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securing the money with which to pay off a $3,500 mortgage on appellants' $80,000 Modesto ranch, which mortgage was about to become due and could not be renewed. They sought also to have a deed executed by appellants to Edgar R. Bryant, the predecessor in interest of respondent, on the fifth day of July, 1901, set aside on the ground of fraud in procuring the same.

In addition, they brought an independent suit to accomplish the same purpose, alleging in their complaint substantially the same facts as appear. in the cross-complaint herein. It is admitted that these two pleadings involve the same legal principles and the decision as to one will cover and determine the other.

In this agreement of September 1, 1915, appellants promised "to join in an equal division of the lands" involved in the partition suit and "never again to question the validity of the deed executed by Melodile Bryant and Calhoun Bryant to Edgar R. Bryant on the 5th day of July, 1901". The particular feature of this agreement, however, concerning which appellants complain and on account of which they asked to have the agreement set aside, was the promise therein contained on their part "to assume to pay certain indebtedness and evidences of indebtedness, amounting to the sum of about $4,300, growing out of the affairs of the Bryant Investment Co., and plaintiff's management thereof, and other matters from which said Calhoun Bryant and Melodile Bryant were to have been released from paying." The claim seems to be that the invalidity of this covenant vitiates the whole agreement, as the former is an inseparable part of the contract, and the said promise to pay the indebtedness is sought to be nullified for the reason already stated. But under the authorities, it is plain that the facts alleged do not amount to duress or coercion and compulsion as recognized by the law, and, for this reason: that it appears the advantage, if any, was taken of appellants' necessities for the legitimate and lawful purpose of obtaining from them a promise to pay a debt which they actually owed. [1] The authorities on this point are cited in the brief of respondent, to which appellants have made no reply, and they seem decisive of the question.

Cable v. Foley, 47 N. W. 1135 (Minn.), was a case where plaintiff, being without means to pay his men, defendants refused to pay him what they then owed him, unless he would sign three written contracts unfavorable to him. He signed them and afterward sued the defendants to recover the excess he would have been entitled to if he had not been so coerced into said settlement. The trial court directed a verdict for the defendants, and in sustaining its action, the supreme court said: "The mere threat to withhold from the party a legal right which he has an adequate remedy to enforce is not in the eye of the law duress. Certainly not such as will avoid the execution of a contract."

In Hackley v. Headley, (Mich.) 8 N. W. 511, the defendants, being indebted to the plaintiff in a large amount on a logging contract and taking advantage of the fact that plaintiff was in great need of money with which to pay his woodsmen, who were cutting logs for plaintiff, refused to pay him what was due him unless he would take two thousand dollars less than what he was entitled to and receipt in full for all claims against the defendants. Plaintiff took the lesser sum and gave the defendants a receipt in full and subsequently sued them for the two thousand dollars, relying upon duress to avoid the contract.

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Judge Cooley, speaking for the court, said: "In duress consist in the present case? Merely in this: fused to pay on demand a debt already due, though the plaintiff was in great need of the money and might be financially ruined in case he failed to obtain it. It is not pretended that Hackley and McGordon had done

anything to bring Headley to the condition which made the money so the portant to him at this very time, or that they were in any manner re sponsible for his pecuniary embarrassment (except as they failed to pay the demand). The duress, then is to be found exclusively in their failure to meet promptly their pecuniary obligation." It was held that it would be "a dangerous, as well as a most unequal, doctrine" to enunciate that the contract was invalid because of the financial necessities of the plaintiff.

In Silliman v. United States, 101 U. S. 465, the owners of certain barges which were employed by the quartermaster's department, claimed that they were forced by duress of their property to sign new charter parties at a reduced rate, but it was held "that neither the forcible retention of the barges nor the refusal to pay the compensation agreed upon constituted duress". The court declared: “We are aware of no authority in the text books or in the adjudged cases to justify us in holding that the last charter parties were exacted under duress."

Fuller v. Roberts, 17 S. Rep., p. 359, involved the foreclosure of a mort gage to secure the payment of a note for one thousand dollars. The de fense was based upon duress, it being the claim that the note and mort gage were given to secure the dismissal of certain proceedings begun by the plaintiff. The lower court sustained a demurrer to the defense, and I upholding this ruling, the supreme court of Florida said: "Legal duress implies that a party has been unlawfully constrained by another to per form an act under circumstances which prevent the exercise of free will The act of the party compelling the unwilling obedience of another must be unlawful or wrongful, and there can be no duress of goods in law where the act done or threatened is nothing more than what the party had a legal right to do," citing cases.

In Morton v. Morris, 72 Fed. 392, the plaintiff brought an action to fore close two certain mortgages executed by the defendant in settlement of their business affairs. The defense was that the mortgages were obtained by plaintiff through duress in this, that when the settlement was made a financial crisis existed; defendant was exclusively engaged in business; it was very hard to raise money and plaintiff threatened to sue defendant fär an accounting and to have a receiver appointed. This would ruin deferd ant, and to prevent plaintiff from carrying out his threat defendant gave the mortgages in question for an amount largely in excess of what be actually owed defendant. The United States district court held that the facts averred were not sufficient to avoid the mortgages, and this judgment was upheld by the court of appeals for the eighth circuit. Therein it was said: "The intent which actuates a creditor in seeking to enforce a lega claim or demand is ordinarily of no concern to the debtor and is not a matter for judicial inquiry. The latter is only entitled to complain when some act is done or threatened by the creditor which is, in itself, unlawful or is contrary to equity. In the present case the acts charged in the answer as the basis for relief consisted in a demand made by plaintiff for an ac counting and settlement when the defendant was in embarrassed circumstances, and in a threat to enforce such demand by a civil action. Neither of these acts was unlawful, or so far harsh, oppressive, or unconscionabi as to vitiate the settlement subsequently made."

A peculiarly hard case was Domonica et al. v. Alaska Packers' As SCCUtion, 112 Fed. 554, involving the employment of plaintiffs as seamen on a voyage to and from the salmon fishing grounds in Alaska; also to work as fishermen during the season; to assist in canning the fish on shore and loading them on the ships for transportation. After arriving in Alaska they refused to carry out their contracts unless their wages were increased $50

apiece. Defendants' superintendent agreed to pay this additional compensation, because he could not get other men to take their places and great loss would be suffered, because of the shortness of the season, if plaintiffs did not go to work catching and canning fish at once. Defendants in settling with plaintiffs refused to pay them the additional $50 compensation and in allowing them to recover it the court said: "In the case at bar, if the parties deemed it for their mutual interest so to do, it was competent for them to enter into the new contract sued on, and when they did this there was an implied discharge of the former contract, and the new became the measure of their rights, unless the consent of the defendants thereto was obtained by duress; and the facts appearing here do not show that the defendants acted under duress, in making that contract," citing Goebel v. Linn, 47 Mich. 489, and Hackley v. Headley, 45 Mich. 569. In Taylor v. Ford, 131 Cal. 440, plaintiff brought suit to cancel a note for $8,666.44 on which he had paid the defendant $6,000, alleging that "he was coerced into signing the note by threats of the defendant to sell his partnership in a lumber business in which they were associated 'to an entire stranger'". The court declared: "The only coercion claimed by the plaintiff is that he was forced to enter into a contract and give the note in question, by reason of defendant's threats to sell out to a stranger, in violation of his contract, for a five years' partnership. That would not amount to coercion in law."

It can make no possible difference if we regard the allegation of crosscomplainants that respondent and the said Edgar R. Bryant had promised to execute a release of appellants from the obligation to pay said sum of $4,300. [2] The violation of said promise would not constitute coercion in any sense. (9 Cyc. p. 448.) Appellants had their choice of standing upon said promise or executing the agreement of September 1. They chose the latter alternative and must abide by it. It is equally plain that said crosscomplaint does not present a case of fraud or undue influence. It follows that by virtue of said agreement, “Exhibit B," appellants were estopped from questioning the ownership of respondent in and to one-half of said real estate.

But, assuming that the allegations of said cross-complaint are such as to warrant the annulment of said agreement of September 1, and treating the situation as though said agreement was invalid, we are still confronted with the said deed of July 5, 1901, which conveyed to plaintiff's predecessor in interest the legal title to one-half of said property. It was sought, however, in the cross-complaint herein, and in the complaint in the other action to which we have referred, to have the deed set aside on the ground of fraud. It is quite plain, though, that as to this point, the pleadings of appellants are radically defective. While there is an allegation that the grantor never received any adequate or valuable consideration for executing said deed, it does appear that she delivered said deed to Edgar R. Bryant upon his promises to pay one-half of the upkeep of the entire property, contribute ten dollars per month to the support of his parents, then living with appellants, and would prepare one of the grantor's sons for entry into a first-class medical school, thereafter at his own expense send said son to a medical school until he graduated, then associate said son with him in his practice, and when he retired from practice, turn it over to the son, the latter to take care of his mother's failing eyesight, and the grantee further promised to reconvey the property to appellants before he should die. [3] Of course, these promises constitute a sufficient consideration for the execution of the deed and, it may be added, there is nothing in the pleadings to show that the promises were not made in good faith with the

full intention to perform them. In fact, there is no hint of the perpetration of any fraud in the procurement of the deed. If it had been alleged that these promises were made for the purpose of deceiving the grantor and that the grantee had no intention of performing them, a different situation might be presented.

Appellants, however, seek to set aside said deed solely upon the ground that the grantee failed to perform some of his promises. A mere failure to perform an agreement, which constitutes the consideration for a deed, does not amount to fraud, but it may be ground for an action for damages for breach of the contract.

Moreover, we agree with respondent, that the laches of appellants afford an additional support for the conclusion of the lower court.

It appears that no demand was made on Edgar R. Bryant to educate the son of appellants until April 19, 1912, more than ten years after the promise to do so is alleged, and no excuse is shown for the delay; and this action to set aside the deed was not instituted until April 19, 1916, nearly fifteen years after the deed was executed.

The rule seems to be that where no term is specified for the doing of an act, other than the payment of money, that a demand of performance is necessary in order to put the promisee in default. (Am. & Eng. Ency. of Law [2nd ed.] vol. 9, p. 200.)

"The primary object of a demand is to enable defendant to perform his obligation or otherwise discharge his liability without being subject to the inconvenience and expense of litigation." (1 Corpus Juris, p. 979.)

Furthermore, as there is no allegation that a time was fixed for the performance of this part of the consideration, it was incumbent upon appellants to make the demand within a reasonable time. "A party can not by his own negligence or for his own convenience stop the running of the statute. The rule rests upon the principle that the plaintiff has it in his power at all times to do the act which fixes his right of action." (William v. Bergin, 116 Cal. 56.)

"If no cause for delay be shown it would seem reasonable to require the demand to be made within the time limited by the statute for bringing the action. There is the same reason for hastening the demand that there is for hastening the commencement of the action." (Meherin v. S. F. Produce Exchange, 117 Cal. 215.)

Moreover, after making such demand appellants waited nearly four years before bringing the suit to set aside the deed. [4] No sufficient excuse is shown for such delay, and the authorities are numerous to the effect that such want of diligence is fatal in this kind of a case.

Respondent also points out that appellants must fail because the status quo can not be restored, but we deem it unnecessary to pursue the subject further, as we are satisfied that there is no merit in the appeal.

The judgment is affirmed.

We concur:

HART, J.

CHIPMAN, P. J.

BURNETT, J.

November 23, 1918.

Civil No. 1872. Third Appellate District. MELODILE BRYANT and CALHOUN BRYANT, Plaintiffs and Appellants, v. BETTY TISDALE BRYANT et al., Defendants and Respondents. Appeal from the Superior Court of Kings County-M. L. Short, Judge.

For Appellants-Kottinger & Shepardson.

For Respondents-Jordan & Brann.

BY THE COURT.

This is the independent suit to which reference is made in the opinion filed this day in case No. 1892. As stated therein, the two cases are similar, and they are controlled by the same principles. For the reasons stated in said opinion the judgment herein is affirmed.

Civil No. 2594. Second Appellate District. November 23, 1918. CHARLES E. SHERWOOD, Plaintiff and Respondent, v. I. A. WOOD and WILLIAM A. GLASCOCK, Defendants and Appellants.

[1] WATER RIGHTS-APPROPRIATION-EVIDENCE-FINDING-REVIEW ON APPEAL. In an action to determine conflicting claims of plaintiff and defendant to the waters of a certain stream, both parties being appropriators, it is for the trial court to determine as to whether the different acts constituting the appropriation were sufficient in character and were consummated within a reasonable time; and where there was sufficient evidence to support the finding that the plaintiff had perfected his appropriation, such finding cannot be reviewed on appeal.

[2] ID. RIGHT TO OCCUPY PUBLIC LAND RIPARIAN TO STREAM-PRIOR APPROPRIATION OF WATER-EFFECT.-A person who obtains the right to occupy public lands riparian to a stream, the waters of which have, at a prior time, been appropriated by another, takes such right subject to those of the prior appropriator.

Appeal from the Superior Court of Inyo County-Wm. D. Dehy, Judge. For Appellants-Trippet, Chapman & Biby, Ward Chapman.

For Respondent-S. E. Vermilyea, S. L. Carpenter.

This action was brought for the purpose of determining conflicting claims to the waters of a stream called Birch or Summit Creek, which has its course in the Sierra Nevada Mountains in the county of Inyo. The court determined that, as between the parties plaintiff and defendants, both being appropriators, the right of the plaintiff was the better, and entered judgment accordingly. Defendants appeal from the judgment and from an order denying their motion for a new trial.

Plaintiff and defendants both claimed to be entitled to use the waters of the creek for agricultural purposes upon lands occupied by them, with this difference: that the lands of the plaintiff did not lie upon or along the stream, but were situated several miles distant therefrom. In order to obtain water from the creek, the plaintiff was obliged to construct a ditch and conduct the water over and across the intervening elevations of land. Under the plan adopted by the plaintiff the water, after passing through such a ditch, would fall into the bed of a dry creek, which watercourse extended to the plaintiff's land. The lands of the defendants did lie upon Birch Creek below the point of diversion selected by the plaintiff. In June, 1910, the plaintiff obtained from the appropriate federal department a permit to use 150 acres of land, the permit providing that the purpose was to allow the plaintiff to clearly establish the fact that the land was chiefly valuable for agricultural purposes, preliminarily to the land being listed as open to entry. Prior to that time plaintiff had gone upon the land and had secured a federal permit to enable him to construct a water ditch to the property, commencing at a point on Summit Creek, hereinbefore mentioned. On the 17th of May, 1909, plaintiff had posted and filed notice of water appropriation on Summit Creek, claiming all of the water flowing in the stream, to the extent of 200 inches measured under four-inch pressure. The form of notice

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