Meyers v. Farquharson

By the Court, Belcher, J.: This is an action to recover damages for certain trespasses alleged to have been committed upon the plaintiff’s mining claim. The defendants deny the plaintiff’s title to the claim, and set up title in themselves. It is admitted that the claim in dispute is a part of a larger claim, known as the Willow Bar claim, which formerly belonged to one James Hudson, under whom both parties claim title. To establish his own title, the plaintiff proved that in January, 1868, Hudson made a verbal sale of the claim to him, and in the August following placed him in possession of it, and that he then began to mine on the claim, and continued mining there until November, when he was stopped by high water. He also proved that in March, 1869, Hudson made and delivered to him a bill of sale, which reads as follows : “Michigan Bluff, March 9th, 1869. “This is to certify that on or about the 1st day of January, 1868, that I presented to and sold C. G. Myers, and on or about the 1st of July, 1868, did give the said C. G. Myers possession, by a verbal agreement, of a certain piece of ground; and, to avoid further trouble in regard to said claim, I do this day give him a clear bill of sale, defining the lines as before, thus: Commencing at an oak bush near the gate of Myers’ cowyard, running straight across the river to the head of the wingdam put in by Owens & Co., in 1868; from thence to a prominent point of granite bedrock in El Dorado County; from this line down to the old Willow Bar line; to have and to hold the same, his heirs, assigns forever. The said C. G. Myers agrees to not back the water or interfere with the above ground in shape or manner belonging to me, and known as the Willow Bar claim. “Witness my hand: JAMES HUDSON. “Witness: Ed. Blifka.” [199] The defendants objected to this paper being received in evidence, on the ground that it appeared upon its face to be void for uncertainty, and to be a gift without consideration. The Court overruled the objection, and we think rightly. It is claimed that it is uncertain because it uses no words of conveyance, and because it does not state in what township, county, or State the property is situated. No precise form of words is necessary in a bill of sale. If it be clear that the maker intended to make a bill of sale, and to pass thereby the title to property, the law will, if possible, so construe the words used as to effectuate that intent. On looking at this paper, there can be no doubt that Hudson intended to make a bill of sale which would pass whatever title to the mining claim described still remained in him. One of the points named in the description is in El Dorado County, and all of them, so far as we can see, may be well known monuments, easily found and distinguished. If it was true that Hudson was giving away his mining claim, that fact furnished no ground for refusing to admit the bill of sale in evidence. He had the full right, so far as the Court could know at that stage of the case, to give it away, or do what he pleased with it. To establish their title, the defendants proved that in November, 1868, Hudson made a mortgage upon the Willow Bar claim to secure a debt then owing by him; that on the 18th of April, 1869, he died, leaving a will, in which he directed his executors to sell all of his property and pay his debts; that the debt secured by mortgage was in due time presented to and allowed' by the executors and the Probate Judge, and thereafter, upon an order of the Probate Court, the mortgaged property, including the property in dispute, was sold, and the proceeds of the sale applied to the payment of the mortgage debt, and that the defendants hold under the purchasers at this sale. It is claimed for the defendants that the order of sale [200] made by the Probate Court was, in effect, a foreclosure of the mortgage, and that the purchasers thereunder took, by relation, the title which Hudson had at the date of the mortgage. This position cannot be maintained. The Probate Court is not a Court of equity, and it has no power to foreclose a mortgage. Sales made under its orders pass only such title as the decedent had at the time of his death, and such as the estate may have subsequently acquired. At the conclusion of the testimony, the defendants requested the Court to instruct the jury as follows : “If the jury find that Hudson died in debt, and that before his death he gave away the ground in dispute to Myers by the paper offered in evidence, and received no consideration therefor, and should find that Hudson’s property would not pay his debts without a sale of the ground in dispute, and that the ground in dispute was sold by Hudson’s executors, of necessity, to pay the debts, then the sale by the executors carried the title, and Myers’ paper did not give him any title. If the jury find that at the time this suit was commenced the defendants were in the exclusive and peaceable possession of the ground in dispute, and had been in such exclusive and peaceable possession for more than one month before that time, then this possession of the defendants precludes the plaintiff from bringing this form of action, and the jury must find for the defendants on the question of damages.” The Court refused to instruct as requested, and the refusal is assigned as error. We see no error in the action of the Court in this respect. If the hypothetical facts stated in the first instruction—of which there is no evidence of the record—existed, they furnished ground for setting aside, in behalf of creditors, the conveyance to the plaintiff; but they furnish no ground for [201] the defendants, who are not creditors, nor in the place of creditors, to assail his title. The second instruction was properly refused, because, if the plaintiff owned the ground in dispute, the first entry upon it by the defendants was unquestionably a trespass, for which an action would lie. The objection that if the defendants had remained in possession for a month or more after their first entry, the action must wholly fail, cannot, therefore, be maintained. The other points made do not require special notice. Judgment affirmed. Mr. Chief Justice Wallace did not express an opinion.