73 Cal. 276 | Cal. | 1887
This is an appeal from an order made by the Superior Court of Placer County, refusing to vacate and set aside the sale of a certain mining claim under a decree of foreclosure of a laborer’s lien, to restrain the sheriff from executing a deed of the property, and to enter satisfaction of the judgment and decree under which the sale was had. The decree was made and entered on the 21st of May, 1886, upon the complaint of plaintiff and the answer of the defendant, Hausman, in which answer all the facts alleged in the complaint were admitted, and judgment and decree confessed and prayed for in accordance with the allegations and prayer of the complaint. The sale under the decree was made on the 12th of July, 1886, the respondent being the purchaser, and the motion leading to the order appealed from was heard and denied on the 23d of November, 1886.
In support of his motion, defendant, appellant here, presented and filed his affidavit, from which it appeared that he was the owner of the mining claim, and that on or about the 1st of August, 1885, he and respondent entered into a verbal agreement, by which the respondent was to superintend the working of the mine at a fixed salary per month, and was to purchase a one-tenth interest therein at a fixed sum, to be paid for by his labor; that after August 1st the mine was to be worked jointly by the parties, and the profits and losses were to be divided between them in proportion to their respective interests; that the appellant was to furnish all the money required to put the mine upon a paying basis, and the respondent was to be debited with the one-tenth part
In answer to the appellant’s affidavit, the respondent
It further appears from the bill of exceptions that on the hearing of a similar motion, made on the 6th of July, 1886, to set'aside the same judgment, the attorneys for appellant admitted in open court that no part of the indebtedness claimed by respondent, and for which the judgment had been confessed and entered,' had been paid, but the same was then due respondent from appellant.
Upon this showing, we cannot say that the court erred in refusing to set aside the sale, and to order-satisfaction of the judgment to be entered. There was a manifest conflict as to some of the material facts of the case, and beside, the real contest seems to be in reference to the title to the mine. Counsel for appellant contend that when respondent accepted a deed of the property,— and
Undoubtedly, if the facts be as claimed by appellant, the purchase of the property by respondent under his decree gave him no greater rights than he already had. The sheriff’s deed would not confer any new rights, or extinguish or affect appellant’s equities. But conceding this, what was appellant’s remedy? He admits that the legal title is in respondent under the deed of April 20, 1886. Now, if the sale were set aside and the judgment satisfied, the title would still be in respondent, and appellant would still be required to bring his action in equity to compel the conveyance to him of the nine-tenths interest' which he claims. Courts do not ordinarily deal with questions by piece-meal, and beside, the matter of preventing or removing clouds upon titles is one of purely equitable cognizance.
Upon the showing made, it seems to us the appellant should have commenced an action in a court of equity, where all the questions involved could have been'tried, and the rights of both parties fully ascertained and determined.
We conclude, therefore, that the order appealed from should be affirmed.
— For the reasons given in the foregoing opinion, the order is affirmed.