fore he was allowed to enter the land on which he had settled, to swear that he had not contracted it away, nor settled upon it upon speculation, but in good faith to appropriate it to his own use." And, after quoting the last clause of section 2263, the court further said: "Looking at the language employed, as well as the policy of congress on the subject, it would seem that the interdiction was intended to apply to the right secured by the act, and did not go further. This was the right to pre-empt a quarter section of land. * * This right was valuable, and, independently of the legislation of congress, was assignable. The object of congress was attained when the pre-emptor went with clean hands to the land office, and proved up his right, and paid the government for his land." The direct question before the court in that case was the right to convey after the entry, but before the patent had issued, (which right was affirmed;) but the purpose of the restrictions in the act, and the policy of congress in its enactment, have an important bearing on the question here, and conclusively settle that the assignments and transfers declared null and void by section 2263, Rev. St. U. S., are transfers and assignments of the right of pre-emption. It remains to be considered whether the mortgage in question is embraced in the expression "grant or conveyance," used in section 2262.

The granting part of the mortgage is in the usual form, and, following the tenendum clause, contains this covenant: "And the parties of the first part hereby covenant that they are lawfully seised in fee of the above-described premises; that they are free from all incumbrances; that they have good right to sell, grant, and mortgage the same; and that they will forever warrant and defend the same to the party of the second part, his heirs and assigns, against the lawful claims and demands of all persons." That under this covenant any after-acquired title would inure to the benefit of the mortgagee is beyond question, (Clark v. Baker, 14 Cal. 629; Civil Code, § 2930,) unless the mortgage itself is void. It is contended, however, that a mortgage is a conveyance, and is so declared by section 1215 of the Civil Code. That section is as follows: "The term 'conveyance,' as used in sections 1213 and 1214, embraces every instrument by which any estate or interest in real property is created, aliened, mortgaged, or incumbered, or by which the title to any real property may be affected, except wills." This section defines the term "conveyance" only "as used" in the recording act, and does not imply that a mortgage is in fact a conveyance of real property, but rather the contrary; for if it were a conveyance, and so regarded and understood, it need not have been included in the definition. Section 2920, Civil Code, defines it as follows: "Mortgage is a contract by which

specific property is hypothecated for the performance of an act, without the necessity of a change of possession." The Code commissioners, in a note to this section, say: "The definition of the text is new. It is designed to make a clear distinction between a pledge and a mortgage, and at the same time to avoid the idea of a mortgage being in any sense a transfer." It is so well understood in this state that a mortgage does not transfer the title that a citation of authorities is unnecessary. A mortgage is therefore not necessarily embraced in the term "grant or conveyance," as used in the act of congress, even though, as appellants suggest, there was at the date of that act but one state in which it was held that a mortgage did not pass the title. But for the restriction imposed by the act of congress, the right of the pre-emptor before proof and payment was transferable. The restriction, therefore, cannot be extended beyond the express terms of the act, interpreted in the light of the mischief to be remedied, and this transaction was not of the character requiring prohibitory legisla tion. On the contrary, it was in aid of the beneficent purpose of the pre-emption act. Without the aid of respondent, the mortgagors were unable to perfect their entries. Making the mortgage was not inconsistent with a purpose in good faith to appropriate the land to their exclusive use, but was in aid of the purpose; nor was it a contract or agreement by which the title they might acquire from the government "should inure," in whole or in part, to the benefit of respondent. There is nothing in the record tending to show that it was the intention of the mortgagors not to pay the mortgage debt, or that the mortgage should be used as a vehicle to transfer the title they might acquire to respondent. For appellants now to make such admission would be to admit that the oath taken before the register, after the execution of the mortgage, was false.

That the point under consideration has been decided in accordance with appellants' contention in other states is true. McCue v. Smith, 9 Minn. 259, (Gil. 237,) and Woodbury v. Dorman, 15 Minn. 338, (Gil. 272,) cited by appellants, were expressly overruled in Jones v. Tainter, 15 Minn. 512, (Gil. 423.) In line with the earlier Minnesota cases are Bass v. Buker, 6 Mont. 442, 12 Pac. Rep. 922, and Brewster v. Madden, 15 Kan. 249. While the precise question here presented, under well-defined facts, bringing it clearly within the facts of the case at bar, seems not to have been discussed in the cases in this state, we think they neverthe less conclusively settle the law against the contention of appellants. In Tartar v. Hall, 3 Cal. 263, the mortgage was upon "a preemption claim," but executed before the pre-emption laws had been extended to this state. Its validity was attacked. Held, the mortgagor was estopped from asserting its

invalidity. Whitney v. Buckman, 13 Cal. 536, was a mortgage upon a pre-emption claim. The court said: "The mortgage does not pretend to transfer to the mortgagee the right to a pre-emption. This is not assignable, but the possession of public lands, whether taken for the purpose of getting a pre-emption right, or any other purpose, may be mortgaged, or the land itself; and, if the mortgagee gets no title through the mortgage, this is not an objection to be raised by the man who makes it." This doctrine of estoppel was also applied in Kirkaldie v. Larrabee, 31 Cal. 456, where the mortgage was upon a homestead claim before title acquired. In Christy v. Dana, 42 Cal. 174, the mortgage was upon land upon which the mortgagor resided, and which "he proposed to claim as a pre-emption." He afterwards pre-empted the land, obtained title, and sold to a third party. Held, that the title inured to the benefit of the mortgagee. Bull v. Shaw, 48 Cal. 455, differs from Christy v. Dana, in this: that, after the mortgage was executed, the mortgagor sold part of the land mortgaged to a third party, who afterwards secured the government title. As to this part it was held, the title not having been acquired by the mortgagor, it did not inure to the benefit of the mortgagee, as he did not deraign title from the United States through Shaw, the mortgagor; but that if Shaw had acquired the title, and had then conveyed to Delaney, the latter would have been estopped from asserting title against the mortgage. In Camp v. Grider, 62 Cal. 25, it does not appear under what statute Grider acquired the title from the United States, but a mortgage executed while he was in possession, and before he obtained title, was enforced, and was held to inure to the benefit of the mortgagees. The latest, and a case not distinguishable in principle from the one at bar, is Orr v. Stewart, 67 Cal. 275, 7 Pac. Rep. 693. There the mortgage was upon land taken up by Stewart under the homestead act of 1862. After the foreclosure of the mortgage, and the sale thereunder to Orr, and the purchaser had gone into possession under the sheriff's deed, Stewart went to the United States land office, and was permitted to commute his homestead entry into a cash entry, paid for the land, and received a certificate of purchase. The action was commenced by Orr to quiet title against Stewart.

Judgment for defendant was reversed. It was held that the after-acquired title inured to the benefit of Orr, the purchaser at the foreclosure sale. The only apparent aistinction between that case and this is that in Orr v. Stewart the land, at the time the mortgage was made, was held under the homestead laws, though afterwards commuted and entered under the pre-emption laws. The opinion proceeded upon two grounds: (1) That the mortgagor was estopped from defeating, by his own act, the Cal.Rep. 32-34 P.-28

enforcement of the lien he attempted to create; and (2) that the mortgage was not made void or voidable under the provisions of the homestead act. In no case which we have been able to find in the reports of this state has a mortgage been held invalid against the mortgagor because of the fact that the title was in the United States at the date of the mortgage, whether the land was occupied by the mortgagor under the homestead or under the pre-emption laws. In none of these cases has either section 2262 or 2263 of the Revised Statutes of the United States been mentioned by the court, though it is hardly possible that they have been overlooked; and that fact would seem to show that a mortgage, under our system at least, was not regarded as a "conveyance," within the meaning of those sections. We conclude, therefore, that a mortgage executed by a pre-emption claimant before final proof and payment, at least if given to secure the repayment of money loaned to pay for the land, or in any manner to aid the mortgagor in perfecting his title, is not in contravention of the pre-emption laws, and that, if it purports to be a mortgage of the fee, it carries the after-acquired title, unless it is intended as a mode of transferring the title in evasion of the statute; and, further, that, under the uniform current of authorities in this state, the mortgagor is estopped from defeating by his own act the operation and enforcement of the lien appellants have attempted to create. These views render it unnecessary to distinguish between that part of the mortgage debt created before entry and any portion of it which may have been created afterwards. The judgment appealed from should be affirmed.

We concur: BELCHER, C.; SEARLS, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

4 Cal. Unrep. 33 STEWART v. POWERS et al. (No. 15,217.) (Supreme Court of California. June 9, 1893.)

CONVEYANCE SUBJECT TO MORTGAGE.

A pre-emption claimant, before final proof and payment, mortgaged the claim to secure the repayment of money borrowed to perfect her title. After she had entered upon and paid for the land, and had received her certificate of purchase, she conveyed a part of the claim to one H. Held that, as the title acquired by the pre-emptioner from the United States inured to the benefit of the mortgagee when acquired, the conveyance to H. was subject to the mortgage.

Commissioners' decision. Department 2. Appeal from superior court, Contra Costa county; Joseph P. Jones, Judge.

Action by James Stewart against Harriet H. Powers and others to foreclose a mortgage. Decree for plaintiff. Defendants ap peal. Affirmed.

Latimer & Brown and Eli R. Chase, for appellants. W. S. Tinning, for respondent.

HAYNES, C. In Stewart v. Powers, (No. 14,956, this day filed,) 33 Pac. Rep. 486, the appeal was from the same judgment, and upon the same judgment roll, from which the above-named appellants have taken this appeal.

As to appellants Sarah E. Sharp and Aurelius Sharp, the facts and the questions of law presented are precisely the same as in No. 14,956, and, upon the authority of that case, the judgment should be affirmed as against them.

As to appellant John Harding, a fact not appearing in No. 14,956 is necessary to be stated, viz. that on December 31, 1888, Sarah E. Sharp, the above-named appellant, after she had entered and paid for the land, and had received her certificate of purchase therefor, conveyed to said John Harding a part of the premises so mortgaged, to wit, the S. 2 of the N. W. 4 of section 26, township 2 N., range 3 W., M. D. B. & M. All other facts are sufficiently stated in the opinion in No. 14,956. It must be apparent that if the title acquired from the United States after the mortgage was executed inured to the benefit of the mortgagee, as was there decided, it must follow that it inured at the moment the title was acquired by the pre-emptioner, and that the conveyance afterwards received by appellant Harding vested the title in him subject to the mortgage. See Christy v. Dana, 42 Cal. 174; Bull v. Shaw, 48 Cal. 455, and Orr v. Stewart, 67 Cal. 275, 7 Pac. Rep. 693, cited in the former opinion. It follows that the judgment appealed from should be affirmed as against all the appellants.

PER CURIAM. For the reasons given in the foregoing opinion the judgment appealed from is affirmed as against all the appellants.

98 Cal. 587

In re STOW et al., Park Commissioners. (No. 15,063.)

(Supreme Court of California. June 12, 1893.) GOLDEN GATE PARK COMMISSIONERS-NEGLECT OF DUTY-SUFFICIENCY OF ACCUSATION.

Pen. Code, § 772, provides that where an accusation verified by the oath of any person is presented to a superior court, alleging that any officer within the jurisdiction of the court has refused or neglected to perform the official duties pertaining to his office, the court must cite the accused to appear, and on his appearance must hear the accusation, and, if the charge is sustained, must enter a decree removing the accused from office, and must render judgment for $500 in favor of the informer, with costs. Pol. Code, § 3245, provides that "eight hours' labor constitutes a legal day's work in all cases where the same is performed under the authority of any law of this state, or under the direction, control, or by the authority of any officer of this state, acting in his official capacity, or under the direction, control, or by the authority of any municipal corporation within this state, or of any oflicer

thereof, acting as such; and a stipulation to that effect must be made a part of all contracts to which the state or any municipal corporation therein is a party." Held, that an accusation under Pen. Code, § 772, that the commissioners of Golden Gate Park, "while acting in their official capacity," entered into a contract for labor, from which the stipulation directed by Pol. Code. § 3245, was willfully omitted, and that such commissioners compelled their laborers to work nine hours a day, is insufficient, where it fails to show the location of Golden Gate Park; that the commissioners, when they made the contract, or compelled the laborers to work nine hours a day, were officers of the state, or of any county or municipality within the state, or that the commissioners were acting as such, or held any office, when the accusation was filed.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; John F. Finn, Judge.

Accusation under Pen. Code, § 772, by William M. Willey. against W. W. Stow, R. P. Hammond, and Joseph Austin, as commissioners of Golden Gate Park. The accusation was dismissed, and complainant appeals. Affirmed.

Wm. M. Willey, per se. Harold Wheeler, for respondents.

BELCHER, C. On January 6, 1892, William M. Willey filed in the superior court of the city and county of San Francisco an accusation in writing, verified by his own oath, alleging that the respondents, Stow, Hammond and Austin, "while acting in the official capacity of commissioners of the Golden Gate Park," entered into and signed an agreement with one Charles Warren, on or about August 12, 1891, whereby said Warren contracted to perform certain work upon and within said public park; that the said contract was not drawn in the form prescribed by law, in that the stipulation, directed by section 3245 of the Political Code, that eight hours should constitute a legal day's work, was omitted therefrom; and that this omission was made willfully and knowingly by respondents, because prior to the execution of the said contract they had been petitioned, for and on behalf of the citizens for whose protection the said statute was enacted, to have the said stipulation inserted in all contracts let by them. The accusation also alleged that the respondents, "while commissioners of said Golden Gate Park," have compelled the laborers employed by them to work nine hours daily, and it concludes with a prayer that the respondents be cited to appear in court, and show cause why they should not be removed from office, and that judgment be given against them, in the sum of $500 each, in favor of the deponent, as informer, and for costs, "as pro vided by section 772, Pen. Code Cal., under which section this information is herewith filed." The respondents severally appeared and demurred to the accusation upon nearly all the statutory grounds. After argument the demurrers were sustained, and, the complainant declining to amend, judgment was

entered that the proceeding be dismissed without costs. From this judgment the complainant appeals.

Section 772 of the Penal Code is as follows: "When an accusation, in writing, verified by the oath of any person, is presented to a superior court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the accusation was presented; and on that day, or some other subsequent day not more than twenty days from that on which the accusation was presented, must proceed to hear, in a summary manner, the accusation, and evidence offered in support of the same, and the answer and evidence offered by the party accused; and if, on such hearing, it appears that the charge is sustained, the court must enter a decree that the party accused be deprived of his office, and must enter a judgment for five hundred dollars in favor of the informer, and such costs as are allowed in civil cases." And section 3245 of the Political Code is in these words: "Eight hours' labor constitutes a legal day's work in all cases where the same is performed under the authority of any law of this state, or under the direction, control, or by the authority of any officer of this state, acting in his official capacity, or under the direction, control, or by the authority of any municipal corporation within this state, or of any officer thereof, acting as such; and a stipulation to that effect must be made a part of all contracts to which the state, or any municipal corporation therein, is a party." The evident purpose of section 772, above quoted, was to authorize a superior court to remove from office any unfaithful officer of the state or of a county or municipality within the state, who is within its jurisdiction, and who has refused or neglected to perform the official duties pertaining to his office. The section is penal in its character, and, in order to give the court authority to enforce it, all the facts showing that the accused is a state, county, or municipal officer within the jurisdiction of the court, and when, how, and where he refused or neglected to perform his official duty, should be plainly and fully alleged; and the proceeding must be instituted while the accused is still in office, and not after his term has expired. Smith v. Ling, 68 Cal. 324, 9 Pac. Rep. 171; Woods v. Varnum, 85 Cal. 639, 24 Pac. Rep. 843. The only question, then, is, does the accusation in this case meet these requirements? In our opinion, it does not, but is fatally defective in several respects. In the first place, there is no averment as to where Golden Gate Park is located. So far as appears from the aver

ments, it may be in San Diego or Siskiyou county, or in the states of Nevada or Oregon. In the second place, it does not appear from any averment that the respondents, when they entered into the contract with Warren, or when they compelled laborers employed by them to work nine hours daily, were officers of this state, or of any county or mu nicipality within the state. The averment is only that they did the acts complained of "while acting in the official capacity of commissioners of Golden Gate Park." And, in the third place, it does not appear that the respondents were park commissioners, or held any office, when the accusation was filed against them. This being so, the demurrers were properly sustained, and it is immaterial upon what particular ground the court below based its ruling.

The judgment should be affirmed.

We concur: VANCLIEF, C.; TEMPLE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed.

DE HAVEN, J. I concur in the judgment. The failure of the defendants to have inserted in the agreement alleged to have been made by them with Warren a clause to the effect that eight hours should constitute a legal day's work thereunder did not constitute a refusal or neglect upon the part of defendants "to perform the official duties pertaining" to the office of park commissioner, within the meaning of section 772 of the Penal Code. The official duties referred to in that section, and the nonperformance of which is made cause for removal from office, relate to such official duties, the failure to perform which may injuriously affect the rights of some one of the general public, and the performance of which duties is made mandatory upon the part of the officer in the interest of the public. The omission here charged is not of this nature, be cause, if it should be assumed that section 3245 of the Political Code has any reference whatever to such a contract as is mentioned in the accusation, the omission to insert in such agreement a provision that eight hours should constitute a legal day's work thereunder can in no wise affect the rights of laborers employed by the contractor, and who did not expressly stipulate as to the number of hours they would work each day, for the section itself, independent of any such express provision, forms part of the contract, and the contract, in such a case, is to be read and interpreted as if it contained the express stipulation mentioned in the statute. Plainly, therefore, the rights of no one can be, or were, affected by the omission complained of. If, upon the other hand, section 3245 of the Political Code does not include such a contract as the petition alleges was made by defendants with Warren, then,

clearly, the omission to make the express stipulation referred to was not, in any sense, a failure to discharge an official duty. Looked at from any point of view, the petition fails to state a cause of action against the defendants.

98 Cal. 578

BOYSON V. THORN. (No. 14,534.) (Supreme Court of California. June 12, 1893.) TORTS-MALICIOUS INTERFERENCE WITH CONTRACT.

An action will not lie against one who maliciously, but without threats, violence, fraud, falsehood, or benefit to himself, procures a breach of contract between others.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco.

Action by Thomas Boyson against S. F. Thorn for maliciously procuring a breach of contract. There was a demurrer to the complaint, which was sustained. Plaintiff appeals. Affirmed.

Carroll Cook and J. E. Foulds, for appellant. Wm. F. Herrin, J. M. Allen, and Wm. H. L. Barnes, for respondent.

HAYNES, C. Defendant demurred to plaintiff's complaint, the demurrer was sustained, and judgment was thereupon rendered dismissing the action, from which judgment the plaintiff appeals.

The complaint alleges that Frank G. Newlands is the owner and in possession and control of the Palace Hotel in the city of San Francisco, and of a public restaurant attached thereto, and conducted the same as a hotel and restaurant, and that the defendant, during all the times mentioned in the complaint, was the agent of Newlands, and as such had charge of the business thereof, and direction of the servants therein. That immediately prior to November 1, 1889, Newlands entered into an agreement whereby plaintiff hired certain rooms in said hotel, as lodgings for himself and wife from November 1, 1889, at the monthly rent of $100; that they were to have their meals at said restaurant, or furnished from said restaurant to their said rooms, he paying therefor the usual rates; that they entered and occupied the rooms, and in all things complied with said agreement, but that on December 5, 1889, the "defendant maliciously, and with intent to oppress, annoy, and disturb plaintiff in the occupancy of his lodgings, and to force him to abandon the same, and to deprive him of the comforts and conveniences which he was then and there enjoying, and to injure him in his profession, and to degrade and belittle him in the eyes of the guests of said hotel 'and of his friends and of the public in general, and in fraud of said agreement, caused and procured F. G. Newlands then and there to demand that plaintiff and his wife forthwith vacate said lodgings." It is further charged that defendant maliciously, caused and

procured Newlands to refuse to furnish meals, etc., and to instruct the servants to refuse their orders; and that on December 12, 1889, defendant maliciously caused and procured Newlands to threaten and attempt to forcibly eject plaintiff and his wife from said rooms, whereby his wife became ill, and he was compelled to and did employ a nurse at an expense of $60, and also to hire men to protect his wife and retain possession, etc., at a further expense of $60, and prays for $25,120 damages. The action is against Thorn alone. The demurrer is that the facts stated do not constitute a cause of action against the defendant.

The broad question presented is whether an action will lie against one who, from malicious motives, but without threats, violence. fraud, falsehood, deception, or benefit to himself, induces another to violate his contract with the plaintiff. We state the question thus because it will be observed that the complaint does not state the means used to cause or procure Newlands to violate his contract with the plaintiff, but only that it was done "maliciously." The general rule is that only those who are parties to, or in some manner bound by, a contract, are liable for a breach of it. To this general rule there are certain exceptions, as, for example, contracts for personal services involving the relation of master and servant; and there are also other cases that are sometimes classed as exceptions, but which are not strictly so. In Cooley on Torts (2d Ed., p. 581) it is said: "An action cannot, in general, be maintained for inducing a third person to break his contract with the plaintiff, the consequence, after all, being only a broken contract, for which the party to the contract may have his remedy by suing upon it. But if the third person was induced to break his contract by deception it may be different. If, for example, one were to personate a vendee of goods, and receive and pay for them as on a sale to himself, the vendee would have his action against the vendor; but he might also pursue the party who, by deceiving one, had defrauded both." In the case supposed by the learned author the gist of the action is the fraud of the defendant in personating the vendee. The fact that the only injury or damage sustained by the vendee in consequence of defendant's fraud was the loss of the benefit he would have derived from the performance of the contract does not at all change the character of the action. Suppose that A., knowing that B. is about to bestow upon C., as a gratuity, a large amount of money or property, and A. fraudulently personates C., and receives the money or property, C. could have no action against B., for there was no contract relation between them; but C. could have his action against A. for the loss caused by his fraud. The means used to accomplish the wrong is in each case the same, showing conclusively that the fraud is the basis of the action, while the breach of