification by congress, certificate, letters patent were issued to him according to its terms, of the list of indemby the state; that on the 29th of March, 1888, nity school selections which had been before the defendant succeeded to whatever right that time certified to the state of California and interest in the land Macpherson bad by by the United States as indemnity school virtue of said application, certificate of pur- selections, no matter how defective or inchase, and letters patent, but did not enter sufficient such school certificates might originto possession of the lands until September, Inally bave been, if the lands included in 1890. The complaint further alleges that the lists were not of the character of any of the application of Macpherson was pull and those mentioned in section 4, and if they void for the reason that in his affidavit had not been taken up in good faith by a therefor he failed to describe the lands by homestead or pre-emption settler prior to legal subdivisions, and was also false and the date of the certificate." Durand v. Marfraudulent, for the reason that he stated tin, 120 U. S. 372, 7 Sup. Ct. Rep. 587; artherein that there were no improvements on firming Martin v. Durand, 63 Cal. 39. This said land other than his own, whereas, in ratification by the United States of the list. fact, the said land was at that time in the ing of the lands was equivalent to a grant actual occupation and possession of one of those lands to the state as of the date Joseph Hardy, who remained in such occu- of the listing, February 5, 1870, and the tipation and possession until his death in tle thus ratified was within the effect of the 1874, and whose son succeeded to his in- curative act of March 24, 1870, and was terest, and continued in the possession of thereby validated as though the lands had the land until within two years prior to the belonged to the state at the time of the pascommencement of this action, August 6, sage of the act. The expression to tbe con1891. The complaint further alleges that on trary in the opinion of Mr. Justice Thornton the 11th day of July, 1891, the relator pos- in Land Co. v. Moir, 83 Cal. 105, 22 Pac. sessed the requisite qualifications therefor, Rep. 55, and 23 Pac. Rep. 359, did not re and on that day made application to the ceive the approval of the court, and canstate surveyor general to purchase the said not be regarded as authority. lands as a portion of the state school lieu Section 338, subd. 4, Code Civil Proc., de lands, but that officer refused to file said ap- clares that an action for relief on the plication, for the reason that the said pat- ground of fraud or mistake must be coment to Macpherson was outstanding and un

menced within three years after the cause canceled. Plaintiff therefore asks that the of action accrues, and further provides that letters patent issued to Macpherson be can- the cause of action in such case is not to celed, and that the relator be adjudged to be deemed to have accrued until the dishave the right to file his application to pur- covery by the aggrieved party of the facts chase said lands. To this complaint the constituting the fraud or mistake. In Pea defendant demurred, and, his demurrer hav- ple v. Blankenship, 52 Cal. 619, this provision ing been sustained, judgment was entered

was held to apply to an action by the state in his favor, and the plaintiff has appealed. to cancel a patent for land alleged to have

Whatever defects there may have been in been procured by fraud. The plaintiff here the application of Macpherson, they were

in seeks to take the present case out of this cured by the act of March 24, 1870, (St. 1870, limitation by averring "that the fraudulent p. 352.) Copp v. Harrington, 47 Cal. 236; and false statement made by Macpherson Rooker V. Johnston, 49 Cal. 3. The provi

was not known by the relator until within sion in the act of March 27, 1872, limiting the past two years, nor was it discovered the effect of that act in the matter of school by the land officers or the attorney general lapds to the amount of 320 acres for any

of this state, until on or about the 11th day one purchaser, has no application to the of July, 1891." The relator is not, howpresent case. As Macpherson's application ever, the. "aggrieved party," within the to purchase was made September 23, 1868, meaning of section 338, and the averment prior to the passage of the curative act of that the "false statement" was not known 1870, after his application bad once been

to the officers is not sufficient to exempt the validated, it was not in the power of the action from the provisions of the section. legislature to place other limitations to the The statement Itselt must have been known title thus conferred upon him. Moreover, to the officers at the time it was received the act of 1872 was superseded by section by them from Macpherson; and, as any de 3373 of the Political Code, which is sub- fects in that statement, whether frauduleut stantially the same as the act of March 24, or false, were cured by the act of 1870, it is 1870. Hence the averment in the com

immaterial whether or not they were subse plaint that prior to March 24, 1870, he had quently ascertained by the land officers of purchased from the state more than 320 the state. The judgment is affirmed. acres of school lands is immaterial. By the act of congress approved March 1, 1877, We concur: GAROUTTE, J.; PATER(19 Stat. p. 267,) commonly known as the SON, J.

v.34P.no.1-7

signee is absolutely void, because made RUED V. COOPER et al. (No. 14,247.) more than six months after the order of (Supreme Court of California. Aug. 31, 1893.) final discharge was entered; that the only VACATING JUDGMENT-LIMITATION ASSIGNMENT

authority given the court to set aside any IN INSOLVENCY-WHAT PASSBS.

judgment or order is found in section 473 of 1. Code Civil Proc. $ 473, limiting the set- the Code of Civil Procedure, which expressly ting aside of any judgment or proceeding to limits its exercise to a period “not exceeding six months after the same was taken, has no

six months after such judgment, order or application to an order granting the discharge of an assignee in insolvency on final settle proceeding was taken;" while appellant conment of his account; and where an assignee tends that this section has no application; finds property belonging to the insolvent's es- that it applies only to judgments, orders, or tate after his discharge the court may set aside the discharge, though more than six

proceedings taken “against" the party apply. months have expired.

ing for relief therefrom; that the order of 2. Const. art. 4, § 26, declares that "all discharge vacated upon his application was contracts for the sale of shares of the capital one in his favor, procured upon his applistock of any corporation or association on

cation, relieving him from responsibility to margins, or to be delivered at a future day, shall be void, and any money paid on such

crcditors of the insolvent, and was not final; contract may be recovered by the party paying that even if it were a final order, the court it by a suit in any court of competent jurisdic- hiring once had jurisdiction, Its jurisdiction tion." Held, that a right of action accruing under the section to an insolvent passes to the

way be restored by consent. assignee, though it was not included in the In People v. Greene, 74 Cal. 403, 404, 16 schedule of assets.

Pac. Rep. 197, it was said: “Under the forCommissioners' decision. Department 2.

mer system of practice in this state the deci. Appeal from superior court, city and county

sions were numerous, and quite uniform, to

the effect that upon the expiration of the of San Francisco.

term of court all power to alter, change, Action by J. C. Rued, assignee of 0. A. Macomber, insolvent, against F. T. Cooper

modify, or annul judgments entered during and Warner Stauf. From a judgment for

the term, or prior thereto, was lost, unless defendants on demurrer to the complaint,

saved by some motion or action of the

court during the term, except as otherplaintiff appeals. Reversed.

wise provided by statute. Under our presHenley, Swift & Rigby, for appellant

ent system of jurisprudence, terms of court Newlands, Allen & Herrin, for respondente are abolished; and, as the rule cannot ap

ply literally, it is provided by section 473 HAYNES, C. This is an appeal from a of the Code of Civil Procedure that the judgment rendered upon defendants' demur- relief which formerly could be had during rer to the complaint. The principal ques- the term may be sought within a reasonations arise upon the following facts appear- ble time, which is defined to be six months." ing in the complaint: On August 19, 1887, In that case it was further said: "In Hast0. A. Macomber was, on his own petition, ings v. Cunningham, 35 Cal. 550, it was adjudged an insolvent debtor, and on Sep-held that the rule indicated had no applicatember 6, 1887, the plaintiff herein, J. O. tion, except as to final judgments, and did Rued, was appointed assignee, and qualified not apply while the proceedings remained as such. On May 8, 1888, the assignee filed in fieri.” The meaning of the old rule was in court his final account, which was set- that the court lost jurisdiction at the expiratled and allowed; and on June 13, 1888, an tion of the term at which final judgment order was made by the superior court or- was rendered. Until jurisdiction was lost dering the final discharge of the assignee. the court had full power over its proceedAfter the discharge the assignee discovered ings and the cause. In determining whether that he had a good cause of action against the court had lost jurisdiction to take further the defendants for a large amount of money proceedings after the discharge of the asupon a liability existing in favor of the in- signee, and the lapse of the time limited solvent at the time he filed his petition. This by section 473, Code Civil Proc., the charliability was not included in the insolvent's acter of the case, the nature of the jurisschedule nor in the assignee's account, for diction in insolvency cases, and of the order the reason that it was unknown to him un- of discharge, must be considered. By the til after his discharge. That on January 18, adjudication of insolvency, all the proper 1889, after discovering sald alleged cause of ty of the insolvent (not exempt from execuaction against the defendants, he procured tion) is, by operation of law, placed in the an ex parte order to be entered, setting aside hands of the court, and under its control, his said discharge and the order settling his and subject to its disposition. The insolvent final account, and thereafter commenced this act requires no conveyance from the inaotion. The causes of action stated in the solvent. Upon the appointment and qualicomplaint were to recover moneys paid by fication of the assignee "the clerk of the the insolvent to the defendants for the pur- court shall, by an instrument under his hand chase and sale of stocks on a margin. Re- and seal of the court, assign and convey to spondents contend that the order setting the assignee all the estate, real and peraside the order of final discharge of the as- sonal, of the debtor, with all his deeds books and papers relating thereto, and such the so-called discharge of the assignee. The assignment shall relate back to the com- insolvent, when he received his final dismencement of the proceedings in insolven-charge, was no longer a necessary or proper cy, and by operation of law shall vest the party to the subsequent proceedings. That title to all such property and estate, both adjudication, so far as it is personal, is real and personal, in the assignee.” In- final; but the other jurisdiction must remain solvent Act of 1880, $ 17. By the adjudica- until the property, the subject of the trust, tion, therefore, the property of the insolvent is finally disposed of. The title has passed debtor passed from him, and came under the out of the insolvent, and is vested in the control of the court, and the sherifl was re- assignee, and still remains under the control quired to take possession of it. It is a pro and subject to the disposition of the court. ceeding in rem, or, at the least, quasi in rem. The accident that the assignee believes that The proceeding by creditors to establish their he has disposed of all the property of the claims, though they name the insolvent as insolvent, and has settled his account, does the debtor, is in reality a proceeding to not divest his title, nor so end the proceedestablish their several claims against the ings that they may not be revived, should property, to which they can alone look for other property be discovered. He is not payment. The assignee is but the hand of authorized or empowered by the statute to the court, and, though elected by the cred- reassign or convey to the insolvent such itors, derives his powers from, and dis- subsequently discovered property, and his charges his duties under the direction of duty to creditors will not permit him to the court, and is, for the purposes of the conceal the property thus discovered, or reproceeding, an officer of the court. The in- fuse to recover it, and distribute the prosolvent practically disappears' as a party to ceeds among them. If the court can be the proceeding, and only the execution of said to have lost jurisdiction at all, it could the trust remains. The title to his proper- only be as to the assignee; but as to him, ty has passed from him, and by operation if the jurisdiction bad lapsed by virtue of of law is vested in the assignee, who is an the order and the efflux of time, it may be officer of the law, and a trustee for the cred- restored by his consent, the court not havitors. Nor is the title of the assignee re- ing lost its jurisdiction of the subject-matter. stricted to property or demands embraced In Brown v. Crow's Heirs, Hardin, 451, the in the schedule filed by the insolvent. The court said: “It must be admitted, as a genstatus of all the property owned by the eral principle, that consent cannot give jurisdebtor, of whatever character, is conclusive- diction, but this principle only applies to ly fixed by the statute, upon his insolvency original jurisdiction, or, in other words, to being adjudged by the court. Section 18 of those cases where the court never had, by the insolvency act provides: "The assignee law, Jurisdiction in the case. But where the shall have the right to recover all the estate, court once had jurisdiction, although the debts and effects of said insolvent." The

power may have been executed, so that language of the bankrupt act of congress without the consent of parties the court of 1841 was scarcely more comprehensive could not change their former judgment or *han that above quoted, yet it was held that decree, the jurisdiction may be, and in “all but the excepted property of the bank- many cases has been, restored by consent. rupt passed to the assignee, although not in- In such cases the maxim, 'consent takes cluded in the schedule.” Holbrook v. Coney, away error,' applies. Bogle v. Fitzhugh, 2 25 Ill. 543. In a recent work on Jurisdiction, Wash. (Va.) 213, recognizes this distinction." it is said: “There are two divisions that The only parties before the court after the should be made of proceedings in rem per- discharge of the insolvent were the assignee taining to things indebted.' The first per- and the creditors, who are represented by tains to a class of actions where the entire the assignee as their trustee. Nor do we res comes under the control of the court, think that the discharge was a final judgas the basis of jurisdiction. The second are ment or order, as affecting the jurisdiction actions personal in their nature, but in which of the court. Section 33 of the insolvent the law permits the property to be seized act authorizes the court, upon the grounds in the progress of the action as a basis of there stated, to "immediately discharge such jurisdiction. The latter class has been de assignee from his trust, and shall have pow. fined to be a 'proceeding quasi in rem.'' er to appoint another in his place," while Brown, Jur. $ 64. In the same section the section 34 provides that upon filing his final author places in the first class, among account, and application for its settlement, others, probate proceedings, proceedings in the court thereupon shall settle the account bankruptcy, and assignments for the benefit and order a dividend of any portion of the of creditors. In bankruptcy and insolvency estate remaining undistributed, and shall proceedings, it is clear that the indebtedness discharge the assignee, subject to compliance of the bankrupt and insolvent is upon the with the order of the court, from all liability adjudication transferred from the person to as assignee to any creditor of the insolvent." the res. The jurisdiction, being based upon It will be observed in the one case . that the res, was not lost by the settlement of the assignee is discharged from his trust, what was called the "final account," nor by while in the other he is simply discharged

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