Hausman v. Hausling

Belcher, C. C. This is a suit in equity to compel the defendant to convey to plaintiff an undivided nine-tenths part or interest in a certain mining claim situate in Placer County. The court below gave judgment for the defendant and denied a motion for new trial, and the plaintiff appealed from the judgment and order.

The facts of the case, as shown by the pleadings, are substantially the same as those set forth in the affidavits which were under review in Hausling v. Hausman, 73 Cal. 276. It need only be added that defendant by his answer denied that he ever agreed to purchase from the plaintiff a one-tenth interest in the mining claim, or ever became liable to pay any part of the losses resulting from working the claim, or that the deed from plaintiff to him was made upon the terms and conditions stated in the complaint, and he alleged that the deed was made “to prevent other creditors from attaching plaintiff’s property, and as a further security upon said indebtedness of $1,425, due as aforesaid to .defendant from plaintiff.”

At the trial the plaintiff was a witness, and testified to all the facts as alleged in his complaint. He also called three other witnesses, and each of them testified that in the fall of 1885 defendant several times told witness he owned a one-tenth part or share in the mine, and further, that in the spring or early summer of 1886, defendant had said that he had a deed to the mine from plaintiff, and wished to borrow fourteen hundred dollars, and secure the payment thereof by a mortgage on the mine, and would pay fifty dollars commission to any one who would help him to do so.

In defense the defendant’s deposition was read in evidence, and in it he stated the facts to be as alleged in [285]his answer, and among other things that “the deed of the propertywas given to me as a further security..... T never at any time claimed to be the owner of the property by virtue of the deed made to me by Hausman, but always considered the same as security for the payment of the $1,425 sued for by me, and so always told Hausman.” Counsel then offered in evidence two letters written by defendant in April, 1886, “ solely as explaining why the defendant had sought to mortgage the claim, as testified to by plaintiff’s witnesses, and as explanatory of the deed defendant held of the mine.”

Counsel for plaintiff objected to the letters, on the ground that they were incompetent, immaterial, and irrelevant, but the court overruled their objections, and admitted them in evidence. One of the letters reads as follows: —