35 Cal. 470 | Cal. | 1868
The indictment in this case was found under the one hundred and thirty-second section of the statute in relation to crimes and punishments. That section is found in the twelfth subdivision of the statute which treats of “ offenses committed by cheats, swindlers, and other fraudulent persons,” and reads as follows: “Any person or persons after once selling, bartering, or disposing of any tract or tracts of land, town lot or lots, who shall again knowingly and fraudulently sell, barter, or dispose of the same tract or tracts of land, town lot or lots, or any part thereof, or shall knowingly and fraudulently execute any bond or agreement to sell or barter or dispose of the same land, or lot or lots, or any part thereof, to any other person or persons for a valuable consideration, every such offender, upon conviction thereof, shall be punished by imprisonment in the State Prison not less than one nor more than ten years.”
Cheats which are leveled against public justice, as judicial acts done without authority in the name of another, and frauds which affect the Government and the public at large, as rendering false accounts by persons in official positions, writing false news, selling unwholesome provisions, and using false weights and measures, were indictable at common law. But cheats and frauds not calculated to affect the public in any way, and committed in the course of private transactions, and affecting only the parties concerned, as by lying and false
We have thus referred to the origin of our statute with a view to its interpretation, it being said that its meaning is obscure, and for the same purpose we also refer to a statute of the State of Ohio upon the same subject, which is in the following words:
“That if any person or persons shall knowingly sell or convey any tract of laud without having a title to the same, either in law or equity, by descent, devise or evidence by a written contract, or deed of conveyance, with intent to defraud the purchaser, every person so offending shall be deemed guilty of a misdemeanor, and upon conviction*474 thereof shall be imprisoned in the Penitentiary, and kept at hard labor not more than seven years nor less than one year.” (1 Rev. Stats. Ohio, 415, See. 33.)
Whatever of obscurity there may be as to the true meaning of the statute of this State is due to the fact that it does not, like the statute 27 Eliz., c. 4, and the statute of Ohio, designate the person to be injured by the fraud, and therefore leaves the question open to speculation. The statute 27 Eliz. proceeds upon the theory that either of the purchasers may be defrauded by the second sale, while the statute of Ohio proceeds upon the theory that a purchaser from one who has no title is the only person who can be injured by the transaction. The English statute proceeds upon the true theory, wherever registry laws, like that of this State, are in force. If the second purchaser purchases in good faith, and for a valuable consideration, and puts his deed on record before the first deed is recorded, he will hold the land as against the first purchaser, (Registry Act, Sec. 26,) and cannot, therefore, be defrauded by the transaction. In that case the first purchaser will have become the victim of the fraud.
On the other hand, if the first deed be first recorded, the second purchaser becomes the victim. From the nature of the case, then, only one of two parties can be injured by the transaction, but it may be either of them, according to circumstances. The statute of this State adopts the theory of the English statute, but not its precision, while the statute of Ohio would seem to fall short of providing for all of the evil consequences which may follow upon the performance of the act which is prohibited.
The only persons who could, under any circumstances, have been injured by the alleged fraudulent act of the defendant, were Barrett, who was the first purchaser, and Muldrow, Waterhouse, and Babcock, who were the second purchasers.
To constitute the offense charged in this indictment, it
The instructions of the Court left the law as well as the facts to the jury, and it is quite evident that the jury did not correctly interpret the statute.
Judgment reversed and remittitur ordered to issue forthwith.
Mr. Justice Rhodes expressed no opinion.