MacDERMOT v. BARTON et al. (No. 18,400.)

(Supreme Court of California. March 6, 1895.) FORECLOSURE OF MORTGAGE-SALE BY COMMISSIONER-CONSTITUTIONAL LAW.

1. An order appointing a commissioner in foreclosure to sell the mortgaged property, under Code Civ. Proc. § 726, as amended in 1893, will not be reversed because the prayer of the complaint follows the usual form, and asks for a sale of the mortgaged property by the sheriff.

2. Nor is it ground for reversal that the court's decree, rendered on the same day, ordered the sale to be made by the sheriff; it being a mere oversight, capable of amendment on simple motion.

3. Code Civ. Proc. § 726, conferring on the court authority to appoint commissioners to sell mortgaged property, does not violate Const. art. 11, requiring the legislature, by general laws, to provide for certain county officers, including sheriffs, and to prescribe their duties, there being no provision that foreclosure sales shall be made by sheriffs.

Commissioners' decision. Department 1. Appeal from superior court, Fresno county; J. R. Webb, Judge.

Action by Charles F. MacDermot against Ella G. Barton and others for the foreclosure of a mortgage. From an order appointing a commissioner to sell the mortgaged property, plaintiff appeals. Order affirmed.

SEARLS, C. This is an action for the foreclosure of a mortgage. The cause was tried by the court, and written findings were signed, dated June 2, 1894, ordering a decree of foreclosure and sale of the mortgaged property. A decree of foreclosure ordering, among other things, a sale of the mortgaged property by the sheriff of the county of Fresno (the county in which the action was pending and in which the mortgaged property was situate), was signed by the judge of the court, and is dated June 2, 1894. The findings and decree were not filed until June 16, 1894, and it appears, although dated June 2d, were not in fact signed until June 16, 1894. On the 16th day of June, 1894, the findings and decree were filed, and also an order appointing J. F. Church as a commissioner to sell the mortgaged premises in the manner provided by law for a sale of like property by a sheriff upon execution, etc. The order recites as follows: "This being the day and hour set for presentment to the court of the findings and decree herein, for its examination and signature, due notice of the saine having been given to all the attorneys for the defendants, the same were duly presented to the court, and, after examination, the

court, being fully advised in the premises, and satisfied of the correctness thereof, and no objection being raised by any of the attorneys for the defendants, now signs and files the findings and decree herein; and it is hereby ordered," etc. Then follows the order above mentioned, appointing a commissioner. Plaintiff in the foreclosure suit appeals from the order appointing a commissioner to sell the mortgaged property. No objection is made to the form of the order appointing a commissioner. Section 726 of the Code of Civil Procedure, as amended in 1893, provides that "the court may, by its judgment, or at any time after judgment, appoint a commissioner. to sell the incumbered property." The subsequent portion of the same section provides that the commissioner, when appointed, shall possess the powers and be subject to the duties of sheriffs in like cases. The next section provides the mode in which the commissioner shall qualify, and his compensation, which shall not exceed $10. The objections urged against the action of the court below by the learned counsel for the appellant are not deemed tenable. It is true the prayer of his complaint follows the usual form, and asks for a sale of the mortgaged property by the sheriff. The essence of such a prayer is an invocation of a judicial sale. The method of its consummation, so long as pursued within the power conferred upon the court, is of no moment; and, had the prayer of the complaint been silent as to the officer by whom the sale asked for was to be made, it would have been equally efficacious. So, too, the fact that the decree as entered by the court ordered the incumbered property to be sold by the sheriff, while the order made and entered on the same day appointed a commissioner to discharge the same duty, was but an oversight of the court below, not calling for an appeal, but which might have been remedied, and, as the record furnishes all the information requisite, may be at any time remedied, by a simple motion to amend and correct the decree by striking out the word "sheriff," and inserting "commissioner," wherever they occur in such decree. The fifth section of article 11 of the constitution of the state of California is not violated by section 726, Code Civ. Proc., conferring upon the court authority.to appoint commissioners to sell mortgaged property. The section of the constitution cited provides that the legislature, by general and uniform laws, shall provide for the election or appointment in the several counties of certain county officers, among which a sheriff is designated, "and shall prescribe their duties and fix their terms of office." It will be observed that the constitution does not fix the duties of the sheriff, but wisely leaves to the legislature the power so to do. Section 726, Code Civ. Proc., has so modified the same section as it stood prior to 1983, and other sections defining the duties of sheriff, that he has no duty to perform in a case of sale of real property

under foreclosure, where the court appoints a commissioner to make such sale. Under the former chancery practice in England and the United States, it was usual to appoint a master in chancery or commissioner to make all sales of real property, and in the federal courts it is to this day the usual practice to sell mortgaged premises under decrees of foreclosure under and by direction of the marshal of the district, or by a master appointed by the court, as the decree may direct. It is no part of the duty of a sheriff, as such, and in the absence of statutory provision, to sell property under a sale in foreclosure. In a spirit of economy, as we may suppose, the legislature has provided for the appointment of a commissioner to conduct foreclosure sales, after the manner of the former chancery practice, in those cases where the court shall deem it proper so to do. Neither the law nor the constitution is violated thereby. The case of Bruner v. Superior Court, 92 Cal. 239, 28 Pac. 341, cited by appellant, has no application here. In that case the Political Code (section 4192) provided for the appointment of an elisor in certain enumerated cases, of which the case in hand was held not to be one, and hence that the appointment was invalid. In cases of foreclosure of mortgages the court is authorized to appoint a commissioner to sell the incumbered property, in every case, at its discretion. The order appealed from should be affirmed.

KRAUSHAAR et al. v. HAUK et al. (Supreme Court of Oregon. March 12, 1895.)

REFORMATION OF DEED--EVIDENCE.

Plaintiff and B. divided land owned by them in common, without executing partition deeds, and B. sold part of his share to plaintiff, and placed in escrow a deed of the remainder to defendant, to be delivered on payment of the price within a certain time. Plaintiff, without consideration, and to make the title good, placed with B.'s deed a quitclaim deed to defendant for the land sold defendant by B., but, through mistake of the person who drew it, this deed included part of the land plaintiff purchased of B. After the time for buying the land expired, and the deeds were returned to B., defendant learned of the mistake in plaintiff's deed, and bought the land, recorded the deeds, and conveyed to his wife, who took with notice of the mistake. Held, that the deed was properly reformed so as to include none but the land conveyed to defendant by B.

Appeal from circuit court, Washington county; T. A. McBride, Judge.

Action by Fred raushaar and another against Paul Hauk and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

A. Schutz, for appellants. R. Citron, for respondents.

PER CURIAM. This is a suit to reform two deeds. The facts show that the plaintiff Fred Kraushaar and one William E. Bremer were the owners, as tenants in common, of a tract of land in Washington county, containing 67.60 acres, which, by agreement, but without the execution of any partition deeds, they divided,-Kraushaar taking the north 34 acres, and Bremer the remainder; that Bremer on October 10, 1891, sold and conveyed to Kraushaar 16 acres adjoining said 34-acre tract, and, on the same day, executed a conveyance to the defendant Paul Hauk of the remainder of his tract, which deed was, upon the payment of $200, placed in escrow, to be delivered upon the payment of the balance of the purchase price, if made within 30 days; that Kraushaar at the same time, and without any consideration therefor, executed a quitclaim deed to Hauk, intending to convey all his interest in the tract conveyed to Hauk by Bremer, but by mistake the point of beginning was placed 88 links, instead of 4 chains and 88 links, south of the quarter post on the west side of section 17 in township 2 S., of range 1 W., thereby conveying 8 acres more than was intended, which deed was also placed in escrow, to be delivered with the Bremer deed; that, the payment of the balance of the purchase price not having been made within the time agreed upon, the said deeds were surrendered to Bremer, but Hauk, having subsequently procured a survey of the premises, and ascertained that the Kraushaar deed conveyed more land than was intended, on December 31, 1891, paid the balance of the purchase price, accepted the deeds, placed them upon record, and thereafter, for the expressed consideration of one dollar, conveyed said premises, by warranty deed, to his wife, the defendant Sarah Hauk. The issues having been settled by the pleadings, the cause was referred to W. N. Barrett, Esq., who took the evidence, and reported in favor of the plaintiffs; and the court, having confirmed said report, rendered a decree reforming said deeds, from which decree the defendants appeal.

A careful examination of the evidence discloses that neither the plaintiffs nor the defendants, at the time the Kraushaar deed was executed, understood the description as given therein; that the plaintiffs intended to convey their interest, and the defendant Paul Hauk to acquire the legal title to the Bremer tract, containing 18 acres and no more, and that the mistake in the description was caused by the carelessness of the person who drew the deed; that the defendant Paul Hauk, without a valuable consideration, conveyed said premises to his wife, who took the title with knowledge of said mistake, and with intent to defraud the plaintiffs. We think it satisfactorily appears that there has

been a mutual mistake between the parties, which did not arise from the gross negligence of the plaintiffs, and that the defendant Paul Hauk, after discovering the mistake, sought to take advantage of it by conveying the premises to his wife. Under the circumstances, it would be inequitable to permit her to profit by such mistake, for which reason the decree is affirmed.

(27 Or. 49)

CROSS v. TSCHARNIG et al. (Supreme Court of Oregon. March 12, 1895.) MECHANIC'S LIEN CLAIM-SUFFICIENCY-OWNER'S CONSENT-CONTRACT OF PURCHASE-SurFICIENCY OF COMPLAINT.

1. A mechanic's lien claim, which states that the material was furnished to one person, and that the land was owned by another, and does not state that the material was furnished at the request of the owner, is fatally defective, though it alleges that the person to whom the material was furnished was in possession of the land under a contract of purchase with the

owner.

2. Where, in a complaint to foreclose such a lien, it is not alleged that the material was furnished with the owner's consent, such consent will not be presumed on demurrer.

Appeal from circuit court, Clackamas county; T. A. McBride, Judge.

Action by H. E. Cross against Kasper Tscharnig and others to foreclose two mechanics' liens. Judgment was rendered for plaintiff, and defendant H. W. Ross appeals. Reversed.

W. W. Thayer, for appellant. H. E. Cross, in pro. per.

WOLVERTON, J. This is a suit to foreclose two mechanics' liens, one filed by the Gladstone Sawmill Company to secure the sum of $349.43 for lumber furnished the defendant Kasper Tscharnig, and the other by the Oregon City Sash & Door Company to secure the sum of $93.75 for doors, sash, windows, etc., furnished the same party. Each claim of lien was duly assigned to plaintiff before suit was instituted. The mill company's claim, so far as it is necessary to quote it here, is in the following language: "Know all men by these presents that the Gladstone Sawmill Company have, by virtue of a contract heretofore made with Kasper Tscharnig, of Oregon City, Or., a lien for materials furnished in the alteration and repair of a certain two-story building constructed and being upon the following described land, to wit: The north half of lot eight (8), in block twenty-seven (27), Oregon City, Or. That H. W. Ross is the owner of said building, and that Kasper Tscharnig is in possession of the same under a contract and bond for the purchase of the same." Then follows the statement of the account or demand. The sash and door company's claim is in almost the same language. The complaint shows that the materials described in the claims of lien were sold and de

livered to the defendant Kasper Tscharnig under contract, and at his especial instance and request, and that the defendant H. W. Ross is the owner and reputed owner of the lands and building upon which the improvements were made. The said claims meet the objection to the claim of lien filed in Rankin v. Malarkey, 23 Or. 593, 32 Pac. 620, and 34 Pac. 816, and that case is therefore not in point as authority against the liens herein claimed. There are other objections, however, to the sufficiency of the complaint raised by the demurrer of defendant Ross, who alone appeals to this court, alleging as ground thereof that the court below erred in overruling said demurrer and rendering a decree upon the complaint. These objections we will now examine.

The statute provides primarily for a lien upon the building. If, however, the land upon which it is constructed belongs to the person who caused the building to be erected, improved, altered, or repaired, then the land upon which the building is constructed, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof, is also subject to the lien, to the extent of his interest therein. But if the land does not belong to the person causing the building to be erected, or alterations made, then, if built with the knowledge of the owner of the land or person claiming an interest therein, the building shall be deemed to have been constructed or the alteration made at the instance of such owner or person claiming an interest therein, unless by proper notice he disavow responsibility therefor. Lumber Co. v. Newkirk, 80 Cal. 278, 22 Pac. 231. So that it is apparent the statute contemplates a lien on the building primarily. The owner thereof, by causing the building to be erected or alterations made thereon, may subject it to a mechanic's lien. For the purpose of binding him, the labor may be done or materials furnished either at his instance or that of his agent, and the statute expressly provides that every contractor, subcontractor, architect, builder, or other person having charge of the construction, alteration, or repair, in whole or in part, shall be held to be such agent. Secondarily, if the owner of the land is some person other than the owner of the building, then his consent is presumed, in the absence of notice to the contrary, if he have knowledge of the progress of the improvement. The building must be erected, or repairs or alterations made, at the instance of the owner, or his agent, which is the same thing, under the maxim, “Qui facit per alium facit per se." If, therefore, the building be erected, or repairs or alterations made, at the instance of some other person than the owner, the lien cannot attach. A stranger or intermeddler could not thus incumber, the property of another. See sections 3669, 3670, 3672, Hill's

Ann. Laws Or. Now, the claims filed state that the defendant Ross is the owner of the building, and that the materials were furnished under contract with and at the instance of the defendant Kasper Tscharnig. The allegations of the complaint are to the same effect. So we have here both the claim of lien and complaint, which concurrently show that the materials were furnished at the instance of a person other than the owner of the building, to wit, Kasper Tscharnig. There exists no statement or allegation anywhere, either in the claims of lien or the complaint, that H. W. Ross, the owner of the building, caused the materials to be furnished, or that the same, or any part thereof, were furnished at his instance or request. True, it is shown that Kasper Tscharnig was in possession of the premises under contract with Ross for the purchase of the same, but this fact does not change the relations of the parties under the allegations of the complaint. What the terms of this contract are we are not informed. It would seem, therefore, that the complaint is insufficient to support the liens in this respect.

If, however, it be claimed that the consent of Ross will be presumed under section 3672, and that the lien, therefore, attaches to the building as well as to the land, the allegations of the complaint are insufficient to support the contention, as they do not show that the improvements or alterations were made with the knowledge of Ross. Allen v. Rowe, 19 Or. 188, 23 Pac. 901. The complaint as to both causes of suit is clearly insufficient, and the demurrer must be sustained. The decree of the court below is therefore reversed, and the cause remanded for such other proceedings as may be deemed advisable, not inconsistent with this opin- | ion.

(11 Utah, 154)

MACKEY v. ENZENSPERGER. (Supreme Court of Utah. Feb. 23, 1895.)

CONSTITUTIONAL LAW-JURY TRIAL.

Act March 10, 1892, providing that in civil cases a verdict may be rendered on the concurrence therein of nine or more members of the jury, is constitutional.

Appeal from district court, Salt Lake county; before Justice C. S. Zane.

Action by C. E. Mackey against F. Enzensperger. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Booth, Lee & Gray, for appellant. Powers & Hiles, for respondent.

BARTCH, J. The plaintiff brought this action to recover upon a judgment for $1,763.77, obtained against the defendant in the state of Colorado, which judgment the plaintiff claims has never been paid. The defendant, in his answer, has set up full payment and satisfaction. The jury, by a verdict, con

curred in by nine of their number, found the issues for the defendant, and the court entered judgment thereon, dismissing the plaintiff's complaint, and for costs in favor of the defendant. From this action of the court the plaintiff appealed, and the sole question raised is whether a verdict, being concurred in by less than 12 jurors, as provided by the act of the territorial legislature, approved March 10, 1892, will support a judgment.

This question was decided in the affirmative by this court in the case of Hess v. White, 9 Utah, 61, 33 Pac. 243, and the ruling in that case has been followed in several other cases; but counsel for the appellant have cited us to several decisions of other appellate courts, made since the decision of Hess v. White, wherein the contrary view was adopted. We have examined the recent cases cited, but the reasoning of those decisions is not such as to warrant a departure from the doctrine enunciated in Hess v. White. The judgment is affirmed.

SMITH, J., concurs.

KING, J. (dissenting). Very reluctantly do I withhold my assent from the opinion of the majority of the court in this case. This reluctance results from the fact that the point involved has been adjudicated by this court, and, if the doctrine of stare decisis is to have force and recognition, it would seem that there would be no ground for dissent. But the case of Hess v. White, 9 Utah, 61, 33 Pac. 243, which is followed, and upon which is founded the opinion of the majority of the court in this case, has not been passed upon by the supreme court of the United States, and several cases involving the same question are now on appeal before that court. If the question presented in this case had been passed upon by the highest judicial tribunal, and the validity of the legislative enactment upheld, there would be not only no justification for a dissenting view, but, upon the contrary, a duty and stern injunction would rest upon every member of the court to acquiesce in the determination. Perhaps the judgment of this court, announced in the case of Hess v. White, above cited, may be affirmed by the supreme court of the United States. Indeed, it would not be surprising if this court were sustained, when from expressions employed by that tribunal, and particularly in the case of Hurtardo v. California, 110 U. S. 516, 4 Sup. Ct. 111, 292, the inference is clearly deducible, that the common law is viewed as a shoreless sea, and the constitution considered so flexible, and as possessing such "capacity for growth and adaptation to an undefined and expanding future, that it will draw its inspiration from every fountain of justice" (which it is asserted is inexhaustible), and receive the "best ideas of all systems and of every age," regardless of the limitations and constitutional restrictions placed by the fathers as

safeguards of human liberty. This panegyric of Justice Matthews upon the common law and Magna Charta, and his poetic reference to the well-nigh illimitable power of legislative bodies to enact laws that they may deem “just and reasonable expressions of the public will," are approved by this court in Hess v. White; and because of these views, and the further reason that "society progresses, and modes and legal procedure must change with the progress, and because it is calculated to be a great benefit to all classes of litigants, because it reaches justly and fairly and impartially all classes of men," the act of the legislative assembly of Utah passed in 1892, changing the then existing law requiring a unanimous verdict of 12 jurors in civil cases, and providing that in "all civil cases a verdict may be rendered on the concurrence therein of nine or more members of the jury," was declared to be valid. Upon two grounds only, it would seem, is there the slightest foundation upon which to uphold this legislative enactment, namely: First. That it is demanded by the progress of the age and the growth of civilization, and that the "administrative and remedial proceedings ever change from time to time, with the advancement of legal science and the progress of society," regardless of limitations upon legislative and judicial will; in other words, that whatever is deemed to be just and reasonable and for the public good can be crystallized into law, and is of such importance as to rise above organic and constitutional limitations upon which governments may be founded. Second. That the restrictions upon the federal government, including the seventh amendment to the constitution of the United States, do not apply to territories, and that the seventeenth section of the organic act, and section 1891 of the Revised Statutes of the United States, extend to the territory of Utah only those provisions of the constitution which are inhibitions upon the states, and not those provisions which are restrictions of the federal government. Upon the first ground the case of Hess v. White is placed. The opinion of the court seems to be a concession that the territorial enactment is in violation of the sections of the organic act and of the Revised Statutes just referred to, but pleads that the legislation is justifiable upon the higher ground that it is a just and reasonable expression of the public will, and because it is only claimed to be an infringement of the broad and general statements in the constitution which ought not to be so narrowly construed as to be a bulwark against progress. To those who look to the constitution for the limitations upon the federal government, and who regard restrictions therein contained as an indissoluble part of the constitution, and who believe that the fundamental law, as clearly expressed, cannot be abrogated or construed away, because it is thought the demands of a progressive present and a still

more enlightened future will be best subserved, this position will not only be untenable, but regarded as fraught with danger to free government. Upon the second ground the validity of the act in question could best be placed, because it is possible to distort the language of the sections above referred to and the constitution so that they will be susceptible to the interpretation that only that portion of the constitution which places limitations upon the states is applicable to the territories.

The seventh amendment to the constitution provides "that in suits at common law, where the value of the controversy exceeds $20.00, the right of trial by jury shall be preserved." The question is, does this provision extend to the territory of Utah? The concession must be made at the outset that it has been decided many times that territorial courts are not courts of the United States, and that the former are not within the contemplation of the constitution. In discussing the powers of congress as to territorial government, Mr. Story says: "What shall be the form of government established in the territories depends exclusively upon the discretion of congress. Having a right to erect a territorial government, they may confer on it such powers, legislative, judicial, and executive, as they may deem best. They may confer upon it general legislative powers, subject only to the laws and constitution of the United States. If the power to create courts is given to the territorial legislature, those courts are to be deemed strictly territorial, and in no just sense constitutional, courts, in which the judicial power conferred by the constitution can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty of government, or in virtue of that clause which enables congress to make all needful rules and regulations respecting the territories of the United States." See Insurance Co. v. Cantes, 1 Pet. 511; Benner v. Porter, 9 How. 235; Clinton v. Englebrecht, 13 Wall. 434. It would seem, in the light of numerous decisions of the supreme court, that if the provision contained in the seventh amendment has not been extended by congressional legislation over the territory, then the act in question is not subject to the ob jection that it is unconstitutional, although it leads to the anomalous position that congress can authorize an inferior legislative body to do that which it cannot do. But section 17 of the organic act creating the territorial government of Utah provides "that the constitution and laws of the United States are hereby extended over and declared to be in force in said territory of Utah, so far as the same or any provision thereof may be applicable"; and section 1891 of the Revised Statutes of the United States contains this provision: "The constitution of the United States and all the laws which are not locally inapplicable, shall have the same force and effect with