52 Cal. 355 | Cal. | 1877
Hearst and the Leopard Mining Company had notice of the existence, and terms of the contract mentioned in the complaint. The allegation of its record is equivalent to an allegation of notice to respondents. (Civil Code, secs. 1158, 1215.)
The contract being a conveyance within the meaning of the latter sections, its record is constructive notice of its contents to subsequent purchasers.
It makes no difference so far as the demurrers are concerned that the contract was made and recorded in Nevada, for it is a familiar rule that in the absence of any averment or proof as to
Hearst, who purchased with notice of the contract, stood in the same relation to appellant that his grantor stood at the time of the conveyance to him, and became the trustee of appellant to the extent of his interest under the contract. So the Leopard Mining Company, dealing with Hearst, with notice of the contract, occupied the same -relation. He who purchases property having notice of an equity affecting it, takes it subject to that equity. (.Reeves v. Wilson, 38 Cal. 457.)
It will be said that there is no privity between appellant and respondents. The law creates the privity; it makes every person who dealt with the property after the record of the contract as much a party to its terms as the first contracting parties. At the time this suit was commenced both respondents had money belonging to appellant, and which they held as his trustee, which each refused to pay him, and denied his right to recover.
The demurrer of Hearst, in addition to the general ground taken that the facts stated in the complaint do not constitute a cause of action, takes other grounds of demurrers which we will notice in their order.
1. There is a defect of parties plaintiff and defendant in this, that Bryan and Aude, the two partners of appellant, were not made parties plaintiff, or if their consent could not have been obtained for that purpose, that they were not made parties defendant.
2. That Fisk and the other parties who entered into the contract with said firm are necessary parties defendant.
The answer to these objections to the complaint is brief, and we think conclusive. All the persons whom it is claimed should have been made parties had, as the complaint shows, before the commencement of this action, parted with their interest both in the property and in the subject-matter of the controversy; the same had then passed to Hearst, and perchance from him to the Leopard Mining Company.
The answer to this objection to the complaint is, that if, on the facts stated in the complaint, the Leopard Mining Company be liable to the plaintiff for the amount claimed, or any part of it, Hearst is a necessary party defendant, because, according to the complaint, Hearst was directly interested in the question whether or not a portion of the money in the hands of the Company should be paid to appellant or retained to abide the result of the' suit; and if Hearst be liable to appellant, the Leopard Mining Company is a necessary party to a complete determination or settlement of the question involved in the suit.
The Code of Civil Procedure provides that “ any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a completé determination or settlement of the question involved therein.” (Civil Code Pro. sec. 379.)
Wm. M. Stewart and O. B. Greathouse, for Respondent Hearst.
Garber & Thornton, for Respondent Leopard Mining Company. .
I. The facts fail to show that plaintiff „ ever acquired any legal or equitable interest in the land or mining claims. The event in which a conveyance was tó be made, to wit, a settlement of the title in the Courts, never happened, and only in this event could the plaintiff be entitled to a specific performance. Instead of this, a compromise was had, which, by the terms of the contract, entitled the firm of which plaintiff was a member to one-fourth of the proceeds. So far as plaintiff was entitled to the proceeds of a compromise, the contract was personal, and no charge upon the mining claims.
How can these defendants be made to assume the personal obligations of Fisk and associates ? It is not alleged that the defendants ever assumed the contract, and it is not shown that there is any privity between them and the plaintiff. • • •
In what respect is that case like the one at bar ? The complaint shows that the Leopard Mining Company and Fisk, the Hendys, and O’Malley claimed title to and ownership of certain mining grounds adverse to each other. The attorneys, Bryan, Aud'e, and Elliott, agreed with Fisk, the Hendys, and O’Malley to give and fender their'services in" all law-suits to settle the title of said mining ground; and to have and receive therefor an interest in the ground, upon the 'settlement of the title in the Courts ,• ’or, iii the cv'ent of a compromise, to receive no interest in the grOund, but to have and receive from Fisk, the Hendys, and O’Malley one-fourth of the' proceeds of the compromise. A suit was brought by Fisk, “the Hendys, and O’Malley against the Leopard Mining Company, to settle the said title. There was then a compromise and settlement of said suit and title, and consequently, by the agreement, the attorneys never acquired any' interest in the ground, but by the agreement with their clients, Fisk, the Hendys, and O’Malley, they can hold them for one-fourth of the compromise. ''
So far from the recorded agreement being notice of any equity or interest of the attorneys in the ground, it was notice, a compromise being made, that they had and were to have no equity or interest in' it,' but were to have from Fisk, the Hendys, and O’Malley one-fourth of the money paid by the Leopard Mining'Company to'Settle the title.
In the "agreement, Fisk,-the Hendys, and O’Malley carefully reserved to themselves the right to compromise, by conveying the title without possible interference by the attorneys—promising the attorneys, in" the event of their compromising with the Leopard Mining Company, to pay them for their services one-fourth of the proceeds óf the compromise.
As stated in the complaint, the contract between Bryan, Aude, and Elliott of the one part, and Fisk, Hendy, and O’Malley of the other part, was in effect that if the title of the latter to the mining claims should be established by means of the legal proceedings proposed to be instituted, the said Fisk, Hendy, and O’Malley would convey to Bryan, Aude, and Elliott “ an undivided interest in said mining claims equal to one-fourth of each thereof”; but “in case the said title to said mining claims should be settled by compromise, the said firm should be entitled to the one-fourth part of the proceeds thereof, or of what might be obtained or realized therefrom.” It is averred that Hearst purchased with actual notice of the contract, and that the Leopard Mining Co. also had notice of* it before and at the time of the compromise. It is contended for the defendants that the contract, as thus stated, created no specific interest in Bryan, Aude, and Elliott in the proceeds of the compromise as such; and that in legal effect it amounted only to a personal covenant by Fisk, Hendy, and O’Malley to account to Bryan, Aude, and Elliott for one-fourth of the proceeds of the compromise after they should have been received. Hence it is argued that the only remedy of the plaintiff is by a personal action against Fisk, Hendy, and O’Malley for a breach of the covenant. But we think this construction of the contract, as it is stated in the complaint, is too narrow. As we construe it,’ it was intended, in case of a compromise, that the interest of Bryan, Aude, and Elliott in the proceeds should stand precisely on the same footing as their interest in the mining claims would have occupied had the title been established in the Courts. In other words, as soon as the compromise was effected, Bryan, Aude, and Elliott became entitled to a direct, immediate, and specific interest of one-fourth of the proceeds in specie, and were entitled to de
Judgment reversed and cause remanded, with an order to the Court below to overrule the demurrer to the complaint. Bemittitur forthwith.