57 Cal. 588 | Cal. | 1881
A demurrer on various grounds was interposed to the amended cross-complaint of Raynor. We have examined this cross-complaint carefully, and we cannot perceive any error in the Court’s overruling the demurrer to it. It states a case clearly demanding the interposition of the Court.
It is objected that the evidence allowed in regard to exhibit B was improperly admitted. The paper referred to is in these words:
“ For value received, I hereby sell and assign to Wm. H. Mintzer, J. C. Peacock, W. R. Fox, and James Cameron, all my right and interest in the within instrument and contract.
“February 25th, 1876. P. A. Raynor.”
The instrument and contract referred to in this exhibit B was one executed by the aforesaid Mintzer, Peacock, Fox, and Cameron with one Ambrose Hunt, by which they agreed to reconvey to Raynor, on conditions therein named, certain lands, water rights, and privileges which on the previous day had been conveyed by Raynor to the parties just above named. In Raynor’s
The defendant Raynor was asked if any consideration was paid to him by the parties to whom this paper was executed. To this Raynor answered, “Ho.” The testimony was objected to on the ground that the consideration was not denied in the pleadings. The Court overruled the objection, and there was an exception.
What force there can be in thiso objection we cannot perceive. The paper was only set up in the answer to the cross-complaint, at which stage, under our system, the pleadings terminate. Ho replication is required by our law of procedure. What opportunity did Raynor have to set up the want of consideration in a pleading ? He was not called on or allowed to reply to the answer in which this document first made its appearance. But what the defendant could not do by an actual pleading the law does for him under the last clause of § 462 of the Code of Civil Procedure—“the statement of any new matter in the answer, in avoidance or constituting a defense or counter-claim, must, on the trial, be deemed controverted by the opposite party.” This has always been regarded as allowing a plaintiff, in reply to such new matter, to introduce on the trial any evidence which countervails or overcomes it, as if it were inserted in a replication, and pleaded with all the precision and fullness which the strictest rules of law ever required. (Curtiss v. Sprague, 49 Cal. 301.) The same rule applies to the answer to the cross-complaint. (Code Civ. Proc. § 442.)
There is no error in the ruling referred to. The genuineness and due execution of the instrument was not at all impeached by the evidence admitted.
We see no ground for the criticism made by counsel for appellant as to finding 15. The words “the property in question,” in the finding, are explained in the same finding by reference to exhibit B to the cross-complaint of defendant Ray-nor. This exhibit B, which is the deed of Mintzer, Peacock,
The sixth conclusion of law is expressed in very general language, in which it is held that Raynor is entitled to have plaintiff convey to him an undivided four-sevenths of the land conveyed by Raynor to Mintzer and others, by the Raynor-Roe deed of the 12th of October, 1875, held to be a mortgage. But certainly the Court did not intend to have the plaintiff convey the parcels of land which it had sold and conveyed, and if it did so intend, no title to such parcels would pass under the decree or any conveyance made in pursuance of it. But when we come to the decree, certain exceptions are mentioned, out of the lands directed by the decree to be conveyed by plaintiff to Raynor. The Court might have determined or had ascertained by reference, the specific lots of land remaining unsold, and decreed that such lots be conveyed to Raynor, but we cannot see that the appellants are prejudiced by the decree as drawn, since no more can pass by any deed made under it than what remains unsold.
The items of expenditure (in finding 18) on the lands conveyed to the Western Development Company, and the rents and profits thereof, did not enter into the account at all, and there' was no error in the Court in excluding such items from the account. The lands referred to were conveyed by Raynor and his co-tenants to the Western Development Company long before the Raynor-Roe deed. The interest of Raynor in the contract with the Western Development Company was conveyed to Mintzer and others, but this was a different matter from the lands conveyed to this company. This contract is as follows : The Western Development Company covenanted and agreed, in consideration of a conveyance to it by Raynor, Mintzer, Pea
The position that the judgment rendered in this action could not be rendered on the pleadings, cannot be sustained. The plaintiff’s complaint against Baynor, as sole defendant, sets forth that it is and has been a corporation ever since the 4th day of January, 1877; that on the 17th day of April, 1875, Baynor and Mintzer, Peacock, Fox, Cameron, and Hunt were owners as tenants in common of certain lands situate in San Bernardino County, which said lands were incumbered by a mortgage of date 23rd of May, 1874, to one Conn, as security for the payment of two notes for $2,300 each, one maturing on the 11th day of December, 1874, and the other on the 11th day of December, 1875. That on the 17th of April, 1875, the above-named tenants in common conveyed a part of the lands first above mentioned to the Western Development Company, at the same time taking back the agreement hereinafter mentioned from the Western Development Company; that Baynor’s interest in the said lands is a four-sevenths undivided part, and his liability in regard to them in the same proportion; that at the time the first note to Conn matured all paid except Baynor, who has never paid or offered to pay any portion of it; that on the 12th of October, 1875, Baynor agreed to convey to his said co-tenants all his interests in said lands, and everything held by
The defendant Eaynor, by his amended cross-complaint, which was filed against plaintiff, and Mintzer, Peacock, Fox, Hunt, and Cameron (the five last-named persons having been made parties to .the action by order of the Court dated August 5th, 1878), set up certain equities against the parties just mentioned, which entitled him, if established by proof against the parties above, to relief, to an account, and to a reconveyance of the lands remaining unsold, in which he was interested. These
In our opinion, the findings are sustained by the evidence. They establish a case of plain and palpable fraud on the rights of Baynor, attempted to be carried out by means of the cloaked machinery of a corporation—a common resort in these days to accomplish a fraud; a course of conduct which deserves and should receive, on every occasion when it appears before it, the rebuke of every department of the Government, and unstinted public and private censure and condemnation. For an instance of such an attempt to carry out a fraud, see Wardell v. Union Pacific P. P. Co., recently decided (Oct. Term, 1880) by the Supreme Court of the United States, opinion per Field, J.
We find no error for which the ruling of the Court below should be reversed; but the general language of the decree should be modified so as to add to the exceptions in it of lands not to be conveyed the following words: “ There shall be and
Myrick, J., and Sharpstein, J., concurred.