39 Cal. 532 | Cal. | 1870
delivered the opinion of the Court, Wallace, J., Temple, J., and Sprague, J., concurring,
Lewis was the owner of one undivided eighth of that portion of the rancho Rinconada del Arroyo de San Francis
The deed to Hemme and that to Mercier were executed on the same day, but that to Hemme Avas first executed and recorded. Hemme knew of the arrangement betAveen Lewis and Mercier, but Mercier had no actual notice of the purchase of Hemme, until a short time before the commencement of this action. Hemme, about a year after his pur- ■ chase, conveyed to Seaton whatever interest he (Hemme) acquired by his deed from LeAvis.
The plaintiff alleges that the deed of Lewis to Hemme was without consideration, “ and was made with full knowledge by all parties thereto of the purchase made by plaintiff, and in anticipation of the conveyance ■ to him, and for the'
All the defendants deny the alleged fraud. On the trial, the plaintiff having failed to prove the fraud, Hemme and Lewis offered to prove the mistake in the deed to Hemme; and, objection being made by the other defendants (the heirs and legal representatives of Seaton), on the ground that no mistake was averred, the Court, of its own motion, ordered that Lewis and Hemme have leave to file “ an additional answer ip the nature of a cross bill against the defendants, Seatons, setting up said alleged mistake.” They accordingly filed their cross bill, alleging said mistake, and the Seatons interposed a demurrer thereto on the ground that it did not state facts sufficient to constitute a cause of action against them. The demurrer was overruled, and the Seatons having answered the cross bill, and the cause having been heard, the Court found xthe alleged mistake, and rendered judgment for the plaintiff, that the Seatons are seized of seven eighths of the Soto interest in trust for the plaintiff, and ordered that they convey the same to him.
It is apparent that the judgment is erroneous. The plaintiff’s allegation of actual fraud is' not sustained by proof of the mistake. It is insisted by the plaintiff that the mistake amounts to constructive fraud; but that is not true as a legal proposition, and, if it were true, he has not stated a case of constructive fraud. Lewis and Hemme, in their cross bill, averred the mistake, but they did not recover judgment, nor were they entitled to judgment, for neither of them had any interest in the property during the pendency of the action. The plaintiff cannot rely on the cross bill as stating a cause of action in his behalf, for the obvious reason that a party rvho seeks relief must himself state the facts upon which he relies for relief.
Judgment reversed and cause remanded, with direction to sustain the demurrer to the cross bill, with leave to plaintiff to amend his complaint.
By Crockett, J.: I dissent.