Opinion of the Court--Shafter, J.

with a view to a more speedy liquidation of their debts, Walker executed to Wilson a deed absolute on its face and expressing a consideration of seventeen thousand dollars, of a certain ranch, the same being the individual property of Walker; that the deed was, in fact, a trust, and was made solely for the purpose of enabling Wilson to raise money, by mortgaging the premises, to pay off the debts of the firm; and that, on the day of the execution of the deed, he borrowed several large sums for the benefit of the firm and secured the payment thereof by mortgages on the premises so conveyed to him by Walker. That Walker also, and by the same deed, conveyed to Wilson his interest in certain ditches belonging to the firm, for the purpose aforesaid, and that said ditches were included in the said mortgages. That the possession of the ranch remained with Walker after the deed, as before, and that he participated as before in the management of the ditch property. That Wilson, in his lifetime, never denied the trust; but, on the contrary, always admitted it. That the defendant, E. P. Wilson, his administrator and one of his heirs at law, admitted the trust in his answer first filed, but which he afterwards with

drew by the Court's leave. That the grantor and [637] *grantee were intimate friends, and that the deed

was given under a misapprehension as to its legal effect. Under this aspect of the complaint the plaintiff prays that the administrator may be decreed to execute the trust by reconveying the property, subject to the aforesaid mortgages.

In a supplemental complaint, filed by leave of the Court and by the consent of the defendants, it is alleged as a further cause of action, that the aforesaid conveyance was in pursuance of a sale for the sum of seventeen thousand dollars, expressed in the deed; that the money is due and unpaid; that a claim for that amount was presented in due form to Wilson's administrator for allowance, June 21, 1864, together with the evidence in support of a vendor's lien on the property embraced in the deed, and that the claim was rejected by the administrator on that day. On these allega

Opinion of the Court-Shafter, J.

tions the plaintiff claims judgment for the seventeen thousand dollars and interest thereon from the date of the deed, and that the land conveyed may be sold and the avails applied to the liquidation of the debt and for other relief.

The complaint as amended was demurred to for want of facts, misjoinder of causes and for uncertainty and ambiguity. The demurrer was sustained by the Court, and the plaintiff declining to amend, judgment was entered dismissing the action.

First. The complaint not only fails to disclose an express trust, but it appears affirmatively that there was none; and it sets forth no facts from which a trust would arise by implication of law. Nor can the complaint be sustained as a bill to reform the deed. However Walker may have mistaken the legal effect of its terms, there is no averment that the language of the deed is not the very language which he intended to use; and against the mistake of law alleged there can be no redress. The class of cases in which mistakes of that character are corrected in equity is very limited, and this is not brought within any recognized exception to the general rule, by the necessary averments. (1 Sto. Eq., Ch. 5; 4 Rus. 424; 16 Cal. 351.)

*The position that the trust is rescued from the [638] operation of the Statute of Frauds by the allegation that the answer first filed by the administrator admitted the trust, is not tenable for a number of reasons, only one of which, however, need be specified here. If a defendant sought to be charged upon a contract within the Statute of Frauds, admits the contract in his answer and does not claim the benefit of the statute, he is considered as waiving its protection and as furnishing by his answer the very proof which the statute requires. But if the admission is coupled with a claim to the protection of the statute, the rights of the party stand as though the admission had not been made. (2 Story Eq. Jur., Sec. 757.) While the complaint in this case avers the admission, it fails to fill or complete the legal proposition by an averment that the statute was waived as a defense by an omission to assert it in the answer.

Opinion of the Court-Shafter, J.

Second. Under the second aspect in which the general trausaction is presented in the complaint, the plaintiff is entitled to relief.

If, as the supplemental complaint alleges, Walker sold the land to Wilson for seventeen thousand dollars, and the purchase-money has not been paid, then the plaintiff is a creditor of Wilson's estate to that amount, and on general principles has a lien on the land sold as security for the debt. (Leman v. Whitney, 4 Rus. 427.) To that extent Wilson in his lifetime held the land in trust for his vendor, and the trust has descended to his representative and heirs. The principle upon which Courts of equity proceed in establishing this lien is, that a person who has gotten the estate of another ought not in conscience, as between them, to keep it and not pay the full consideration-money. (Cahoon v. Robinson, 6 Cal. 226; Sparks v. Hess, 15 Cal. 192.) Nor do we understand that these principles are disputed by the respondents; but they insist, first, that the claim in question is improperly joined in the complaint with the claim based upon the alleged trust; and second, that the

money claimed and the lien as collateral thereto are [639] barred on the ground "that more than ten months *had elapsed after the appointment and qualification of the defendant, E. P. Wilson, as administrator of J. C. Wilson, and after the first publication of notice by said administrator to the creditors of said estate, requiring them to present their claims to said administrator for allowance, before the claim was in fact presented."

Both of the claims

There is no misjoinder of causes. stated in the complaint are founded on trusts-one lying in contract and the other arising by act and operation of law. (Pr. Act, Sec. 64.) And as to the second objection, it is sufficient to say that it does not appear, from the complaint, when the notice to creditors was first published; nor, in fact, that any publication has been made or ordered.

The objection that there can be no recovery of the seventeen thousand dollars, and no enforcement of the vendor's lien as collateral thereto, until the affairs of the partnership

Opinion of the Court-Sawyer, J.

shall have been adjusted, is not well taken. The supplemental complaint treats the sale and conveyance of the land by Walker to Wilson as a matter having no connection with the business of the partnership, and as being, in short, what it purports to have been by the terms of the deed-a transaction between the two men, each acting for himself alone.

The judgment is reversed and cause remanded. And it is ordered that the defendants have twenty days to answer from the time notice shall have been given them of the filing of the remittitur.

THE PEOPLE EX REL. M. A. WHEATON v. WILLIAM K. WESTON, COUNTY JUDGE OF SOLANO COUNTY. STAMP ON APPEAL PAPERS.--On papers sent up on appeal from Justices' Courts no stamp is required under the Act of Congress requiring "writs or other process on appeal from Justices' Courts, or other Courts of inferior jurisdiction, to a Court of record" to be stamped with a fifty cent stamp.

MANDAMUS TO COUNTY JUDGE.--Mandamus will not lie to compel a County Judge to try a cause on the ground that he has improperly dismissed the appeal taken from a Justice's Court.

*This was an original proceeding commenced in the [640] Supreme Court to obtain a writ of mandate requiring the County Judge of Solano County to proceed and try a cause which had been appealed from a Justice's Court.

The other facts are stated in the opinion of the Court.

M. A. Wheaton, in propria persona, for Relator.

G. W. McMurtrie, for Respondent.

By the Court, SAWYER, J.:

The County Court dismissed the appeal from the Justice's Court on the ground that there was no stamp on the return, under the provision of the Act of Congress requiring "writs

1. Cited, Lewis v. Barclay, 35 Cal. 214; Francisco v. M. I. Co., 36 Cal. 287; People v. Sex. ton, 37 Cal. 534.

130

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Opinion of the Court-Sawyer, J.

or other process on appeal from Justices' Courts, or other Courts of inferior jurisdiction to a Court of record," to be stamped with a fifty cent stamp. The Court doubtless erred in dismissing the appeal. There is no "writ" or "process" within the meaning of those terms required under our practice. If there is anything in the proceeding in any sense analogous to a "writ" or "process," it is the notice of appeal. The terms "writ" and "process" have well-established legal significations, which do not include our notice of appeal, and these terms must be presumed to have been used in their established legal sense.

But the Court had jurisdiction to inquire and determine whether the appeal had been properly taken, and was then pending in that Court or not, and in determining that question acted judicially. The Court did not refuse to act, but acted, and judicially determined that the appeal had not been properly taken, and upon this ground dismissed it.

Where the act to be done is judicial in its character the writ will not direct in what manner the inferior Court shall act, but only direct it to act. It has been so held in many strictly analogous cases. (Commonwealth v. Judges of Common Pleas, Phil. Co., 3 Bin. 275; Ex parte Ostrander, 1 Den.

681; Judges Oneida Com. P. v. People, 18 Wend. 92; [641] *People v. Judges of Dutchess C. P., 20 Wend. 659;

People v. Judge of Wayne Co., 1 Mich. 360; 3 Dal. 42; 9 Pet. 602; 1 Serg. & R. 187; 6 Pa. St. 470; Note to Fish v. Weatherwax, 2 John. Cas. 217, Sec. 23, and cases cited; Flagley v. Hubbard, 22 Cal. 36; People v. Judge of the Twelfth Dist., 17 Cal. 547; People v. Sexton, 24 Cal. 79; People v. Pratt, Judge of the Twelfth Dist., ante, 166.) The County Court has acted judicially, and as in most other cases within its jurisdiction, its determination, though erroneous, is final.

Mandamus denied.