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tiff, and for it the judgment is reversed, and court, being fully advised in the premises, the cause remanded.

and satisfied of the correctness thereof, and

no objection being raised by any of the at. We concur:

McFARLAND, J.; TEM- torneys for the defendants, now signs and PLE, J.

files the findings and decree herein; and it is hereby ordered," etc. Then follows the

order above mentioned, appointing a com(106 Cal. 194)

missioner. Plaintiff in the foreclosure suit MacDERMOT V. BARTON et al. (No. appeals from the order appointing a com18,400.)

missioner to sell the mortgaged property. (Supreme Court of California. March 6, 1895.)

No objection is made to the form of the orFORECLOSURE OF MORTGAGE-SALE BY COMMIS

der appointing a commissioner. Section 726 SIONER-CONSTITUTIONAL LAW.

of the Code of Civil Procedure, as amendea 1. An order appointing a commissioner in in 1893, provides that "the court may, by its foreclosure to sell the mortgaged property, un- judgment, or at any time after judgment, der Code Civ. Proc. 726, as amended in 1893, will not be reversed because the prayer of the

appoint a commissioner. to sell the incumbercomplaint follows the usual form, and asks for ed property.” The subsequent portion of the a sale of the mortgaged property by the sheriff. same section provides that the commissioner, 2. Nor is it ground for reversal that the

when appointed, shall possess the powers court's decree, rendered on the same day, ordered the sale to be made by the sheriff; it being a

and be subject to the duties of sheriffs in like mere oversight, capable of amendment on sim

The next section provides the mode ple motion.

in which the commissioner shall qualify, and 3. Code Civ. Proc. & 726, conferring on the

his compensation, which shall not exceed court authority to appoint commissioners to sell mortgaged property, does not violate Const.

$10. The objections urged against the acart. 11, requiring the legislature, by general tion of the court below by the learned counlaws, to provide for certain county officers, in- sel for the appellant are not deemed tenable. cluding sheriffs, and to prescribe their duties, there being no provision that foreclosure sales

It is true the prayer of his complaint follows shall be made by sheriffs.

the usual form, and asks for a sale of the

mortgaged property by the sheriff. The esCommissioners' decision. Department 1. Appeal from superior court, Fresno county;

sence of such a prayer is an invocation of a

judicial sale. The method of its consumma. J. R. Webb, Judge.

tion, so long as pursued within the power Action by Charles F. MacDermot against

conferred upon the court, is of no moment; Ella G. Barton and others for the foreclosure

and, had the prayer of the complaint been of a mortgage. From an order appointing

silent as to the officer by whom the sale ask. a commissioner to sell the mortgaged proper

ed for was to be made, it would have been ty, plaintiff appeals. Order atfirmed.

equally efficacious. So, too, the fact that George W. Towle, Jr., for appellant. L. the decree as entered by the court ordered L. Gory, George E. Church, and Frank H. the incumbered property to be sold by the Short, for respondents.

sheriff, while the order made and entered on

the same day appointed a commissioner to SEARLS, C. This is an action for the fore- discharge the same duty, was but an overclosure of a mortgage. The cause was tried sight of the court below, not calling for an by the court, and written findings were sign- appeal, but which might have been remedied, ed, dated June 2, 1894, ordering a decree of and, as the record furnishes all the informaforeclosure and sale of the mortgaged proper- tion requisite, may be at any time remedied, ty. A decree of foreclosure ordering, among by a simple motion to amend and correct the other things, a sale of the mortgaged property decree by striking out the word “sheriff," by the sheriff of the county of Fresno (the and inserting "commissioner," wherever they county in which the action was pending and occur in such decree. The fifth section of in which the mortgaged property was situ- article 11 of the constitution of the state of ate), was signed by the judge of the court, California is not violated by section 726, Code and is dated June 2, 1894. The findings and Civ. Proc., conferring upon the court authoridecree were not filed until June 16, 1894, and ty .to appoint commissioners to sell mortgait appears, although dated June 2d, were ·ged property. The section of the constitunot in fact signed until June 16, 1994. On tion cited provides that the legislature, by the 16th day of June, 1894, the findings and general and uniform laws, shall provide for decree were filed, and also an order appoint- the election or appointment in the several ing J. F. Church as a commissioner to sell counties of certain county officers, among the mortgaged premises in the manner pro- which a sheriff is designated, “and shall vided by law for a sale of like property by prescribe their duties and fix their terms of a sheriff upon execution, etc. The order re- office.” It will be observed that the concites as follows: "This being the day and stitution does not fix the duties of the sherhour set for presentment to the court of the iff, but wisely leaves to the legislature the findings and decree herein, for its examina

power so to do. Section 726, Code Civ. tion and signature, due notice of the saine Proc., has so modified the same section as it having been given to all the attorneys for stood prior to 1983, and other sections defin. the defendants, the same were duly present- ing the duties of sheriff, that he has no duty ed to the court, and, after examination, the to perform in a case of sale of real property under foreclosure, where the court appoints A. Schutz, for appellants. R. Citron, for a commissioner to make such sale. Under respondents. the former chancery practice in England and the United States, it was usual to appoint a PER CURIAM. This is a suit to reform master in chancery or commissioner to make two deeds. The facts show that the plaintiff all sales of real property, and in the federal Fred Kraushaar and one William E. Bremer courts it is to this day the usual practice to were the owners, as tenants in common, of sell mortgaged premises under decrees of a tract of land in Washington county, conforeclosure under and by direction of the taining 67.60 acres, which, by agreement, but marshal of the district, or by a master ap- without the execution of any partition deeds, pointed by the court, as the decree may di- they divided,-Kraushaar taking the north rect. It is no part of the duty of a sheriff, 34 acres, and Bremer the remainder; that as such, and in the absence of statutory pro Bremer on October 10, 1891, sold and convision, to sell property under a sale in fore- veyed to Kraushaar 16 acres adjoining said closure. In a spirit of economy, as we may 34-acre tract, and, on the same day, executsuppose, the legislature has provided for the

ed a conveyance to the defendant Paul Hauk appointment of a commissioner to conduct

of the remainder of his tract, which deed foreclosure sales, after the manner of the

was, upon the payment of $200, placed in esformer chancery practice, in those cases crow, to be delivered upon the payment of where the court shall deem it proper so to the balance of the purchase price, if made do. Neither the law nor the constitution is

within 30 days; that Kraushaar at the same violated thereby. The case of Bruner v. Su

time, and without any consideration therefor, perior Court, 92 Cal. 239, 28 Pac. 341, cited

executed a quitclaim deed 'to Hauk, intendby appellant, has no application here. · In

ing to convey all his interest in the tract conthat case the Political Code (section 4192)

veyed to Hauk by Bremer, but by mistake provided for the appointment of an elisor in

the point of beginning was placed 88 links, certain enumerated cases, of which the case

instead of 4 chains and 88 links, south of the in hand was held not to be one, and hence

quarter post on the west side of section 17 in that the appointment was invalid. In cases

township 2 S., of range 1 W., thereby conveyof foreclosure of mortgages the court is au

ing 8 acres more than was intended, which thorized to appoint a commissioner to sell

deed was also placed in escrow, to be delivthe incumbered property, in every case, at

ered with the Bremer deed; that, the payits discretion. The order appealed from

ment of the balance of the purchase price should be affirmed.

not having been made within the time agreed

upon, the said deeds were surrendered to We concur: BELCHER, C.; HAYNES, C. Bremer, but Hauk, having subsequently pro

cured a survey of the premises, and ascerPER CURIAM. For the reasons given in tained that the Kraushaar deed conveyed the foregoing opinion the order appealed more land than was intended, on December from is affirmed.

31, 1891, paid the balance of the purchase price, accepted the deeds, placed them upon

record, and thereafter, for the expressed con(27 Or. 92)

sideration of one dollar, conveyed said premKRAUSHAAR et al. v. HAUK et al.

ises, by warranty deed, to his wife, the de

fendant Sarah Hauk. The issues having (Supreme Court of Oregon. March 12, 1895.)

been settled by the pleadings, the cause was REFORMATION OF DEED--EVIDENCE.

referred to W. N. Barrett, Esq., who took Plaintiff and B. divided land owned by them in common, without executing partition

the evidence, and reported in favor of the deeds, and B. sold part of his share to plaintiff, plaintiffs; and the court, having confirmed and placed in escrow a deed of the remainder

said report, rendered a decree reforming said to defendant, to be delivered on payment of the

deeds, from which decree the defendants apprice within a certain time. Plaintiff, without consideration, and to make the title good, placed peal. with B.'s deed a quitclaim deeu to defendant for A careful examination of the evidence disthe land sold defendant by B., but, through closes that neither the plaintiffs nor the demistake of the person who drew it, this deed included part of the land plaintiff purchased

fendants, at the time the Kraushaar deed of B. After the time for buying the land ex- was executed, understood the description as pired, and the deeds were returned to B., de

given therein; that the plaintiffs intended to fendant learned of the mistake in plaintiff's deed, and bought the land, recorded the deeds,

convey their interest, and the defendant Paul and conveyed to his wife, who took with notice Hauk to acquire the legal title to the Breof the mistake. Held, that the deed was prop- mer tract, containing 18 acres and no more, erly reformed so as to include none but the land

and that the mistake in the description was conveyed to defendant by B.

caused by the carelessness of the person who Appeal from circuit court, Washington drew the deed; that the defendant Paul county; T. A. McBride, Judge.

Hauk, without a valuable consideration, conAction by Fred Kraushaar and another veyed said premises to his wife, who took the against Paul Hauk and another. Judgment title with knowledge of said mistake, and for plaintiffs, and defendants appeal. Af- with intent to defraud the plaintiffs. We firmed.

think it satisfactorily appears that there has been a mutual mistake between the parties, | livered to the defendant Kasper Tscharnig which did not arise from the gross negli- under contract, and at his especial instance gence of the plaintiffs, and that the defend- and request, and that the defendant H. W. ant Paul Hauk, after discovering the mis- Ross is the owner and reputed owner of the take, sought to take advantage of it by con- lands and building upon which the improveveying the premises to his wife. Under the ments were made. The said claims meet circumstances, it would be inequitable to per- the objection to the claim of lien filed in mit her to profit by such mistake, for which Rankin v. Malarkey, 23 Or. 593, 32 Pac. reason the decree is affirmed.

620, and 34 Pac. 816, and that case is therefore not in point as authority against the liens herein claimed. There are other ob

jections, however, to the sufficiency of the (27 Or. 49) CROSS v. TSCHARNIG et al.

complaint raised by the demurrer of de

fendant Ross, who alone appeals to this (Supreme Court of Oregon. March 12, 1895.)

court, alleging as ground thereof that the MECHANIC'S LIEN CLAIM-SUFFICIENCY-OWNER'S CONSENT-CONTRACT OF PURCHASE-SUF

court below erred in overruling said demurFICIENCY OF COMPLAINT.

rer and rendering a decree upon the com1. A mechanic's lien claim, which states plaint. These objections we will now exthat the material was furnished to one person, amine. and that the land was owned by another, and

The statute provides primarily for a lien does not state that the material was furnished at the request of the owner, is fatally defective, upon the building. If, however, the land upthough it alleges that the person to whom the on which it is constructed belongs to the permaterial was furnished was in possession of the

son who caused the building to be erected, land under a contract of purchase with the

improved, altered, or repaired, then the land Owner.

2. Where, in a complaint to foreclose such a upon which the building is constructed, tolien, it is not alleged that the material was fur

gether with a convenient space about the nished with the owner's consent, such consent will not be presumed on demurrer.

same, or so much as may be required for

the convenient use and occupation thereof, is Appeal from circuit court, Clackamas coun

also subject to the lien, to the extent of his ty; T. A. McBride, Judge.

interest therein. But if the land does not Action by H. E. Cross against Kasper

belong to the person' causing the building to Tscharnig and others to foreclose two me

be erected, or alterations made, then, if built chanics' liens. Judgment was rendered for

with the knowledge of the owner of the land plaintiff, and defendant H. W. Ross appeals.

or person claiming an interest therein, the Reversed.

building shall be deemed to have been con. W. W. Thayer, for appellant. H. E. Cross, structed or the alteration made at the inin pro. per.

stance of such owner or person claiming an

interest therein, unless by proper notice he WOLVERTON, J. This is a suit to fore- disavow responsibility therefor. Lumber close two mechanics' liens, one filed by the Co. v. Newkirk, 80 Cal. 278, 22 Pac. 231. So Gladstone Sawmill Company to secure the that it is apparent the statute contemplates a sum of $319.43 for lumber furnished the de- lien on the building primarily. The owner fendant Kasper Tscharnig, and the other by thereof, by causing the building to be erectthe Oregon City Sash & Door Company to ed or alterations made thereon, may subject secure the sum of $93.75 for doors, sash, it to a mechanic's lien. For the purpose of windows, etc., furnished the same party. binding liim, the labor may be done or maEach claim of lien was duly assigned to terials furnished either at his instance or plaintiff before suit was instituted. The mill that of his agent, and the statute expresscompany's claim, so far as it is necessary to ly provides that every contractor, subconquote it here, is in the following language: tractor, architect, builder, or other person “Know all men by these presents that the having charge of the construction, alteraGladstone Sawmill Company have, by vir- tion, or repair, in whole or in part, shall be tue of a contract heretofore made with Kas held to be such agent. Secondarily, if the per Tscharnig, of Oregon City, Or., a lien for owner of the land is some person other than materials furnished in the alteration and re- the owner of the building, then his conpair of a certain two-story building con- sent is presumed, in the absence of notice to structed and being upon the following de- the contrary, if he have knowledge of the scribed land, to wit: The north half of lot progress of the improvement. The building eight (8), in block twenty-seven (27), Ore- must be erected, or repairs or alterations gon City, Or.

That H. W. Ross is the own- made, at the instance of the owner, or his er of said building, and that Kasper Tschar- agent, which is the same thing, under the nig is in possession of the same under a con- maxim, “Qui facit per alium facit per se." tract and bond for the purchase of the same." | If, therefore, the building be erected, or reThen follows the statement of the account pairs or alterations made, at the instance of or demand. The sash and door company's some other person than the owner, the lien claim is in almost the same language. The cannot attach. A stranger or intermeddler complaint shows that the materials describ- could not thus incumber the property of an ed in the claims of lien were sold and de- l other. See sections 3669, 3670, 3672, Hill's

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Ann. Laws Or. Now, the claims filed state curred in by nine of their number, found the that the defendant Ross is the owner of the issues for the defendant, and the court enbuilding, and that the materials were fur- tered judgment thereon, dismissing the plainnished under contract with and at the in- tiff's complaint, and for costs in favor of the stance of the defendant Kasper Tscharnig. defendant. From this action of the court The allegations of the complaint are to the the plaintiff appealed, and the sole question same effect. So we have here both the raised is whether a verdict, being concurred claim of lien and complaint, which concur- in by less than 12 jurors, as provided by the rently show that the materials were furnish- act of the territorial legislature, approved ed at the instance of a person other than March 10, 1892, will support a judgment. the owner of the building, to wit, Kasper This question was decided in the affirmaTscharnig. There exists no statement or al- tive by this court in the case of Hess v. legation anywhere, either in the claims of White, 9 Utah, 61, 33 Pac. 243, and the ruling lien or the complaint, that H. W. Ross, the in that case has been followed in several owner of the building, caused the materials other cases; but counsel for the appellant to be furnished, or that the same, or any have cited us to several decisions of other part thereof, were furnished at his instance appellate courts, made since the decision of or request. True, it is shown that Kasper Hess v. White, wherein the contrary view Tscharnig was in possession of the prem- was adopted. We have examined the recent ises under contract with Ross for the pur- cases cited, but the reasoning of those decichase of the same, but this fact does not sions is not such as to warrant a departure change the relations of the parties under the froin the doctrine enunciated in Hess V. allegations of the complaint. What the White. The judgment is affirmed. terms of this contract are we are not informed. It would seem, therefore, that the SMITH, J., concurs. complaint is insufficient to support the liens in this respect.

KING, J. (dissenting). Very reluctantly do If, however, it be claimed that the consent I withhold my assent from the opinion of the of Ross will be presumed under section 3672, majority of the court in this case. This reand that the lien, therefore, attaches to the luctance results from the fact that the point building as well as to the land, the allega- involved has been adjudicated by this court, tions of the complaint are insufficient to and, if the doctrine of stare decisis is to have support the contention, as they do not show force and recognition, it would seem that that the improvements or alterations were there would be no ground for dissent. But made with the knowledge of Ross. Allen the case of Hess v. White, 9 Utah, 61, 33 F. Rowe, 19 Or. 188, 23 Pac. 901. The com- Pac. 243, which is followed, and upon which plaint as to both causes of suit is clearly in- is founded the opinion of the majority of sufficient, and the demurrer must be sus- the court in this case, has not been passed tained. The decree of the court below is upon by the supreme court of the United therefore reversed, and the cause remanded States, and several cases involving the same for such other proceedings as may be deem- question are now on appeal before that ed advisable, not inconsistent with this opin- court. If the question presented in this case ion.

had been passed upon by the highest judicial tribunal, and the validity of the legislative

enactment upheld, there would be not only (11 Utah, 154)

no justification for a dissenting view, but, MACKEY V. ENZENSPERGER.

upon the contrary, a duty and stern injunc(Supreme Court of Utah. Feb. 23, 1895.) tion would rest upin every member of the CONSTITUTIONAL LAW-JURY TRIAL.

court to acquiesce in the determination. PerAct March 10, 1892, providing that in haps the judgment of this court, announced civil cases a verdict may be rendered on the

in the case of Hess v. White, above cited, concurrence therein of nine or more members of the jury, is constitutional.

may be affirmed by the supreme court of the

United States. Indeed, it would not be surAppeal from district court, Salt Lake coun

prising if this court were sustained, when ty; before Justice C. S. Zane.

from expressions employed by that tribunal, Action by C. E. Mackey against F. Enzen

and particularly in the case of Hurtardo v. sperger. From a judgment dismissing the

California, 110 U. S. 516, 4 Sup. Ct. 111, 292, complaint, plaintiff appeals. Affirmed.

the inference is clearly deducible, that the Booth, Lee & Gray, for appellant. Powers common law is viewed as a shoreless sea, & Hiles, for respondent.

and the constitution considered so flexible,

and as possessing such “capacity for growth BARTCH, J. The plaintiff brought this ac- and adaptation to an undefined and expandtion to recover upon a judgment for $1,763.77, ing future, that it will draw its inspirátion obtained against the defendant in the state from every fountain of justice" (which it is of Colorado, which judgment the plaintiff asserted is inexhaustible), and receive the claims has never been paid. The defendant, “best ideas of all systems and of every age," in his answer, has set up full payment and regardless of the limitatives and constitusatisfaction. The jury, by a verdict, con- tional restrictions placed by the fathers as

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safeguards of human liberty. This pane- more enlightened future will be best sub-
gyric of Justice Matthews upon the common served, this position will not only be unten.
law and Magna Charta, and his poetic refer- able, but regarded as fraught with danger
ence to the well-nigh illimitable power of to free government. Upon the second ground
legislative bodies to enact laws that they the validity of the act in question could best
may deem “just and reasonable expressions be placed, because it is possible to distort
of the public will,” are approved by this the language of the sections above referred
court in Hess v. White; and because of these to and the constitution so that they will be
views, and the further reason that "society susceptible to the interpretation that only
progresses, and modes and legal procedure that portion of the constitution which places
must change with the progress, and because limitations upon the states is applicable to
it is calculated to be a great benefit to all the territories.
classes of litigants, because it reaches justly The seventh amendment to the constitution
and fairly and impartially all classes of provides “that in suits at common law, where
men,” the act of the legislative assembly of the value of the controversy exceeds $20.00,
Utah passed in 1892, changing the then exist- the right of trial by jury shall be preserved."
ing law requiring a unanimous verdict of 12 The question is, does this provision extend to
jurors in civil cases, and providing that in the territory of Utah? The concession must
"all civil cases a verdict may be rendered on be made at the outset that it has been decid-
the concurrence therein of nine or more ed many times that territorial courts are not
members of the jury," was declared to be courts of the United States, and that the for-
valid. Upon two grounds only, it would mer are not within the contemplation of the
seem, is there the slightest foundation upon constitution. In discussing the powers of con-
which to uphold this legislative enactment, gress as to territorial government, Mr. Story
namely: First. That it is demanded by the says: “What shall be the form of govern-
progress of the age and the growth of civili- ment established in the territories depends
zation, and that the "administrative and re- exclusively upon the discretion of congress.
medial proceedings ever change from time to Having a right to erect a territorial govern-
time, with the advancement of legal science ment, they may confer on it such powers,
and the progress of society,” regardless of legislative, judicial, and executive, as they
limitations upon legislative and judicial will; may deem best. They may confer upon it
in other words, that whatever is deemed to general legislative powers, subject only to the
be just and reasonable and for the public laws and constitution of the United States.
good can be crystallized into law, and is If the power to create courts is given to the
of such importance as to rise above organic territorial legislature, those courts are to be
and constitutional limitations upon which deemed strictly territorial, and in no just
governments may be founded. Second. That sense constitutional, courts, in which the ju-
the restrictions upon the federal government, dicial power conferred by the constitution
including the seventh amendment to the can be deposited. They are incapable of re-
constitution of the United States, do not ceiving it. They are legislative courts, cre-
apply to territories, and that the seventeenth ated in virtue of the general right of sover-
section of the organic act, and section 1891 eignty of government, or in virtue of that
of the Revised Statutes of the United States, clause which enables congress to make all
extend to the territory of Utah only those needful rules and regulations respecting the
provisions of the constitution which are territories of the United States." See Insur-
inhibitions upon the states, and not those ance Co. v. Cantes, 1 Pet. 511; Benner v.
provisions which are restrictions of the fed- Porter, 9 How. 233; Clinton v. Englebrecht,
eral government. Upon the first ground the 13 Wall. 434. It would seem, in the light of
case of Hess v. White is placed. The opinion numerous decisions of the supreme court, that
of the court seems to be a concession that the if the provision contained in the seventh
territorial enactment is in violation of the amendment has not been extended by con-
sections of the organic act and of the Revised gressional legislation over the territory, then
Statutes just referred to, but pleads that the the act in question is not subject to the ob.
legislation is justifiable upon the higherjection that it is unconstitutional, although it
ground that it is a just and reasonable ex- leads to the anomalous position that congress
pression of the public will, and because it is can authorize an inferior legislative body to
only claimed to be an infringement of the do that which it cannot do. But section 17 of
broad and general statements in the constitu- the organic act creating the territorial gov.
tion which ought not to be so narrowly con- ernment of Utah provides “that the constitu-
strued as to be a bulwark against progress. tion and laws of the United States are hereby
To those who look to the constitution for the extended over and declared to be in force in
limitations upon the federal government, and said territory of Utah, so far as the same or
who regard restrictions therein contained as any provision thereof may be applicable";
an indissoluble part of the constitution, and and section 1891 of the Revised Statutes of
who believe that the fundamental law, as the United States contains this provision:
clearly expressed, cannot be abrogated or "The constitution of the United States and
construed away, because it is thought the all the laws which are not locally inapplica-
demands of a progressive present and a still ble, shall have the same force and effect with:

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