Opinion
Department One
Appeal from a judgment of the Superior Court of Sacramento County, and from an order refusing a new trial.
COUNSEL:
Young & Dunn, for Appellants.
Freeman, Johnson & Bates, for Respondent.
JUDGES: McKinstry, J. Myrick, J., and Ross, J., concurred.
OPINION
McKINSTRY, Judge
There was sufficient evidence to justify the findings of the court below.
Evidence that the defendant Bennett acted without the concurrence of his co-trustee Dustman, or that the latter was induced to concur by reason of misrepresentations made by the former with respect to Worthington's concurrence, was admissible.
Evidence that Dustman understood the propriety of the purchase was to be submitted to the "tribe" was admissible. The objection to the question asked on cross-examination of the witness Dustman, "Now, then, do you know of any unfair act that he (Gibson) did to induce the sale?" was properly sustained, because calling for the inference of the witness. The witness had already stated on his cross-examination what Gibson had said and done to induce the purchase. He had also been asked, "Did Gibson do anything that you know of to induce you to purchase that lot and a half other than what you have testified to?" To this question the witness had answered, "Not that I know of." Whether the acts of Gibson were "unfair" was to be determined by the jury.
The court was authorized to revive the lien of the mortgage of the Occidental Loan Association in favor of the plaintiff if the satisfaction of the mortgage was part of the fraud practiced on the plaintiff.
The court below properly admitted evidence that the trustees never assembled and as a board considered the transaction, -- the purchase from Gibson.
The prompt disavowal of the act of one of the trustees was a fact which the plaintiff was entitled to prove. Gibson was a member of the tribe, and acquainted with the by-laws, which did not authorize the trustees to invest in lands. The order instructing the trustees "to try and invest the money in the bank, not exceeding two thousand dollars," does not purport to authorize an investment of money of the tribe otherwise than "in stocks, bonds, mortgages, or other securities, approved by two thirds of the members thereof present as a [12 P. 129] regular council." Moreover, the by-laws of plaintiff could not be amended by a simple motion or resolution.
The decree of the court below annulled the deed from Gibson to the plaintiff, and did not provide for a reconveyance from the latter to the former. This on the theory that the transaction was fraudulent, and in equity the deed conveyed no title. The deed being annulled, the plaintiff was entitled to a return of the money or its equivalent. The minutes of the proceedings of the tribe showing a disavowal of the transaction were admissible, notwithstanding the objection that "there was no allegation in the complaint of a tender of reconveyance." The complaint did not pray for a reconveyance, and none was ordered.
Judgment and order affirmed.