remained unsettled; and requested the court to take the case on to a judgment. Counsel then stated to the court exactly what had been done in the way of settlement between the parties plaintiff and defendant. On the facts stated, two questions arise: First, is all controversy between the plaintiff and defendants as to the property in suit settled? And, second, if settled, what disposition of this case should be made by this court?

Under the facts as stated to the court, we think all controversy between the parties as to the property in suit has been settled. Referring to the diagram below, which is in all essential respects a copy of an exhibit in the case, to wit: plaintiff's map A, with the Reno Bell claim added, showing its easterly side line, line 9 (10 on the diagram),-one can understand the matter.

Plaintiff claimed under his Safeguard mining location, laid, as can be seen by inspection of the diagram, on four kinds of land, to wit: (1) unpatented lands of the United States in section 28; (2) unpatented railroad lands in section 29 belonging to plaintiff or under his control; (3) patented railroad land in section 33 belonging to plaintiff; and (4) lands patented, under desert-land applications, in section 32, belonging to defendants. The matter in dispute was the ore bodies under the surface of defendants' land in section 32. The plaintiff alleged that the said ore bodies had their "apex" on his land in section 33, and on his Safeguard mining location, partly lying on his said land in said section 33. Plaintiff in his prayer for relief asked the judgment of the court that said ore bodies were his by reason of their "apex"

being on his said land and claim; and also

that defendants be perpetually restrained from interfering therewith. On the hearing of the citation, it appeared that the plaintiff had conveyed to a third party, Mr. John Sparks, all of plaintiff's rights, title, and interest to the lands and ore bodies lying to the eastward of the easterly side line of the Reno Bell claim. Said easterly side line ran about 135 feet to the west of the ore bodies in dispute, said ore bodies being near the spot marked on the diagram "Bell Shaft House"; northwesterly much further than the Safeguard location extended; and southeasterly considerably further than said ore bodies were shown to extend. It further appeared that Mr. Sparks and the defendants had settled all of their contention; that it had been agreed that all suits between the parties except this suit in this court should be dismissed; and that whatever judgment this court might render in this case should have no effect on the said settlement, but that said settlement should in all respects stand, the judgment of this court to the contrary notwithstanding. To us it seems clear; (1) That the plaintiff, Mr. Wedekind, has conveyed all of his right, title, and interest in the matter in controversy to a third party, Mr. Sparks; for the controversy was as to land and ore bodies lying to the eastward of said Reno Bell easterly side line, and nothing to the westward thereof was in controversy; and (2) that Mr. Sparks and the defendants have settled all of their dispute as to the matter in controversy, the defendants having conveyed all of their interest to Mr. Sparks. Of course, under the state of facts above mentioned, Mr. Sparks has become dominus litis on each side of the case; and,

under the decisions of courts and in sound legal reason, the case should proceed no further for the want of dominus litis on each side thereof. The following authorities support this doctrine: Little v. Bowers, 10 Sup. Ct. 620, 33 L. Ed. 1016; Henkin v. Guerss, 12 East, 247; Smith v. Railroad Co., 29 Ind. 546; Board of Chosen Freeholders of Essex Co. v. Board of Chosen Freeholders of Union Co., 44 N. J. Law, 438; McConnell v. Shields, 1 Scam. 582; Livingston v. D'Orgenoy, 1 Mart. (0. S.) 96, 108 Fed. 469; Meeker v. Straat, 38 Mo. App. 239; Judson v. Jockey Club, 14 Misc. Rep. 350, 36 N. Y. Supp. 126; Haley v. Bank, 21 Nev. 127, 26 Pac. 64, 12 L. R. A. 815; and State v. McCullough, 20 Nev. 154, 18 Pac. 756.

On the hearing of the citation to show cause, the question was raised whether, after a case had been argued and submitted to the court for its decision and judgment, it could be disposed of without decision and judgment for the reason that the parties to the suit had settled it between themselves. We think it can, and should be. In Judson v. Jockey Club, 14 Misc. Rep. 350, 36 N. Y. Supp. 126, cited above, and Dudley v. Same (Com. Pl. N. Y.) 36 N. Y. Supp. 128, a case had not only been argued and submitted to the court for its decision, but the court had also rendered its judgment and decision, and the same had been entered of record; and yet, when the court obtained knowledge that the suit was fictitious, that there was not a dominus litis on each side thereof, it ordered its judgment and decision to be withdrawn from the tiles of the court. In the first of the last two cases, on page 127, 36 N. Y. Supp., the court says: "Courts of judicature are organized only to decide real controversies between actual litigants. When, therefore, it appears, no matter how nor at what stage, that a pretended action is not a genuine litigation over a contested right between opposing parties, but is merely the proffer of a simulated issue by a person dominating both sides of the record, the court, from a sense of its own dignity, as well as from regard to the public interests, will decline a determination of the fabricated case so fraudulently imposed upon it. Lord v. Veazie, 8 How. 255, 12 L. Ed. 1067; Cleveland v. Chamberlain, 1 Black, 426, 17 L. Ed. 93; Wood-Paper Co. v. Heft, 8 Wall. 333, 19 L. Ed. 379; Bartemeyer v. Iowa, 18 Wall. 134, 135, 21 L. Ed. 929; San Mateo Co. v. Southern Pac. R. Co., 116 U. S. 138, 6 Sup. Ct. 317, 29 L. Ed. 589; Washington Market Co. v. District of Columbia, 137 U. S. 62, 11 Sup. Ct. 4, 34 L. Ed. 572; South Spring Hill Gold Min. Co. v. Amador Medean Gold Min. Co., 145 U. S. 300, 12 Sup. Ct. 921, 36 L. Ed. 712; Manufacturing Co. v. Wright, 141 U. S. 696, 700, 12 Sup. Ct. 103,

35 L. Ed. 906; California v. San Pablo & T. R. Co., 149 U. S. 308, 314, 13 Sup. Ct. 876, 37 L. Ed. 747; Hoskins v. Lord Berkeley, 4 Term R. 402; In re Elsam, 3 Barn. & C. 597; Wood v. Nesbitt (Sup.) 19 N. Y. Supp. 423." And in both cases, on the page following (page 128, 36 N. Y. Supp.), the court says: "The report of the referee shows that the controversy before the court was fictitious; that the transaction out of which it was supposed to grow-a horse race for stakes -was a pretended contest, arranged so as to form the basis of suits at law in which, without real adversaries before the court, an adjudication might be procured to use for other purposes than the enforcement of the right involved in the pretended suits. Upon the intervention of third parties having interests that might be affected by a decision in those proceedings, we ordered a reference to ascertain the facts (36 N. Y. Supp. 126); and, the report of the referee bearing out the contention of such parties, it only remains for us to dismiss the proceedings in this court growing out of the pretended and collusive transactions referred to. In addition to the cases already cited by us on the question of the right of third parties to intervene, we refer to the case of Haley v. Bank, in the supreme court of Nevada on March 10, 1891, reported in 12 L. R. A. 815, with note (s. c. 26 Pac. 64), in which it was held that an attorney, as amicus curiæ, may move to dismiss an action as collusive, and it is his duty to do so if he knows, or has reason to believe, that the action is fictitious. We shall, therefore, enter an order dismissing the appeal from the district court in the case of Judson v. Jockey Club, and the appeal and the action in this court in Dudley v. Same Defendant, and direct that the opinions of this court in those cases be withdrawn from the files, and that the costs of the reference be paid by the parties to those appeals. All concur." We deem it proper to say here that the case before us is not in any objectionable or bad sense "fictitious." On the contrary, up to the time of the settlement thereof there was between the parties a very real contest, and the contest was very earnestly carried on. There is no possible blame attachable to any persons connected with the case. The settlement of disputes amicably out of court instead of at arm's length in court is certainly commendable, and not blamable. But, as stated above, when the controversy between the parties litigant ceases, then the proceedings in court should follow its lead, and also cease.

It is ordered and adjudged that the case in this court is dismissed,

MASSEY, C. J., and BELKNAP, J., con

cur.

(6 Cal. Unrep. 964) HURGREN v. MUTUAL LIFE INS. CO. (S. F. 2,045.) 1 (Supreme Court of California. July 15, 1902.) MALICIOUS PROSECUTION - CIVIL ACTION PROBABLE CAUSE-JUDGMENT ON MERITS. 1. Where a civil action was instituted three times, but dismissed without trial, no action for malicious prosecution thereof would lie, as a judgment on the merits in defendant's favor is an essential element of the evidence of want of probable cause.

Department 2. Appeal from superior court, Sonoma county; S. K. Dougherty, Judge.

Action by E. W. Hurgren against the Mutual Life Insurance Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

R. W. Miller, for appellant. D. E. McKinlay and W. H. Sigourney, for respondent.

TEMPLE, J. Action for malicious prosecution of a civil action. The appeal is from a judgment of nonsuit. It is alleged by plaintiff that defendant solicited him to make application for $1,000 insurance, and that he was induced by the representations made to apply for $1,000, and agreed to pay an annual premium on the same of $53. After he signed the application, defendant raised it to a policy of $2,000, and subsequently tendered to plaintiff a policy for $2,000, upon which the annual premium was $103.40. Plaintiff refused to receive the policy or to pay the first annual premium, and thereupon defendant caused to be commenced against him three actions in succession, in each of which summons was duly issued and served on defendant. Each action was in turn, without a trial, voluntarily dismissed by the plaintiff (the defendant here). It is alleged that each action was commenced maliciously and without probable cause, and with intent to extort money from plaintiff. The motion for a nonsuit was based on the grounds: (1) There was no proof that defendant caused the actions to be brought; (2) that want of probable cause was not shown. The motion was granted upon the last-mentioned ground of the motion. In granting the motion the learned judge of the trial court remarked that, to establish want of probable cause for bringing the suit, it must appear that the suit which is alleged to have been maliciously brought has been decided on the merits in favor of the defendant in that action. Appellant is mistaken in supposing that the decision was upon a ground not specified in the motion. The statement was that a judgment on the merits against the party who brought the suit charged to have been malicious is essential, to show want of probable cause. The judgment was correct. The first suit was brought by the agent or solicitor in his own name, and, of course, it could not be maintained. There was no proof that the defendant had anything to do with it. The solicitor was not an accredited agent of the

1. See Malicious Prosecution, vol. 33, Cent. Dig. §§ 71, 73.

' Reversed in banc. See 75 Pac. 168, 141 Cal. 585.

company, but was employed by one who was an agent to solicit business for him. The second suit was commenced in the name of the company, and, the plaintiff being a nonresident, a bond was demanded on its behalf, and thereupon the cause was dismissed. The third suit was brought by an assignee of the company, to whom it had been assigned for the purpose of collection. It was dismissed 'without a trial. The suits were brought upon a written agreement of this plaintiff to pay $103.40 per annum upon a policy of life insurance after delivery of policy. The policy had been made out and tendered to the plaintiff, and demand made for the premium. The defense was that plaintiff signed the agreement in blank, and the solicitor, without the consent of this plaintiff, filled in the blank for more insurance than he had agreed to take. There was no evidence which tended to show that the defendant or any of its agents, unless such solicitor was an agent, had any knowledge of such facts, if facts they were. The agency of the solicitor was not such that it could bind the company in a matter of that kind, and furthermore, as I have said, an essential element in the proof of want of probable cause was lacking, in that no judgment on the merits had been rendered in the alleged malicious suits. Asevado v. Orr, 100 Cal. 293, 34 Pac. 777; Jones v. Jones, 71 Cal. 89, 11 Pac. 817. The judgment is affirmed.

SHARP v. SCOTTISH UNION & NATIONAL INS. CO. (S. F. 2,096.) (Supreme Court of California. July 11, 1902.) In banc. Rehearing denied.

For opinion in department, see 69 Pac. 253. PER CURIAM. Rehearing denied.

BEATTY, C. J. I dissent from the order denying a rehearing of this cause. With respect to the point first discussed in the department opinion, it is true that this court has decided that "the issue of a policy upon known facts waives all conditions inconsistent therewith." But that doctrine does not apply to this case, wherein it appears that the material fact, i. e., that McBride, the insured, was not the sole owner of the insured property, was not "known." The doctrine quoted was applied in cases where it was affirmatively proved and expressly found that the material fact was known to the insurer. Here it is extended to a case in which the insurer knew nothing of such fact, upon the ground, apparently, that he should have made inquiry as to the truth of the claim implied in the request of McBride that the company would insure his house. This is a wholly unwarranted extension of a doctrine sufficiently

As to the second point decided, viz., that, when a mortgagor takes insurance which he makes payable to his mortgagee, the latter is not prejudiced by the failure of the insured to fulfill the conditions of his contract, this seems to nullify the express provisions of section 2541 of the Civil Code, wherein it is enacted that "where a mortgagor of property effects insurance in his own name, providing that the loss shall be payable to the mortgagee, or assigns a policy of insurance to the mortgagee, the insurance is deemed to be upon the interest of the mortgagor, who does not cease to be a party to the original contract, and any act of his which would otherwise avoid the insurance will have the same effect, although the property is in the hands of the mortgagee." Nor, independent of the statute, does the case of Insurance Co. v. Boardman (Kan. Sup.) 49 Pac. 92, 62 Am. St. Rep. 621, cited in the opinion of the department, lend any support to its decision; the fact being that the decision in that case turned upon an express stipulation contained in the policy to the effect that the insurance, as to the mortgagee, should not be invalidated by any act or neglect of the owner. And see the doctrine of this court with respect to Insurance by mortgagors for the benefit of mortgagees, as declared in Holbrook v. Insurance Co., 117 Cal. 561, 49 Pac. 555.

(137 Cal. 26)

LINEBAUGH v. LINEBAUGH. (S. F.
2,097.)

(Supreme Court of California. July 11, 1902.)
MARRIAGE-ANNULMENT-CONSENT-FORCE
-PLEADING ADMISSION OF MAR-
RIAGE RELATION.

1. Civ. Code, § 82, providing that a marriage may be annulled when the consent of either party was obtained by force, assumes that the married relation exists between such persons, the marriage being voidable, and not void; and a complaint seeking annulment of such marriage is not bad because it states that the parties were married on a certain day, "and ever since then have been, and now are, husband and wife."

Department 2. Appeal from superior court, Sonoma county; Albert G. Burnett, Judge.

Proceedings by Charles A. Linebaugh against Lillian Linebaugh to annul a marriage. From a judgment annulling the marriage, defendant appeals. Affirmed.

T. J. Butts, for appellant. J. R. Leppo, for respondent.

MCFARLAND, J. This is an action brought by plaintiff for a judgment annulling a marriage between him and defendant, upon the ground that his consent to the marriage was obtained by duress, threats, intimidation, etc.; the facts as to the alleged duress, etc., being specifically set forth in the complaint. Judgment was rendered in the court below

peals from the judgment. There is no bill of exceptions or statement; none of the evidence is brought up here in any form; and the only point made by appellant is that the complaint does not state a cause of action.

The complaint was filed January 27, 1899, and it is averred therein: "That on the 23d day of January, 1899, the said plaintiff and defendant were married at the city of Santa Rosa, county of Sonoma, state of California, and ever since then have been and now are husband and wife;" and the contention of appellant is that, as by this language of the complaint plaintiff acknowledges and asserts a continuous status of marriage for four days, he has thus alleged a marriage that cannot be "annulled," but must continue until dissolved by the death of one of the parties, or by a decree of divorce under section 90 of the Civil Code. There is, in the briefs of appellant, a good deal of rather elaborately constructed logic indulged in, founded upon an asserted distinction between "marriage" and "a marriage." The contention seems to be that "a marriage" means only a marriage ceremony,-"the gateway through which the parties enter the married state." Therefore it is contended that the provision in section 82, Civ. Code, that "a marriage" may be annulled for certain causes, means only that for one of those causes a marriage ceremony may be annulled, but that, if a plaintiff admits the existence of "marriage" without the "a," he cannot invoke the remedy provided by that section. We see no such distinction in the Code. "Marriage" means, generally, a certain existing relation or status, and "a marriage" can mean nothing more than this same status as existing between two particular persons. Section 82 assumes that the married relation exists between the parties to the action, and that this relation may be annulled when the consent of either party was obtained by force, "unless such party afterwards freely cohabited with the other as husband or wife." It clearly contemplates that such marriage is not absolutely void, but only voidable at the instance of the aggrieved party, who may have it annulled by a decree of court. The section would be idle and vain if it proposed merely to annul a nullity. The judgment is affirmed.

We concur: HENSHAW, J.; TEMPLE, J.

(137 Cal. 47) EINSTEIN v. BANK OF CALIFORNIA et al. (L. A. 1,087.), (Supreme Court of California. July 21, 1902.) INJUNCTION-EXECUTION-RESTRAINING

LEVY.

1. Where land is levied on under execution against one other than the holder of the legal title, the latter may have a temporary injunc tion restraining a sale.

11. See Execution, vol. 21, Cent. Dig. §§ 506-508.

Commissioners' decision. Department 2. Appeal from superior court, San Diego county; E. S. Torrance, Judge.

Action by Delphine Einstein against the Bank of California and others. From a decree for plaintiff, defendants appeal. Affirmed.

James M. Allen, for appellants. Meyer Jacobs, for respondent.

COOPER, C. Appeal from order granting a temporary injunction. It appears from the verified complaint that in March, 1899, Jacob Einstein, the husband of plaintiff, in consideration of love and affection conveyed to her by deed the premises described in the complaint, known as the "Red Mountain Ranch," which deed was recorded June 21st of the same year. The defendant corporation afterwards, during the year 1900, commenced two actions against Jacob Einstein, the grantor of plaintiff, which resulted in money judgments against said Jacob Einstein. Upon these judgments, executions were duly issued, and placed in the hands of defendant Jennings, as sheriff of San Diego county, with instructions to levy upon the premises described in the complaint, standing on the records in the name of plaintiff. The defendant Jennings accordingly levied upon said real estate, and duly advertised that he would sell the same on February 4, 1901, in order to satisfy said judgments. This action was commenced January 14, 1901, for the purpose of enjoining the sale. On February 2, 1901, after order to show cause, and upon the verified pleadings and certain affidavits filed by defendants, the court made the restraining order complained of, enjoining the defendants from selling the said property until the further order of the court in the premises.

Por

It is the settled rule in this state that an order granting or dissolving an injunction pendente lite is a matter of discretion with the lower court, and such order will not be reversed here except where it plainly appears that there was an abuse of discretion. ter v. Jennings, 89 Cal. 442, 26 Pac. 965. It is equally well settled that a sale of lands upon an execution issued against the grantor of the person holding the legal title will cast a cloud upon the title. High, Inj. (3d Ed.) § 379; 3 Freem. Ex'ns (3d Ed.) § 438; Pixley v. Huggins, 15 Cal. 133. And a sale will be enjoined where its effect will be to cloud the title of plaintiff. High, Inj. § 372; Porter v. Pico, 55 Cal. 175. Applying the above principles, the order of the court below was correct. The plaintiff is the owner of the legal title and in possession. It is presumed, until otherwise determined, that her title is good. The fact that the conveyance was made to her by her husband while indebted to defendant corporation would be a circumstance to be carefully considered in determining the question as to whether or

not the conveyance was made with a fraudulent intent as to creditors; but, upon an application for a temporary injunction, we know of no rule that would require the court to presume that the conveyance was fraudulent, and, before trial of that question, allow a sale to be made, thus clouding the plaintiff's title, and compelling her to resort to an independent action for the purpose of removing such cloud.

The appellant says in his brief: "A court of equity has no jurisdiction to enjoin a threatened sale of lands belonging to the wife under an execution against her husband. The wife has a complete legal remedy." If the above proposition is true, then a court of equity discriminates against a wife, and refuses to lend her assistance in a case where assistance would be given to others. It is claimed that the appellant has the right to sell all the right, title, and interest of Jacob Einstein in and to the premises, and that the plaintiff must test the validity of the purchaser's title at such sale in some action at law, such, for instance, as ejectment by the purchaser to recover possession. . In other words, the contention is that the court, as a court of equity, should not interfere to prevent the threatened sale, where all the interested parties are before it, but withhold its hand, in order that the purchaser at the sale may be in position to try the validity of the title he might procure in some lega! action against plaintiff. We do not know of any case where a court of equity has declined to exercise its jurisdiction for protective and preventive justice in order that defendant might have the benefit of piecemeal litigation. If plaintiff is the owner of the land, the defendants have no right to injure her by clouding her title through the machinery of the courts. If the complaint in this case be true, the purchaser at the sale I would get no title. Such sale would not benefit defendant corporation, but would injure the plaintiff. After the sale, in order to clear her title, the plaintiff would be compelled to bring a separate suit, or wait the pleasure of the purchaser to bring his action to recover the possession. It is better for both parties that the question be settled in this suit, and before a sale has taken place, as to whether or not the property sought to be sold is the property of Jacob Einstein.

The views herein expressed were declared at an early date in this state. Shattuck v. Carson, 2 Cal. 589. This case has since been followed in Pixley v. Huggins, 15 Cal. 132; Englund v. Lewis, 25 Cal. 338; Porter v. Pico, 55 Cal. 175; Alverson v. Jones, 10 Cal. 12, 70 Am. Dec. 689; Culver v. Rogers, 28 Cal. 521. And the same is held in other jurisdictions. Downing v. Mann, 43 Ala. 266; Martin v. Hewitt, 44 Ala. 418; Gaslight Co. v. Munsell, 19 Iowa, 305; Norton v. Beaver, 5 Ohio, 178; McCulloch's Adm'r v. Hollingsworth, 27 Ind. 115; Sharpe v. Tatnall, 5 Del. Ch. 302; High,