Howard v. Donahue

60 Cal. 264, 1882 Cal. LEXIS 439

• Court: California Supreme Court
• Decided: March 22, 1882
• Docket: No. 6,586
• Status: Published

Opinion

Myrick, J.:

This is an action for money had and received, and proceeds upon the theory that the defendant has in his possession money which belongs to the plaintiff.

The controversy grows out of the facts that on June 5, 1861, the defendant, then the claimant of a certain tract of land called the Donahue tract, containing 296 acres of what are known as the outside lands of the city and county of San Francisco, conveyed by deed of grant, bargain and sale to one Butters, an undivided interest therein equal to ten acres. The defendant also conveyed some other interest in the tract to other individuals. After the passage of the Act of Congress of March 8, 1866, relating to the outside lands, and the appropriate State legislation, Donahue caused the Donahue tract to be delineated upon the map of the outside- lands, and paid all the necessary taxes and assessments. Afterwards a part of this tract was taken for Golden Gate Park, and an award made for the part so taken. Donahue demanded the amount of the award, and received from the proper officer a part of it, on the receipt of which he executed to the city a deed for all that part of the Donahue tract taken for the park. The amount retained by the officer—some twenty thousand dollars or twenty-two thousand dollars—was retained by him for the purpose of paying the shares of the vendees of Donahue other than Butters. The names of those other vendees appeared on the map. Butters’ name did not, and the officer knowing nothing of any claim on his part, paid, as is contended by the plaintiff, the portion of the award corresponding to the Butter’s interest, to the defendant. Neither Butters nor any of his grantees, appear ever to have had actual possession of any part of the land, nor to have paid any part of the taxes or assessments, nor to have had anything to do' with the delineation of the claim upon the map. The first that seems to have been heard of that interest since the defendant’s deed in. 1861, was the demand made on the defendant shortly before the commencement of this action, by the plaintiff, who had, by mense conveyances, succeeded to one half of Butters’ rights, for that portion of the award corresponding to the interest held by him.

While it is not pretended on the part of the plaintiff that Butters or any of his grantees ever, personally, complied with any of the requirements of the legislation relating to the outside lands, yet it is contended that by reason of the relation existing between them and the grantor, defendant, the compliance by the latter with those requirements, made, as it is claimed, in furtherance of their common title, inured to the benefit of his vendees.

We cannot accede to that proposition. Order Ho. 800 required action upon the part of each and every person “having or claiming any interest in any portion” of the lands; such action was required to be had by himself or some one for and on his behalf. For the purposes of such action, the relation of tenants in common did not exist; that relationship may have existed in the ownership of the lands, but in seeking the compensation provided for in the order, each was to act for himself. It does not appear that Donahue took upon himself to act for plaintiff; their relationship, as tenants in common, did not cast upon him that duty; therefore it does not appear that by any agreement, express or implied, or by any obligation, the moneys received by Donahue were received, in whole or in part, for or on account of plaintiff or his interest. It does not appear that the plaintiff had by his acts placed himself in such a position as that he could have demanded of the city and county or its officers any payment for his interest in the lands. If so—if the city and county, in consequence of his omission, was under no' obligation to make compensation to him—how can Donahue be held to have received to the use of plaintiff a portion of the moneys claimed and received from the city and county for his own interests on his individual application ?

Order affirmed.

McKee, J., and Morrison, C. J., and Sharpstein, Thornton, McKinstry, and Ross, JJ., concurred.