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FORCIBLE DETAINER. 1. TRESPASS-PREFERENTIAL HOMESTEAD UPON SUSTAINED CONTEST OF

DESERT ENTRY FOR FRAUD IN LAND DEPARTMENT, No DEFENSEIn an action of forcible detainer, where the defendant trespasseu upon the actual possession of the plaintiff, the fact that he entered as a preferential homestead claimant, upon a sustained contest in the land department of the United States, of a desert entry claimed by plaintiff as assignee, for fraud of his assignor in making the entry, is no defense to such action, and evidence of such defense

should have been excluded. (Dutcher v. Sanders, 549.) 2. UNLAWFUL ENTRY AND WITHHOLDING OF PROPERTY-REFUSAL TO

SURRENDER POSSESSION UPON LAWFUL DEMAND.—Since plaintiff was the occupant and in peaceable possession of the property, defendant's entry thereon, during his absence, and without his consent, followed by refusal to make restoration thereof for a period of five days, after service upon him of a demand in writing that he do so, was, as to plaintiff, unlawful within the meaning of the term as used in the statute. The entry being unlawful, the act

of withholding was likewise unlawful. (Id.) 3. LIMITED DEFENSE TO ENTRY — CONSENT OF OCCUPANT RIGHTS

OBTAINED FROM ANOTHER SOURCE NOT A PROPER ISSUE.—The defendant may show, as a limited defense to the entry that it was made with the consent of the occupant; but where the entry is based upon an alleged right obtained from another source than such occupant, such fact is not a proper issue upon the trial of the case.

The word "unlawful" as used in the statute means unlaw. ful with respect to the relations between the plaintiff and the

defendant. (Id.) 4. ILLUSTRATION OF UNTENABLE DEFENSE TO FORCIBLE DETAINER.

If A procure from B a contract to convey land to him, and B puts A in possession; and B thereafter claiming that A procured the contract by fraud, conveys the land to C, who, in A's absence, enters upon the land without A's consent, he cannot, in A's action of forcible detainer justify the refusal to surrender the possession to A, by a showing of the alleged fraud and the subsequent grant by B to him. The position of the government in a like case is not

different from that of the individual. (10.) 5. POSSESSION OF PLAINTIFF NOT BE INTERFERED WITH RIGHT

TO DAY IN COURT.—Where it appears that plaintiff's rights under his desert-land entry was recognized by the government for more than three years, the fact that a department of the government baving power to ascertain the facts decided that such consent was procured by fraud, and gave to the defendant a homestead entry, did not warrant the defendant in entering upon plaintiff's actual possession of the property, without his consent and against his will, thus depriving the plaintiff of the property without a day in court,

TO

FORCIBLE DETAINER (Continued).

in which the legality of the departmental decision could be determined. (Id.)

FOREIGN JUDGMENT. See Judgment, 1-7.

FRAUD.

1. FRAUD UPON CREDITORS-ASSIGNMENT OF INTEREST IN ESTATE-FIND

INGS AS TO FRAUD UNSUPPORTED BY EVIDENCE.-Under the evi. dence, it is held that the findings, in the present action on the issue of fraud upon creditors, or want of consideration, or as to any actual or constructive fraud, are not supported by the evidence. (Hop

kins v. White, 234.) 2. ACTUAL AND CONSTRUCTIVE FRAUD-QUESTION OF Fact—PLEADING.

Actual fraud is always a question of fact; and in order to constitute constructive fraud, as matter of law, it must be set forth distinctly in a pleading alleging the fraudulent intent, under section

3442 of the Civil Code. (Id.) 3. IN'TENT TO DELAY OR DEFRAUD CREDITORS-QUESTION OF FACT.

The transfer of property with the intent to delay or defraud creditors under section 3439 of the Civil Code, makes such intent a question of fact, which is not to be presumed from the mere fact of the transfer. A debtor may pay one creditor in preference to another; and it is only when the transfer is voluntary or without consideration, or in contemplation of insolvency, that it is void as

to existing creditors. (Id.) 4. ACTION FOR MONEY HAD AND RECEIVED_PAYMENT UNDER CONTRACT TO

SELL LAND-RESCISSION-FALSE REPRESENTATIONS UNTENABLE AND TENABLE-MISREPRESENTING VALUE TO IGNORANT PLAINTIFF TENABLE.—In an action for money had and received, to recover money paid under a contract to sell land, sought to be rescinded for false representations, it is held that misrepresentations as to the fact that the defendant was not the owner of the property when the contract was made, and as to the fact that the rate of interest specified in the mortgage assumed by plaintiff was in excess of the rate represented, do not constitute such fraudulent representations as would entitle plaintiff to avoid the contract; but that misrepresentations as to the value of the property made by defendant to plaintiff, who was entirely ignorant of values, of which defendant had knowledge, amounted to such positive fraud as entitled plaintiff to rescind the contract, and recover the money paid. (Winkler v.

Jerrue, 555.) 5. ORIGINAL ORAL CONTRACT TAKEN OUT OF STATUTE OF FRAUDS.

Where it appears that the original contract of sale was oral, it was taken out of the statute of frauds, by part payment and delivery of possession thereunder, in which case it is as valid and binding

JURY

FRAUD (Continued).

as if written. Any money to be finally paid thereunder must be

contemporaneous with the delivery of the deed. (Id.) 6. OWNERSHIP OF LAND AT TIME OF CONTRACT NOT REQUIRED.—The

vendor, under an executory contract of sale, is not required to be the owner of the land at the date of the contract. The rule in this state is that, in every executory contract for the sale of land, there is an implied condition that the title of the vendor is good, and that he will transfer to the purchaser by his deed a title unencumbered and without defect. The vendor sufficiently complies with this obligation, if he can give good title when by the terms of his contract he is required to make conveyance at the time of final payment of the purchase money; and he has until that time to

acquire a good title such as he contracted to convey. (Id.) 7. MISREPRESENTATIONS AS TO RATE OF INTEREST SPECIFIED IN MORTGAGE-RIGHT TO DEDUCT EXCESS FROM DEFERRED PAYMENTS-IN

NOT RESULTING.—The misrepresentations as to the rate of interest specified in the mortgage to be assumed by the plaintiff, show no resulting injury, since if the mortgage shows upon its face an excess in the rate of interest, the plaintiff might deduct such excess from the deferred payments, and no injury would result therefrom. Fraud is never actionable, except there be a resulting

injury. (Id.) 8. REPRESENTATIONS AS TO VALUE OF PROPERTY-QUESTION WHEN OF

FACT.— Representations as to the value of property may be representations of fact, or representations of opinion, depending largely upon the manner in which they are made. If, as matter of fact, they are made by one assuming to have knowledge of the value, based upon other declared statements of fact, to one ignorant thereof, the representations under such circumstances become rep

resentations of fact. (Id.) 9. RECOVERY OF MONEY PAID FOR FRAUDULENT REPRESENTATIONS

RESCISSION COMMON COUNT FOR MONEY HAD AND RECEIVED. — Where it appears that plaintiff had been but a short time in the state, and knew nothing of values therein, and that defendant know. ing the property, misstated the same to plaintiff and supported it by a false statement that other property of like value had been sold for about the same sum, and fraudulently conspired with a third party to make a pretended offer for the same sum in the presence of plaintiff, the plaintiff, who relied upon such fraudulent representations, upon discovery of the fraud, was entitled to rescind the contract of sale, and to restore everything of value received thereunder, and may recover the money paid, under the

common count for money had and received. (Id.) 10. TENDER OF POSSESSION RECEIVED BY DEFENDANT-FAILURE TO OB

JECT THAT RENTAL VALUE OF USE WAS NOT TENDERED-WAIVER.

FRAUD (Continued).

Where plaintiff tendered back the possession of the premises received from defendant, and defendant accepted the same without objection, and the court found that plaintiff offered to restore everything of value received under the contract, and tendered possession, which was received by the defendant without demand for rent, or objection stated that it was not tendered, he thereby waived

objection thereto, under section 1501 of the Civil Code. (Id.) 11. CONTRACT TO EXCHANGE RANCH FOR IMPROVED CITY PROPERTY-FALSE

REPRESENTATIONS BY RANCH OWNER—RESCISSION-DISCOVERY.—A contract to exchange a ranch for improved city property, may be rescinded by the owner of the city property, where the ranch owner falsely represented that five acres of the ranch was in young orange trees of the finest varieties, full bearing; that it had produced four hundred and fifty boxes of oranges in 1908; that ten acres of the ranch was in assorted table grapes, six or seven years old, and that the vineyard would yield from fifteen to twenty tons of grapes, worth about twenty dollars per ton; that the ranch was worth more than one thousand dollars per acre; was a bargain at fifteen thousand dollars, and would net four thousand per year on the investment; that there was a good pumping plant thereon which cost two thousand five hundred dollars, all of which was contrary to the facts, and the falsity of which was discovered after the exchange

was effected. (Bickel v. Munger, 633.) 12. PROPER AND IMPROPER BASIS OF RESCISSION-MISREPRESENTATIONS

or FACT-MATTERS OF OPINION-REPRESENTATIONS AS TO CONDITION AND QUALITY OF SOIL—INEXPERIENCE-JUSTIFIED RELIANCE.—The rescission was properly based upon material misrepresentations of fact by the ranch owner. It could not be based upon representations as to mere matters of speculative opinion. But a cause of action for rescission might be based upon representations as to the condition and quality of the soil and like matters, even though the same was exhibited to the party complaining, where such party was ignorant and inexperienced in such matters, and the party making the representations knew this and knew that the person with whom he was dealing relied upon him to express the truth as to such things. (Id.)

See Bankruptcy, 1-3; Judgment, 4-6.

GUARANTY. 1. GUARANTY OF SPECIFIED AMOUNT OF Goods SOLD ON CREDIT_LIMITA

TION OF GUARANTY NOT A LIMITATION OF CREDIT-GUARANTOR NOT EXONERATED.—A guaranty of the payment of any goods sold on credit to a third person named, “provided the amount due or to become due shall at no time exceed the sum of one thousand dol

20 Cal. App.-55

GUARANTY (Continued).

lars," is a limitation upon the amount of the guarantor's liability for credit, and not upon the amount of credit to be extended to such third person; and any further extension of credit beyond the amount so limited, does not exonerate the guarantor. (Lean v.

Geagan, 260.) 2. GUARANTY CONSTRUED AS CONTINUING — ADDITIONAL DEBTS IMMA

TERIAL.-A guaranty limiting the amount for which the guarantor will be bound, but without limitation as to time, and without circumstances to evince a contrary intention, will, in general, be construed to be a continuing guaranty and operative till revoked. The guarantor will be held liable to the extent of his guaranty, though the principal debtor may have during the existence of the guaranty contracted debts equal to or greater than the sum named therein. The limitation in the guaranty refers to the amount of the guarantor's liability, and not to the amount of the dealing be

tween the purchaser and the one who gives the credit. (Id.) 8. CONSTRUCTION OF AMBIGUOUS GUARANTY-PROTECTION OF CREDITOR

-LIMITATION UPON AMOUNT OF LIABILITY-CONDITION.–Any ambiguity in a contract of guaranty concerning the liability of the guarantor, will be resolved in favor of protecting the creditor to the extent of the sum named therein; and the ambiguous provision will be construed as a limitation upon the amount of the guarantor's liability, rather than as a condition upon which any liability whatever attaches. (Id.)

GUARDIAN AND WARD. 1. GUARDIANSHIP-CHANGE IN TEMPORARY CUSTODY OF INFANT-RESTRIC

TIONS—EVIDENCE SUPPORTING ORDER_CERTIORARI.--An order removing an infant from the temporary custody of its paternal grandfather, who had applied for final letters of guardianship thereof, and restoring its temporary custody to its mother, subject to restrictions, pending the final hearing of the application, that a nurse to whom its mother bad committed the charge thereof be retained as such, who should take the child daily to the home of its grandparents, and that the mother should be forbidden to take the child out of the city where the court was held, was a proper order, subject to such restrictions; and there being sufficient evi. dence to support it, as made, it cannot be annulled upon certiorari, on petition of its paternal grandfather. (Clark v. Superior Court,

305.) 2. JURISDICTION TO CHANGE TEMPORARY CUSTODY_SHOWING OF In.

PERILMENT OF CHILD's WELFARE.—The court bad jurisdiction to change the temporary custody of the child, pending the hearing of the petition, under the provisions of section 1747 of the Code of Civil Procedure, when it appears to the satisfaction of the court,

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