Tripp v. Duane
Before: Foote
Synopsis
Trusts—Coupled With an Interest—Conveyance by Trustee.—A transfer of all his interest by one who had advanced money to pay the state’s charges for a deed to salt marsh and tide lands, and who, as security for the loan, had taken a conveyance to himself of the land in trust to reconvey upon payment, and with power, upon default, to sell after notice by advertisement, is valid as a conveyance of his equitable interest, although made without such notice, and is not in contravention of Civil Code of California, section 870, providing that, “where a trust in relation to real property is expressed in the instrument creating the estate, every transfer or other act of the trustee in contravention of the trust is absolutely void.”
Quieting Title.—A Bill to Quiet Title to an Undivided Interest in Land will not Lie, as against the grantee of one who has advanced money to clear the property, and taken a deed in the nature of a mortgage as a security for the loan, without payment or tender of the proportionate part of the money loaned.
Trial-—Reception of Evidence—Ruling on.—It is error for the court, in making up its findings, to consider a deposition which was objected to when offered, and with respect to which objection the court did not decide at the time, but reserved its ruling.
Trial — Ruling on Evidence Reserved.— Where testimony is objected to when offered, the party objecting has a right to have a ruling upon the point; and where the ruling is reserved, and the court, when making up its finding, wrongly considers the testimony, the error is not cured by tendering the objecting party a ruling upon the matter, when the statement on motion for new trial is presented for settlement.
FOOTE, C. An action to quiet title to thirty-three ninety-sixths of certain land described in the complaint. Some time during the year A. D. 1859, one George W. Ellis filed in the recorder’s office of the city and county of San Francisco a [758]pre-emption claim to one hundred and sixty acres of salt marsh and tide lands, the property of the state of California. In the interval between such time and October 21, A. D. 1875, Ellis executed to various persons bargain and sale deeds of undivided portions of his pre-emption claim, amounting to thirty-three ninety-sixths of the whole thereof, the grantees of such undivided interests conveyed them to the plaintiff prior to the twenty-first day of October, A. D. 1875, by deeds sufficient in form, and such deeds were recorded before said last-mentioned date. The state of California executed to Ellis a deed to the lands described in the complaint on the twenty-fourth day of November, A. D. 1875, they being but a portion of those described in the pre-emption claim heretofore mentioned. The plaintiff claims title to thirty-three ninety-sixths of the land, by reason of the pre-emption claim and the deed from the state of California to Ellis. It appears, however, that, when the deed from the state was ready for delivery, Ellis had no money, and eight thousand dollars had to be paid the state before the deed would be delivered; and Ellis, Duane and Haymond executed to one Patterson an instrument in writing, which is as follows: “We, George W. Ellis, Creed Haymond, and C. P. Duane, hereby grant, bargain, sell, and convey to Wm. H. Patterson all the estate, title, and interest which we, either and all of us, now have, or may hereafter acquire of, in and to the land described, and intended to be described in a certain so-called pre-emption claim or preemption notice on record, whereof is contained in the land records of the city and county of San Francisco, in Liber B of Miscellaneous Deeds, page 665; and also all the lands described in two certain deeds made by the tide-land commissioners to G. W. Ellis, and bearing date November 24, 1875. This conveyance is in trust to secure the payment of $4,000 due to said Patterson from the said Ellis, $2,000 due from the said Playmond to said Patterson, and $2,000 from the said Duane to the said Patterson, and payable in United States gold coin, with interest at the rate of one and one-half per cent, per month, and payable on or before sixty days from the date thereof. The said Patterson to have full possession and control of the said land, and the absolute power of the disposition of the said land for the purposes of the trust. If such payments are not paid at or before sixty days from the
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