Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1890-06-08
ON MINOR POINTS.
JUDGMENT REVERSED IN THE CASE OF
MURDOCH VS.. cox & CLARKE.
Its Main Feature Not Disturbed. Bu. a
New Trial Ordered on Certain
Minor Issues.

I
The Supreme Court yesterday fled in The
office the Supreme Court Clerk for the Sac.
ramento District decision in the case Of
Mrs. Murdoch, acministrarix of the estate
of her husband, Adam Murdoch, VS.. Cox
& Clarke, Of this city. The facts OF the
case have been published in these columns.
and are doubtless generally understood,
Briefly summarized, the situation is; The
firm of Cox & Clarke had advanced consid-
cradle sums of money to Murdoch some
fifteen years ago, while be was engaged in
farming and csttle-raising in Modoc
county, in consideration of which it was
agreed that they should take possession of
the two ranches, and of the cattle and other
personal property thereon, and out of the
rents and profits should pay the running
expenses and apply the balance 10 the
amount due themselves. The property
was 10 be managed by person to be Sc
lected by the defendants, but whose salary
was to be paid as part OF the running ex-
penses. Murdoch had permission 10 reside
upon the property and assist in the work
but was not to exercise any control. Itwas
also agreed that as further security Muir
dock should assign 10 Clarke & Cox half
interest in portable sawmill, then on pub
/ lie land, together with the machinery, etc.
then owned by him in partnership with
| one Quinn, who vas the manager thereof
In pursuance of the agreement the de-
PENDANTS with the approval of Murdock)
selected one Stanton to manage the prop
erty, and he went there Oh March 22d, but
! formal bill OF sale was not made out until
April 10Th. On the next day after the ex-
ecution of this bill OF sale the defendants
advanced, a. the reoues; of Murdoch, the
sum OF S3,l76 45, for which be gave his
note, bearing interest al IL per cent. per
month, and subsequently further advances
were made.
Murdoch remained upon the property
until the following December, at which
| time he died. About eight months there
after the plaintiff was appointed admins
tratTix of the estate. The property con-
| tinued to be managed by Stanton until
May, 1886, at which time he died, and one
Smell was appointed by defendants as his
| successor. During the period of Stanton
management he received various sums of
money from sales of cattle, etc., out of
which sums he paid the running expenses
and gave the remainder to defendants.
During a considerable portion of the time
the defendants had cattle OF their own
upon the ranches, and Stanton kept his
own cattle there also They were not kept
| separate from the Murdoch cattle. but were
| all taken care of together.
| The accounting sought embraces the
J whole period, and various charges of neglect
and melfeasance are made.
The Superior Cours of this county ad-
! Judged that there was due the de-
PENDANTS the sum of S31 926 q; that upon
| payment thereof the defendants should re-
convey the real property and redeliver the
personal property; and that if the plaintiff
should fail to make such payment within
| thirty days the property should west abso-
luteiy in the defendants" The plaintiff
appealed from the Judgment and from an
| order denying new trial.
| The present decision does not materially
disturb this judgment, but reverses it upon
some of the minor points. The Supreme
Court finds that Stanton was the agent of
| defendants only, and that they should
have been charged with a proportion of
| the expense of the care, ETC., of Stanton's
cattle. The lower Court erred in finding
that Stanton was the agent of both parties
| to the suit, and that defendants should
not have been charged with proportion
OF the taxes upon the cattle, as well as the
other expenses. There is also a radical
1 cliOi al tllo ucCltc. ne SOuTt dQluOgeQ,
in effect, that the legal title passed to the
defendants, and it gave to plaintiff GER
tain time in which to redeem, failing
which the property was to vest absolutely
in the defendants.
| The legal title remained in Murdoch, as
it is the settled rule in this State that if
| deed absolute in form was made merely to
| secure an indebtedness to the grantee, il is
mere mortgage, and does not pass the
title. The defendants, however, have g
right to retain possession until the sum due
them have been paid, and even if they had
not, the Court has power to impose proper
conditions upon plaintiff.
| The Court orders the judgment and order
appealed from reversed, and the cause re-
manded for new trial, aud certain ques-
tions which have been argued, and which
are likely to come upon a re-irial, ara dis
posed of at length.
The opinion was written by Commits
sioner Hayne, and concurred in by Com
missioners Vanclief and Foote and the
! Court