Babu v. Petersen

This appeal involves the ownership of a 20-acre tract of highly improved agricultural land situate in the fruit and agricultural district of the county of Butte. All the parties to this action are, except one American and one Spaniard, members of the Hindu native races of India, and are admittedly ineligible to citizenship under the laws of the

The plaintiff Babu, sometimes known as Baboo, a resident of the county of Colusa, but a native of India, and therefore ineligible to citizenship, filed an action on January 19, 1932, praying for the foreclosure of a mortgage of said land made and executed to him by one Helen McDaniel, who afterwards by marriage became Helen McDaniel Petersen, to secure her promissory note in the sum of $10,000, made, executed and delivered by her to said Babu on January 26,1927.

Babu alleged that there had been paid on account of principal and interest on said note the sum of $2,628, leaving due and unpaid the , sum of $7,372. Julius Gomez, the Spaniard above referred to, was made a party by reason of a grant deed executed and delivered by said Helen McDaniel to him on February 23, 1927, less than a month after she had executed the Babu note and mortgage. In the deed to Gomez she made reference to the Babu mortgage, and also to a mortgage of the' prune crop growing on the premises executed by her to Babu on the same day, in the sum of $3,000, and made the deed subject to said mortgages to Babu. On the same day that he received said deed from Helen McDaniel, to wit, February 23, 1927, Gomez-executed a mortgage of said real property to Dale Singh and Bala Singh, both natives of India and ineligible to become citizens of the United States.

Helen McDaniel Petersen answered plaintiff’s first amended complaint and admitted that she made, executed and delivered the promissory note and mortgage as alleged, but set up as defenses to the action a want of consideration and her alleged non-age, claiming that at the time she executed said promissory note and mortgage, to wit, January 26, 1927, she was an unmarried minor under the age of eighteen years, to wit, of the age of seventeen years. She denied that the sums credited on said note on account of principal and interest, or any part thereof, had been paid by her or by anyone else or at all, or that any sum was due thereon, and alleged that the promissory note and mortgage were void. She denied that Babu or her

Helen McDaniel Petersen answered and cross-complained. She denied any participation on the part of said Singhs in the execution of said note and mortgage but admitted that she signed the note and executed the mortgage and again plead want of consideration and her minority. For the first time she plead the ineligibility of Babu, Amar Singh and Memill Singh, whom she alleged “are each and every of them Hindus, natives of India, and ineligible to citizenship”, and that the real property described therein was agricultural land. She alleged that said persons last named conspired together to violate the Alien Land Law of this state by colorable transfers to prevent

Babu answered the cross-complaint by reaffirming all of the material portions of his amended complaint and alleged that the note was given in the manner set forth in his amended complaint; and denied that Helen McDaniel was under the age of eighteen years; denied on information and belief the ineligibility of plaintiff and said Amar and Memill Singh; denied that said Hindus procured and caused said Helen McDaniel to sign said note and mortgage in the furtherance of a conspiracy to violate the Alien Land Law; alleged that he had no knowledge as to the transaction whereby defendant Helen McDaniel executed on February 23, 1927, a grant deed purporting to convey the title of said real property to Julius Gomez and therefore denied the same; admitted that he claimed to be the owner of and entitled" to the posséssion of said real property.

Amar Singh, answering the cross-complaint of Helen McDaniel Petersen, denied that she was the owner in fee simple of said real property and alleged that it was conveyed in trust to her by George W. Kirkpatrick, a hardware merchant, and J. J. O’Rourke, both residénts of Colusa County, pursuant to an understanding had between himself, Amar Singh, Memill Singh, Babu and Helen McDaniel; that the execution of said deed to Helen McDaniel, and the execution.of said note and

Memill Singh answered the second amended complaint by admitting the execution of the note and mortgage as set forth therein; denied that no part of the principal sum or interest thereon had been paid except the sum of $2,628 or that there was due on account thereof the sum of $7,372; denied that Amar Singh was a party to the execution of said note and mortgage, or that the acts of Helen McDaniel in said transaction were done in the interest of or on behalf of Amar Singh; denied, for want of information, the Gomez transaction. By way of cross-complaint and counterclaim he alleges the execution and recordation of said note and mortgage in the form alleged, and alleges that Helen McDaniel entered into the transaction at his request. He further alleges the farming and cultivation of said land by himself from 1927 to 1933, both inclusive; that the proceeds of the crops, as by the agreement of himself and Babu, were to be turned over to Babu and credited on said mortgage note. On information and belief he alleged that a sufficient sum had been received by Babu to entirely satisfy in full the obligation due by virtue of said promissory note and he asked that said mortgage be declared satisfied and that Babu be required to account, for all moneys he had received by reason of said transaction. Babu answered by alleging that the only credits to which Memill was entitled were those endorsed on said note. Helen McDaniel answered Memill’s cross-complaint by adopting the allegations already appearing, and making certain denials of certain allegations which cannot affect the main issues of the case. Memill filed a separate answer to the cross-complaint of Helen McDaniel, denying her alleged minority and the allegation that she received no consideration for executing said note and that it was void.

Some twenty-six days prior to the filing of findings and conclusions of law, and a month before judgment rendered,

The court found, upon evidence which clearly appears to us to be totally insufficient to support the material portions of the findings, that all the allegations of the defendant and cross-complainant contained in her answers and cross-complaint are true and that she was the owner in fee of the real property described in the pleadings herein notwithstanding her active participation in what appears to have been a conspiracy to violate the Alien Land Law of this state. The court found it was agreed that, in consummating the passing of title out of Kirkpatrick and O’Rourke, it should be placed in the name of some white citizen of the United States, in order to avoid escheating to the state and that Memill Singh procured and obtained Helen McDaniel as person to hold title; that she was a minor, unmarried and had no notice or knowledge of any of the transactions to which she was a party; that Babu and Memill Singh, in furtherance of their common conspiracy to evade section 10 of said Alien Land Law, directed Kirkpatrick and O’Rourke to convey by deed said real property to Helen McDaniel and caused her to execute the note and mortgage as described in plaintiff’s complaint. It was further found that Helen McDaniel signed said note and mortgage “without understanding their legal effect or comprehending the situation that they were intended to cover, and she acted without notice or knowledge of Memill Singh’s rights or claim to the real property”; that Babu and Memill Singh had no intention of conferring any benefit upon Helen McDaniel, but it was their “purpose to make her a trustee of the legal title for the benefit of Memill Singh and Babu, and all without the knowledge or consent of said

To better understand the transaction it may be well to give the origin and the history and devolution of title of the land in controversy as it appears of record. Said Singhs, in 1920, purchased from A. F. Hansen and wife and O. C. Sweeney forty acres of land, at the agreed price of $24,000. Twelve thousand dollars of the purchase price was paid down and a mortgage given back for the balance and the Singhs went into possession. Memill Singh, and perhaps Amar Singh, met with reverses in the production of rice, and the interest remained unpaid. Hansen and Sweeney finally demanded their money or a conveyance back of said -land. Memill Singh was well acquainted with Kirkpatrick and O’Rourke and arrangements were made with them whereby the Hansen and Sweeney indebtedness was paid and they took a deed absolute in form from the Singhs of said premises. It was the understanding of the parties that the deed was in fact given as security for the money advanced by Kirkpatrick and O’Rourke, to wit, the sum of $10,000, and would be treated

The story of the transaction as told by the witnesses and as evidenced by the solemn acts, such as the execution of notes, deeds, mortgages, real and personal, makes it certain that the provisions of said law were flagrantly violated by all the persons herein malting claim to said lands. Helen McDaniel makes claim to the land, practically admitting that she has no moral right to it, but bases her claim on the invalidity of a transaction which she assisted in fabricating. Her motive is well illustrated by the position which she now boldly takes, having passed by a number of years her alleged minority. Her testimony was that she now affirms the deed which conveyed the property to her, but repudiates the note and mortgage which she executed to Babu and which remained recorded for several years. Her testimony is that she had no recollection of. signing the promissory note or executing or acknowledging the mortgage, or the crop mortgage, or executing a later deed made to another person of the same real property. She did not dispute her signature to the several instruments, doubtless for the reason that the physical facts would have refuted her denials on material matters. Her testimony is that the above-mentioned transactions were all consummated without her knowledge or consent. Not only this, but she claims that she had no knowledge of the above transactions in which she played a leading part until she was served by summons in the action brought by Babu against her some five years thereafter. She was then past twenty-two years of age. There is nothing in the evidence to indicate that she was mentally subnormal or mentally deficient. She had attended the Chico and West Gridley public schools in her girlhood years and was married at the age of nineteen years. To have acknowledged conscious participation in the acts she committed would have been an acknowledgment of conspiring to violate the Alien Land Law and therefore would have barred any claim to ownership of said real property. Her only possible chance to hold title was to repudiate participation in the transaction which was the origin of her title and set up the defense that she had not attained her majority and the persons who had made her grantee were both in pari delicto and

Her attempt to avoid the effect of her acts, upon the ground that she had no recollection or knowledge that she had taken any part in the consummation of the illegal transaction herein set forth, rests upon such questionable ground as to render it inherently improbable, unusual and unnatural, measured by the- rules by which human motives, purpose and conduct are to be interpreted. The claim of lapse of memory, or lack of knowledge of the purposes or motives of the parties engaged in the conspiracy, are so inherently improbable as to refute any claim of verity. Not only do the physical features of the transaction destroy the effect of her testimony but she is flatly contradicted by other witnesses, whose testimony is not inconsistent with human experience in the transaction of ordinary business.

The attorney who drew the papers in question testified that Babu’s only interest in the matter was to protect the loan which he desired to make to save Memill from a great loss which he would suffer if he failed to raise the money to pay Kirkpatrick and O’Rourke their demand. All of the parties

The question of Helen’s age is not material except to the extent that it was admitted that she was past seventeen years of age and was therefore legally responsible for her conduct involving the commission of a conspiracy to defraud. All persons are capable of committing crimes except children under the age of fourteen, in the absence of clear proof that at the time of committing the act charged against them they knew its wrongfulness. (Pen. Code, sec. 26, subd. 1.) That defendant and cross-complainant who was past seventeen years of age at the time she accepted said deed and executed said mortgage, comes within the provisions of section 10 of said Alien Land Act there can be no doubt. Said section provides: “If two or more persons conspire to violate any of the provisions of this act they are punishable by imprisonment in the county jail or state penitentiary not exceeding two years- or by a fine not exceeding five thousand dollars, or both.’’ No civil right can be predicated upon the violation of a criminal statute.

Defendant and cross-complainant has no title to quiet. She is barred also by the maxim of equity that a claimant cannot prevail on the weakness of his adversary’s title but must stand or fall upon the strength of his or her title.

It seems very clear upon the case presented that all of the parties to this action are in pari delicio, and the court will not aid any of them to consummate their illegal design. It is a cardinal rule of equity that in such a ease the law will leave them where it found them.. The court did aid defendant and cross-complainant in acquiring possession of the real property in suit. It will undo what it has wrongfully done and restore as near as practicable the parties to the position which they occupied at the time the law-intervened.

That portion of the judgment adjudging Helen McDaniel Petersen to be the owner in fee and entitled to the possession of the real property described in the judgment and quieting

The state in a special proceeding is the only party that may maintain an escheat proceeding. Section 7 of said act provides : “The attorney-general or district attorney of the proper county shall institute proceedings to have the escheat of such real property adjudged and enforced in the manner provided by section four hundred seventy-four of the Political Code and title eight, part three of the Code of Civil Procedure. Upon the entry of final judgment in such proceedings, the title to such real property shall pass to the state of California as of the date of such acquisition in violation of the provisions of this act.”

Let proceedings be taken not. inconsistent herewith.

Curtis, J., Preston, J., Langdon, J., Waste, C. J., and Shenk, J., concurred.