Lucas v. Pico (1880) · DecisionDepot

Lucas v. Pico

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1880 No. No. 6,567Published

Before: McKee

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Holding. The court held that a contract for services in acquiring an outstanding title to land is not against public policy or barratrous, and that the holder of a non-negotiable contract is the real party in interest entitled to sue.

Issues

Whether a contract for services in acquiring an outstanding title to land is void as against public policy or barratrous.
Whether the holder of a non-negotiable contract may maintain an action in their own name as the real party in interest.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the holder of a non-negotiable contract is presumptively the owner, and, as the real party in interest, he is entitled to maintain an action upon it in his own name.”

Synopsis

Pbohissoby Bote—Consideration — Barbatby.—Information of an outstanding title to land, in the adverse possession of another, constitutes a good consideration for a promissory note, and the sale of such information is not barratrous.

Mon-negotiable Contract — Assignment. — A non-negotiable contract, indorsed in blank, passes by delivery, and the holder may, after the bringing suit, fill up the indorsement with a special assignment to himself.

McKee, J.: On the trial of this case, the defendant in the Court below objected to the offer of the promissory note in evidence, because [127]it appeared- from the testimony that the consideration of the note was contrary to public policy and morality, and specially that it was barratrous; and because it also appeared that the note itself had not been assigned to the plaintiff before the commencement of the action; and as the plaintiff was not the legal owner thereof, he could not maintain the action. The defendant also moved for a nonsuit upon, substantially, the same grounds. Both his objections and motion were overruled by the Court, and he brings the case here on appeal for review.

The note which forms the subject-matter of controversy in the case is in the following words and figures:

“ $800. Los Angeles, Oct. 22,1877.

“ At eight months from this date I promise to pay to F. P. Johnson, in person, for understood value, the sum of eight hundred dollars, in gold coin of the United States of America.

Pío Pico.”

This note was given under the following circumstances: Juan de Toro, a searcher of records, while examining the records of deeds in the Recorder’s office in Los Angeles County, discovered that two patents had been granted to the City of Los Angeles for city lands, and that there was a person in the adverse possession of a tract of those lands, the title to which, under one of the patents, was outstanding in another. On ascertaining this condition of the title, Toro associated with him one Johnson for the purpose of buying the outstanding title on speculation. To this end Johnson, in behalf of himself and Toro, communicated his information to the defendant. Defendant took counsel upon it, and, upon the legal advice which he received, he concluded to buy the outstanding title. For that purpose he agreed with Johnson to pay $2,000 for it, if the latter would obtain for him a deed from the owner. Johnson procured the deed, and when it was delivered to the defendant, the latter paid the purchase-money, and, at the same time, made and delivered to Johnson the note in controversy, and also made and delivered one of like import to Toro, for the information which they had given, and the services which they had rendered in procuring the title.

We sec nothing in the transaction which violates good morals. It is not an immoral act to give information about an out

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, Nor is the transaction barratrous. Barratry is made .an indictable'offense, both by common law and the Penal Code of the State. By the latter it is defined to be the practice of exciting groundless judicial proceedings. But no person can be convicted of such an offense, except upon proof that he has excited suits or 'proceedings at law in at least three instances, and with a corrupt or malicious intent to vex and annoy. (Sec. 156,159, Pol. Code.) Nothing in the transaction under consideration tends to show that any of the parties concerned in it have fomented or attempted to foment law-suits or quarrels about the property which was the subject of the purchase. They aided in purchasing an outstanding title to it, the validity of which depends upon the patent to the City of Los Angeles from which the title is dcraignable. At common law such a purchase would have been considered void; and it would not have been a valid consideration for a promissory note or other contract, for that law prohibited the acquisition of a title to land from one who was not in the actual possession of the land. The maxim of the law as laid down by Lord Coke is, that nothing in action, entry or re-entry, can be granted, for the reason that under color thereof pretended titles might be granted to great men, whereby right might be trodden down and the iveak oppressed. (4 Kent’s Commentaries, 447.) But that.rule has never prevailed in this State. By the Civil Code of the State, any person claiming title to real estate in the adverse possession of another, may transfer it with the same effect as if in actual possession. (Sec. 1047 Civ. Code.) To participate in any capacity, whether as principal, or agent, or broker, in a [129]transaction for obtaining a transfer of title to land in that condition, is neither barratrous nor champertous. Being an act which is authorized by law, it is neither malum in sa nor malum prohibitum. It is not indictable, nor subject to a penalty, or forfeiture; and it follows that the consideration of the contract in controversy was not against good morals or public policy, or tainted with barratry.

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