Hollinshead v. Simms

By the Court: The judgment and order denying a new trial as to that portion of the premises described in the complaint and not described in the equitable defense of Simms are affirmed. In all other respects the judgment and order denying a new trial are reversed and the cause remanded with directions to enter a decree, that upon payment by Simms to Hollinshead of one dollar and twenty-five cents per acre for each acre of land contained in the tract described in the equitable defense, Hollinshead do forthwith convey to Simms all the estate, right, title and interest derived to him, said Hollinshead, in or to the premises described in the equitable defense, by or through the several applications made by him to the land department of the University of the State of California, for the purchase of said premises, and that said appellant Simms recover against said Hollinshead the costs of this action, including the costs of this appeal.

A petition wras filed for a rehearing, and the Court filed the following opinion denying the same :

The fourteenth finding of the Court is as follows:

“Fourteenth. That neither Woods nor Hollinshead have at any time resided upon or occupied any portion of this land, ‘or ever made any improvements whatever upon the same.”

The sixth finding is as follows:

“Sixth. Upon the 23d of May, 1871, the said Woods, still acting as agent for Hollinshead, filed with the land office of the University another affidavit and application for this land, in this affidavit setting forth that he was in the occupation of this land; that there were no legal or equitable claims of any other person upon the same, and that there was no occupation or settlement of this land other than the occupation of said affiant,” etc.

It is not claimed that the evidence given at the trial did not support the findings.

It is further found by the court that this affidavit of Woods was false in fact; that neither he nor Hollinshead ever, at [164]any time, occupied any portion of the land in controversy; that, on the contrary, the fact was, as both Woods and Hollinshead well knew, that Simms, a qualified pre-emptor, with his family, was in occupation with the intention to acquire the title; that he had placed on the premises improvements of a valuable and permanent character, consisting of a dwelling-house, out-buildings, fences, fruit trees, etc., and •that these were of a conspicuous and prominent character, and easily to be seen from every portion of the general tract.