128 P. 410 | Cal. | 1912
The defendants appeal from a judgment in favor of plaintiff. The appeal is taken on the judgment-roll alone.
The complaint alleges that on November 21, 1898, Hannah S. Skinner, the predecessor in interest of the defendants, entered into a written agreement with the plaintiff, Archer. By the terms of the writing, which is set forth at length in the complaint, Mrs. Skinner, in consideration of services performed for her by Archer as attorney and counsel in a cause entitled B.W. Cave et al. v. George W. Tyler et al., and of further services to be performed "in appealing said cause to the supreme court" and presenting it in said court, and the payment of one-half of the costs and court fees of such appeal, agreed to give to Archer one-half part of such water and water-rights in a certain cienega, as might be awarded to Mrs. Skinner in the aforesaid cause. Archer agreed to faithfully perform the services mentioned, and to pay one-half of the costs of appeal, in consideration of the one-half part of all said waters and water-rights. The complaint goes on to allege the performance by plaintiff of all the obligations on his part. It is alleged that plaintiff conducted the litigation in the action of Cave v. Tyler through two trials in the superior court, and two appeals to the supreme court, the final decision in said cause having been rendered on the fifth day of August, 1905. By that decision it was finally determined that the interest of Hannah S. Skinner, in the waters described in the contract, was and is "two inches of water, continuous flow, measured under a four-inch pressure of and from the waters of said cienega." There are further allegations as follows: Pending said litigation, in January, 1901, Hannah S. *276 Skinner died intestate, the owner of said two inches of water, and leaving her surviving two heirs at law, the defendant Katie Harvey, her daughter, and Robert Powell, her son. L.A. Harvey, one of the defendants, is the husband of Katie Harvey. The daughter became administratrix of her mother's estate. During the administration, the defendants acquired the interest of the son, Robert Powell, in said two inches of water, and, upon distribution of the estate of Hannah S. Skinner, the entire estate, including said two inches of water, was distributed to the defendant Katie Harvey. The defendants have ever since owned and held said two inches by such title. The defendant Katie Harvey, as administratrix, was, in 1901, substituted in her mother's place in said action of Cave v. Tyler, and thereafter said litigation was conducted by plaintiff under said contract for defendants at their request and with their knowledge and co-operation. Each of the defendants has at all times had knowledge of the contract and of its performance on plaintiff's part. It is alleged that the contract was and is fair and just to said Hannah S. Skinner and the defendants, and that the consideration to be received and actually received for the transfer of the water-right was and is reasonable and adequate. No part of said water-right has been conveyed to plaintiff, and defendants, notwithstanding a demand by plaintiff, refuse to convey it to him. The prayer is that defendants be required to specifically perform the contract by conveying to plaintiff one inch of said two inches of water.
The answer denies many of the foregoing allegations, and, in addition, pleads that the action is barred by the provisions of sections
On all these issues the findings were in favor of plaintiff, and a judgment was entered directing a conveyance as prayed.
But two points are made by the appellants. First. It is urged that the court erred in holding that the plaintiff's claim was not barred by the statute of limitations. It is difficult to see how his contention can be advanced on an appeal on the judgment-roll, in view of the fact that there is a finding that the action is not barred. On such appeal, the evidence is not before us, and its sufficiency to support the findings is, of course, not to be questioned. *277
But, apart from the finding on the statute of limitations, the other facts appearing would not have justified a conclusion that the action was barred. The complaint was filed on the twenty-ninth day of July, 1909. The decision of this court, finally adjudicating Mrs. Skinner's water-rights, was filed on August 5, 1905, less than four years theretofore. The action was one for the specific performance of a contract in writing, executed in this state. The plaintiff's obligation to appeal the case of Cave v. Tyler, and present it in the appellate court, was not fully performed until final judgment in that court. Even after the filing of the opinion in August, 1905, a rehearing might have been granted, and plaintiff might have been called upon to render further services. Until complete performance on his part, he was not entitled to demand a conveyance. (Bartlett
v. Odd Fellows' Sav. Bank,
Norton v. Bassett,
Second. The contention is made that plaintiff was bound to present his demand for adjudication to the court in which the administration of Hannah S. Skinner's estate was pending, and that he is barred by the decree distributing the water-right of the decedent to the defendants. Notwithstanding some uncertainty in earlier rulings, the later decisions of this court are clear to the effect that a decree of distribution has no such effect. The decree under section 1666 of the Code of Civil Procedure "is conclusive as to the rights of heirs, legatees or devisees, but it is conclusive against them only as heirs, legatees or devisees, — only so far as they claim in such capacities. . . . It merely declares the title which accrued under the law of descents or under the provisions of the will." (Chever v. ChingHong Poy,
The judgment is affirmed.
*279Shaw, J., and Angellotti, J., concurred.