Bank of Healdsburg v. Hitchcock

Order Refusing New Triad—Notice of Motion. — When there is nothing in the record to show that the notice of motion for new trial was not properly given, and the order denying the motion assigns another ground for refusing the new trial, it will not he presumed that the notice was not given, or not given in due time, and that the court denied the motion on one or the other of such grounds. Partition — Stipulation — Entire Contract. — When a stipulation or contract is made between the parties pending a suit for partition, which provides for the partition of the lands involved in the case, and also for the partition and conveyance of other lands not so involved, and which is an entire contract, its terms being dependent, it is error for the court to select and rule upon a portion of the contract and disregard other portions of it. Id. — Specific Performance. — If the defendant ro.uses to carry out his contract for the partition of detached tracts of land, and for an exchange and conveyance of certain portions of land, the plaintiff has his remedy by an action for specific performance of the whole contract, and not by partition of part only of the lands.

Appeal from a judgment of the Superior Court of Sonoma County, and from an order refusing a new trial. The transcript contained a notice of motion for new trial, which appeared to have been served and filed fifty days after the judgment. No notice of decision appeared in the transcript, and nothing in regard to tho notice of motion for new trial was embodied in the statement. The action was originally brought in Mendocino County for the partition of certain lands situated in Sonoma and Mendocino counties, and was regularly transferred to the Superior Court of Sonoma County. Pending the action, the following stipulation was made between the parties and filed in the cause: — “ The parties to said action hereby stipulate for partition of the lands for which said action was brought; and to settle any question in relation to other lands adjoining said lands, stipulate as follows: That a division line be established between said parties, to wit, the creek known as the Rock Pile Creek, from the point where the said creek crosses the township line between townships 11 and 12, ranges 12 and 13, and running thence easterly-through the said Rock Pile range to the point where the said creek crosses the section line between sections four (4) and five (5) in township 11, range 13, and the said plaintiff is to have the choice of the lands on either side of said creek, upon condition that a commission be apappointed to value the lands of said Hitchcock on the side of said creek so selected, and pay to him, said Hitchcock, the value of the lands so appraised, and also to appraise all the lands separately owned by the plaintiff and J. D. Hassett, on the other side of said creek, and accept the price or value fixed on said lands and convey the same to Plitchcock on receipt of said amount; and in case the plaintiff selects the lands on the north side of said creek, the lands to be appraised on the south side are described as follows, belonging to said plaintiff and J. D. Plassett, to wit: That portion of the lands known as the Cooper claim, lying on the east side of said creek; the lands known as the J. H. Reynolds claim, containing 160 acres; the Martin Hixon claim, containing 40 acres; the J. T. Hassett claim, adjoining the Hixon claim, and containing 40 acres, the last two tracts being in section 9, township 11, range 13; the Benois claim, 160 acres; the J. T. Hassett claim, in sections 22 and 23 in said township, and the Hixon claim in said section 23; and the northeast quarter of section 16 in said township, northwest quarter of southwest quarter of said section 15, and southwest quarter of southeast quarter, section 21, in said township. , “And in case the plaintiff selects the land on the south side of said creek, then the lands of Hitchcock to be appraised are described as follows, to wit: The lands known as the William Englehart claim, containing 160 acres, and the lands known as the claim of Carothers; and also in case of selecting the said south side, then to appraise all the separate lands of the said plaintiff and said J. D. Hassett on the north side of said creek within the said Bock Pile. “ When said selection is made and the appraisement completed, each of said parties agrees to pay the other the appraised value thereof, and convey to the other the lands hereby agreed to be conveyed, it being understood and agreed that no matter which side the said plaintiff may select, the said Hitchcock is to pay, and the said plaintiff and J. D. Hassett is to convey to Hitchcock the said claims of Benois and J. T. Hassett, situated in said section 23, and the said claim of said Hixon in said section 23, at said appraised price; the parties to have the usual right of way over the lands of the other until a public road is established, but the right to maintain gates is not to be interfered with, and any right of way is to be subject to the right of maintaining gates. “And the said Hitchcock agrees to pay to the plaintiff the sum of three hundred dollars in full of the Field mortgage debt set forth in the plaintiff’s complaint, and the plaintiff agrees to accept the said sum in full for the same, and as such commission the said parties hereby appoint James Samuels, H. E. Lawrence, and James Seawell to appraise and value said lands, and to employ a surveyor, if in their opinion the same is necessary. Each party is. to pay one half the costs of said suit and one half the expense of said commission; said commission to make report within sixty days from the date hereof. In case any of the persons hereby appointed fail to act on said commission, then the parties shall select others in the place of those failing to act. “J. H. McGee, “W. F. Russell, “ Attorneys for Plaintiff. “A. B. Ware, “ Rutledge & McConnell, “Attorneys for Defendant.” The further facts are stated in the opinion of the court.