Moore v. Hoar

The following opinion was prepared by the late Mr. Justice Jennings and is adopted and published as the opinion of this court.

The appeal herein has been taken by the defendants Joe Smith as executor of the will of Gus Colberg, deceased, Mary A. O’Donnell, and Joe Smith individually from the portion of the judgment entered in this action which decreed that, these defendants have no valid right or interest in a group of five mining claims located in the Mojave Mining District of Kern County. The controversy which gave rise to the appeal was between the above-mentioned defendants and certain other defendants who will hereafter, for the sake of brevity, be designated “The Townsend Group”. Both groups of defendants, admitting that plaintiffs are the rightful owners of an undivided half interest in said mining claims, set up conflicting claims to the remaining undivided half interest in the property. The trial court determined that the claim asserted by the Townsend group was entitled to prevail and by its judgment so decreed. The present appeal was thereupon perfected. Certain undisputed facts which form the background against which the controversy between the rival groups of defendants is projected may properly be stated.

At some time prior to September 23, 1925, Gus Colberg and C. C. Moore were jointly in possession of the aforesaid unpatented mining claims. On the above-mentioned date C. C. Moore, as attorney in fact for Colberg, executed a quitclaim deed conveying the five claims to C. L. Moore

The agreement of May 28, 1928, recites that whereas C. L. Moore holds the record title to the five mining claims which all parties to the agreement acknowledge is held by him as trustee for the sole purpose of procuring a patent and that the equitable title in said claims is in Colberg as to an undivided half interest and in C. C. Moore and wife as to the 'remaining half interest and that it is the desire of the parties to the instrument to agree upon their respective interests in the property and to provide for proper distribution of whatever consideration may be received from a sale of the claims and to provide for securing a patent if possible, and whereas C. C. Moore claims that he has made advancements in connection with patent proceedings and is willing to make further advancements for the same purpose. Subject to provisions for repayment set out in the instrument the parties make certain covenants and agreements. The two first paragraphs of that part of the instrument which contains the covenants of the parties provide, first, that C. L. Moore in performing any service under the agreement is acting as trustee for Col-berg and C. C. Moore without compensation; second, that C. L. Moore will proceed immediately and with all possible diligence to secure the issuance of a patent to the claims. It is then next provided that C. C. Moore will advance all proper costs and expenses which may be required to be expended in connection with procuring a patent and upon issuance of the patent will tender to Colberg an itemized statement of such costs and expenses. A detailed description of a plan for determining the propriety of expenses claimed to have been incurred in connection with obtaining the patent then follows. It is next provided that upon issuance of a patent the parties shall diligently endeavor to negotiate a sale of the property at a price agreeable to them and it is expressly stipulated that the patentee as trustee shall not alienate or encumber the title to the property unless both Colberg and C.

The written instrument executed by Colberg on August 8, 1929, is in the following language: ‘ ‘ For value received, I hereby assign, transfer and set over unto Frederick E. Hoar, all of my right, title and interest in and to the agreement dated May 28, 1928, by and between Gus Colberg, first party, C. L. Moore and Marie Moore, husband and wife, second parties, and C. C. Moore and N. F. Moore, third parties, said agreement relating to those certain mining claims situate in the Mojave Mining District, Kern County, California, known and designated as Grand Prize, Ben Hur, Sailor Girl, Sailor Boy, and Silver Coin.”

An inspection of the findings made by the trial court discloses that the court construed the last-mentioned instrument as an assignment and sale by Colberg, for good and sufficient consideration, of all rights which he had under the agreement of May 28, 1928, and as a conveyance by Colberg to Hoar of all of the former’s right, title and interest in the property. It is also evident from an examination of the findings that the court construed the agreement of May 28, 1928, as a written agreement made for the purpose of defining the rights and obligations of the parties relating to the mining claims, that the reason for its execution arose from the conveyance made to C. L. Moore on February 23, 1927, and that the agreement substantially expressed the rights and obligations of the parties with reference to the claims as such rights and obligations had previously existed in parol. The construction thus placed upon the two instruments by the trial court furnishes the basis for the numerous contentions advanced by appellants on this appeal.

It is first urged that the instrument of August 8, 1929, shows on its face that it was nothing more than an assignment of the agreement of May 28, 1928, and that Colberg did not intend thereby to convey to Hoar any interest in the mining claims. Closely associated with this contention is another which relates to the written agreement of May 28, 1928. It is said that the undisputed evidence shows that prior to the execution of the last-mentioned agreement, Col-berg was the equitable owner of an undivided half interest in the property, the bare legal title being in C. L. Moore as trustee for the sole purpose of facilitating the procurement of a patent, that the written agreement gave him nothing which he did not already have since it expressly recognizes his equitable ownership of a half interest in the property and shows on its face that the only reason for its execution was' to enable the trustee, C. L. Moore, to obtain a patent which he would then hold as trustee for Colberg and C. C. Moore, the real owners of the property. The next step in the line of reasoning presented by appellants in this connection is that since the agreement of May 28, 1928, did not confer any title upon Colberg or give him any right

In giving consideration to the argument thus advanced it may be well to examine first the agreement of May 28, 1928. In so doing the condition of the record title to the mining claims may properly be noted. As heretofore observed an instrument affecting the legal title to the five mining claims was executed by C. C. Moore and wife and by C. C. Moore as attorney in fact for Gus Colberg on February 23, 1927. This instrument recites that Gus Colberg, a single man, and C. C. Moore and N. F. Moore, husband and wife, as parties of the first part “have remised, released and forever quitclaimed, and by these presents do remise, release and forever quitclaim, unto the said party of the second part”, who is stated in the preamble of the document to be C. L. Moore, “and to --heirs and assigns, all those certain lots, pieces, or parcels of land, situate, lying and being in the Mojave Mining District, County of Kern, State of California, and bounded and particularly described as follows, to wit: The Sailor Boy Mining Claim, Ben Hur Mining Claim, Grand Prize Mining Claim, Silver Coin Mining Claim and Sailor Girl Mining Claim”. This instrument was undoubtedly a quitclaim deed (Lawrence v. Ballou, 37 Cal. 518 ; Rego v. Van Pelt, 65 Cal. 254 [ 3 Pac. 867 ]; Wholey v. Cavanaugh, 88 Cal. 132 [ 25 Pac. 1112 ]) and operated to convey whatever title or interest in the land the grantors had. (Wholey v. Cavanaugh, supra; Taylor v. Opperman, 79 Cal. 468 [ 21 Pac. 869 ]; Myers v. City of Oceanside, 7 Cal. App. 87 , 93 [ 93 Pac. 686 ] ; Towne v. City of Los Angeles, 4 Cal. App. (2d) 418 , 420 [ 41 Pac. (2d) 363 ].) So far as the record indicates this deed was the last instrument which in any way affected the title to the mining claims that appeared of record prior to the execution of the agreement of May 28, 1928. The instrument is absolute on its face and con

Having in mind the condition in which the title stood after the execution of the deed of September 23, 1925, and the deed of reconveyance of February 14, 1927, we entertain the opinion that no error was committed in admitting the deed of February 23, 1927. Appellants have made it abundantly clear that they place much reliance on the deed of September 23, 1925, and that they consider it the one instrument of the three discussed affecting the title to the property which was properly admitted. The reason for their expressed opinion in this matter is apparent. This instrument purported to convey title to C. L. Moore “Trustee”. The use of the word “Trustee”, they contend, corroborates the testimony of C. L. Moore, who testified positively that the property was conveyed to him by the deed of September 23, 1925, for the purpose of facilitating the issuance of a patent, that the owners of the property were C.

The argument thus made is. proper so far as it goes but it has no efficacy other than furnishing support for the introduction of the deed of September 23, 1925, which was received without objection and which requires no support. The testimony of C. L. Moore to the effect that this deed conveyed record title to him as trustee for C. C. Moore and Colberg for the stated purpose stands uncontradicted. However, this action is one in which the record title is a matter of some importance. In tracing the chain of title all instruments affecting the record title are material and competent. The deed executed by C. L. Moore on February 14, 1927, which expressly reconvcyed to Colberg all estate and interest in the property which had been derived under the former deed of September 23, 1925, was certainly competent in an investigation of the record title since it purported to convey “all the estate and interest derived to said party of the first part (C. L. Moore) by or through that certain deed dated September 23, 1925 ... in the mining claims therein described” naming the five claims. The effect of this deed was to place the record title to the entire property in Colberg.

The deed of February 23, 1927, was properly admitted. The agreement of May 28, 1928, which is manifestly important since out of it arose whatever right or interest the respondents acquired, makes reference to it in the following language: “Whereas, C. L. Moore and the other parties hereto admit and acknowledge that said C. L. Moore holds the record title of said claims as a trustee for the purpose of procuring patent only, and that the equitable title in and to said claims stands an undivided one-half interest in the first party, and an undivided one-half interest in the third parties, the said record title having been acquired by second party C. L. Moore by reason of conveyance from third party C. C. Moore acting under and by virtue of power of attorney granted by Gus Colberg, and C. C. Moore and N. F. Moore as individuals ...”

The language “the said record title having been acquired by second party C. L. Moore by reason of conveyance from third party C.

The contention of appellants that the deed of February 23, 1927, was improperly admitted because no showing was made that Colberg had given C. C. Moore authority in writing to execute such an instrument is based on the familiar principle that the authority of an agent to enter into a contract, required by law to be in writing, can only be given by an instrument in writing. It is so declared in section 2309 of the Civil Code. Section 1091 of the same code is more explicit and more to the point in the present instance. It is there provided that an estate in real property, other than an estate at will or for a term, not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, “or by his agents thereunto authorized by writing”. The deed under discussion purported to convey “all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity” of the grantors “in or to the said premises, and every part and parcel thereof, with the appurtenances” to the grantee “and to-heirs and assigns forever”. The estate thereby conveyed was therefore of the character which by statutory enact

Such ratification is, in our opinion, found in the second paragraph following the preamble of the written agreement of May 28, 1928, which was signed and duly acknowledged by Gus Colberg. It is there stated that C. L. Moore and the other parties to the agreement “admit and acknowledge” that C. L. Moore holds the record title to the claims as trustee for a specified purpose, such record title having been acquired by the trustee through a conveyance executed by C. C. Moore “acting under and by virtue of power of attorney granted by Gus Colberg” and by C. C. Moore and N. F. Moore as individuals. As heretofore pointed out the “conveyance” there mentioned undoubtedly refers to the deed of February 23, 1927. We have then an express admission in writing by Colberg that C. C. Moore in executing this deed did so under authorization granted by Colberg. Such evidence was ample to establish the necessary fact of ratification in writing and justified the admission of the deed over the objection urged by appellants.

We may next proceed to a consideration of the agreement of May 28,1928, with particular reference to the strenu

The contention of appellants that under the agreement of May 28, 1928, Colberg acquired no title or interest in the property which he did not have at the time the agreement was executed suggests a reference to the state of the title on the date the agreement was made. As heretofore observed a quitclaim deed had been executed by C. C. Moore and wife and by C.

Having arrived at the conclusion that Colberg did in fact derive a real benefit and a right, title, and interest in the property by virtue of the terms of the agreement we may next properly proceed to a consideration of the contention of appellants that Frederick E. Hoar acquired no interest in the property by the so-called assignment of August 8, 1929. This contention is based on the peculiar language of the instrument now under consideration. This language is “I hereby assign, transfer and set over unto Frederick E. Hoar, all of my right, title and interest in and to the agreement dated May 28, 1928.” The primary argument relative to this phase of the case is that an assignment of right, title and interest “in and to the agreement” is nothing more than

The construction placed upon the language of the instrument by the trial court was, in our opinion, entirely reasonable and proper. Appellants apparently maintain that the use of the words “in and to the agreement” indicates an intent on the part of the assignor, Colberg, to transfer to the assignee, Hoar, nothing more than physical possession of the document which consisted of several pages of written matter. The argument thus made demanding so strict a construction of the language is not impressive. It is contrary to a cardinal rule of construction which requires the language of a contract to be so interpreted as to make the contract capable of being carried into effect if it can be done without violating the intention of the parties. (Civ. Code, sec. 1643.) The contention of appellants, if upheld, would make the signing and acknowledgment of the instrument utterly useless and meaningless. It would import to Colberg an intention to perform a purely idle act. Moreover, there is certain other language contained in the instrument which is not consistent with so strained a construction as that for which appellants contend. After the agreement is identified by the date of its execution and still further identified by reference to the names of the various parties to it, the following significant language appears: “said agreement relating to those certain mining claims situate in the Mojave Mining District, Kern County, California, known and designated as Grand Prize, Ben Hur, Sailor Girl, Sailor Boy, and Silver Coin.” The use of the language last quoted is strongly indicative of an intention to accomplish something more than a mere transfer of a written document which so far as appears could have been more certainly effectuated by handing over the document itself. Finally, the use of the words “assign, transfer and set over” in conjunction with the significant verbiage “all of my right, title and interest in and to the

Appellants further contend that if it be concluded, as we do, that the trial court’s construction of the instrument of August 8, 1929, is correct and that it amounted to an assignment by Colberg of whatever right, title or interest he had acquired or derived under and by virtue of the terms of the agreement of May 28, 1928, such assignment nevertheless did not and could not operate as a transfer of any right or title or interest in the mining claims. The argument pre

The contention that Colberg actually acquired no right, title or interest in the property through the execution of the agreement of May 28, 1928, has heretofore received adequate consideration and the conclusion reached with reference to it is sufficient to demonstrate the incorrectness of the basic premise above stated. A number of authorities are cited by appellants wherein the general principle is announced that it is essential for a party complaining in equity to have some substantial interest in the subject-matter of the suit to entitle him to equitable relief. It may be conceded that, if in fact Colberg acquired nothing more under the trust agreement than the right to have a conveyance of the bare legal title upon performance by him of the stipulated condition precedent, his bare assignment of all the right, title and interest which he had under the trust agreement would not entitle his assignee to the equitable relief demanded. This is obviously true because a court of equity upon discovering that the entire equitable title in the property existed apart

Appellants particularly complain of the trial court’s finding that at the time the assignment from Colberg to Hoar was made the relation of attorney and client did not exist between the two, that the assignment was supported by adequate consideration, that the transaction was fair, just and equitable and did not operate to the disadvantage or damage of Colberg. The ground of complaint in this connection is the familiar one of evidentiary insufficiency. It may properly be noted with regard to the contention thus advanced that Frederick E. Hoar testified that the sole consideration for the assignment was an unpaid balance of between two hundred and three hundred dollars due him for professional services rendered in Colberg’s behalf prior to the date of the assignment. This witness also testified that he suggested to Colberg that the latter should give him an assignment of his interest in the agreement of May 28, 1928, for the attorney’s fees which had accumulated, that Colberg assented, that the witness prepared the instrument of assignment, that Colberg consulted with no other person with reference to making the assignment and it was not suggested to him by the witness that he should seek independent advice prior to executing the assignment. Since it also appeared that prior to the institution of the present action the five mining claims were sold for an amount of approximately $200,000 it is apparent that the question of whether or not the relation of attorney

It is firmly established that transactions between attorney and client are presumptively invalid (Civ. Code, sec. 2235; Metropolis Trust & Sav. Bank v. Monnier, 169 Cal. 592 [ 147 Pac. 265 ]; Clark v. Millsap, 197 Cal. 765 , 783 [ 242 Pac. 918 ]; Estate of Witt, 198 Cal. 407 , 419 [ 245 Pac. 197 ] ; Carlson v. Lantz, 208 Cal. 134 , 138 [ 280 Pac. 531 ]) and that the burden rests upon the attorney to show that the transaction between him and his client was fair and equitable and no advantage was taken by the attorney and that the client was fully informed as to all matters relating to the transaction and was placed in a position to act understandingly and to deal with the attorney at arm’s length. (Magee v. Brenneman, 188 Cal. 562 , 567 [ 206 Pac. 37 ]; Thornley v. Jones, 96 Cal. App. 219 , 227 [ 274 Pac. 93 ] ; Brydonjack v. Rieck, 5 Cal. App. (2d) 219 , 223 [ 42 Pac. (2d) 336 ].)

However, it must be conceded that upon appellants rested the burden of showing that at the time the assignment was made the relation of attorney and client existed between Hoar and Colberg. The assignment was valid on its face and imported the existence of sufficient consideration to support it. Respondents, as Hoar’s assignees and successors in interest, were required to do no more than show Colberg’s execution of the assignment to Hoar and the transfer of the assignment by Hoar to them. Upon establishing these facts a prima facie case in their behalf was made out. Appellants, in order to avoid the effect of the apparently valid assignment from Colberg to Hoar, asserted' that at the time it was made the fiduciary relationship of attorney and client existed between the two parties to the assignment from which the presumption of invalidity would attach to the assignment. If appellants had succeeded in their effort to prove the existence of the relationship the burden of showing that the assignment was fair and equitable and that Hoar secured no advantage by reason of its execution would have rested upon respondents.

In support of their contention of evidentiary insufficiency to sustain the finding negativing the existence of the relationship of attorney and' client, appellants rely particularly upon the testimony of Frederick E. Hoar and the witnesses, O’Donnell and "Whitmore. The record shows that

Upon the question of whether or not the relation of attorney and client existed on the date of the assignment the only direct evidence produced consisted of the testimony of Frederick E. Hoar. Appellants place very considerable reliance on portions of the testimony given by this witness and attack his statement that he was not Colberg’s attorney on August 8, 1929, on the ground that it was a pure conclusion contrary to other testimony educed from the witness. No useful purpose would be served by indulging in a protracted analysis of the evidence now under consideration. Careful reading of Hoar’s testimony impels the admission that, presented in the form of cold type, it is far from satisfactory. Nevertheless, it may not be declared that the evidence established the fact—highly important to appellants— of the existence of the relationship of attorney and client on the date the assignment was made. The trial judge had the opportunity of hearing Hoar’s testimony at first hand and of observing the manner in which the witness testified. It was the trial court’s responsibility to determine the weight which should be given his testimony and the credit to which it was entitled. Evidently the court accepted the statement

The final contention advanced by appellants is that the issues of adverse possession and the bar of the statute of limitations against the claims of respondents in the property were raised by implied replication to the answer filed by respondents to appellants’ cross-complaint, that evidence bearing on these issues was produced during the trial of the action, and that consequently the trial court erred in failing to make findings upon such issues which findings if made would necessarily have been favorable to appellants. It is evident from a reading of the record herein that the case was tried upon the theory that the above-mentioned issues were before the court by virtue of the provisions of section 462 of the Code of Civil Procedure which declares that any new matter in the answer of a defendant in avoidance or constituting a defense or counterclaim must be deemed denied. It is also clear that the two issues to which reference has been made are so interrelated that a determination of the contention as to one of them will be conclusive as to both. Since it is apparent from the record that considerable evidence was received on the issue of adverse possession by appellants the contention with respect to such issue will be considered.

As we understand appellants’ contention in this regard it is not merely that the trial court should have made a finding upon the issue of adverse possession but also that the only finding which would have found support in the evidence is a finding sustaining appellants’ claim that they had acquired title as against respondents by adverse possession of the property.

In giving consideration to the contention thus advanced it may be remarked at the outset that since appellants were relying upon adverse possession the burden of proving all the essential elements thereof rested upon them. (1 Cal. Jur., p. 636; Allen v. Allen, 159 Cal. 197 [ 113 Pac. 160 ] ; San Francisco Credit C. House v. Wells, 196 Cal. 701 , 705 [ 239 Pac. 319 ].)

The judgment is affirmed.

. A petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 22, 1938.