The record-union., 1891-03-06


the objection and excluded the evidence,
defendants reserving an exception. The
defendants then, when they had nearly
closed their testimony, asked leave 70
amend their answer, by making specific
positive denials of each and every allega-
ton OF the complaint. relating to the con-
tents OF the alleged notice of lien, and by
adding avcrments that the material used
in painting the house was of inferior
quality and not such as was called for in
the contract, and that the work was done
in a bad and unworkmanlike manner
and inoficiently, and that by reason OF
such inferior workmanship and material
the defendants Were damaged in the sum
of SlG0. The court denied the application
to amend, and the defendants duly ex-
cepted.
l.. The first ruling complained of was
evidently besed upon the theory that the
denials in the answer as to the claim OF
lien were insufficient to raise any issue,
because they were made upon inforna-
ton and belief In this we think the
learned Judge of the court below is mis-
taken. 1t is true that, where facts are al
legged in verified complaint which are
presumptively within the personal
knowledge of the defendant, he is not
permitted to deny them upon informa-
ton and belief, but must answer posi-
lively. Humphreys VS.. Mccall, 8 Cal.
81; Loveland VS.. Garner, "a Cal. 29S.)
Here the allegations were as to written
instrument which had been recorded in
the Recorders office of the county, and
they stated its contents substantially in
| the language of the statute which pro-
vides for the making and recording OF
such an instrument. (Section 11S7, G. G..
P.) But an inspection of the paper shows
at once that it was inartificially drawn.
and not in the language of the complaint
wig IN
| whether or not it was sufficient to meet
| the requirements of the statute and to
create lien. And that such question
! did arise Is shown by the fact that counsel
here earnestly insist, on6ne side, that ii
was wholly insufficient, and, on the other,
| that it was fully sufficient to effect the
| purposes intended by it. Under these
| circumstances we do rot think it can be
said that, because the defendants might
| have seen and read the record, they must
| be presumed to have such knowledge oi
the facts alleged III the complaint as to re-
| quire positive denials, if they deemed
| them untrue. Our conclusion is that the
deniais on information and belief were
sufficient to raise an issue as to the
| alleged claim of lien. =,
2. We also think the court erred in eX-
Guiding the evidence offered by the de-
| PENDANTS to show that the work sued fog
| was not performed in q good and work
| rnanlike manner. The plaintiff had in
troduced evidence to prove that the worl,
was well done, and it seems clear that the
| defendants had a right to disproVe that
| fact, if they could. 1t is objected for re-
| spondent that this point cannot be con-
sidered, because the ruling is not speci-
| fed in The bill of exceptions, as an error
upon which the parties would rely. Bat
specifications of the particular errors OF
law on which the appellant will rely are
| not necessary i'll a bill OF exceptions.
| Code Civ. Proc, Sec. $50; Shadburne VS..
DAILY, rs Cal. 355).
| 3. 1t is to be regretted that case in
volving so small Il sum should be per-
| mItted to occupy so much Of the time OF
| the courts /; and as, in-consequence of the
errors above spoken OF, it must go back
| for new trial, tits proper to state that
we have carefully examined the paper
| introduced in evidence by the plaintiff as
his claim of lien, and are of the opinion
that 1t should be treated and held to be
| sufficient to meet the requirements Of the
| statute. A substantial compliance with
| the statute is all that is necessary.
| tTredinniclS VS.. Mining Company, y
| Cal. rs; Malone VS.. Big Flat Mining Com
pany, 76 Cal. 57S; Jewell VS.. Mckay, 81
Gel. 144.)
We advise that the judgment and order
! be reversed and the cause remanded for u
| new trial, with leave to the parties to
amend their pleadings il they shall be so
advised. BELCHER, c..
We concur:
VAN CLIEF, c.,
HAYNE, G..
s,... THE COURT. .,,......
For the reasons given in the foregoing
opinion, the Judgment and order are re-
verSed and cause remanded, with leave
to the parties to amend their pleadings il
thew shall he so advised
Filled February 27, 1891.
Appeal from Superior Court, Siskiyou
County-Edwin Shearer. Judge.
For appellant, James f. Farraher.
For respondent, HI. B. ellis, H. B.
IN BANK.
WHoLEY, Appellant,
CAvANAUGH, Respondent.
Ejectment. Judgment for defendant.
Plaintiff appeals.
Both parties claim through one Whit
mire. In 1860 Whitmire, who then had
only school land certificate of purchase
| upon which 20 per cent. of the price had
been paid, executed to one Coats an in
strument which is considered below, and
Coats subsequently conveyed to the de-
fendant. In 1878 the State issued patent
to Whitmire, who, in 1884. made a deed
to the plaintiff.
The plaintiffs position is that, prior to
| the issuance OF the patent, Whitmire had
| merely an interest which, while regarded
as the legal title as against third persons,
was not so regarded as against the State;
| that the legal title remained in the State
until the issuance of the patent in 1878; that
the instrument executed to Coats in 1860
wasnot a present conveyance, but only an
agreement for a deed, and therefore did
al r-A1f
title; that after receiving the legal
title Whitnlire did not convey it to the
defendant, but conveyed it to the plaintiff,
and that since the plaintiff has the legal
| title he must prevail in ejectment.
From this it is obvious that it is neces-
sary to consider the effect of the instru-
ment executed by Whitmire to Coats.
The heading of this document in the
transcript is Agreement for deed"
But it does not appear that the instru-
ment itself was so called. 1t seems to be
mere Characterization by the person
who made the record on appeal. But even
if it were indorsed upon the document
itself, it is clearly not part of the instru-
ment, and consequently would not affect
its character.
The material portions of the instru-
ment are as follows:
This agreement made and entered into
this first day of November, 1860, by and
between L. 5. Whitmire, of Shasta VAL
ley, in the County of Siskiyou, State of
California, the party of the first part, and
Siias d. Goats, of the same place, the
party of the second part. Witnesseth:
That the said party OF the first part, for
and in consideration of the sum of one
dollar to him in hand paid by the said
party of the second part, hath and hereby
doth release, and fo1'eUe, Quit-cJnim unto
the said party of the second part, and to
his heirs and assigns and legal represent
atives, all that certain piece or parcel of
land' describing it).
If there were nothing else in the in
SflIl lmnllt we think If clear that II ,..cI,ld