Houghton v. Steele

ROSS, J.: One Donner being, on the 10th of April, 1858, the owner in fee of a certain lot of land in the City and County of San Francisco, conveyed to one John Yontz by deed an undivided third of it—the deed reciting: “ The foregoing conveyance is upon the following condition, to wit, That the said John Yontz, party of the second party, hereby covenants and agrees to proceed to recover the possession of the above-described lot at his own expense, at a suit at law, provided, however, if a compromise is made by the said Yontz, with parties now in possession of said lot, or other parties holding under the said parties in possession, then and in that case no compromise is to be made without the consent of the said Donner. The consideration of the conveyance of the undivided third of the foregoing described property * * * is the sum of one dollar, the receipt whereof is hereby acknowledged and confessed, and also the further consideration of the services of the said Yontz in récovering the possession of said lot, as per condition heretofore mentioned.”

At the time of this conveyance Donner had pending in the then Twelfth District Court of the State an action of ejectment against a number of persons who withheld from him the possession of the lot, which action was entitled Donner v. Thompson et al. Upon the execution of the deed, Yontz employed as his attorney Mr. E. L. Goold, a competent lawyer, and with him undertook the conduct and control of the action of Donner v. Thompson et al. Goold’s appearance in the cause was with the consent of Donner and of the gentlemen who had acted therein as Donner’s attorneys. On the 15th of November thereafter the cause was, by consent of all parties thereto, referred to J. P. Treadwell, an attorney of the Court, to take testimony and report a judgment therein. Yontz, with the aid of his attorney, Mr. Goold, proceeded to take the testimony of divers witnesses, and introduced documentary evidence before the referee. On or about November 19th, 1859, the testimony for the plaintiff was closed. In [424]March, 1860, Donner employed the plaintiff, Mr. Houghton, to appear for and represent him in the case, and shortly after-wards Houghton sought to have himself substituted as attorney for Donner therein. His motion in that behalf was denied by the District Court, whereupon he resorted to the Supreme Court for a writ of mandamus to compel such substitution, which writ was awarded and the substitution made accordingly. Soon after this substitution of Houghton as attorney for Donner in the case of Donner v. Thompson et al., to wit, on the 8th of April, 1861, he caused the said action to be dismissed, and thereupon instituted another action in Dormer’s name against the parties in possession of the lot, in the complaint in which Donner was alleged to be the owner of the undivided three fourths of the premises.