Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing (Denied, Granted) 48 Cal. 239 at 249.
Appeal from the District Court, Sixth Judicial District, County of Sacramento.
Ejectment to recover a tract of land in the county of Sacramento, described as " commencing on the east bank of the Sacramento river, where Main street, in the town of Sutterville, would strike said bank, being the southwest corner of a tract of land conveyed by John A. Sutter to L. W. Hastings; running thence easterly along said south line of said Hastings' tract one mile; thence at right angles southerly one half mile; thence at right angles westerly to the Sacramento river; thence up and along the Sacramento river to the place of beginning."
The following was the deed from Robinson and others to Saunders, which is construed in the opinion:
" This indenture, made this twenty-third day of June, A. D. one thousand eight hundred and fifty-five, between Henry E. Robinson, Eugene F. Gillespie, John S. Fowler, John McDougal and Wake Brierly, of the counties of Sacramento and San Francisco, State of California, parties of the first part; Lewis Saunders, Jr., of the County of Sacramento, of the second part, and John A. Sutter, of the County of Sutter, State aforesaid, party of the third part: Whereas, on the 1st day of July, 1850, John A. Sutter and Ann, his wife, executed to said E. Robinson, Eugene F. Gillespie, John S. Fowler, and John McDougal, a deed of conveyance, dated that day, for a certain tract of land bounded as follows: Commencing on the east bank of the Sacramento river, in latitude thirty-nine degrees, forty-one minutes, forty-five seconds, and running thence on said parallel of latitude to the Rio de los Plumas, Feather river; thence down said Feather river with its meanderings to its junction with Sacramento river; thence up and along the east bank of said Sacramento river to the place of beginning; also, whatever right, title, interest they may have in and to any other tract or parcel of land whereto they might have or be possessed of in the State of California, as will more fully and at large appear from the said deed, which is recorded in the office of the Recorder of Sutter County, in Book of Deeds ___, pages ___; and whereas the said Eugene F. Gillespie has purchased and acquired all the right, title, interest and estate of the said John S. Fowler, and the said Wake Brierly has purchased and acquired all the right, title and interest, and estate of the said John McDougal in and to said tracts or parcels of land; and whereas, the said deed or conveyance, certain covenants and conditions are to be kept and performed on the part of said Robinson, Fowler, Gillespie and McDougal, as parties of the second part therein, a more full statement and enumeration of which may be had by reference to said deed or conveyance, recorded as aforesaid; and whereas, differences and controversies have arisen and exist under the said deed, which differences and controversies it is the mutual desire of the parties hereto to end and determine, and it is the further desire of the parties hereto to become seized and possessed of certain ascertained and deferred rights, titles, interests and estates in the tract or parcel of land herein first above particularly described; now, therefore, this indenture witnesseth: That the said parties of the first part, for and in consideration of the sum of one dollar to them in hand paid, the receipt whereof is hereby acknowledged, and also the consideration of a certain deed of conveyance bearing date even herewith, executed by the said Sutter, and Ann, his wife, and P. L. Edwards, to Eugene F. Gillespie, Henry E. Robinson and Wake Brierly, of and for the undivided seventy-four one hundredths (74/100) equal parts of all their rights, title, and interest and estate in and to all of the said tract or parcels of land herein first above particularly set forth and described, except the reservations hereinafter stated, and for the further consideration of the final adjustment and compromise of all the differences and controversies aforesaid, and of the release made in said deed from said Sutter and wife, and P. L. Edwards to said Robinson, Gillespie and Brierly, of the said Robinson, Gillespie, Fowler, McDougal and Brierly, and each of them, their heirs, executors, administrators and assigns, of and from all further fulfillment or performance of any and all acts, covenants, and conditions, and things whatsoever, which were to be by them fulfilled, done, or performed under or in conformity with the said deed of July 1, A. D. 1850, stated either by way of rental or otherwise, have bargained, sold, remised, released, and forever quitclaimed, and these presents do bargain, sell, release, and forever quitclaim the undivided twenty-six one hundredths (26/100) equal parts of all their rights, titles, interests, estate, claims, and demands of and in all the said tract or parcel of land hereinafter particularly described and set forth, to wit: Commencing on the north of the three peaks, or what is commonly known as the Sutter's Buttes, at a point on the east bank of the Sacramento river, known in latitude thirty-nine degrees, fifty-one minutes, forty-five seconds; thence running with the parallel of said latitude to the Rio de los Plumas, or Feather river; thence down and along the meanderings of the Rio de los Plumas, or Feather river, to its junction with the Sacramento river; thence up and along the east bank of said Sacramento river to the place or point of beginning--excepting and reserving therefrom, and from the operations of this conveyance, the tract of land known as the " Hock Farm," and that known as the " Yuba City Tract," and also such tracts or pieces of land heretofore sold and conveyed or contracted to be sold and conveyed by said Robinson, Fowler, Gillespie and McDougal, and also all the right, title, estate, claim, and demand whatsoever, which the said parties of the first part have, hold, or claim, either in possession or expectancy, of, in, and to any and all other tracts or parcels of land lying and being situate in the State of California, of and in which the said parties of the first part may have become interested, possessed, seized, or entitled under or in virtue of the said deed from the said Sutter, and Ann, his wife, to said Robinson, Gillespie, Fowler and McDougal, bearing date July 1, A. D. 1850; to have and to hold said lands and real estate, and all the right, title, estate, claim, and demand therein of the said parties of the first part hereby bargained, sold, remised, released, and quitclaimed unto the said party of the second part, his successors and assigns, in trust to and for the several uses, interests, and purposes hereinafter mentioned, namely: First--In trust, to lease the same or any part thereof and to take, collect, and receive the rents, issues, and profits thereof; to sell and convey the same or any part thereof to such person or persons, and for such price or sum of money as to him shall seem meet; subject, however, to the appeal of said John A. Sutter. Second--In trust, to apply the rents, issues and profits thereof and proceeds of the sales aforesaid: 1st. To the payment of the taxes and assessments and legal charges thereon; 2d. To the care, protection and preservation thereof, and to the prosecution of such suits and actions as may become necessary or proper in relation thereto, and to the defense of such suits or actions as may be brought in relation thereto against the said John A. Sutter or those claiming under him, or in any way prejudicial to the right, title, estate hereby bargained, sold, remised, released and quitclaimed; 3d. To pay any just debts against the said John A. Sutter; 4th. To pay over the residue of such rents, profits, and proceeds of sales to the said John A. Sutter, his heirs and assigns, to his and their use and benefits. And the party of the second part covenants to faithfully fulfill and perform the trusts herein created.
" In witness whereof, the said parties of the first part, and the said parties of the second part, have hereunto set their hands and seals, the day and year first above written.
" Henry E. Robinson, [L. S.]
John S. Fowler, [L. S.]
Eugene F. Gillespie, [L. S.]
John McDougal, [L. S.]
Wake Brierly, [L. S.]
Lewis Saunders, Jr. [L. S.]"
The defendants claimed under Sutter, but not through Saunders.
The plaintiff recovered judgment in the Court below, and the defendant appealed.
COUNSEL
Beatty & Denson, for the Appellants, argued that there was no evidence that the legal title to the demanded premises, passed to Saunders; that the terms of the trust were, that Saunders should lease the lands collect the rents, sell the land subject to the appeal (doubtless a clerical error for approval) of John A. Sutter, and apply the proceeds to the payment of taxes, preservation of the land, payment of Sutter's debts, and lastly, pay the residuum to Sutter himself; that having them, on the lands derived from Robinson and others, a mere naked trust, which he could not legally transfer to another, and no right to sell this land, except subject to the approval of Sutter, and then only for Sutter's benefit, the conveyance to Tevis would be held not to affect the trust estate; that the deed was a lawful instrument, conveying what he had a right to convey, to wit: his own individual interest in lands, and not affecting the trust property, which, of course, could onlybe sold for Sutter's benefit, and with his approval; that if intended to convey the trust property, it could not take effect on that property in the face of the restriction that sales thereof must be made subject to the approval of Sutter; that if Sutter had to approve the sale, it should have been shown by lawful evidence that he had approved the transfer to Tevis, before it could become operative, and that no proof of this kind being offered, the deed should have been excluded, or being admitted it proved nothing.
M. Bergin, also for the Appellants, argued that from the recitals in the deed to Saunders, it was evident that it was made to protect Sutter's interests in the property, and to enable him to prevent future sales from being made without his consent.
H. P. Barbour, also for the Appellant, made the same point.
A. P. Catlin, for the Respondent, argued that the deed of L. Saunders, Jr., to Lloyd Tevis conveyed the legal title to the demanded premises, and cited, Johnson v. Fleet, 12 Wend. 602; 2 Crabb on Real Prop., p. 390, note l, and authorities there cited. That the deed of Robinson and others to Saunders contained no restriction upon thepower of Saunders to sell and convey. The deed itself did not provide for the approval of Sutter, and the word " approval" could not be arbitrarily substituted for " appeal," contained in the deed; and cited, Hagler v. Simpson, 1 Busbee, N.C. 384; and that even if the word " approval" had been used, a conveyance could not be approved until made; and in the absence of proof of disapproval, the approval would be presumed; and cited 12 Wend. 671, 676; and that in this action such an objection could not be made; and cited Lessees of Bayard v. Colfax et al., 4 Wash. Reports C. C. U.S. 38, 42.
R. C. Clark & A. P. Catlin, also for Respondent, argued that as the appellants did not claim under Saunders, they could not call him to account for his acts as trustee, nor attack his deed collaterally; and cited, Winans v. Christy, 4 Cal. 70; Milton v. Palmer, 39 Cal. 458; Broadstreet v. Clark, 12 Wend. 602; Schenck v. Ellingwood, 3 Edward Ch. 175, and Brown v. Lipscomb, 9 Porter, 472.
They also argued, that the Court could not substitute " approval" for " appeal" and cited 2 Parsons on Cont. 496; Hagler v. Simpson, 1 Busbee N.C. 384.
JUDGES: Crockett, J.
OPINION
CROCKETT, Judge
The foregoing opinion was delivered at the January term, 1872, and a rehearing having been granted, the following opinion was delivered at the April term, 1874. By the Court, Rhodes, J.:
Assuming that the deed of Robinson and others to Saunders, conveyed to the latter the legal title to the premises, the question presented for consideration, is whether the legal title passed by the deed of Saunders to Tevis. This involves the construction of the clause in the deed of Robinson and others to Saunders, to the effect that the latter was thereby empowered to sell and convey the lands, " subject, however, to the appeal of said John A. Sutter." The opinion heretofore delivered on that question will stand as the opinion of the Court. The word " appeal," was inserted, we think, by a clerical error, for the word " approval," and will be so read in an action at law, and resort need not be had to a Court of equity, for a reformation of the instrument in that respect. The deed of Saunders to Tevis, without the approval of Sutter, would not pass the legal title to the lands. The approval of Sutter must be shown, and as the title would not pass without such approval, the approval must be in writing.
Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.