mains in the hands of sala receiver, amounting to the sum of several thousand dollars, and that said fund is being constantly increased." There are averments in the complaint as to a sale of 50 shares of the stock to the defendant Thomas, and other facts relative thereto, but we deem them wholly immaterial. The determinative question presented by the appeal is whether the facts disclosed entitle plaintiff to recover as for money paid by mistake. We do not think they do. There is no question of the right to recover money paid under mistake of a material fact and without consideration, but we do not think this such a case. The payment, in this instance, cannot be said to have been made under a misapprehension or mistake as to the facts. The circumstances calling for the payment were well known to and perfectly understood by the plaintiff. He knew that the assessment was levied and was being collected to procure funds to pay the creditors of the bank, and he made the payment voluntarily with that understand'ing; and it appears that the money was needed, and was in fact used, for that purpose. The fact that subsequently more funds were collected than were required to pay the creditors in full, and that a surplus now remains, does not disclose such a mistake of fact on the part of plaintiff as entitles him to recover. The stock standing in his name was primarily as liable for the assessment as that of any other stockholder, and, having paid voluntarily, he is no more entitled to recover his money than would be any other one of such stockholders. Nor was there a want of consideration for the payment. Assuming that he did not own the stock, if he saw fit to pay, in order to avoid litigation with the receiver, that was sufficient consideration. A payment thus voluntarily made with knowledge of the facts affords no ground for an action to recover it back. Keener, Quasi Cont. c. 2, and cases there cited; Brummagim v. Tillinghast, 18 Cal. 271. The lower court seems to have proceeded upon the theory that plaintiff made his payment under duress, as it finds that "plaintiff was required, under threat of suit, to pay the same to the receiver for the benefit of the creditors of said bank." But that fact did not constitute duress. It is not legal duress to threaten to or actually take advantage of the usual remedy for the enforcement of a debt or obligation. Brummagim v. Tillinghast, supra; Kohler v. Wells, Fargo & Co., 26 Cal. 606; Bucknall v. Story, 46 Cal. 589; Mayor, etc., v. Lefferman, 4 Gill. 425. And this is true even if the claim be an illegal one. Preston v. City of Boston, 12 Pick. 12. Under the facts disclosed, the plaintiff was not entitled to recover against either of the defendants. If there are any rights or equities as between plaintiff and the defendant Thomas, growing out of the sale of plaintiff's stock, which would entitle the latter to relief against Thomas, they

A complaint which, construed liberally under Code Civ. Proc. § 452, alleges a libelous publication by defendants; that such publication conveyed to others a libelous meaning and charge against plaintiff; and that it was made without cause, states a cause of action.

Department 2. Appeal from superior court, Alameda county; F. W. Henshaw, Judge. Action by George Ingraham against J. L Lyon and William P. Lyon. From an order denying his motion for vacation of judgment, plaintiff appeals. Reversed.

Sawyer & Ayer, for appellant. John C. Hughes, for respondents.

DE HAVEN, J. Section 452 of the Code of Civil Procedure provides: "In the con struction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed with a view to substantial justice between the parties." The complaint in this action is certainly very loosely drawn, but, applying to it this rule of construction, it may be held to allege, in substance, that defendants intended by the written publication complained of to charge and have it understood and believed "that plaintiff was a person engaged in making accounts which he never paid or intended to pay, and was dishonest and wholly unfit and unworthy of credit"; that said publication was understood by those to whom it was made as conveying such meaning and charge against the plaintiff; and that such publication was made without cause, "and out of pure malice." Thus construed, the complaint states a cause of action. Maynard v. Insurance Co., 47 Cal. 207. See, also, Edwards v. Society, 99 Cal. 435, 34 Pac. 128. Appeal from order denying plaintiff's motion to vacate and set aside the judgment dismissed, and judgment reversed, with directions to overrule the demurrer to the complaint.

was picking his flowers, it was not misleading to charge that, if plaintiff's ward was weak in mind, "he should not," as a matter of law, "be held to the same strictness" in doing what he did "as a person mentally sound would be"; the jury having also been charged that he had no right to enter the garden, and that defendant could have used reasonably necessary force in putting him out.

2. Where the defense to an action for assault was that plaintiff had unlawfully entered defendant's garden, and was picking his flowers, at the time the assault was committed, it was not error to exclude evidence of prior commissions of the same trespass.

Department 2. Appeal from superior court, city and county of San Francisco; A. A. Sanderson, Judge.

Action by Henry Y. Chapell, a non compos mentis, by his guardian, against John A. Schmidt, to recover for an assault and battery. There was judgment for plaintiff, and defendant appealed, but pending the appeal plaintiff's ward died, and his administratrix, Edith A. Chapell, was substituted as plaintiff. Judgment affirmed.

Lloyd & Wood and Mastick, Belcher & Mastick, for appellant. Wm. T. Baggett and Walter H. Lin forth, for respondent.

MCFARLAND, J. This action was brought by Henry Y. Chapell, an incompetent person, by his guardian, to recover damages for an assault and battery committed on his person by defendant. The verdict and judgment were for plaintiff, and defendant appeals. Some time after the judgment was rendered, the said Chapell died, and his administratrix was substituted as plaintiff.

There is no doubt from the evidence that the verdict was eminently just and proper. The jury were fully warranted in finding these facts: Chapell was an infirm old man, with a passion for flowers. On August 9, 1893, he was passing the garden of appellant, in which, about four feet from the gate, there was a fuchsia bush in bloom; and, the gate being open, he went in, and commenced to pick some fuchsias. The appellant, who was in the vicinity, observed Chapell plucking the flowers, and, rushing into the garden, he beat him very severely with a heavy cane over the head, neck, shoulders, and back, without any request to leave, or any warning whatever. Chapell, who was stooping over the bush at the time, made no resistance whatever, and appellant continued to beat him with great force until a lady who witnessed the occurrence sprang in between them, and induced him to desist. Chapell was severely injured by the beating, and never recovered therefrom.

Appellant contends that the judgment should be reversed on account of three rulings which respondent's counsel induced the court to make.

1. The court, at request of respondent, gave the following instruction to the jury: "If you find from the evidence that the plaintiff was weak in mind at the time the alleged

assault and beating is claimed to have taken place, then, as matter of law, I charge you that he should not be held to the same strictness in entering the garden of defendant and picking flowers therein as a person mentally sound would be." It is difficult to determine whether or not, as applied to the case at bar, this instruction has any definite meaning. But conceding that it does mean something, and that it was erroneous, we do not see how it could have prejudiced the rights of appellant. There was no question about the right of respondent to enter the garden, and it was not claimed that he had such right. The court instructed the jury in various forms that respondent had no right to go into the garden, and told them, among other things, "that when a person enters within the inclosure of another without the consent of the other, and against his will, that is what is usually known as and called an 'unlawful breaking and entering'"; and that if respondent entered the garden, "and was then and there engaged in breaking flowers or branches of his (defendant's) fuchsia, then I charge you that he was doing an unlawful act, and the defendant had a right to order him out of his premises, and use such reasonable force as might be necessary to put him out." It is not reasonable, therefore, to suppose that an intelligent jury was led astray by the obscure and totally irrelevant instruction about "strictness" above quoted. The question was, did the appellant use unnecessary force in ejecting the respondent? and we are satisfied that the jury so understood it.

2. Appellant contends for a reversal because the court instructed the jury as follows: "I further charge you that, if you find from the evidence in the case that, at the time and place mentioned in the complaint, the plaintiff was in or on the premises of the defendant without his permission, taking flowers therefrom, yet, notwithstanding this fact, I charge you that if you find that the appellant assaulted and beat the plaintiff as alleged in the complaint, without first requesting him to depart from said premises, and warning him to desist from taking the said flowers, then, as a matter of law, I charge you that the defendant was guilty of an unlawful act," etc. We think that, under the facts of this case, the instruction was proper. The respondent was not using such force and violence as would have justified the appellant to assault and beat respondent "as alleged in the complaint" without any warning whatever.

3. Appellant contends for a reversal because the court sustained respondent's objection to the following question asked appellant when testifying as a witness: "What had you seen him [plaintiff] do on your premises prior to the 9th day of August last?" We do not think that the question was relevant. The defense set up in the answer on this point was that "on the 9th day of August,

1893," the respondent unlawfully entered his premises, and was "then and there" engaged in despoiling, etc., and that appellant "gently laid his hands upon" him, and used no more force than was reasonably necessary to remove him. Moreover, appellant, as stated in his points and authorities, did introduce evidence to show "that plaintiff had previously committed similar trespasses on the same premises."

There are no other points made by appellant, although there is an allusion made to the amount of the verdict as excessive. If the point were expressly made, we could not hold that $2,500 was an excessive verdict. The judgment and order denying a new trial appealed from are affirmed.

We concur: DE HAVEN, J.; FITZGERALD, J.

1. Under Code Civ. Proc. § 442, providing that, when a defendant seeks affirmative relief relating to the transaction upon which the action is brought, he may file a cross complaint, a cross complaint in an action to recover buildings removed from plaintiff's land, which alleged that plaintiff purchased the land and erected the buildings for defendants, agreeing to convey the premises to them when they could purchase the same; that defendants tendered him the purchase price therefor, but that he refused to give them a deed thereto, and which prayed judgment that plaintiff deed the property to defendants, was improperly stricken out.

2. In an action to recover buildings removed from plaintiff's land, wherein defendants admitted that plaintiff purchased the land and erected the buildings, but claimed to own the premises by reason of plaintiff's agreement to sell the same to them, and their tender to him of the purchase price, plaintiff testified that he agreed to sell the premises to defendants, and that they advanced him money to apply in purchasing the land and erecting the buildings, but that they withdrew all of the same soon after; that he let defendants go into possession of the premises without any further transaction; that thereafter defendants tendered him the purchase price of the land, only, and he told them merely that he could not give them a deed, but would have to see the man who then held the title to the property to secure a loan to plaintiff. Held that, ownership of the buildings not appearing in defendants, a nonsuit was improperly granted.

Commissioners' decision. Department 1. Appeal from superior court, San Diego county; W. L. Pierce, Judge.

Action by M. Hall against A. R. Cole and another for the possession of buildings. Judgment for defendants, and plaintiff appeals. Reversed.

Wm. Humphrey, for appellant. D. C. Collier, D. L. Murdock, and F. W. Goodbody, for respondents.

BELCHER, C. The plaintiff brought this action to recover the possession or value of

a dwelling house and barn, alleged to have been wrongfully moved by the defendant Isabell Cole from a lot of land described as "Lot 34 of La Mesa Colony," in the county of San Diego. The complaint sets up facts showing that the plaintiff purchased and paid for the said lot, and erected the house and barn thereon, and that, without his consent or knowledge, the defendant Isabell Cole moved the same to an adjoining lot owned by defendants, who were husband and wife. The answer denied that the plaintiff was the owner of the said house and barn, or either of them, or entitled to the possession thereof, and alleged that, at all times since the erection of said house and barn, the defendant Isabell Cole had been, and still was, the owner thereof. The answer then proceeded to state, in effect, that the plaintiff purchased the said lot for and on account of the defendant Isabell Cole, for the sum of $900, less $25 allowed him by the owner for making the sale, and that she advanced to him, in part payment therefor, the sum of $550; "that within a few days thereafter the plaintiff stated to the defendants that he had purchased said land for the defendant Isabell Cole, and that there would be a few days' delay in preparing the title to her, but he advised them to take immediate possession of it, and to grub and plow and improve it, and stated to defendant Isabell Cole that he would immediately build for her a house on said land, which would be hers, and a home for her as long as she lived, and that she could pay for it when she got ready, and could have as much time in which to do so as she desired"; that the plaintiff built on the said lot the house mentioned in his complaint, for the defendant Isabell Cole, "and that after the completion thereof, at the re quest of plaintiff, the defendants moved into, took possession of, and occupied, said house, as their own, and not as the property of the plaintiff, and that said house and said barn were from the first commencement of the erection thereof, and ever since have been, the property of the defendant Isabell Cole, and that said house, at the time of its erection, set upon blocks on the surface of the ground on said lot 34"; that, at the time of making the payment of $550, it was agreed between plaintiff and defendant Isabell Cole that he would, as soon as it could be done, cause a deed to be made to her for said premises, and that she should execute a mortgage for the balance of the purchase money therefor, and that she thereafter repeatedly requested plaintiff to perform and carry out his agreement, but he failed to do so, giving various excuses therefor; that afterwards, and before the commencement of this action, she tendered to plaintiff "the entire balance of said purchase money for said lot 34, and its appurtenant water rights, as agreed upon between them, with all accrued interest thereon, and demanded from plaintiff a deed therefor, whereupon the plaintiff refused to

comply with said agreement and refused to make a deed to said defendant for said lot." The defendants also filed a cross complaint, in which they set out the facts, and prayed for judgment against the plaintiff, that he make a good and sufficient deed to the defendant Isabell Cole, conveying to her the said lot, free and clear from all incumbrances. The cross complaint was, on motion of plaintiff, stricken out, and the defendants excepted to the ruling. The case subsequently came on regularly for trial before a jury, and at the conclusion of the plaintiff's evidence the defendants moved for a judgment of nonsuit, "because the plaintiff's evidence does not contain anything tending to show that at the time this suit was commenced the plaintiff was entitled to the possession of the house and barn, for the recovery of the possession or value of which this action is brought, but it does appear from said evidenced that at the time this suit was commenced the plaintiff was not entitled to the possession of said house and barn." The court granted the motion, and entered judgment that the plaintiff take nothing by his action, and that the defendants recover from him their costs. From this judgment the plaintiff appeals.

We think the court erred in striking out the defendants' cross complaint, and also in granting their motion for nonsuit. The complaint and the cross complaint related to alleged rights growing out of the same transaction; that is, the purchase of the lot and payment therefor, and the erection of the house and barn thereon. And the rule is that, whenever the defendant seeks affirmative relief relating to the transaction upon which the action is brought, he may, in addition to his answer, file a cross complaint. Code Civ. Proc. § 442.

At the commencement of the trial, defendants admitted in open court that the plaintiff purchased the land, from which the house and barn were moved, of one Hamilton, on December 12, 1890, and that Hamilton was then the owner thereof, and also that defendant Isabell Cole took and moved the house and barn in question from the said land, to land owned by her, on February 27, 1892. The plaintiff, then, as a witness for himself, testified that he had Mr. Hamilton make the Ideed of the land to a Mr. Wilson to secure payment of $400, money borrowed by him of Wilson, and that he paid Hamilton the whole of the purchase price for the land, which was $900; that he built the house and barn on the land between the months of January and March, 1891, and paid for them himself, the house costing $1,250, and the barn $50; that the house and barn were taken away by Mrs. Cole without his consent or knowledge; and that on March 19, 1892, he paid Wilson the loan, for the payment of which the land was security, and Wilson then conveyed the land to him, and assigned to him all his interest In the house and barn. The deeds and as

*

signment were offered and received in evidence. The witness further testified that he built the house to assist Mr. Cole, because he was a man of large family and small means; that at the time he bought the land he told Mr. Cole he would build the house, and sell the land and improvements to him for just what they had cost; "that he and Mr. Cole talked about it several times, and, before he bought the land, Mr. Cole, at his request, advanced him $550 to apply in the purchase of the land and the building of the house," and that, within a few days after Mr. Cole advanced the $550, he came to plaintiff's house, and "stated that he had no money or means to keep his family, and asked to draw against the $550 from time to time, which he assented to, and Mr. Cole withdrew all of the money advanced, and more (about $600 in all), within a few months thereafter"; "that he let Mr. Cole into possession of the premises in April, 1891, without any further transaction between them." On cross-examination, the witness testified that Mr. Collier, the lawyer, made a tender to him for Mrs. Cole, and that he simply remarked he could not give a deed, but would have to see Mr. Wilson, and also that: "I was buying the land for Mr. Cole. I told Mr. Kretsinger that I was building the house for Mr. Cole, when I hired him. I first told Mr. Cole and his wife that I owned the property when I was building the house. The $550 was paid to me on December 2, 1890. * * I might have said to them, after buying the land, 'Well, I have got the land for you.'" On redirect examination the witness was asked, in reference to the tender made by Mr. Collier, "State what was tendered," and answered: "Mr. Collier met me in the California National Bank, and said he wanted to make a tender to me, and stated the amount. It was between five and six hundred dollars. I forget the exact amount. I think he said, '$550 and interest due you from Mrs. Cole on lot 34, La Mesa.' He had some money in his hand. I did not see how much. This was a few days before the house was moved by defendant Mrs. Cole." The above was, in substance, all the evidence on which the motion for nonsuit was made and granted; and, in our opinion, entirely fails to show that either of the defendants was the owner or entitled to the possession of the said house and barn at the time of the commencement of the action, or of the trial. It appears that the lot was purchased and the buildings constructed by the plaintiff to accommodate and assist the defendants, but they were to be paid for by defendants before they would become the owners thereof. There is no pretense that any part of the cost of the buildings had been paid, or offered to be paid; and when Mrs. Cole moved them from the lot, without the knowledge or consent of plaintiff, she did so wrongfully, and the plaintiff at once became entitled to their possession or value. Whether Mrs. Cole had become entitled to a deed of

IRVINE v. TARBOT. (No. 18,286.) (Supreme Court of California. Dec. 26, 1894.)

PUBLIC LANDS-VALIDITY OF PATENT - RIGHT TO QUESTION.

The issuance by the United States of a patent of government land is conclusive evidence in the state courts that the land was subject to patent.

Commissioners' decision. Department 1. Appeal from superior court, Calaveras county; John F. Davis, Acting Judge.

Action by William Irvine against Mrs. J. C. Tarbot to recover a tract of land. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

James H. Budd and Paul C. Morf, for appellant. Reddick & Solinsky, for respondent.

SEARLS, C. This is what would formerly have been termed an "action of ejectment" to recover a small tract of land, parcel of 143.23 acres, patented to the plaintiff, October 13, 1890, by the government of the United States, situate at or near Carson Hill, county of Calaveras, state of California. The defense set up was that the locus in quo was and is a part of the town site of Carson Hill, and as such was not subject to patent by plaintiff. The statute of limitations was also pleaded in bar of the action, but as such action was instituted April 13, 1891, within six months next after the issuance of patent, the plea cannot prevail, if plaintiff's patent was valid to convey title. Plaintiff had judgment, from which and from an order denying her motion for a new trial defendant appeals. Plaintiff introduced his patent to the land, proved that the land in dispute was included therein, and rested. Defendant, among other testimony introduced for the purpose of proving a town site, offered in evidence, and against the objection of plaintiff was permitted to introduce, the proceedings had in the United States land office, from which it appeared that in September, 1879, plaintiff, Irvine, settled upon the land, which had been surveyed in 1871. On May 22, 1883, he made homestead entry of said land, and in December, 1885, he made final proof. Against the allowance of the final

entry, sundry parties, among whom was appellant, protested upon various grounds, among which were "that the town site of Carson is situate on portions of the lands last aforesaid." Thereupon and thereafter such proceedings were had in the case that, upon an appeal from the local land office to the commissioner of the general land office, it was held, among other things, "that the claim of a town site is not supported by the facts in the case," and reversing the finding of the local land officer that "Carson was a valid and legal town site," which decision was on an appeal affirmed by the secretary of the interior department. Respondent was thereupon permitted to make final proofs, and the patent in evidence issued to him. There was no showing that Carson was ever an incorporated town or village. It was admitted at the trial by counsel for the respective parties that at the time of plaintiff's application, and during the contest, "testimony was taken by the land department as to the existence of a town or town site settlement, or a place of trade or business, upon the land embraced within the boundaries of the patent. It is further stipulated that the land department passed upon these questions prior to the issuance of a patent to plaintiff.”

Appellant contends that the town site of 11 acres was reserved from pre-emption or homestead entry, and cites various sections of the Revised Statutes of the United States in support of this theory. Section 2257 provides that "all lands belonging to the United States, to which the Indian title has been or may hereafter be extinguished, shall be subject to the right of pre-emption, under the conditions, restrictions and stipulations provided by law." Section 2258 provides that "the following classes of lands, unless otherwise specially provided for by law, shall not be subject to the rights of pre-emption, to wit: First, lands included in any reservation by any treaty, law, or proclamation of the president, for any purpose. Second, lands included within the limits of any incorporated town, or selected as the site of any city or town. Third, lands actually settled and occupied for purposes of trade and business, and not for agriculture. Fourth, lands on which are situated any known salines or mines." Section 2382 provides that persons who have founded, or may hereafter found, a city or town upon the public lands may file with the recorder of the county a plat thereof, etc., giving name of city or town, showing streets, squares, etc., to be verified under oath, and in one month a verified transcript must be forwarded to the gen eral land office, etc. The subsequent sections of the same chapter provide the modes by which the authorities of incorporated towns. and the county judge in cases of unincorporated towns, may enter and purchase from the government for the use of the inhabitants the lands included within the town sites. The question whether or not the public lands are subject to pre-emption or homestead depends upon the existence or nonexistence of certain