The record-union., 1891-02-12
SUPREME COURT DECISIONS.
Filled February Q. 1901. ]

Filled February 2, 1871
Appeal from Superior Court Los An
geles County-Walter Van Dyke. Judge.
appellants. King q Saufley, Hough-
ton, Silent d Campbell and John ID.
Bicknell.
For respondent. Stephens, APPEL &
Stephens, Z. l.. Campbell, Brosseau d.
Hatch.
DEPARTMENT ONE.
BROCK, Respondent,
VS.. No. 13, S69.
PEARSON EFT AL. Appellants.
This was a suit to compel the convey
ance of an undivided one-fonrth interest
in & tract of 704 acres of land in the county
of Los Angeles. The trial court decreed
the conveyance of a one-eighth interest,
and the defendants appealed.
! The general features of the case are as
follows: On the 9th of June, 1887, the
owner of the land, one A. w. Timms,
gave the plaintitfa contract of sale thereof
for the sum of $4,000. The defendant
Pearson was desirous of acquiring the
property, and instructed one II. V. Bur-
ner to negotiate for its purchase. The
latter effected an arrangement with
plaintiff whereby he was to give up his
bargain upon certain terms, which are
considered below. The contract of sale,
however, was not transferred directly to
Pearson or to Burner. BY Burners di-
rection it was transferred to one Weller,
who acted in obedience TO his inStrUc-
tions. (Fols. 257-S.) As soon as Weller re-
ceived the contract of sale, he (by direction
of Burner) gave to plaintiff a quit-claim
deed purporting to convey one-fourth
interest in the land. On being informed
OF this Pearson who seems at that time at
least to have supposed that the deed con-
veyed some title to piaintitf) insisted that
1t should be destroyed. And under in
structions to this general effect Burner
induced plaintiff to destroy the deed
under an arrangement which will be con-
sidered below. A few days after this
wiz: on July g. 1850, Weller transferred
the contract of sale to Burner who, on the
same day made the first payment to the
owner, received deed from him, executed
a mortgage back, and then conveyed the
property to Pearson. On the 10Th of the
same month the plaintiff commenced the
present suit and recorded a notice of us
pcnde1,s. Subsequently Pearson trans
ferred certain interests III the property to
third persons, and on October 10th of the
same year joined with them in n convey
ance of the property to the San Pedro
Harbor, Dock and Land Improvement
Company. On April 23d of the following
year, this corporation conveyed ninety
two acres of the property to the defend
ant, the Southern Pacific Railroad EX-
tension Company. The plaintiff subse-
quently parted with one-half of his one
fourth interest.
The main questions discussed are the
following, viz: What was the agreement
which Burner made with the plaintiff for
the transfer of the contract of purchase
and what was its effect; what was the eff
feet of the destruction of the decd from
Weller to Burner: and what was the au
thority of Burner in the premises?
l. the court finds in substance that the
agreement made by Burner with the
plaintiff was that if the latter would give
up his contract with the owner of the
property, Pearson would purchase the
property in accordance with such con-
tract, land would then and there, III con-
sideration of the transfer of such agree
ment, convey to plaintiff an undivided
one-fourth interest in and to said premises
free from all liens and membranes"
(Fol. 164-5.)
This agreement was not in writing. But
there is not the slightest doubt that it was
made. Burner so swears. ttol. 2J4-5.)
Plaintiff so swears. (Fol. 349) Weller
so swears. (Fol. 390.) And there is no
evidence to the contrary.
The court further finds that in pursu-
ance of this agreement the plaintiff trans
terred the contract of purchase to Weller,
who Immediately gave to plaintiff deed
purporting to convey an undivided one
fourth interest in the land. tFol. l66-7.)
And the evidence in support of this find
ing is uncontradicted. (Eols. 25S and
SS9-92)
Now, inasmuch as Weller had no title
to the land, he could convey none TO the
plaintiff. But the parties seem to have
regarded the ''deed' as sufficient to pro-
tect the plaintiffs rights. And we think
that it operated as an assignment of q one
fourth interest in the contract OF sale.
QIeinlen VS.. Martin, 53 Cal. 32l; Hilton
VS.. Young, % Cal. 1861 1t is possible that
as against the owner OF the property the
contract could not be split up in this man
ner. But no such question can arise be-
tween the parties here. 1t results that
after this arrangement the plaintiff had
one-fourth interest in the contract.
,. What was the effect of the destruction
of the deed above mentioned?
The defendants contend that such de-
struction was in pursuance Of an arrange
ment made for the purpose of placing the
title to the whole property in Pearson, so
that he could handle it, and that the
intention was to extinguish the obliga
ton held by plaintiff, as provided in Sec
ton 1899 of the Civil Code, and to sub
stitute an arrangement by which the
plaintiff was not to have any right to the
land, but was only to be interested in the
profits to arise from the handling of
Pearson. The findings, however. dis
tlnctly negative any such idea.
The court finds that the deed was de-
stroyod under an agreement that when
plaintiff should obtain the legal title he
would Immediately better and fully Sc
cure plaintiff to an undivided one-fourth
interest in and TO the same" (fol. 172): that
the arrangement was not that plaintiff
should be interested only in profits to
arise from the acts of Pearson (fols. 1928;
but that the original agreement was