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Upon examining the book, however, we find that there is no ground upon which such fatal effect can be given to this trfling defect. Immediately following and to the right of the column above mentioned appear other columns. Numbering the first column 1, the others are as follows: (2) "Value of Improvements Thereon"; (3) "Value of City and Town Lots"; (4) "Value of Improvements Thereon"; (5) "Value of Personal Property exclusive of Money and solvent Credits"; (6) "Amount of Money and solvent Credits"; (7) "Deductions on account of Mortgages, Deeds of Trust, Contracts, or other obligations by which a debt is secured by lien on property"; (8) "Value of the Interest of the Mortgages, Trust Deeds, Contracts or other obligations by which a lien is secured in the property affected thereby"; (9) "Total value of all property after Deductions." In each of these columns numbered 4, 5, 6, 7, 8 and 9, the dollar mark appears in the appropriate place at the head of the column, showing that the figures to be entered below in the subdivision lines of the column represent the stated number of dollars respectively. In the assessment in question no figures were entered in any of the columns from 2 to 9, except column "9" headed "Total value of all Property after deductions." The effect of this condition of the book was equivalent to a statement that there were no improvements upon the land in question, no city or town lots assessed to the owner, no personal property, no money or solvent credits, no deductions on account of mortgages and no mortgage or trust deed interests to be valued. In brief, that there was nothing to be added to the value of the real estate described on the line and preceding the figures "160" in column 1. In column 9, at the appropriate place opposite the description and opposite the figures "160" in column 1, appeared the figures "160" in the first three subdivision lines of column 9 at the right-hand side thereof. This clearly showed that the total value of all property after deductions was $160. The previous columns showed that the only property valued was the property here in controversy. As an entirety the book was equivalent, therefore, to a statement that the value of the property in controversy was $160. No person could be misled upon an examination of the assessment book. It would clearly inform him that the total assessed value of the property was $160 and that nothing was deducted therefrom on any account whatever. These facts clearly distinguish the case from Fox v. Townsend, supra, and the other cases upon which that case is founded. In none of them does it appear that there were other columns in which the dollar mark was properly entered and which conclusively showed that the property was valued in dollars at the amount stated by the figures. [1] Our conclusion is that the court erred in holding that the tax sale and deed were invalid because of this defect. It is necessary therefore to reverse the judgment and order.

[2] In view of the possibility of another trial, it is proper to mention another point urged for reversal. After the beginning of the action and before the trial, the plaintiff conveyed to one Murray an undivided three-fourths interest in the land in ques

tion. It also appeared that the title he holds of the remaining fourth is held by him in trust for another person. The claim of the appellant is that because of these facts the court could not proceed with the case, or give judgment in favor of the plaintiff, in case it should properly decide that the plaintiff was the owner thereof at the time the action was begun. This claim is without merit. Where a transfer by the plaintiff of the property in controversy occurs after the beginning of the action it is optional with the transferee to continue the action in the name of the original plaintiff, or to have himself substituted and proceed in his own name. (Code Civ. Proc., sec. 385.) If he elects the former alternative the court may give judgment according to the conditions existing at the time the case was begun. The transferee in that event must be deemed to have elected to trust the original plaintiff to make over the title to him in some appropriate manner after the judgment has become final,

The judgment and order are reversed.

We concur:




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Sac. No. 2183. Department One. May 8, 1915.


[1] VENDOR AND PURCHASER-CONTRACT FOR SALE OF MINING CLAIMS ACTION TO ENFORCE PERFORMANCE DESCRIPTIONS OF CLAIMS -VARIANCE BETWEEN CONTRACT AND COMPLAINT ADMISSION OF PLEADINGS-ESTABLISHMENT OF IDENTITY OF PROPERTY.—In an action to enforce performance of an executory contract for the sale of mining claims a variance between the descriptions of the claims contained in the contract and the descriptions found in the complaint and the findings is not fatal, where the complaint embodies a copy of the contract and alleges that the property agreed to be sold by said contract is described as set forth in the complaint and such allegation is not denied.

[2] ID.-ACTION FOR PURCHASE MONEY-LIEN OF VENDOR-ABSENCE OF WAIVER.-A vendor who retains the legal title under an executory contract for the sale of land does not waive his lien by bringing an action at law for the recovery of the purchase price.

[3] ID.-ID.-TENDER OF CONVEYANCE BY VENDOR-TECHNICAL DEFECTS WHEN UNIMPORTANT.-Where the answer to the complaint in an action to enforce performance of an executory contract for the sale of land shows that a conveyance would have been refused in any event, technical defects in the tender of such conveyance are unimportant.

[4] ID.-SPECIFIC PERFORMANCE OF CONTRACT-ACTION BY VENDOR-PLEADING-FAILURE TO ALLEGE ADEQUACY OF CONSIDERATION OR REASONABLENESS OF CONTRACT-INSUFFICIENT COMPLAINT.-A complaint in an action by a vendor to recover the balance due under an executory contract for the sale of mining claims and to enforce the lien of the vendor for the balance of the purchase price which does not allege facts showing that there was an adequate consideration for the contract, or that the contract was just and reasonable as to the defendants, fails to state a cause of action.

Appeal from the Superior Court of Calaveras County-A. I. McSorley, Judge.

For Appellants-Benj. F. Geis, Duard F. Geis and Will A. Dower.

For Respondents-Snyder & Snyder.

On September 27, 1910, the plaintiffs entered into a written contract with all of the defendants except Clifton, whereby plaintiffs agreed to sell, and said defendants agreed to buy, three mining claims in Calaveras county for the sum of $3,000, of which $50 was paid on the execution of the writing, and the balance was payable in instalments. The vendees agreed to do all assessment work.

The complaint set up the contract, alleged an assignment by the vendees to Clifton, alleged, further, non-payment of any part of the purchase price except the $50, the failure to do the assessment work, for which plaintiffs had been compelled to pay $300, demand for the sums due, and a tender and continuous willingness and ability to convey a good title. The prayer was for judgment for the balance due and for the $300 paid by plaintiffs, for a decree that plaintiffs hold the legal title as secur

ity for the payment of the sums due, that they have a lien on said property to secure payment of such sums, that said liens be foreclosed and that the property, or so much as might be necessary, be sold to satisfy the demand. The defendants denied some of the allegations of the complaint, and set up various affirmative defenses, based on alleged frauds and misrepresentations on the part of plaintiffs. On all these issues the court found for the plaintiffs and judgment followed in their favor as prayed. Defendants appeal on the judgment roll.

The appellants present a number of points, but only one of them is, in our judgment, entitled to favorable consideration.

[1] Much stress is laid upon the fact that the descriptions of the mining claims in the contract vary from the descriptions found in the complaint and the findings. In each case the description is by name only, and the names, as given in the various papers, are not precisely the same. But the complaint embodies a copy of the contract, and alleges that the property agreed to be sold by said contract is described as set forth in the complaint. This allegation is not denied, and it establishes the identity of the apparently differing descriptions.

The argument based upon the claim of fraud is futile, in view of the fact that the evidence is not brought up, and the findings negative fraud.

[2] One of the defenses was that plaintiffs had waived their lien by commencing an action at law for the recovery of the purchase price. The court found that such action had been brought (and subsequently dismissed), but that there was no waiver. The conclusion was correct. Where the vendor retains the legal title, a proceeding at law for the purchase price is not a waiver of his right to proceed against the property. (Longmaid v. Coul ter, 123 Cal. 208.)

[3] The appellants criticize the allegation of tender, but since their answer showed that a conveyance would have been refused in any event, technical defects in the tender, or even a want of any tender, would be of no importance. (Civ. Code, sec. 1440.)

[4] But the appellants make a final contention which must, under the decisions of this court, be upheld. The complaint does not allege, nor does the court find, facts showing that there was an adequate consideration for the obligation sought to be enforced, or that the contract was just and reasonable as to the defendants. It is thoroughly established in this state that such facts must be alleged and proven in a suit for specific performance. (Agard v. Valencia, 39 Cal. 302; White v. Sage, 149 Cal. 613; Herzog v. A. T. etc. R. R. Co., 153 Cal. 496, 501, and cases cited.) That the present action is one for specific performance cannot be questioned in view of the decisions in White v. Sage, supra, and Sparks v. Hess, 15 Cal. 186.

For the reason stated, the judgment will have to be reversed. With nothing before us but the judgment-roll, we have no basis for saying that the error was harmless. Nor would we be justified in modifying the judgment by striking out everything but the provision for recovery of the purchase price. An action for

such purchase price is one at law, in which the parties are entitled to a jury trial, and it would hardly be fair for the appellate court to convert the character of the case after judgment, where no such change had been suggested below.

The judgment is reversed.

We concur:



S. F. No. 6440. In Bank. May 11, 1915.

*W. O. MILES, Plaintiff and Appellant, v. J. H. BALEY, J. G. SIMPSON, Defendants, and THE EMPIRE STATE SURETY COMPANY (a Corporation), Defendant and Respondent.

[1] STATUTORY BOND-RECITAL OF STATUTE UNNECESSARY.-A recital in a bond that it was executed by virtue of a certain statute is not necessary to constitute it a statutory bond, and when the same fact is apparent otherwise than by the recital it is as available for all purposes as if recited.

[2] ID.-SCHOOL BUILDING CONTRACT-CONSTRUCTION OF BONDSTATUTORY BOND.-A bond executed and delivered to a school district on a building contract which specifies the conditions to be fulfilled by the contractors to render the undertaking inoperative or without effect in the precise language of the statute of March 27, 1897, and the amount of which is approximately that prescribed and required by such statute, is a statutory and not a common law bond, notwithstanding that no express reference is made to the statute therein.

[3] ID.-ID.-ACTION ON BOND-PLEADING-COMPLAINT FILING OF CLAIMS WITH BOARD OF TRUSTEES-ESSENTIAL AVERMENT-CONSTRUCTION OF ACT OF 1897.-In an action by persons furnishing labor and materials to the contractor to recover on such a bond, it is necessary that the complaint allege that the plaintiffs had filed verified statements of their claims with the board of trustees of the district within ninety days after the completion of the building, as required by section 2 of such act.

[4] ID. REHEARING OF APPEAL-APPROVAL OF OPINION OF DISTRICT COURT OF APPEAL.-It is held on a hearing of this appeal in the supreme court after judgment by the district court of appeal that the opinion of the latter court (18 Cal. App. Dec. 765) makes a correct disposition of the legal questions presented by the appeal.

Appeal from the Superior Court of Fresno County-H. Z. Austin, Judge.

For Appellant-Milton M. Dearing.

For Respondent-Geo. F. Hatton, Hartley F. Peart, M. B. Harris and E. M. Harris.


A hearing in this court was ordered after judgment by the district court of appeal for the third appellate district. That court, speaking through Mr. Justice Hart, had rendered the following opinion:

"This is an action on a bond, executed and given by the defendants, Baley and Simpson, as principals, and the defendant, surety

*On hearing after judgment in District Court of Appeal, Third District (18 Cal. App. Dec. 765).

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