The record-union., 1891-02-19

other pressing liens resting upon the
Whole property, amounting, with the
sum necessary TO redeem the parcel sold,
to about sixty-two thousand dollars as
then estimated; that plaintiff was anxi-
ously endeavoring to raise money TO effect
such redemption and save his property
1rom sacrifice; that one b. Cohn since
deceased, whose administrator is the prin-
clpal defendant herein, offered to loan,
and did loan, him the necessary sum,
taking for security a grant absolute in
terms OF the incumbered property. The
consideration expressed in the deed was
The exact sum at which the liens and in
cumbrances on the land were estimated
slXty-two thousand dollars. The value of
the land, was as above stated, over two
hundred thousand dollars.
Within month or two after the execu-
ton of his deed plaintiff rendered Cohn
S65,00O and demanded reconyeyance
which was refused, whereupon he COM
menced an action to compel a reconvey-
ance, alleging i'll his complaint that his
grant 10 Conn was, IN fact, mortgage to
secure loan. Cohn answered, alleging
that the transaction was an absolute sale
Upon trial Of this issue the Superior
Court found Tor the plaintiff and decreed
a feconVeyance upon payment of Sl03. 900,
this being the amount OF the sum origi-
nally advanced by Cohn, and certain ad-
ditional sums which he was found TO
l.
promise and settlement Of other claims
against the property.
But, on motion OF the defendants in
| that action, the Superior Court ordered a
new trial unless the plaintiff would con-
sent to modification OF the findings and
decree adding S35, 900 to the amount to be
PAID defendants upon reconveyance of
the land, and the plaintiff falling to con-
sent to such modification the order for a
new trial was made absolute, and upon
appeal OF the plaintiff was affirmed by
this court. (67 Cal. 25S.) Thereupon a
new trial was had in the Superior Court,
put before different Judge, who found
upon the principal issue in favor of the
defendants, and decreed against the right
OF redemption. From that decree and an
order denying his motion for new trial
the plaintiff again appealed to this court,
where the decree and order We're
affirmed as Cal. 3S4), upon the ground
that the evidence being conflicting the
findings of the lower court could not be
disturbed.
1t is to annul the decree so affirmed
that the present action is brought, and
the fraud by which it was procured is
shown by allegations, in substance as
1oi!ows: AT the date OF the original trans
action with Cohn, Pico was an old man
over 50 years of age, unable to speak or
understand the English language, un-
used to complicated statements or ac-
counts, easily deceived, and in great dis
tress and trouble regarding his business
affairs. He contided in Cohn. relied
upon him implicitly, and at his solicita-
ton abstained from consulting his usual
legal advisers. In the conduct OF the nego-
tlations with Cohn the only other person
present was one Pancho Johnson, who
knew everything that took place, and
well knew that the transaction was loan
and security and not Il purchase and con-
al Il SI1 rtl, !
execution of the deed so stated in the
presence Of Pico's attorneys and numer-
Gus other persons. Relying on John
sons knowledge of the transaction and
his statements concerning it Pico called
him as q witness on the first trial of the
action to redeem, when, instead of testify
ing that the transaction was q loan and
mortgage, he testified that it was a sale
and absolute conveyance. But in spite of
his adverse testimony, the court, as
above shown, found for the plaintiff.
Before the cause came on for trial sec
ond time Johnson was dead, but his teS-
tlmony, as given on the first trial had
been reduced to writing and was on file
among the papers in the case. Plaintiff
and his counsel knew that this testimony
was false in its general statement to the
effect that the conveyance to Cohn was
absolute, and they suspected that Cohn
had bribed the witness to so testify, but
v.
although they had used the utmost dill
gence to discover it.
Upon mature consideration, they de-
cided at the second trial to put in evil
dence the written transcript of Johnson's
testimony at the first trial. Among their
reasons for doing so were the following:
! Other testimony in the case showed that
Johnson was present during the negotia-
tions between Pico and Cohn, not only as
Interpreter, but as the particular friend
and adviser of the former, and counsel
for plaintiff feared that by emitting to
offer Johnson's testimony they would in
cur the odium of suppressing evidence
! known to exist, whereas by putting it be-
fore the court they would have the ad-
vantage of some facts that they could
prove by no other witness-they would
have his admission Of other facts incon-
sistent with the theory OF a sale: the court
would see that he was hostile to Pico, and
he could be contradicted by proof of
his statements made in the presence of
others. Without going more fully into
the reasons which induced counsel for
plaintiff to submit the testimony of john
son to the consideration of the court on
the second trial of the former action, we
content ourselves with saying that the
allegations of the complaint show that
the course pursued by them was, under
the circumstances, wise and proper, if not
absolutely necessary. But, contrary to
their expectations, the court be-
lieved his false testimony, and for
that reason alone decided against the
plaintiff. In support of this conclusion
the complaint sets out the substance OF all
the testimony of Cohn and Pico and in
detail the material portions OF Johnson's
testimony, from which, with other aver
ments, it appears that but for Johnson's
positive perjury and suppression of the
truth the Judgment here in question
| would NOT haVp hpa7, frjU fthiS hni
shown, 1t IS next alleged that after the
final affirnlance of that Judgment by this
court, plaintiff mado the discovery that
Cohn had paid Johnsontw thousand dol
lars to testify falsely. The particulars of
this bribery and its discovery are de-
tailed in the complaint, and show that on
the very morning that Johnson gave his
testimony Cohn placed two thousand dol
lars in the hands ofone Forbes, with direc-
tions given in Johnson's presence to pay
it to him if he testified to an absolute sale,
and that Immediately after he had 50 tes-
titled he demanded and received the
money.
1t is averred, and we think sufficiently
shown, that upon proof of these facts
there is a reasonable certainty that plain
tiff would upon another trial gain his
cause. Such being the case, is plaintiff
entitled TO decree vacating and annull-
ing the former decree on the ground that
it was procured by fraud?
After n careful and extended examina-
ton of the authorities we are constrained
TO answer this question in the negative
That former judgment or decree may be
set aside and annulled for some frauds
there can be no question, but it must be a
fraud extrinsic or collateral to the Gues-
tons examined and determined in the
action. And we think it is settled be-
yond controversy that decree will not
be vacated merely because it was OBJ
tanned by forged documents or periured
| Testimony The re,3 sfr1 of fi,iS 10 ist hot