Rhine v. Ellen

By the Court, Sawyer, C. J. : On the first of March, 1866, the plaintiff, being in possession of a tract of land and a gold bearing quartz vein situate in the County of El Dorado, and known as the “Hermitage Ranch” and “Hermitage Quartz Mine,” conveyed the same, by deed duly executed and acknowledged, to Elle Ellen, of said county, defendant in this action, James E. Eddy, of San Francisco, and Charles Harris, Charles S. Maguire, and Benjamin Dickerson, Jr., of the State of Massachusetts, in the proportions of one half to Dickerson, and one eighth each to the other grantees. The conveyance is by deed of grant, bargain, and sale, and purports on its face to have been made “for and in consideration of thirty-two thousand dollars, lawful money of the United States, to him in hand paid, the receipt whereof is hereby acknowledged at, or before, the ensealing and delivery of these presents.” This action is to recover of defendant, Ellen, four thousand dollars, the amount of the purchase money corresponding to the proportion of one eighth conveyed to Ellen, which the plaintiff alleges, has never been paid. The plaintiff, in his complaint, alleges the contract, to be somewhat different from what it would be upon the construction of the instrument itself. Instead of the consideration being an entire sum paid by all the grantees jointly, it alleges, in effect, that the share of each grantee was sold separately for a corresponding portion [368]of the consideration, and that each party agreed to pay his proportion, and no more, and that defendant’s portion is four thousand dollars in gold coin, and no more, he not being liable for any portion due from his cotenants, and they not being liable for his. It alleges that the other grantees have paid their portions, respectively, but that defendant, Ellen, notwithstanding the acknowledgment of payment in said deed, has never paid his share of four thousand dollars, nor any part thereof. He asks judgment for the amount due.

The answer denies the contract or consideration to be as alleged in the complaint, and alleges that the agreement between him and the plaintiff was, substantially, that defendant should take the share conveyed to him and manage and control it as he should see fit for a period of one year from the 2d of March, 1866; and if, at the expiration of said year, the defendant should elect to retain said one eighth, then he should pay to plaintifl* the sum of four thousand dollars; but if said defendant, at the expiration of said year, should not elect to retain and pay for said property, said plaintiff agreed to pay said defendant all moneys, expenses, and liabilities which said defendant should lay out, expend, or incur in, upon, and about said property; that the said defendant should improve said property, and put the same into a corporation or joint stock company, as he should think fit, and in that event, if he should elect finally not to retain the same, said plaintiff should pay all assessments, expenses, and moneys paid for improving the same, etc.; that the said arrangement, and not the sum of four thousand dollars, was the real consideration of the conveyance made; that, in pursuance of said understanding, he took said interest and managed it for one year, and had the same incorporated in pursuance of said agreement, and expended large sums of money in building a quartz mill and other improvements, and in working the mine; that, at the end of said year, and on the second day of March, 1867, he did not desire or elect to retain said property, and on that day so notified said plaintiff, through his (plaintiff’s) agent, Hyne