I concur in the judgment, but for reasons that will require a somewhat extended explanation.
The suit was brought to cancel or annul a deed, or document purporting to be a deed, of date December 21, 1900 (designated in the record as Exhibit "A"), between Martin Clint and others, of the first part, and the Eureka Crude Oil Company, an Arizona corporation, of the second part. The document is not signed by three of the parties named as grantors, but several months after the transactions involved in this case a similar deed was executed by them.
The allegations of the complaint show a flagrant case of fraud perpetrated on the plaintiffs by the defendant through its secretary and agent, by means of which the plaintiff's signature to the instrument and its possession without delivery were obtained from the plaintiffs by the defendant; and these allegations are, in effect, found to be true by the court. There is, indeed, a finding by the court in general terms that the deed was delivered; but it is found specifically that the deed was placed by the plaintiffs "in the hands of (the defendant's agent, Kloeckner), with oral instructions that he should show the same to their . . . attorney (Gould), and should not deliver the same to the defendant corporation, or to any person or persons, unless the same should be first approved by their said attorney," and other facts are found showing as matter of fact that there was no delivery. (Kenny v. Parks, 137 Cal. 527, [70 P. 556]; and see, also, Tewksbury v. O'Connell, 21 Cal. 60; Emeric v. Alvarado, 64 Cal. 530, 573, [2 P. 418]; Denis v. Velati,96 Cal. 223, [31 P. 1]; Center v. Davis, 113 Cal. 309, [54 Am. St. Rep. 352, 45 P. 468].) The general finding is, therefore, to be regarded as a mere conclusion of law from the specific facts found, or as in conflict with those facts, and in either case is to be disregarded. (Hidden v. Jordan, 28 Cal. 301; Warder v. Enslen, 73 Cal. 294, [14 P. 874].) *Page 467
The answer, besides denials of the complaint, sets up a previous written agreement between the same parties of date March 23, 1900, whereby the plaintiff, Martin Clint and the other parties named as grantors in Exhibit "A," agreed to convey to the defendant all their right, title, and interest in and to "the Triumph, Jersey and Venezuelan claims in the San Fernando Mining District"; and it is alleged that the deed in question, Exhibit "A," was made "in pursuance and performance of said" agreement; and the court finds these allegations to be true.
It is also alleged in the answer, and found by the court that, at some date unstated, there was issued to the plaintiffs eighteen thousand seven hundred and fifty shares of the capital stock of the defendant; that this was received by them in consideration of the execution of the deed in question; and that said stock has not been returned to defendant or any part of it. But it appears from the evidence without contradiction that this stock had been issued to the plaintiff Martin Clint, long before the date of the alleged deed, Exhibit "A," in pursuance of the agreement of March 23d, and of the lease, of date March 8, 1900, therein referred to. This stock therefore could not have been the consideration of the deed Exhibit "A" otherwise than indirectly as being the consideration of the pre-existing agreement of Martin Clint, of date March 23, 1900, to make a conveyance of the lands therein described. The finding is, therefore, to be construed simply as a finding that the deed Exhibit "A" was made in consideration of the obligation of the plaintiff, Martin Clint, to convey under the pre-existing agreement. Nor, as the stock was held by the plaintiff under a subsisting, unrescinded agreement, was it required of him to return it as a condition of the cancellation of the deed.
It is also to be observed that the allegations of the answer and the findings thereon, in effect, find that there was in fact a delivery of the deed; but for the reasons already explained this part of the finding must be disregarded.
The gist of the case, therefore, as found, is: That the possession of the deed undelivered and the signature of the plaintiff, Martin Clint, thereto were fraudulently obtained by the defendant, as alleged in the complaint; and that the only defense is the pre-existing agreement of March 23, 1900, and *Page 468 the alleged fact that the deed Exhibit "A," though fraudulently obtained, was such a deed as the defendant had a right, under the agreement, to demand from the plaintiff, Martin Clint.
Two questions are, therefore, presented: The one as to the sufficiency of the defense pleaded and found; the other as to the sufficiency of the evidence to justify the findings on this defense.
As to the latter point, upon a comparison of the agreement and of the deed Exhibit "A," it will be seen that the descriptions are altogether different, and that there is nothing to indicate identity between them. Nor is there in the record any evidence tending to show such identity. On the contrary, it affirmatively appears from the evidence, and indeed from the specific facts found, that a part of lot 2 of the section referred to in the deed is not included in any one of the three claims described in the agreement. It is, therefore, clear that, as to the part of lot 2 improperly included in the deed, the defense altogether fails. This point, however, though raised by the specifications in the case, is not touched upon by the appellants in their brief, and it may, perhaps, be inferred in support of the judgment of the court below that the discrepancy between the description in the deed and the agreement was too slight to be material, or there may be other explanation of the apparent discrepancy which was satisfactory to the court below, and would be satisfactory to us if brought to our attention. I, therefore, will assume, for the purposes of this opinion, that the finding as to the identity of the land described in Exhibit "A" and the land agreed to be conveyed by the agreement of March 23, 1900, is sustained by the evidence. But even assuming this, the defense is plainly untenable. The signature of the plaintiff, Martin Clint, and the possession of the undelivered deed were fraudulently obtained by the defendant; and the case is, therefore, the same in principle as though the possession of the deed had been acquired by force and violence, or even by highway robbery or burglary. (Cutler v. Fitzgibbons, 148 Cal. 562, [83 P. 1075].) The case cited is in point to this proposition.
Ordinarily, therefore, the only course left to us would be to require the cancellation and delivery up of the deed. But in view of the fact that the plaintiff, Martin Clint, is under *Page 469 the obligation incurred by the agreement of March 23, 1900, to convey to the defendant the lands described in that agreement, and that the corresponding obligation of the other grantors had been performed by the execution of proper deeds, equity would seem to require of him, as a condition of receiving this relief, to execute to the defendant a deed of conveyance according to the terms of the agreement; and as the result of such a requirement (upon the assumption that the finding is supported by the evidence) would be the same as a ratification of the deed in question, we see no reason why that course should not be followed. (Civ. Code, sec.3532) This, indeed, is to make a deed for the plaintiff; but it is competent for the court to do this directly, as by a commissioner.
But, under these circumstances, and in view of the admitted fraud of the defendant (which was of a most flagrant character), I do not think it should have recovered its costs; for this would be, as it were, setting a premium upon fraud. I am of the opinion, therefore, that the judgment of the court below should be modified by striking therefrom that portion thereof that allows the defendant costs.
There are some other findings in the case, upon which reliance seems to be placed by respondent as constituting a defense, by way of estoppel, or as showing laches upon the part of the plaintiffs. But there is no plea of estoppel in the case; nor, were it otherwise, would the facts found be sufficient to support that defense. Nor upon the facts found are the plaintiffs chargeable with laches. The plaintiff, Martin Clint, continued in possession, "holding possession according to his right" (Love v. Watkins, 40 Cal. 564, [6 Am.Rep. 624]); and the defendant had notice of the fraudulent character and nullity of the deed. And as to the purchasers of stock — assuming for the purposes of the decision that their case can be considered — it is not found that they made their purchase on the faith of the deed; nor do the circumstances indicate that such should have been the case. For the omission of a small part of lot 2 does not materially affect the consideration for the stock. We have deemed it unnecessary, therefore, to do more than merely to allude to this part of the findings.
I am of the opinion that the order denying the plaintiffs' motion for a new trial should therefore be affirmed; and the *Page 470 cause remanded with instructions to the lower court to modify the judgment heretofore entered, as above indicated.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 21, 1906.