59 Cal. 91, 7,270, Swanger v. Mayberry

Docket Nº:7,270
Citation:59 Cal. 91
Opinion Judge:McKEE, Judge
Party Name:SAMUEL A. SWANGER v. JAMES MAYBERRY et al.
Attorney:Paul W. Bennett and T. W. W. Davies, for Appellants. P. Reddy and Geo. C. Gorham, for Respondent.
Judge Panel:JUDGES: McKee, J. McKinstry, J., and Ross, J., concurred.
Case Date:July 01, 1881
Court:Supreme Court of California
 
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Page 91

59 Cal. 91

SAMUEL A. SWANGER

v.

JAMES MAYBERRY et al.

No. 7,270

Supreme Court of California

July, 1881

Department One

Page 92

Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Superior Court of Mono County. Briggs, J

The Court found that the notes were executed as part of the consideration of the sale and conveyance to the maker by quitclaim deed of all standing and growing timber fit to be sawed and manufactured into lumber, standing and growing upon the lands referred to in the opinion. The deed contained a covenant on the part of the grantor that he would use due diligence to obtain a Government title to said land.

COUNSEL

Paul W. Bennett and T. W. W. Davies, for Appellants.

The notes were void. (Rev. Stat. U.S. § 2461; Stevens v. Perrier, 12 Kan. 297; Cadierque v. Duran , 49 Cal. 356; Schulingberg v. Harrieman, 21 Wall. 44; Long v. Hopkins , 50 Me. 318; Murphy v. Jones , 7 Ind. 529; Cook v. Mix , 11 Conn. 432; Rice v. Goddard, 14 Pick. 293; Ladda v. Hawley , 57 Cal. 51; Civ. Code, §§ 1607, 1608.)

P. Reddy and Geo. C. Gorham, for Respondent.

We admit that it did not convey any title, but claim that all the right, title, and interest of plaintiff to the timber was therebyconveyed, and that the plaintiff promised to acquire a Government title to the land, and thus secure the title to the timber which would inure to the benefit of defendants. Was there anything unlawful in this contract? We contend that there were no means adopted to secure the title to two hundred and eighty acres of the land in question, and show that it was not necessary to resort to any unlawful or immoral act in order to perform the conditions and comply with the terms of the contract; it will not, therefore, be presumed that anything unlawful was contemplated or intended by the parties in entering into it. It is not unlawful in this State, for one who is in the possession of the public domain, to sell and convey his claim to and possession of such land, although he be a trespasser thereon as against the Government. (People v. Shearer , 30 Cal. 655.)

JUDGES: McKee, J. McKinstry, J., and Ross, J., concurred.

OPINION

McKEE, Judge

Page 93

This case arises out of an action to recover a balance alleged to be due upon two promissory notes. It appears, by the findings...

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