Hausling v. Hausman

Belcher, C. C. This is an appeal from an order made by the Superior Court of Placer County, refusing to vacate and set aside the sale of a certain mining claim under a decree of foreclosure of a laborer’s lien, to restrain the sheriff from executing a deed of the property, and to enter satisfaction of the judgment and decree under which the sale was had. The decree was made and entered on the 21st of May, 1886, upon the complaint of plaintiff and the answer of the defendant, Hausman, in which answer all the facts alleged in the complaint were admitted, and judgment and decree confessed and prayed for in accordance with the allegations and prayer of the complaint. The sale under the decree was made on the 12th of July, 1886, the respondent being the purchaser, and the motion leading to the order appealed from was heard and denied on the 23d of November, 1886.

In support of his motion, defendant, appellant here, presented and filed his affidavit, from which it appeared that he was the owner of the mining claim, and that on or about the 1st of August, 1885, he and respondent entered into a verbal agreement, by which the respondent was to superintend the working of the mine at a fixed salary per month, and was to purchase a one-tenth interest therein at a fixed sum, to be paid for by his labor; that after August 1st the mine was to be worked jointly by the parties, and the profits and losses were to be divided between them in proportion to their respective interests; that the appellant was to furnish all the money required to put the mine upon a paying basis, and the respondent was to be debited with the one-tenth part [278]thereof; that both parties performed the conditions of the contract until about the 1st day of February, 1886; that between the 1st of August and the 1st of February the mine was worked at a great pecuniary loss, and the respondent’s share of the loss was more than sufficient to balance the amount due him for labor; that on the 1st day of February the respondent filed a claim of lien upon the mining claim for the labor performed thereon by him, and thereafter in due time commenced the action to foreclose his lien, in which the decree in question was rendered; that various other parties filed liens upon the claim for labor performed by them, and in due time commenced a joint action to foreclose their liens; that the parties then made a new verbal agreement, under which the appellant was to confess judgment in favor of respondent as prayed for in his complaint, the judgment, however, not to be carried into execution without appellant’s consent, and respondent was to buy in the claims of the other lien-holders, the appellant furnishing the money therefor, and on this being accomplished, the appellant was to convey to respondent the mining claim by a good and sufficient deed, and the respondent was then to dismiss his action and reconvey to appellant the undivided nine-tenths part of the claim; that in accordance with this agreement the claims of the other lien-holders were purchased, and the appellant then, on or about the 20th of April, 1886, conveyed the mining claim to respondent, without any consideration other than that here set forth, and the respondent accepted the deed and caused it to be placed on record. The affidavit then further states that having received and recorded the deed, respondent repudiated his agreement, set up a claim to the entire mine adverse to appellant, under the latter’s deed, and that he now holds the mine adversely to appellant, and claims to be the sole and only owner thereof.