Datasets:

free-law

/

arizona_embeddings

like 1

Follow

FreeLaw 10

CUNNINGHAM, J. Appellant commenced this action upon a bond given by J. Taylor Bradley as principal and the other appellees as sureties, under date of October 8, 1907, binding themselves jointly, severally and individually to the appellant in the penal sum of $2,500, with 10 per cent in ease of suit on the bond, to be paid upon the following condition only: “The condition of the above obligation is such that if the above bounden . . . heirs, executors or administrators, shall well and truly pay, or cause to be paid, any and every indebtedness or liability now existing, or which may here after in any manner exist or be incurred on the part of the said J. Taylor Bradley to the White Sewing-Machine Company, or its assigns, whether such indebtedness or liability shall exist in the shape of book accounts, notes or leases, renewals or extensions of notes, accounts or leases, acceptances, indorsements, consignments of property or merchandise, failure to deliver cr account for the same, or any part thereof, or otherwise, and whether such indebtedness shall be incurred under any contract between said White Sewing-Machine Company and the said J. Taylor Bradley or otherwise, and whether the same shall arise out of the purchase and sale of sewing-machines, or otherwise, hereby waiving presentment for payment, notice of nonpayment, protest and notice of protest, and diligence upon all notes, accounts or leases, now or hereafter executed, indorsed, transferred, guaranteed or assigned by the said J. Taylor Bradley to the White Sewing-Machine Company, its agents or assigns, then this obligation to be void, but otherwise to be and remain in full force and effect. ’ ’ Further provisions are made in the bond relating to matters of signature, notice of acceptance by the company, other agreements for discharge or release of the signers, and agreements arising that do and that do not have the effect to discharge the obligation. The instrument is literally set out in the complaint. The complaint alleges that: “During the year of 1907, defendant Bradley purchased from the plaintiff various sewing-machines and sewing-machine supplies, and in payment therefor made, executed and delivered to plaintiff his promissory note in favor of plaintiff, in the sum of $2,094.63 in words and figures following, to wit,” setting out the note dated October 30, 1907, due 18 months after date, with interest at 8 per cent per annum from maturity, and providing for 10 per cent attorney’s fees to be added in case of suit, signed by J. Taylor Bradley. Plaintiff admits credits have been allowed upon the note, and alleges: ■ “That the sum of $736.45 is now due on said note, and that the same is the whole indebtedness due from defendant Bradley to plaintiff.” Plaintiff alleges that: “Defendants have wholly failed and neglected to pay said indebtedness, or any part thereof, though demand has been made on them for such payment, and said indebtedness has not been paid' by said defendant Bradley . or any other persons.” Plaintiff claims 10 per cent on the amount alleged to be due as attorneys’ fees as provided in the bond. The defendants Overlook and Peironnet answered alone. The defenses interposed by these answering defendants consist of demurrers, of a denial that J. Taylor Bradley executed and delivered the note pleaded and deny that there'was any consideration for the note; deny that at the time of the maturity of the note, or at any time since, that there was due the plaintiff anything from Bradley. They deny that they made and executed the bond sued on, and deny that demand for payment íias been made, and-allege that on information and belief all sums of money due from Bradley to plaintiff have been paid. These defenses are verified. The cause was. tried before a jury, and upon the close of the evidence of all parties the court- instructed a verdict for the defendants, and rendered judgment accordingly. Plaintiff moved for a new trial, which motion was denied. This appeal is prosecuted from the judgment and from the order refusing a new trial. Appellant assigns as error the instruction of the court, directing a verdict for defendants, “because there was substantial evidence to sustain the plaintiff’s case.” This, assignment is the equivalent of the allegation that the evidence does not sustain the verdict and judgment. Such allegation was one' of the grounds assigned as reasons for a new trial in the motion. The purpose of action is to enforce the obligation of the bond. The right to recover depends upon whether J. Taylor Bradley is indebted to the plaintiff in any amount, and whether such indebtedness arose -by reason of any of the things specified in the bond. If he is indebted by a note and neither he nor the sureties on the bond have paid the amount owing, the condition of the bond is. broken, and plaintiff is entitled to recover. If it be a fact, that J. Taylor Bradley is not indebted to the plaintiff, evidenced by the note, because the note was made by him without consideration, if in fact these defendants did not make,, execute and deliver the bond sued on, or if all the indebtedness represented by the note has been paid, any of these facts appearing, defendants are not liable, and the obligation ■ of the- bond is not enforceable against them. - The condition of ■the bond has been performed or the obligation never existed, as the case may be. The issues raised by the pleadings are whether defendants made, executed and delivered the bond .set forth in the complaint. If so, did J. Taylor Bradley make the note pleaded to the plaintiff, and was such note made upon a consideration? Is any part of that note due and unpaid ? These are the questions presented for trial as raised by the defense. In order to recover the plaintiff must satisfy the jury from a preponderance of the evidence that the defendants made, executed and delivered to plaintiff an obligation in effect such as is pleaded; that before the commencement of the suit J. Taylor Bradley was indebted to the plaintiff in some manner contemplated by the bond and to some amount; that he gave plaintiff his promissory note in effect such as is set forth in the pleadings; that the note was given for a consideration; that the note or some part of the note is due and unpaid. The question is, Does the record contain substantial evidence tending to prove these facts, and such as would support a verdict for the plaintiff? The plaintiff introduced the testimony of H. S. Smith, a witness, who testified: That he prepared the bond on an approved blank form of bond furnished him by plaintiff, by filling in the blanks and making other notations on the instrument. That he saw all the defendants sign their names to the bond, and he signed his name as a witness to such signatures of all the defendants except that of J. G. Dixon, and that he saw Dixon sign the instrument, and saw the witness to his signature also sign it as such witness. The instrument is otherwise identified. That the instrument was made as one of three instruments closing a sale, of sewing-machines by the witness for the plaintiff to defendant Bradley. That the other two instruments consisted of an order for the goods by Bradley and plaintiff and- a contract between Bradley and plaintiff bearing on the matter of the sale of the goods. The witness says: “I got Bradley’s order for the machines and contract, and I went with him to the other people who signed the bond, and I saw them sign it, and I signed the bond myself as a witness. The White Sewing-Machine Company approved the contract, order, and bond and shipped the machines.” Plaintiff then introduced C. A. Hawkins, who testified: That he was the general manager of plaintiff company in October, 1907; that the contract, order and bond was received by plaintiff company, and he as general manager for the company approved the contract and order, and the carload of machines was shipped. The order and contract are produced as a part of this witness’ testimony. He testifies that letters were caused by him to be sent by registered mail to each of the parties signing the bond, notifying them that the plaintiff company had accepted the bond. A copy of the letters and return register receipts appear in the evidence. That upon notice from Bradley that the goods had been received, he was furnished three notes to execute and return to the company to cover the full account payable to the company. The total sum due for the carload of sewing-machines was $5,415. That another small order was given by him and the freight advanced. All aggregated, including the machine account, $6,283.91. That the three notes were all dated October 30, 1907. One was due April 30, 1908, one October 30, 1908, and the third and last was due April 30, 1909. The first two notes were for the sum of $2,094.64, and the last one was for the sum of $2,094.63. “The consideration for the notes was the carload of machines . . . and the freight on the machines from Cleveland, Ohio, to J. Taylor Bradley in Arizona. ...” The witness goes into detail regarding the sums paid on account of the notes, admitting that the first two notes have been paid and furnishing a statement of the account. The witness states: “I have the last of said notes, which I have referred to as note No. 103. . . . The balance due from J. Taylor Bradley on August 13, 1911, was $600.59, and the interest due at said time was $111.69.” This is substantial evidence tending to prove every essential fact necessary to establish a prima facie case. Without further evidence, if submitted to the consideration of a jury and a verdict should have been returned for the plaintiff, such verdict would not be unsupported by the evidence. In Kroeger v. Twin Buttes R. R. Co., 14 Ariz. 269, Ann. Cas. 1914A, 1289, 127 Pac. 735, we adopted and approved the rule announced in 38 Cyc. 1567, 1568, as follows: “It is only where a court can find no evidence which in its deliberate and ultimate judgment is entitled to be weighed that the jury should be instructed in terms that there is no evidence to support the burden of proof which rests upon the party.” We adhere to this rule as one supported by reason and authority. In view of another trial we deem it proper to notice one other matter that has been the subject of a close contest in the trial of this case, viz., the' question of another bond, made by these same defendants for the same purpose of insuring to plaintiff the payment of any sums that J. Taylor Bradley might become indebted to plaintiff, but fail to pay. Such a bond was mentioned in the evidence, and it was virtually admitted by plaintiff’s counsel that such bond had been made by the defendants and forwarded to plaintiff. There is some evidence tending to show that such bond was in effect the same form of bond sued on. The bond in suit contains the following paragraph of agreement: “Each one signing this bond is bound according to the purport of it without any regard to any understanding that any person should also sign this instrument; and the person to whom this is intrusted has absolute authority to deliver it, and no notice of its acceptance by said company shall be required, and the same is made and shall be construed without reference to any other instrument or agreement whatsoever, and any claim of any arrangement or agreement with any of the signers hereof to discharge or release them or any of them, shall be void and of no binding effect upon the White Sewing-Machine Company unless this bond shall be delivered up or discharged in writing by the said White Sewing-Machine Company, over the signature of its president or secretary of the company, and it is to continue in full force until so delivered up or discharged.” Conceding that the prior bond did contain a provision in effect the same as above quoted, the defendants argue, and the court apparently accepts the argument as sound, that, such agreement being in the prior bond, that bond only is a binding obligation upon these defendants, and by reason of the existence of such prior binding obligation these defendants are not liable on this subsequent bond. In the first place, no such defense is set up by the defendants, and the validity of the prior bond is not involved in this case. In the second place, a free, competent person may obligate himself by written or oral agreement as many times as he chooses, without one obligation entered into by him disqualifying him from •entering into another, in the identical terms of the former obligation. If we are to hold that a man can bind himself but one time in one form of bond, such holding would be revolutionary in the extreme, and would have the effect to nullify all manner of contracts. "When suit is commenced to ■enforce the prior bond mentioned in the evidence in this case, its binding effect may then be determined. It has no place in this action under the issues joined. Besides the evidence allowed on that fact tends to prove, if the question was- one for consideration, that that bond was never accepted, and was returned and declared by plaintiff to be void. Plaintiff claims no rights under the prior bond. The judgment is reversed for this reason: The- court erred in directing a verdict for defendants when substantial evidence was before the jury tending to establish all the essential facts of plaintiff’s alleged cause of action. Reversed and remanded. ROSS, C. J., and FRANKLIN, <T., concur. ■

CUNNINGHAM, J. This is a statutory action in the nature of an action in ejectment for the recovery of real estate. In such actions the complainant or plaintiff must recover on the strength of his own title. Paragraph 4110, Ariz. Rev. Stats. 1901. The common source of the title involved is through Joseph H. Holmes. The question is whether plaintiff, as the representative of the estate of L. E. Payson, has acquired the title and the right of possession incident thereto through his sheriff’s deed, based upon the mortgage and foreclosure sale. Plaintiff acquired all the title and right to possession he claims through the foreclosure of the mortgage. His suit to foreclose this mortgage was commenced March 22, 1911, on account of condition broken, a failure to pay the money secured thereby. At the time of foreclosure, defendant United States Land, Title and Legacy Company had acquired all the estate of Holmes in the mortgaged property, with knowledge of the mortgage debt. In the foreclosure suit Joseph H. Holmes and his wife, said company, and S. Henry were made parties defendant. Jessie F. Tull and her husband, M. Tull, were in the actual occupancy of one of the mortgaged lots, and James M. Barney was in actual occupancy of another of the lots involved in the foreclosure suit. By their answers their right to the possession so held was based on and made to depend solely upon conditional contracts not recorded, entered into with the said defendant company after it acquired Holmes’ rights, and of which plaintiff had no notice. Such persons so actually in possession of said lots were not made parties to the foreclosure suit. The foreclosure suit resulted in an order of foreclosure and a sale, at which sale this plaintiff became the purchaser, and in due time the sheriff executed and delivered his sheriff’s deed; no redemption from such sale having been made by anyone. The defendants contend that the judgment of foreclosure .and subsequent sale and deed are ineffective as to them and evidence of no title, for the reason they were in actual open, and notorious possession of the property and had such a valid, subsisting interest therein as would require them to be made parties in order to foreclose their rights, and, not having been made parties, the foreclosure proceedings as to them and their rights are void. Is a party holding an executory contract to purchase mortgaged property, executed by the mortgagor subsequent to the giving and recording of the mortgage and 'before a foreclosure is commenced, a necessary party defendant to such suit?’ What rights does such contracting purchaser acquire to the mortgaged property as against the mortgagee that the court in the foreclosure suit must recognize and protect under its judgment to the effect that the plaintiff recover his debt, damages, and costs with an order of foreclosure? An order of sale was issued to the sheriff directing him to seize and sell the same as under execution, in satisfaction of the judgment. Such is the judgment and order authorized by statute in foreclosure suits. Paragraph 1432, Ariz. Rev. Stats. 1901 -r paragraph 554, Ariz. Rev.. Stats. 1913. “A mortgage on land is not extinguished, nor its lien divested, by a sale of the premises to a purchaser who has. notice of the mortgage; but, on the contrary, his title is taken subject to the mortgage, and is not better or stronger than that of his grantor, which ... is a legal title charged with the mortgage lien, but ... is subject to the contractual and statutory rights of the mortgagee. The purchaser’s possession under his deed is in subordination to the title of the mortgagee, to the same extent as that of his grantor, and cannot cease to be of that character, and become such an adverse possession as may ripen into a title under the statute of limitations, until there is an open assertion of a distinct and hostile title with the knowledge of the mortgagee.” 27 Cyc. 1337, 1338. Where one agrees to buy, and another agrees to sell, land, and the consideration is not paid, and the party contracting-to buy enters into possession, the fair inference is that the-entry and possession are in subordination to the title of the seller until the stipulated payment is made. Hart v. Bostivich, 14 Pla. 162. It is said in Goodwin v. Markwell, 37 Fla. 464, 467, 19 South. 885, 886: “The authorities clearly establish the principle that, if one goes into possession of land under contract of purchase without paying the purchase money, he thereby admits the title of the vendor”-—citing Hart v. Bostwick, supra. In Palmer v. McCafferty, 15 Cal. 334, the action was to-recover a tract of land. The error assigned by appellant-was the exclusion of a certain executory contract for the sale of the land sued for. It was offered to show in connection with it that the defendant claimed the premises under one Wooster, who was a party to the instrument. The court says r “It seems that Wooster executed a mortgage of these premises to-defendant, and that the latter foreclosed the mortgage, and went into possession under the decree of foreclosure. The object of the plaintiff was to show that he had succeeded to the estate of Seaggs & Co., who made this executory agreement, and that Wooster and his assigns, having failed to-comply with the contract on their part, forfeited all their rights under the same; and that, by force of this, Seaggs & Co., became remitted to their original title, of which plaintiff was the assignee. . . . Prima facie the plaintiff’s proof, thus offered, was relevant to the issue, and that was enough to-entitle him to introduce it.” Plaintiff’s object being to show that Wooster had forfeited his rights under the contract. The buyer under an executory contract, then, acquires no-better right or estate in the premises which he contracts to purchase, by a failure to pay the -consideration, according to-the terms of this contract, than his grantor had, and he holds; possession acquired through such contract until the purchase price is paid' subject to the conditions of the contract, in subordination to the grantor’s title. Like a tenant, he cannot deny the grantor’s title unless he repudiates the contract and asserts an adverse, hostile title, whereupon he becomes a trespasser and is subject to be ousted as such. In this case the mortgage was of record at the date the contracts, under which defendants claim rights, were made. Their rights thus acquired were clearly subject to the plaintiff’s mortgage. Their possession was subordinate to the rightful possession of their grantor. United States Land, Title and Legacy Company, holding under its legal title, and sub ject to the same infirmities and liens. Their grantor held in subordination to plaintiff’s rights. When the title of their grantor was extinguished, because their rights depended wholly upon the rights of their grantor, their rights to possession ceased to exist, and nothing remained upon which they could base a right to possession. Otherwise a mortgagor could by a sale of the mortgaged property, without the knowledge or consent of the mortgagee, wholly wipe out the mortgage lien. After the making and recording of a mortgage, the mortgagor is not permitted to deal Avith the mortgaged property, to the prejudice of the mortgagee’s rights, and all rights acquired in the mortgaged property, under such circumstances, through the mortgagor, are subject to the mortgage. No privity of contract exists between the defendants and the mortgagee in this ease. The defendants have no such relation with the mortgagee as Avould sustain an action of specific performance of their contract in any event when prosecuted against the mortgagee, nor could the mortgagee maintain an action to recover the installments provided by the contract. On the facts shown, no performance of the contract would be enforced against the mortgagor by a court of equity, in the absence of a mortgage foreclosure, unless defendants would accompany their application with an offer to pay the balance due on their contract of purchase. After a foreclosure and sale consummated in a sheriff’s deed, the person holding .the executory contract could not have a specific performance by the mortgagor, because he is then in no position to convey any estate. The only remedy left is upon a breach of contract. The holder of an executory contract to purchase mortgaged property, made- with the mortgagor, or with the' purchaser of the mortgaged property, assuming the mortgage debt, the mortgage being of record, is in a similar position to defend a foreclosure with a lessee of the mortgaged property. The first, to protect his contract from foreclosure, must pay the balance due on the purchase price either to the grantor or to the holder of the mortgage before he acquires any legal "title. The mortgagee is not bound to receive payment if offered, and, if the mortgagor accepts payment, the title conveyed is still subject to foreclosure. His only right acquired is the right to possession until condition broken, or a foreclosure and sale of the property and deed issue. The leaseholder by his lease acquires a right to the use and enjoyment of the property for the full term of his lease, subject to the mortgage. Until the term expires, either by the terms of the lease or by the enforcement of the mortgage lien and delivery of the deed through foreclosure proceedings, the lessee has the right to possession. Neither party has any estate in the property involved, other than the right to the possession as limited by the contractual relations and by a foreclosure of the mortgage as consummated in the sheriff’s deed. The court in McDermott v. Burke, 16 Cal. 589, speaking through FIELD, C. J., considering the rights of a lessee whose lease was subject to the mortgage, after a foreclosure of the mortgage, in which the lessee was not made a party, says: “A mortgagor cannot make a lease which will bind his mortgagee, where the lessee at the time had notice of the mortgage, either actual or constructive. The interest of the lessee in such case is dependent for its duration except as limited by the terms of the lease, upon the enforcement of the mortgage. So long as the mortgage remains unenforced, the lease is valid against the mortgagor, . . . but with its enforcement the leasehold interest is determined. There is no privity of contract or of estate between the purchaser upon the decree of sale and the tenant. The purchaser may therefore treat the tenant as an occupant without right, and maintain ejectment for the premises. He cannot, for the want of such privity, count upon the lease, and sue for the rent or the value of the use and occupation. The relation between the purchaser and tenant is that of owner and trespasser until some agreement, express or implied, is made between them with reference to the occupation. Until then, both are equally free from any contract obligations to each other. The tenant is not bound to attorn to the purchaser, nor is the latter bound to accept the attornment, if offered. The purchaser may prefer to have the possession, and the tenant may also prefer to surrender it. . . . The error of the plaintiff arises -from a misapprehension of the rule as to the parties necessary to the foreclosure of a mortgage. The rule only requires, as parties, those who are beneficially interested in the claim secured or in the estate mortgaged. The tenant is not thus interested in the claim; he is not en titled to its proceeds when collected, or to any portion of the proceeds. Nor is he thus interested in the estate mortgaged;: that is, in the title which is pledged as security. He has not. succeeded to such estate, or to any portion of such estate. He does not stand, therefore, in the position of a purchaser. The estate remains in his lessor; he has only a contingent right to enjoy the premises. The right of the lessor to the possession ends with the sale of the premises, or rather with the deed by which the sale is consummated. The right of the-tenant to such possession depends upon that of the lessor and goes with it.” In Tyler v. Hamilton, 62 Fed. 187, 190, the court, considering the question of parties to a mortgage foreclosure ease, where the lessee contended he was not bound because he was not a party thereto, says: “The leases were made subsequent and subject to the mortgages. The contract of leasing was wholly between the mortgagor and the lessee. The mortgagee had no privity with the lessee. It did not assent to the leases, and its rights, were not affected thereby. The lessee, while in possession as. tenant of the mortgaged premises, had no seisin thereof. His. possession was the seisin of the lessor, who held the legal title. The tenants in possession were not necessary parties to-the foreclosure suit. They had no lien upon the land, and no equity of redemption therein. The foreclosure sale operated to evict them by title paramount. From and after the; sale they were trespassers, unless they attorned to the purchaser, or the purchaser recognized their rights as tenants ’ ’— citing Rogers v. Humphreys, 4 Ad. & E. 299; McDermott v. Burke, 16 Cal. 580; Teal v. Walker, 111 U. S. 248, 28 L. Ed. 415 [4 Sup. Ct. Rep. 420]; Haven v. Adams, 4 Allen [Mass.], 80. “ ... The defendants are before the court, not seeking the intervention of equity for the protection of their-rights by redemption from the mortgage sale, but contending-that the failure of the mortgagee to bring them in as parties defendant to the foreclosure suit operated as a recognition of their status as tenants, and a ratification of their leases. This, contention cannot avail them, for, as we have seen, they were-not necessary parties to that suit, and, so far as the mortgagee; was concerned, their rights were extinguished by the foreclosure sale.” In Western Union Tel. Co. v. Ann Arbor R. Co., 90 Fed. 379, 33 C. C. A. 113, the court states: “The rule that the mortgagor cannot bind the mortgagee by lease or other contract is not changed thereby. (By a statute of Michigan to the effect that no action of ejectment shall be maintained by a mortgagee for the recovery of the mortgaged premises until the title thereto shall have become absolute upon a foreclosure of the mortgage.) When the mortgagee acquires possession of the mortgaged land by foreclosure sale, the effect of his possession upon those claiming under the mortgagor is just as complete to avoid their rights and interests as was entry or ejectment at common law. Nor does it prevent this result that the holder of the easement may not have been made a party to the foreclosure suit. The easement was granted subject to being divested by the mortgagee’s acquiring possession of the mortgaged premises. That event has happened, and the divesting follows.” Strong v. Smith, 68 N. J. Eq. 686, 60 Atl. 66, 63 Atl. 493, arose npon an application of a purchaser under a decree for the foreclosure of a mortgage for a writ of assistance. A party claimed to be in possession of the mortgaged premises under an unrecorded lease made to him by the mortgagor for a term of five years, and that his possession had been open and continuous since the date of the lease. This claim was disallowed and the writ issued. The party contended in the court of appeals that such a writ can lawfully issue against those only who are bound by the decree in the cause, and that as his rights were acquired before the commencement of the suit, and he was not made a party defendant, although in open occupancy of the property, the decree did not affect him. The court suggests that such a party may not be bound by the decree, and it is necessary that some court shall pass upon his rights when he is brought before it, and says: “If, when he is thus brought in, it is clearly shown that he claims under one who was a party to the suit, and that his right of possession is undoubtedly subordinate to the right for the enforcement of which the writ of assistance is prayed, then it may be issued against him, even though technically he is not bound by the decree.” In the strictest sense the only necessary parties to a foreclosure suit are the mortgagee, the mortgagor, and those who have acquired interests in the premises subsequent to the mortgage. Proper parties are those who are so connected with the subject matter that their presence on the record cannot be objected to as a misjoinder, while, on the other hand, if they are not included, a full and complete decree can still be made without considering or affecting their rights. 27 Cyc. 1563. If it be conceded that, up to the date of the delivery of the sheriff’s deed, these defendants had acquired such an equitable interest in the subject matter of the foreclosure suit as would have made them proper parties, what effect must be given to their subsequent modified agreements with the defendant company by which the payments under the contracts were suspended and possession retained in abrogation of the express terms of their conditional contracts? At the time this action was commenced, the defendants Tulls and Barney, by their admissions while testifying as witnesses, were holding possession of the premises, not by reason of the original contracts, but by reason of the modification of important terms of those contracts, and under such modified contracts. Clearly, then, they were holding possession of the premises under an agreement made with the judgment debtor, party to the foreclosure suit, after sale made under the decree of foreclosure. Such contract was made (that is, the original contract was modified) at a time after the sale under the decree of foreclosure, and after actual notice ofá the judgment and sale, and as a means to protect defendants in possession. Evidence of such fact makes a very different ease from the case set up in the answer. By the modification of the contracts, as between the parties thereto, the defendant company waived a strict performance of the original contract, otherwise the defendant company could have recovered possession, by reason of the admitted failure to perform. Is it possible that a party who purchases mortgaged property from one standing in the place of the mortgagor can enter into an executory eonditiopal contract with a third party, charged with constructive notice of the mortgage, and after a decree of foreclosure and sale the executory contract, not having been recorded, can so modify the terms of such conditional executory contract as to confer rights upon the stranger to the mortgage suit that must be respected by the mortgagee and avoid the decree of foreclosure and thereby defeat a recovery of possession because such third party was not made a party to the foreclosure suit? By reason of the modification alone, the defendants Tull and Barney clearly became occupants, thereafter holding possession under and through a contract made with the defendant company after foreclosure and sale, and clearly such parties, assenting to a modification of their contracts and so occupying the property thereunder,- acquired only such rights to the mortgaged premises as are bound by the foreclosure decree and sale, notwithstanding their open and notorious occupancy of the mortgaged premises at the commencement of the foreclosure suit. The nature of this occupancy became changed by their modified agreement. The evidence objected to was elearly not subject to the objection, for the reason the objecting defendants in effect submitted to the decree of foreclosure and sale when they modified their contracts and claim rights under the modification. Defendants Tull and Barney are not here seeking to redeem ; they are here asserting a right, admitting they acquired their right through one standing in the place of the mortgagor, after the mortgage lien accrued and matured arid was foreclosed. , Their claim is without foundation in law or equity. Their evidence does not support their answer, but contradicts its terms by substituting another and different contract in support of their right to be heard. Before a court of equity would entertain their cause, as developed by the evidence, they would be required to offer to do equity; that is, offer to redeem from the sale. Before their contract was modified, they must have offered to pay the balance of the consideration agreed upon in addition to their offer to redeem. After the modification of the contracts, they would have to prove the performance of the stipulation in order to recover from the mortgagor (that is, that appellant’s title was defeated in favor of the mortgagor), and offer to pay the balance of the purchase money. The effect of the modification of the contract was that defendant United States Land, Title and Legacy Company granted to these defendants Tull and Barney the right to occupy the mortgaged premises without making any further payments of the stipulated purchase price until appellant should finally be defeated or should finally recover the property, upon condition that said parties retain possession after the balance of the purchase price became payable. The evidence on the trial uncontrovertibly established that defendants Tull and Barney were so holding possession of the property at the commencement of this suit. It cannot be doubted, from such evidence, that they were holding under and through defendant United States Land, Title and Legacy Company, and as that defendant was a party to the decree of foreclosure, and it is bound by that decree, the defendants are likewise bound by the decree, although not parties to it, because they agreed to hold possession and were holding possession of the property at the commencement of this suit for and in behalf of said company and in subordination to the title of the mortgagee. The question of parties to the foreclosure suit was disposed of when defendants admitted the nature of their possession at the time of the commencement- of this action. They could not hold possession under the modified contract to defeat the decree of foreclosure and sale, upon the grounds that they began to occupy the premises under another and different contract which was in force when the foreclosure suit was commenced. By the modification, the original contract ceased to be effective for any purpose of possession. The issue here was the right of possession at the commencement of this suit. Defendants admit in their evidence that their right to possession at the commencement of this suit was acquired after the sale of the property under foreclosure from a party to the foreclosure suit. Such is no defense to this action. The judgments for these reasons are erroneous and must be reversed. The cause is remanded for further proceedings in accordance with law and not in conflict herewith. FRANKLIN, O. J., and ROSS, J., concur. Application for rehearing denied. NOTE.—Eor tie general rule that plaintiff must recover, if at all, on the strength of his own title in action of ejectment, see note in 18 L. K. A. 781. As to the effect of defendant’s inability to specifically perform, see note in 16 L. B. A. 614.

FRANKLIN, C. J. Appellant was convicted of the crime of grand larceny and sentenced to serve a term in the state prison. On application hy the appellant, the learned judge of the trial court granted a certificate of probable casue for an appeal to this court. The case is now here for review on an appeal from the judgment and an order denying appellant’s motion for a new trial. The charge in the information is grounded on the taking of a gelding alleged to be the property of one C. G. 10, an Apache Indian. The taking of the gelding is not denied, but the felonious intent of the defendant in taking the animal was the decisive issue in the trial of the case. The defendant claimed that he took the animal having an honest belief that he had a right to take it. Though there was a decided conflict in the evidence on this phase of the matter, a brief resume of the testimony in behalf of defendant discloses: That he and one Pete Baca had purchased some horses from the Indians near the San Carlos reservation. That the prosecuting witness and Pete Baca each owned a buckskin gelding which in general appearance corresponded one with the other, and both animals seem to have strayed off, and each of the owners was making efforts to find his horse. The animal described in the information, it also appears, was found by one Joe Hinton at his corral, where he was pumping water. Hinton thought the horse found at his corral belonged to appellant and Baca, because he knew they had purchased some Indian horses, and this horse resembled one that they had purchased. Hinton advised appellant by letter that he had found his horse and had him in the corral, and requested appellant to come and get the animal. Appellant showed the letter to Baca, and the latter stated that the horse found was his horse, one that was purchased by Baca when he and appellant were at the reservation, but at a time when appellant was not present. Baca asked appellant to go to Hinton’s place and get the horse for him, stating that he would pay appellant for the trouble of doing so. Appellant, believing the animal to be the property of Baca, went to Hinton’s place and openly took the animal from the corral for the purpose of delivering it to the one he believed to be the owner thereof.- This, in substance, is the explanation which appellant relied on for his defense to the charge. If the appellant did in fact take the property having an honest belief as to his right to take it, the crime charged would of course lack the essential ingredient of felonious intent. It was thus within the province of the jury to determine, from all the evidence in the case, the bona fides of such claim of right. The court instructed the jury as follows: “You are instructed that if you believe from the evidence that the defendant, Thomas J. Sisson, went after the animal alleged to have been stolen upon'receipt of a letter from Joe Hinton, informing him that he had caught him and had him in his possession, and that he went after the animal to deliver him to Pete Baca, as requested by Baca, and that he honestly believed that the animal belonged to Baca, then it is your duty to acquit him.” The infirmity of this instruction is at once apparent. It places a burden upon the defendant in a criminal prosecution that the law does not authorize. “A defendant in a criminal action is presumed to be innocent until the contrary be proved, and, in case of a reasonable doubt whether his guilt be satisfactorily shown, he is entitled to be acquitted.” Section 1036, Ariz. Pen. Code 1913. “It is not necessary for the defendant to satisfy the jury that he was in fact the owner of the goods alleged to have been stolen, or that he took them under a bona fide claim of right. The burden is on the prosecution to establish the guilt of the defendant beyond a reasonable doubt, and this requirement is not satisfied, if the evidence leaves it in doubt whether or not the property taken was the defendant’s, or whether the defendant honestly believed either that he was the owner or that he had a right to the possession.” 18 Am. & Eng. Ency. of Law, 2d ed., p. 525. “The charge given by the court, predicated on defendant’s belief that he had a right to take the same, should have been given without imposing upon him the burden of proof; that is, the jury should have been instructed in connection with said charge, if they had a reasonable doubt whether or not the defendant believed he had a right to take the animal, they should acquit.” Reese v. State, 43 Tex. Cr. 539, 67 S. W. 325. In the ease of State v. Weckert, 17 S. D. 202, 2 Ann. Cas. 191, 95 N. W, 924, the following instruction was before the court: “In this case I charge you, as a matter of law, that if you are satisfied from the evidence that this defendant, Joseph Weckert, took the property in question from the corral . . . under an honest belief of ownership, although mistaken in this belief, then you would not be warranted in convicting this defendant, and it would be your duty, as jurors, to acquit him. In other words, where a defendant charged with larceny tells the jury, or where the jury becomes satisfied with the evidence, that the original taking of the property was made under an honest or mistaken claim of right to the property, it is the duty of the jury to acquit him, and, before you can convict the defendant in this case, the state must satisfy you from the evidence, beyond a reasonable doubt, that the defendant, by fraud or stealth, and with intent to deprive the owner of the property thereof, and knowing the same not to be his, took the property in the manner and form charged in the indictment.” The court commented on this instruction as follows: ‘ ‘ The accused contends that by this charge the court clearly instructed the jury that the burden was upon the accused of satisfying them that the taking of the horse by him was under the honest claim of ownership. We are of the opinion that the contention of counsel for the accused is correct. While it is true that in the latter part of the instruction the court does charge the jury that, before they can convict the defendant, the state must satisfy them of his guilt beyond a reasonable doubt, yet the former part of the instruction was not withdrawn from the jury, in which they were clearly instructed in effect that the burden was upon the accused to satisfy them that he took the property in question under an honest belief of ownership, although mistaken in that belief. This instruction was clearly erroneous, and in conflict with the provisions of section 7376, Compiled Laws of 1887, which reads as follows: ‘A defendant in a criminal action is presumed to be innocent until the contrary is proved, and, in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.’ ” See, also, State v. Huffman, 16 Or. 15, 16 Pac. 640; State v. Grinstead, 62 Kan. 593, 64 Pac. 49; Black v. State, 83 Ala. 81, 3 Am. St. Rep. 691, 3 South. 814; Evans v. State, 15 Tex. App. 31; Higginbotham v. State, 42 Fla. 573, 89 Am. St. Rep. 237, 29 South. 410; Johnson v. United States, 2 Okl. Cr. 16, 99 Pac. 1022; 25 Cyc. 49. The authorities are abundant, and, we believe, substantially uniform, to the effect that the burden of proof is not upon the defendant charged with the crime of grand larceny to satisfy the jury that the taking was under a bona fide claim of right; it being sufficient to entitle him to an acquittal if the jury have a reasonable doubt arising from all the evidence in the case as to whether the defendant took the property having such an honest belief as to his right to take it. In other words, the felonious intent being an essential ingredient of the crime charged, if the taking is admitted, or proved beyond a reasonable doubt, nevertheless, if'the jury entertain a reasonable doubt of the felonious intent of the defendant in taking the property, the jury should give him the benefit of such reasonable doubt and acquit him. And it matters not whether such doubt arises out of the evidence introduced on the part of the prosecution, or is created by the evidence upon the part of the accused. Counsel for appellant has pressed this matter upon us with much learning and force, and we have followed his effort to the period of conviction that the lower court, in giving the instruction complained of, committed error. But is it reversible error? The matter has burst into a very flame, but must again die down into smoke, and the pity of it is that it is always more attractive to see smoke burst into flame than to observe flame smother into smoke. We say the instruction is erroneous, but that this case must not be reversed on account of the error. Why? Because, though not called to our attention by either party, we have just discovered by a scrutiny of the record that the instruction criticised was given- by special request of the defendant and in the precise words which he employed. The policy of reversing cases at the instance of a defendant in a criminal cause because of error occurring by his invitation and request would, indeed, be unwise, for it must readily occur to anyone that the pursuit of such a -course could not be fraught otherwise than with most mischievous consequences in the administration of the law. A party by clever and ingenious argument might in the hurry of a trial persuade a court to give an instruction which, upon a critical examination, would be found, not good in point of law. The court should, of course, refuse to give an erroneous instruction, but, if one such is given, the party urging it may not be heard in this court to decry a result fashioned by his own handiwork. The toleration of such a procedure would tend often, perhaps, to encourage parties to strive in an endeavor to catch the court, and thus predicate a foundation for reversible -error. It requires some assurance to urge upon this court to reverse a cause for an error urged and invited by the party complaining of it, but we must accentuate in this instance that such a course will not be permitted to endure. The defendant assigns as error the omission of the court to give special instructions upon particular features of the case, although he 'did not request any one which he claims was omitted, but should have been given. His contention being in substance that it was a duty of the court imposed by the law to give specific instructions upon all the defensive hypothesis raised by the evidence, whether requested to do so or not.. Such is not the law in this jurisdiction. But we are cited to-cases from Texas to sustain the contention. The Texas cases, are not in point, however, for they are governed by a mandatory requirement of the statute. In Texas the judge must-charge the jury and must “distinctly set forth the law applicable to the ease. . . . whether asked or not.” Tex. Crim. Code 1895, art. 715. The provision is quite different from, that of Arizona. After prescribing the order in which the trial must proceed, subdivision 6 of section 1033, Penal Code-of Arizona of 1913, says: “The judge may then charge the jury and must do so on any points pertinent to the issue, if requested by either party,-, and he shall declare the law.” Commenting on the Texas statute, Mr. Thompson says: “The doubtful policy of mandatory statutes of this kind will readily occur to every mind. The mere forgetfulness of' the judge to instruct the jury as to the law relating to some-defensive hypothesis furnished by the evidence of the accused, or as to the law furnished by the evidence of the state, will work a reversal, although the failure so to instruct the jury-may have had no influence whatever on the merits. The doubtful policy of such a principle is found in the numerous reversals which have taken place in Texas, where it is upheld with its >greatest strictness, for mere nondireetion, in cases, where able counsel have sat by and intentionally omitted to call the attention of the judge to the matter in respect of which the instruction should have been given. . . . There may be-good reason for such a rule, where the prisoner is not assisted by counsel, or where there is reason to believe, on an inspection of the record, that the jury may have made a mistake in matter of law; but in other cases its results must be mischievous rather than salutary.” Thompson on Trials, sec.. 2340. It is remarked in an Indiana case that: “The position seems to be that if, by oversight, mistake or accident, any point is omitted by the court in its instructions, the omission is fatal, whether the attention of the court may have been called to the matter or not. In other words, that the party and his counsel, knowing that the court is omitting to instruct the jury upon some point in the case, may remain quiet, and, without asking for further instructions, procure a reversal of the judgment on account of- such omissions. Such a practice would be wrong in theory and mischievous in results.” Powers v. State, 87 Ind. 144. At common law the review by writ of error was granted only on the fiat of the attorney general, or where it was allowed on a question of law reserved by the trial judge for the consideration of the court for crown cases reserved. "While the right of review thus restricted was rarely exercised, nevertheless, according to the principles of common-law procedure, no conviction in a criminal ease was reversed for mere nondireetion, where no instructions were requested by accused, unless the record disclosed that the jurors were mistaken in a matter of law. The question presented, then, rests on the exigency of a statute, and for this reason there are found directly opposing conclusions among the different ctates. The judge may charge the jury and must do so on any points pertinent to the issue, if-requested by either party; and he shall declare the law. Such is the statutory prescription on the subject in Arizona. Unless requested by either party, it is optional with the court to instruct or not; but, if either party does request instructions on any points pertinent to the issue, the judge has no option in the matter, but he must declare the law. In fine, mere nondireetion, partial or total, as distinguished from misdirection, is not ground for a new trial, unless specific instructions, good in point of law and appropriate to the evidence, were requested and refused. See Thompson on Trials, and the numerous cases cited under sec. 2341. Ordinarily, the trial judge will and should consider it to be his duty to, give such instructions to the jury in matters of law as, in his judgment, may be best calculated to aid and assist them in forming their verdict, and such charge should embrace the general features of the case to be presented, in- eluding a definition of the offense, and generally indicating what is essential to establish the same. . The court is not required to give instructions upon any particular matters, unless his attention is called to them and they are particularly requested, when, if they are pertinent to the issue and good in point of law, the judge shall so declare the law. In short, the sin of voluntary omission is less grievous than that of voluntary commission, in the matter of giving instructions to the jury. A party charged with crime is, by the wisdom and leniency of the law, surrounded with every safeguard and clothed with every presumption in favor of his innocence, and the procedure governing his trial is so regulated and attuned that he may at every step assert his rights to a fair and impartial hearing, and demand that such rights be fully respected and conserved, and if he is not able, by reason of poverty, to secure counsel himself, upon application to the court, counsel learned in the law will be assigned to aid him in his defense. It is not our purpose to move in the direction of multiplying new trials and reversals on account of nondirection, when an instruction pertinent to the law and applicable to any hypothesis presented by the evidence must, upon request by either party; be given. The duty in such a matter does not devolve entirely upon the court, but calls upon the parties concerned for active participation. Counsel in a cause have their duties and responsibilities. They come into court familiar with their cases, and are presumed to have studied them, and to be familiar with the facts as well as the law which is applicable to such facts. Upon their part attentive interest should be given to the charge of the judge, and the court is entitled to, and should have, the benefit of the learning and knowledge of the law and the facts possessed by counsel. In the absence of -a request for specific instructions, good in point of law and pertinent to the issue, a party will not be heard to complain in the appellate court for mere nondirection—for an omission which would not have occurred except for his own indifference or lack of diligence. Judgment affirmed. CUNNINGHAM and BOSS, JJ., concur. NOTE.—On the question of larceny or embezzlement as affeeted by belief in right to property taken, see note in 41 L. B. A. (N. S.) 549.

CUNNINGHAM, J. Upon the trial the controversy centered about the terms and conditions of the Sharples-Duvall contract of April 12, 1907, the defendant contending that Sharpies purchased 150,000 shares of the Cerro Cobre Development Company’s treasury stock, paying therefor 10 cents per share, or $15,000, and, as an inducement to purchase the said stock, W. B. Duvall offered to give him 750,000 shares of his, Duvall’s personal stock as a bonus, and that Sharpies accepted that offer, and the $15,000 was. paid upon no other condition. On the other hand, Duvall contends that the 750,000 shares of stock was transferred to Sharpies in consideration of Sharpies’ promise to finance the mines. Both parties agree that Sharpies bought and paid for and became the absolute owner of the 150,000 shares of Cerro Cobre Development Company stock. If Cerro Cobre Development Company had issued Sharpies the 750,000 shares of its stock •on condition that he finance the mines, and he failed to perform that condition, he would be liable to the Cerro Cobre Development Company for a breach of his contract. Sharpies could not avoid liability by showing that he had made a contract with and paid W. B. Duvaill to furnish the money that he (Sharpies) had agreed to furnish, and therefore the Cerro Cobre Development Company must look to Duvall for the damages. Such a showing would not present a defense, for the reason there is shown no contractual relation between the Cerro Cobre Development Company and Duvall by which the duty of Duvall to the Cerro Cobre Development Company was violated. That is this case. Sharpies owed no duty to the Cerro Cobre Development Company to furnish the required sum of money by his contract with Duvall, if the contract did or did not contain the condition Duvall contends for. In the event the contract was, as Sharpies contends, that contract was fully executed when Sharpies paid the $15,000 to the Cerro Cobre Development Company and he received the 150,000 shares of its treasury stock. If he paid the money for the treasury stock, and was induced to do so by Duvall’s promise to give Sharpies 750,000 shares belonging to Duvall as a bonus in consideration that Sharpies would advance the additional money required to finance the mines, then Sharpies assumed a duty, not to the Cerro Cobre Development Company, but to Duvall, because Sharpies’ promise was to Duvall, and the consideration for the promise moved from Duvall. It is not contended that the contract was made by Duvall for the Cerro Cobre Development Company, or that the contract was a contract between Sharpies and the Cerro Cobre Development Company represented by Duvall. The consideration paid to Sharpies was paid with the individual property of Duvall. Any duty that such contract cast upon Sharpies was owing to W. B. Duvall, and not to the Cerro Cobre Development Company-, in either view of the contract. The controversy over the terms and conditions of the Sharples-Duvall contract was immaterial to a decision of this cause. The defendant, Cerro Cobre Development Company, on April 26, 1907, accepted the offer of W. B. Duvall by which Duvall proposed to transfer all the capital stock of the Sierra de Cobre Development Company, S. A., to it in consideration of its issuing to him all of its capital stock. The stock was issued to Duvall, and Duvall transferred the stock of the Sierra de Cobre Development Company, S. A., to defendant. At the same time, and as a part of this transaction, the following was transacted: “To provide the necessary funds for the different properties now controlled by this company (Cerro Cobre Development. Company), said W. B. Duvall assigns for $1 in hand paid and. other valuable considerations, one million, four hundred, ninety-nine thousand and nine hundred ninety-seven (1,499,-997) shares of the capital stock of this company to the treasury. ’ ’ Duvall thereby provided the corporation with a property to. be used by it to raise the necessary money. Out of a part of' this property it raised $15,000 by a sale of 150,000 shares to Sharpies. Thereupon Sharpies and Duvall became the controlling stockholders of defendant company. In order to protect their respective rights, Sharpies advanced $15,000 in money to the corporation, and the money so advanced was. used by the corporation for the Sierra de Cobre Devlopment Company, S. A., mines. Sharpies refused to furnish the Cerro Cobre Development Company with any more money. Duvall then borrowed $15,000 and secured the loan with his individual note and collateral belonging to him. He ascertained that his attorney in fact had failed to carry out instructions, and that the mines and options remained in his name and had not been placed in the name of the Sierra de Cobre Development Company, S. A. Five thousand dollars had been paid on the option, and $95,000 of the purchase price remained unpaid, and $15,000 of that sum would mature on October 1, 1908. He believed that he had made a contract with P. M. Sharpies by which Sharpies had agreed to furnish the money with which to pay the purchase price of the mines covered by the optional contract, and Sharpies had refused to furnish the money, and thereby had forfeited all right to the 750,000 shares of stock. In order to protect his rights, Duvall disregarded his promise to transfer the option and convey the mines standing in his name, to the Sierra de Cobre Development Company, S. A., and caused the option to be transferred, to and the mines conveyed to the Tecolote Copper Company, S. A., a corporation he caused to be organized for that purpose, and took all, save three qualifying shares issued to. directors, of the stock of that company and gave to that company $15,000 which he had borrowed. Then the Tecolote Copper Company, S. A., paid the $15,000 installment due on that day and Duvall caused a new optional contract to be drawn, executed, and delivered by the Aguilars and Torres to the Tecolote Copper Company, S. A., providing for the payment of $30,000 .on May 1, 1909, and a final payment of $50,000 on November 1, 1909. The contract of the Aguilars and Torres with W. B. Duvall was in force on October 1, 1908, providing for a payment of $15,000 on that day, the payment of $30,000 on May 1, 1909, and a final payment of $50,000 on November 1, 1909. Such payments, with the payment of July 1, 1907, which had been made, constituted the full purchase price of $100,000 required to be paid for the mines. There is no pretense that the Sierra de Cobre Development Company, S. A., or its holding company, the Cerro Cobre Development Company, took any part in the transaction of October 1, 1908, by which the Tecolote Copper Company, S. A., acquired the transfer and conveyance therein involved, or consented to any such transaction or ratified the same at any subsequent time. Consequently, applying the well-recognized rule of equity that equity will regard that as actually done which ought to have been done, Duvall had no rights in the mining claims to convey to the Tecolote Copper Company, S. A., nor any rights in the optional contract to surrender to the Aguilars and Torres, for the reason he had promised to convey his rights in the mines and transfer and assign his rights in the optional contract to the Sierra de Cobre Development Company, S. A., for a consideration of all its capital stock, and he had received and retained this consideration. Equity will regard that transaction as one in which W. B. Duvall had actually conveyed and assigned said properties as he promised. "When Duvall caused the properties to be transferred to the Tecolote Copper Company, S. A., it took only such title as Duvall had, because it was chargeable with full knowledge of the matters and conditions under which the title to that property stood in Duvall’s name. If Duvall had directly paid the $15,000 from his own funds upon the optional contract, the payment would have accrued to the benefit of the Sierra de Cobre Development Company, S. A., and its stockholder, the Cerro Cobre Development Company, and those corporations would have become the debtors of Duvall to the amount of the money paid. Duvall, indirectly, caused the same thing to be done. He surrendered the optional contract which did not belong to him, before it expired. He paid the Tecolote Copper Company, S. A., $15,000 for all of its stock, and then, as controlling stockholder, but to his individual interest, caused that money to be paid to preserve his rights to the property under option. The Tecolote Copper Company, S. A., thereby became the holder of an interest in the mines, but it held that interest as Duvall had previously held it, in trust for the use of the Sierra de Cobre Development Company, S. A., and that corporation became its debtor to the amount paid for its benefit. When the subsequent payments were made to the Aguilars and Torres by Duvall’s agent the West Coast Smelting & Refining Company, the Sierra de Cobre Development Company, S. A., became its debtor to the amounts so paid, and when the said West Coast Smelting & Refining Company paid the P. M. Sharpies note, in effect it thereby discharged the installment due and payable by the Sierra de Cobre Development Company, S. A., on the Aguilar-Torres option on May 1, 1909, and thereby became the creditor in that sum. By reason of all the corporations participating in the transactions resulting in the West Coast Smelting & Refining Company acquiring the beneficial titles of the mining claims and the mines affected by the Aguilar option, being chargeable with full knowledge of Duvall’s relation to the titles, and Duvall being the controlling spirit in each of the steps taken by which the West Coast Smelting & Refining Company furnished the money and received the said titles; it received the titles burdened with all the infirmities incident thereto while the property stood in the name of its real grantor, W. B. Duvall. The effect of the various transactions is that the Sierra de Cobre Development Company, S. A., is still entitled to have the Tecolote Copper Company, S. A., convey to it the mines denounced in the name of W. B. Duvall, and to have the Tecolote Copper Company, S. A., convey to it the mines covered by the Aguilar-Torres option, when it has satisfied the equities of the holder of the record title—the holder of the Duvall title in the mines denounced by him, and the holder of the Aguilar and Torres title to the mines held under the Duvall option. The Sierra de Cobre Development Company, S. A., lost none of its rights in the property by reason of the numerous transactions resulting in the Tecolote Copper Company, S. A., succeeding Duvall and the Aguilars and Torres as the holders of the record titles to the property involved, and by reason of the West Coast Smelting & Refining Company discharging Duvall’s liabilities to the Aguilars and Torres, and certainly Duvall acquired none of defendant’s rights by those transactions. The defendant had no beneficial interest in the 1,000,000 shares of stock issued to Duvall as trustee. That stock represented no property belonging to defendant in any sense. By means of the resolution of April 17, 1909, Duvall offered to give the Cerro Cobre Development Company the beneficial interest in the 1,000,000 shares of stock, in consideration that it ratify the sale of the five mines denounced to the Tecolote Copper Company, S. A., the beneficial title to which was vested in the Sierra de Cobre Development Company, S. A. The offer of Duvall, at most, was an offer which, .if accepted as proposed, would have resulted in a contract; but, on November 29, 1910, the Cerro Cobre Development Company, by a positive corporate act, refused the offer as made by Duvall, and attempted, it seems, to accept that part of the offer beneficial to it, viz.: the 1,000,000 shares of West Coast Copper Mines Company stock, but rejected the conditions under which the offer was made, viz.: .that the stock would, stand in the name of W. B. Duvall, as trustee, for 10 years, etc. The offer, not having been accepted as made, failed to become a contract of the parties, and conferred no rights upon either. The defendant company having refused the condition, in effect rejected the entire offer. If said transaction had been effected, as attempted, the result would have been to vest the equitable and legal title of the said five mines in the Tecolote Copper Company, S. A., and the beneficial title in the West Coast Copper Mines Company as the stockholder of the Tecolote Copper Company, S. A., and in the Cerro Cobre Development Company as the controlling stockholder of the West Coast Copper Mines Company, but the Cerro Cobre Development Company refused to relinquish its equities in the five mines, as held by the Sierra de Cobre Development Company, S. A., by a corporate act positive in its nature, repudiating and declaring void the attempt of Duvall to bring about the change in its equities. The result was that so far as the rights of the defendant are concerned, its equities in the properties were unchanged, and Duvall retained all the property in the stock that he acquired when he received it. When the Cerro Cobre Development Company rejected the stock, the word “trustee” became descriptive of the person and conferred no rights upon this defendant. There were no disputed matters of fact material to the case for the decision of the jury. The questions presented are questions of law for the court; all matters of fact material to the case being without dispute. Upon the whole ease the verdict of the jury is correct, because under the undisputed evidence the defendant was not entitled to recover in any event. The judgment is affirmed. ROSS; C. J., and FRANKLIN, J., concur. Rehearing pending.

CUNNINGHAM, J. Reference to the parties will be made as they appeared in the complaint, as plaintiffs and defendant, for convenience. The theory of the cause as presented by the complaint is that Patrick Cunningham acquired and owned an undivided one-half interest in the 17 mines with Martin Costello; that Costello held the record titles in his name, and that Cunningham’s title is equitable in its nature, based upon a contract made between Costello and Cunningham; that Costello procured the record titles to the mines- in his name pursuant to such contract, and held title pursuant to the terms of the contract as to Cunningham, in trust for the use and benefit of Costello and Cunningham; that Costello sold and conveyed the whole estate, and received the proceeds of such sale; that the plaintiffs, the owners of the Cunningham interests in the property, have elected to ratify the sales made by Costello and claim their rights in the proceeds of the sales in lieu of their equity in the property in the hands of the purchasers. The defendant denies the right of the plaintiffs to recover anything upon any theory. She admits a contract was entered into between Martin Costello and Patrick Cunningham, pursuant to which Cunningham conveyed an undivided one-half interest in the Wagner group of six mines to Costello for the purpose of Costello’s holding of the record title thereto, to facilitate the procuring of United States patents and to facilitate a sale of the property. Pursuant to said contract Costello became obligated to account to Cunningham only .after a sale of said mines was made, and then only for one-half of the net proceeds of such sale, after deducting from the proceeds certain expenditures. The defendant denies that Cunningham owned any interest in the remaining eleven mines at any time, and denies all liability to account to plaintiffs for the proceeds of the sales of said eleven mines. Defendant, while confessing a liability to account for the proceeds of the sale of the Wagner group of six mines, alleges that such accounting was made with Julia Cunningham as heir, guardian of the estates of the plaintiffs, and as administratrix of the estate of Patrick Cunningham, deceased, and all matters in controversy existing between Costello and the said Julia Cunningham in her several capacities, were settled, adjusted and compromised; that Costello paid to said Julia Cunningham, as aforesaid, the moneys then found to be due and payable on account of all matters and dealings of trust and confidence between Costello and Patrick Cunningham; that Julia Cunningham, as aforesaid, received and accepted the moneys so paid in satisfaction of all such dealings of con fidence and trust, and executed and delivered to Martin Costello her deed of acknowledgment, release, satisfaction and discharge of the said dealings aforesaid; and that her actions in this respect were reported by her to the probate court of Cochise county, and upon notice and hearing such report was approved, and her acts were, by an order of said court, duly confirmed. The plaintiffs admit that an accounting was had by Costello and Julia Cunningham in her several capacities as alleged by defendant; that Julia Cunningham received the money to the amount alleged; that she executed and delivered releases and acquittances on their faces purporting to be in settlement and compromise of all dealings of trust and confidence between Costello and Cunningham, and that her acts in that behalf were reported to the probate court and by said court approved and confirmed, but that said settlement was in effect only a partial accounting and a settlement and accounting for the proceeds of the sale of the Wagner group of six claims; that such settlement was unfair and fraudulent upon the rights of plaintiffs in the particular that by false and fraudulent representations and by undue influence and promises made and exerted by Costello, Julia Cunningham was induced to execute and deliver the said deeds of release and report said acts to the probate court, purporting on their faces to be in satisfaction and discharge of all dealings of trust and confidence between Costello and Cunningham, and that by such false and fraudulent representations and promises, and threats made by Costello, Julia Cunningham, as such representative, was induced to allow as a credit to Costello the sum of $36,396 out of said net proceeds belonging to said estate, as an attorney’s fee to James Reilly, which was unjust, unfair and fraudulent. Defendant alleges that Reilly was employed by Costello and Cunningham to perform, and he did perform pursuant- to such contract of employment, legal services in connection with the Wagner group of claims. The contract of employment provided that Reilly’s compensation should be 30 per cent of the net proceeds of the sale of the mines, and that said sum of $36,396 was equal to said 30 per cent of Cunningham’s interest in the proceeds of the sale of the Wagner group, and was the sum agreed to be paid and payable out of Cunningham’s interest. Plaintiffs do not deny the making of the Reilly contract, except that the credit claimed and allowed to Costello for that purpose was fraudulent, unfair and unjust, the entire attorney’s fee being $72,792. The pleadings have separated the 17 mines into two distinct groups: first, the Wagner group of six mines; and, second, the other eleven mines. The issues raised by the pleadings upon the Wagner group are simple, .and may be disposed of in a few words. The defendant clearly pleads an adjudication by the probate court of the controverted questions of the- matter of accounting for the proceeds of the sale of that property. The plaintiffs do not controvert the fact that the compromise and settlement was approved and confirmed by the court upon the report of Julia Cunningham. As a matter of law, such order of the probate court was final upon all matters acted upon until reversed or vacated. Plaintiffs do not contend that the order has been reversed or vacated. One of the matters directly involved was the charge for attorney’s fees, to be paid Reilly according to the terms of his contract of employment. The contract of employment is not denied by the plaintiffs; hence they are in no position to attack the settlement until the order confirming such settlement is vacated. The matter of settlement and compromise and its approval and confirmation are peculiarly within the jurisdiction of the probate court. The plaintiffs have raised no issues of fact for trial relating to the Wagner group of six claims, as by the admissions in the pleadings the defendant testator has accounted for his trust in that respect. The settlement and compromise could only affect the Wagner group of six mines, for the reason the defendant in her pleadings definitely limits such settlement and compromise to the proceeds of the sales of that group. For defense as to the elaim of plaintiffs for an accounting for the proceeds of the sale of the other eleven mines, defendant denies liability to account upon two grounds: first, because all dealings of trust and confidence between Costello and Cunningham were settled and compromised by Costello and Julia Cunningham, in her several capacities, and the settlement was approved and confirmed by the probate court; and, second, because Cunningham owned no estate, legal or equitable, in the other eleven mines. The first ground: cannot he sustained. The settlement as made had reference only to the proceeds of the sale of the Wagner group of six mines. The defendant alleges that Costello was bound to account for one-half of the net proceeds of the sale of that group, by an agreement with Cunningham. The property in Costello’s hands was personal in its character, and its title was vested in the administratrix of Cunningham’s estate. Such administratrix was charged by law with the duty to collect the personal property, and she was the only party who could enforce collection at that time. The collection was made by means of the settlement and compromise pleaded by defendant and admitted by plaintiffs. Such estate as Cunningham owned in the other eleven claims was in its character realty, an interest in mines, as contended by the complaint. If Cunningham owned the interest that plaintiffs allege he did, and he acquired that interest pursuant to the terms of the contract set forth in the complaint, then the title to his interest vested upon his death in his heirs at law subject to be divested through a sale by the administrator of his estate for the purpose of paying his debts and the expenses of the administration; there existing no or not sufficient personal property to pay such debts and expenses. It appears from the pleadings that ample personal property was in existence to pay such debts and expenses of the administration without a resort to the realty, no order of the probate court appearing for the sale of the mine or mines; therefore the administratrix of Cunningham’s estate had no authority to dispose of the property, and any attempt to forfeit or waive the title of the other heirs at law to such equitable right in the mines would be unavailing. The deeds of release would not have the effect of divesting the title of the plaintiffs in the realty, even though the administratrix intended that such should be their effect in fact. The order of the probate court approving and confirming the settlement made by the administratrix would have been made without jurisdiction if it on its face purported to divest the title of the heirs at law to the realty, unless the facts appeared that such property was necessary to discharge the debts of the intestate or pay the expenses of the administration, or that it was being sold pursuant to a previous order of the probate court for purposes recognized by statute. The second defense, viz.: the denial that Cunningham' owned any estate in the other eleven mines, presents more difficulties. Defendant questions the right of the plaintiffs to maintain this action in the capacity in which they sue, and contends that the administrator of the estate of Patrick Cunningham, deceased, is the proper party to prosecute the cause of action asserted. Such contention cannot be maintained. The demand sought to be recovered is in equity an interest in realty, and the plaintiffs' are suing as heirs at law of the alleged owner of such interest. The title to the estate claimed, if the claim is established, vested in the heirs at law of the decedent. They are the real parties in interest, and a recovery by them will fully protect the defendant in the event another action upon the same cause is commenced, and this is the -only test as to the real party in interest with which a defendant is concerned. 30 Cyc. 84. Prom the facts appearing in the pleadings, the estate of Patrick Cunningham has no enforceable interest in the subject matter nor in the purpose of the suit, with the Wagner group of claims eliminated, and the rights of all parties beneficially interested in the remaining properties may be determined without the presence of said estate, and the defendant’s rights be fully protected by a determination of the rights of the parties now before the court. . Plaintiffs base their right to recover squarely upon the contract alleged to have been made by Costello and Cunningham during the year 1891. Such rights as they have arose from said agreement and the matters and things done by the .parties pursuant to said agreement. The said agreement as pleaded by plaintiffs imposed upon the parties thereto mutual rights and duties, and created a relation of trustee and beneficiary, and also a relation of tenants in common of the property; Anderson v. Snowden, 44 Wash. 274, 87 Pac. 356; Davis v. Givens, 71 Mo. 94. Upon this branch of the case the issue is clear-cut, viz.: Did Costello and Cunningham enter into a contract pursuant to the terms of which they acquired said eleven mines, and caused the record titles thereto to be conveyed to, and be held in the name of, Martin Costello, in trust for the use and benefit of said parties to said contract ? The cause came on for trial, and the plaintiffs demanded a jury. The jury was .duly im paneled, and the trial proceeded to the close of the evidence. A discussion arose as to the nature of the verdict to he returned by the jury, which resulted in an order being made to the following effect: “It was thereupon stipulated in open court by counsel for the respective parties that, this being' a suit in equity, the jury need not be required to return a general verdict herein. ’ ’ Special interrogatories were proposed by the counsel of the respective parties, and special instructions were requested. After the argument by the respective counsel the court instructed the jury and propounded a number of special interrogatories framed by the court for answers by the jury as a special verdict. The jury returned answers to the interrogatories as a verdict. Whereupon the parties by their respective counsel stipulated in open court that the “special verdicts and findings might be taken and held to be the jury’s verdict and recorded by the clerk.” The defendant thereupon orally moved for judgment notwithstanding the verdict, and gave notice that at a later time defendant would submit, her own findings. “Thereupon, upon stipulation by counsel in open court, it was ordered that plaintiffs should have until November 1, 1912, to file their opening brief and proposed findings, and that defendant should have until December 1, 1912, to file her reply brief and proposed findings, and that plaintiffs should have until January 1, 1913, to file their closing brief, and that the cause should stand submitted on the filing of plaintiffs ’ closing brief. ’ ’ The plaintiffs contend upon this appeal that the verdict of the jury is binding upon the parties and the court, and the defendant controverts this proposition. Ordinarily the contention of the plaintiffs would be sustained, but it appears,, from the record that plaintiffs made no such contention in the lower court, but treated the special verdict then as advisory only, and voluntarily entered into a stipulation wholly inconsistent with such contention. To permit the question to be first raised upon appeal would deprive the lower court of an opportunity to correct any error committed in that respect, if error was in fact committed. On this appeal, under the circumstances disclosed by the record, the plaintiffs must be considered as having waived the benefits of a jury trial by acts ineon sistent therewith. The cause on this appeal will be considered as an appeal from a trial by the court without a jury. From the view we take of the evidence, the question becomes immaterial in the end; it only serves to eliminate from consideration the defendant’s assignments of error relating to the jury, the verdict and the instructions given. The defendant contends that the court committed reversible error in its findings of fact. A great number of grounds of alleged error are set forth in the assignments. .Among the grounds alleged some have reference to the manner of stating conclusions of law and findings of fact, viz.: without stating them separately, by stating conclusions of law with the findings of fact. The defendant assigns as error the insufficiency of the evidence .to support all the findings to the effect that Cunningham owned an interest in the Irish Mag group of mines and the Belflower and Smogler mines, and that Costello held the title thereto in trust for the use and benefit of himself and Cunningham. Every finding made by the court upon the main issue and bearing thereon is attacked by defendant upon said grounds of the insufficiency of the evidence to support such finding. The statute relating to the findings of fact by the court in force at the time of the trial was paragraph 1406, Civil Code of 1901, as amended by section 4, chapter 74, Laws of 1907. That statute is as follows : “The trial court may make findings of fact in fact in any case tried to it without a jury and such findings shall become a part of the record of such case.” The parties having requested the findings by the court after the special verdict was returned, -the trial must be regarded as a trial to the court, and the findings a part of the record of t'he case. We find no provision of the law in force at the time of the trial that required the judge of the trial court to render a decision in writing on the issues of fact, nor any requirement that the facts found and the conclusions of law shall be separately stated, and a judgment entered thereon accordingly, as existed before the 1907 amendment. Prior to such amendment paragraph 1406, Civil Code of 1901, required the decision of the court upon issues of fact tried by the court without a jury to be in writing, and filed with the clerk within 30 days after the trial. In giving the deci sion the facts found and the conclusions of law were required to be separately stated, and the judgment upon the decision was required to be entered accordingly. Such, in substance, are the usual requirements of the statutes of the Code states. The 1907- amendment, supra, clearly left the matter of stating the findings of fact wholly to the discretion of the trial court, and requires the court to state no separate decision thereon, nor is the court required to state the facts as found. If the court does in fact state its findings, such statement becomes a part of the record of the case, and becomes subject to attack by a motion for a new trial upon the general grounds that the evidence is insufficient to sustain any finding of fact material to the ease. Paragraph 1476, Civ. Code 1901, as amended by see. 8, e. 74, Laws 1907. By the provisions of the same amendment the trial court, upon the hearing of the motion for a new trial, was required to review the evidence as to such finding. The order of the court overruling defendant’s motion for a new trial is assigned as error, and the grounds alleged in the motion are separately assigned. These assignments attack the findings as they affect the ownership by Cunningham of any interest in the Irish Mag group and the Belflower and Smogler mines, and all facts found in support thereof, and they attack all findings that support the holding by Costello of the titles to said mines in trust for the use and benefit of himself and Cunningham, upon the grounds that all such findings are not sustained by the evidence. The motion for a new trial and the assignments of error attack all the findings of fact material to the ease. The burden was upon the plaintiffs to establish, by clear and convincing evidence, ownership of the said mines in Patrick Cunningham substantially as alleged in their complaint. They concede that the record title to the mines in question was held by Martin Costello. The presumption of law is indulged in such case that the holder of the record paper title is the owner of the whole estate, and unless such presumption is overcome by proof, it must prevail. Another rule may be referred to with profit, viz.: that the party asserting an equitable title to property must recover upon the strength of his own title, and not upon the weakness of the title of his adversary. In support of the allegations of the plaintiff’s claim of title they offered the following circumstances in evidence: Witness Julia Cunningham testified that at the time witness and Patrick Cunningham were married, Costello said to witness that Cunningham was well off, worth $50,000. Witness inquired what he meant, and Costello said: “We have a claim that the company has offered us $100,000 for. He owns half and I own half.” Costello called this claim the Irish Mag. On another occasion Costello said that Patrick Cunningham would have to lay off, meaning stop working for the Copper Queen Company, and do assessment work. Costello said there were eleven claims that he and Cunningham had, enumerating the Wagner group and the Irish Mag, George Washington, the Republican and Angel. The work was not necessary on the Wagner group, for the reason they had patents for those mines. They did not have the Belflower and Smogler then. About that time Costello gave Cunningham $100. Cunningham went to Bisbee to do the assessment work. He then lived in Tombstone. After that date parties began to work on the Irish Mag, and witness wrote Costello that other parties had “jumped” the claim. In December, 1895, witness wrote for Cunningham a letter to Costello, calling his attention to the fact that Peter Johnson wanted to sell two claims, the Belflower and Smogler, for $1,200. Witness later had a conversation with Costello concerning the purchase of said two claims. Costello talked about the claims in 1896. Cunningham thought they had best get the claims. In 1896 or 1897 Costello and Cunningham bought the two claims from Pete Johnson, called the Belflower and Smogler and in 1898 Cunningham did the assessment work on all of them, including the Irish Mag group. He did all of the assessment work on all these claims in 1899. A group of claims, including the Belflower and Smogler, was surveyed, at an expense of $200, and Cunningham paid $100 and Costello paid $100. Costello gave Cunningham $100 in 1895. If Costello paid Cunningham any other sum for assessment work other than above witness did not know. In Bisbee witness had a conversation with Costello about the purchase of the Belflower and Smogler from Pete Johnson. Costello was in Bisbee. Cunningham wanted to buy the claims. Costello was not very eager to buy. ■ He • had not answered a letter written about it. Finally he said: “He will take $1,000 for the claims. If I offer him $1,000 he will take it all right.” And Cunningham said, “You try it.” He said, “I will try it.” Costello said, ‘ ‘ Have you got any money ? ’ ’ and Cunningham asked witness, “How much [money] have you got?” Witness said, “I have $370.” Witness got the $370 and gave it to Cunningham, and Cunningham gave it to Costello, and Cunningham said, “I will borrow a hundred and thirty from Mrs. Letson” and they went down town. Afterward witness paid Mrs. Letson $130. About Christmas, 1896, they had not bought the claims, but were talking about buying them. They spoke about the Irish Mag. Cunningham said to Costello, “Why don’t you open up the Irish Mag?” Costello said, “That will take a great deal of money. It might take $10,000 and we might not find anything.” Cunningham said, ‘ ‘ Oh, yes; if you put in that much money, I think you will find something.” And witness said, “I have a ranch in California worth $5,000 anyhow, and I will give it to you for half of the ten thousand.” Costello said: “I ain’t buying any California real estate just now. Well, all right, I’ll open her up. When I go over home, I will send Tom Lowry over and let him take charge.” Cunningham jumped to his feet and said: “No, by G-; she is mine, and nobody shall open her up but me.” Costello said nothing more. Witness gave Cunningham $300 to use in doing assessment work for 1896. In May, 1899, Cunningham wanted to sell the Irish Mag. Witness forwarded to Costello a letter from one Graham in which Graham had offered to buy the Irish Mag group and Wagner claims, amounting to 11 in number, for $200,000. Witness added to the letter, “Martin, will we take this?” Cunningham died July 1, 1899. Costello was at the funeral. After the funeral Costello was at witness’ house. Witness said to him: ‘ ‘ Costello, I sent for you for a purpose. Paddy always said that he owned a half interest with you in all the claims he had here in Bisbee.” Costello replied: “Yes; he owns half and I own half.” Witness named every claim mentioned. Costello said: “Yes, if Paddy said he had half of them I will never say he didn’t.” Witness said, “How do I stand?” Costello said, “I will treat you just as I would Paddy.” Witness next saw Costello in Tombstone, and made an appointment to meet him at Reilly ’s law office. Reilly gave witness an instrument, signed and acknowledged by Costello, acknowledging an equitable interest in the Wagner group as belonging to the heirs of Patrick Cunningham. Witness refused to accept it as a final statement of their rights. Reilly said, “That is all you own.” Witness said, “No; there are 17; there are 11 more.” Costello said, “Well, the patents are only out on these now.” On the six. They were all the patents were out on. Costello called witness outside and asked witness to trust him, and “when I sell the rest Í will give you your half of everything.” Witness Joseph MeNelis testified that Martin Costello, in a conversation with witness in 1899, before the death of Cunningham, said, in substance, that Cunningham was worth all kinds of money, and witness asked, “What does it amount to?” Costello answered, “Mining claims; him and I is partners in the Bisbee district.” Witness asked Costello about the property Cunningham owned there, and Costello answered, “Him and I is the owners in all the claims we own in Bisbee.” At a subsequent time when he was present and Cunningham and Costello were talking about work for witness, Costello asked Cunningham, “Why don’t you take him [meaning witness] out on them claims of ours where you ■have been doing some work out there?” Cunningham said, “I tried that,, but could not make it stick.” Costello said, “Why?” Cunningham said: “Well, when I paid for hauling the ore down to the smelter, and when the smelter expenses was taken out, I hardly got an existence. I can work and get better wages and work less when working for the company.” Witness asked “him,” “Where was the mine?” and what mine he was talking about, and he said, “The Irish Mag.” On the 2d of July Martin Costello came to Cunningham’s funeral. At Mrs. Cunningham’s house Costello asked, witness out in the yard, and he said, “This shock will kill his mother.” Witness said, “I guess she will have to stand it.” He said, “It will be hard on Mrs. Cunningham and the family, but she is pretty well fixed.” Witness said, “How well is she fixed?” He said, “Paddy and I owns a half interest in all those claims over on the hill.” After the funeral, witness, Mrs. Cunningham, Costello, and T. R. Grady were present at the Cunningham home. Mrs. Cunningham had sent for Costello. After considerable talk Costello started to go, when M!rs. Cunningham said she had sent for him for a purpose. She said, “I want to know how I am fixed.” He said, “What do you mean?” She said, “I want to know how those mining claims are situated, as my husband told me he always owned a half interest in them.” He said, “If your husband told you that, he was right; certainly he owns half interest in all those claims; I will never say he don’t.” Costello mentioned a lot of claims. The'Irish Mag group and the Belflower and Smogler, among others. At a later time witness had a conversation with Costello, when Costello said to witness that he had recently seen Mrs. Cunningham and family in Los Angeles, and said, “They have got lots of money; they will get along fine.” Witness said to him, “You didn’t give them what you promised.” “Oh,” he said, “they have got lots.” Witness said, “You had better come through with the promise you made, or you will be sorry for it. ’ ’ This was the last conversation witness testifies to having with Costello about the matter. Witness T. R. Grady was at the funeral of Patrick Cunningham. He is a brother to Mrs. Cunningham. After the funeral witness, Mrs. Cunningham, Joe McNelis, Martin Costello, and perhaps others, were present, when Mrs. Cunningham and Costello had a conversation about the mines. Mrs. Cunningham said: “Say, now, Costello, Paddy always told me that he owned a half interest in the claims with you.” She mentioned some of the mines by name, among them the Irish Mag. He said, “Why, Mrs. Cunningham, I will treat you the same as I would treat Paddy. If Paddy says that he owned all the claims,” or “a half interest in all those claims, I won’t say that he didn’t.” Witness James Letson in 1892 went with Costello on the Irish Mag claim. Cunningham was doing the assessment work on the claim at the time. On the way back to Bisbee from the claim, Costello said to witness that some day Paddy Cunningham would get quite a lot of money out of that claim, the Irish Mag claim. Later on witness had another conversation with Costello in regard to those claims. That was after the Irish Mag group was sold. In the year 1902 or 1903. It was after the sale and after they had struck ore in the Irish Mag. Costello and witness were talking about the Irish Mag, and witness said, “Martin, it is a wonder that you didn’t sink that shaft yourself, as you have plenty of money?” Costello told witness that he would have sunk it himself if Paddy Cunningham had lived. Witness then asked, “Mrs. Cunningham will get quite a lot of money out of this when it is all settled?” and He said she would; she would get more money when the other six claims were sold; that Paddy had a half interest in those other six claims. The other six claims he mentioned were the Hattie Manchester, Supplement, Leo, Boy, Belflower, and Smogler. Costello told witness the reason those six claims were in his name was that Cunningham was not a citizen, and could not get a patent. Witness Jno. S. Williams testified that he had a conversation with Costello concerning the mines some time in the spring of 1892. Costello asked witness if he knew where the Irish Mag ground was, and witness did not know. Costello told witness that Paddy Cunningham was doing some work and said: “Well, if Pat is willing to put up his time, I ought to be able to put up a little money to keep him going. Some time we will make a little money out of it. ’ ’ At different times witness carried packages, such as fuse, powder, caps, from Costello and Costello always told witness to take them over to “Paddy,” his partner. Witness Jos. Chisholm wrote a newspaper article on the Irish Mag and Wagner groups for publication in a Prescott paper, at the employment of Patrick Cunningham. The agreed price for the service was $10. Cunningham told witness that Costello would pay him. Witness asked Costello for the money, and told Costello that Cunningham had said that Costello would pay the money,. Costello said that he would pay half only, and that Cunningham would own half the claim, and witness must get the other half from him, and offered witness $5. Witness would not take it because witness told Costello that Cunningham had said that he was doing the work, that was the arrangement, and Costello was putting up the money. It was on that basis that witness and Cunningham made the agreement that witness wrote the article. Costello said he would pay the money on the claims for the contract work alone, but not for any newspaper articles, and Cunningham would have to pay half. Witness Peter Johnson testified that he located the Belflower and Smogler’s claims, and sold them to Paddy Cunningham. Witness negotiated the sale with Cunningham. Witness received $1,000 by a check or two cheeks signed by Martin Costello, and made the deed to Costello. Witness T. C. Wright testified that in the spring of 1892 Paddy Cunningham was doing the assessment work on the Wagner and Irish Mag groups. Costello came to where witness was sharpening tools, near or on the property, and Cunningham came over. Witness advised that Cunningham sell the claims. Cunningham said if he sold he would have money; that he would get half of the money, and asked Costello if he would get half of it. Costello said: "Yes; you would get half of it. You are my partner; you own a half interest. ’ ’ Witness Peter C. Hansen testified that his wife sold Martin Costello her interest in the Irish Mag group for $3,000. Two thousand dollars was paid as a final payment, and Reilly got $200, and Robinson got $100, and Costello paid $1,700 to witness’ wife. This was in 1892. The agreement was made September 16, 1892, and recorded. Witness John Graham testified that witness went over the Irish Mag group with Cunningham, and went to see Costello about closing the purchase of these mines with the Wagner group. Costello stated that the mines were in litigation, there was a suit pending, and, furthermore, that Paddy Cunningham was his partner and owned a half interest in those claims, and he could not do any business without the consent of Paddy Cunningham. Later Captain Hoatson came to Bisbee, and witness showed him eleven claims, including the Irish Mag group. Then witness and Captain Hoatson went to Tombstone to see Martin Costello, and had a conversation with him in the presence of Allen R. English in regard to the purchase of the mines. Again Costello said he would see Paddy Cunningham, or have Reilly see him, and make some arrangement whereby they could set a price. Later in the day a further conversation was had, and Captain Hoatson made this proposition: “Martin, we will give you $250,000 for that Mag group of mines in Bisbee, in the Warren mining district.” Costello said he was not in any hurry about selling. He went on and told about a suit pending in regard to the titles, and that he hadn’t got possession yet, and he didn’t know when he would get it. He said, further, that Paddy Cunningham of Bisbee was a half owner in those claims, and he could not do any business without the consent of Paddy Cunningham. “We were then trying to buy 11 claims.” In a conversation had with Costello on May 28, 1899, he stated to Captain Hoatson that he was not ready to sell those claims. He said he had not been able to see Paddy, Cunningham, but that he would have Reilly see him and make some arrangements. Hoatson wanted to know why he could not in some way tie up those claims, get an option on them, or buy them outright, and Costello said that Paddy Cunningham was his partner in those claims, and he could do no business without the consent of Paddy Cunningham. Gordon R. Campbell was present and said: “That is funny. You have those titles in your name, the legal titles, and at the same time we have to go over to Bisbee to consult Paddy Cunningham. How is it?” Then Costello stated that he had the legal titles to that property, but that Paddy Cunningham was his partner, owned a half interest in those claims, and he would not do any business without the consent of Paddy Cunningham. He. refused to consider an offer for the claims. In June, 1899, witness for the first time got Costello and Cunningham together. After some talk, Cunningham said, “Martin, what do you think about selling these claims to Jack [speaking of witness] ?” Martin Costello said, “Paddy, we have a big mine in the Irish Mag. The Copper Queen people have offered us $200,000 for the Irish Mag.” Witness said, “Well, Martin, what Captain Hoatson told yod, do you think any more of the Copper Queen people than you do Captain Hoatson ? ’ ’ Costello said: ‘ ‘ Captain Hoatson offered us $250,-000 for the claims. I don’t think it is enough.” Later, when witness was again trying to close the deal after a decision of the lawsuit on the Irish Mag claims, Costello said: “I. have often thought, and do yet, and some time I will move to Bisbee, and Paddy and me will work them mines myself; we ain’t in any hnrry to sell them.” On July 23, 1899, after the death of Cunningham, witness asked Costello what he was going to do with regards to selling the mines. He stated he didn’t know how Cunningham’s estate would he settled up, and he didn’t know. In August following, when approached by witness, Costello stated that he had made a proposition that he would sell the property for $500,000. The sale was thereafter closed through Graham, Hoatson and Campbell, to the Lake Superior & Western Development Company. On May 15, 1899, Costello wrote to Cunningham: “The Daly Cohn case was decided by the supreme court of the United States to-day in our favor, after nine years courting we won at last.” This had reference to the Irish Mag group. Upon cross-examination a letter signed by Pat Cunningham and addressed to Martin Costello, dated June 3, 1899, was received in evidence. It states: “I received your letter some time ago and I was glad to hear that you had won the case, and I hope we will make a success of them now either one way or another. I understand from lots here that you are going to sink a big shaft. You must remember before you start in what you have to contend with, nine miners, three men on a shift, two engineers and two other men. So that will be an awful drag on one man’s sack. My advice would be to let go. Place the price at half a million, one hundred thousand down, for I know we can get a quarter of a million, but suit yourself, whether you work them or put on your price. There is no doubt in the world but if you work them you could make a big success, but it takes money to do it. . . . You could take more ore out in an hour in either the Irish Mag or Giberalta than either of them has got yet. ...” This evidence, taken as a whole, fairly tends to establish that Martin Costello paid the purchase price of the Irish Mag group; that his cheeks paid the purchase price of the Belflower and Smogler mines, and that Patrick Cunningham contributed one-half of the purchase price of the Belflower and Smogler; that Cunningham performed the necessary assessment work upon all the unpatented claims standing in Costello’s name from the time Costello acquired the record titles up to the time patents were acquired, or until Cun ningham died; that Cunningham claimed a half interest in all the 17 mines up to the time of his death. It is fairly to be inferred from this testimony that Costello permitted Cunningham, without objection, to perform the assessment work on the claims standing in Costello’s name when such work was necessary; that Costello looked to Cunningham to keep watch over the claims and protect them from trespasses of others; that Costello stated many times that Cunningham was his partner, and that Cunningham owned a half interest with him in the mines standing in his (Costello’s) name; that Costello stated in the presence of Cunningham that Cunningham would get money out of the sale of those mines because Cunningham was a partner with Costello, or that Cunningham owned a half interest with Costello in the mines at Bisbee; and that Costello stated to Graham, Captain Hoatson, James Briggs and Gordon R. Campbell repeatedly that Cunningham owned an equitable half interest in the Wagner and Irish Mag groups of mines with Costello, before Cunningham’s death and before these groups were sold to the Lake Superior and Western Development Company, which sale was brought about b^ Graham, Hoatson, Briggs and Campbell. The evidence fairly establishes'that after the death of Cunningham, Costello stated to Mrs. Julia Cunningham that Patrick Cunningham owned a half interest in the 17 claims with himself ; and that he (Costello) would see that she and the children of Patrick Cunningham would get their share of the sales, and that he (Costello) would never deny their claim. There is no evidence tending to prove that Cunningham performed or paid for any of the patent work on the claims in question. Prom the facts that Cunningham paid one-half of the purchase price of the Belflower and Smogler claims, and performed the assessment work thereon, and paid for having them surveyed with other mines, and claimed. an interest in them, and that Costello did not deny the claim when made to him or in his presence, the inference can fairly be drawn therefrom that Cunningham and Costello acquired the title to these mines pursuant to a previous understanding between them. These' facts substantially support the allegations of the complaint, setting up the contract, and they fairly support the findings to the effect that Costello and Cunningham were co-owners of the Belflower and Smogler mines, and that Costello held the titles thereto in his name in trust for the use and benefit of himself and Cunningham. So considered, this evidence overcomes the legal presumption arising from the conveyance to Costello to the effect that through the conveyance he acquired the whole estate in these claims. The statements made by Costello to the effect that Cunningham was his partner in the mines, and that Cunningham owned a half interest with him in the mines, may or they may not, be circumstances tending to prove ownership in Cunningham. In reference to the Belflower and Smogler, the evidence fairly establishes that Cunningham paid half of the purchase price and performed the assessment work necessary to maintain the title thereto. These statements by Costello became admissible as evidence only because they are made by him against his interest. Clearly such statements, when given the most favorable effect to the plaintiffs, are simply statements to the effect that Cunningham owned a half interest with Costello in mines in the Warren mining district, and that Cunningham was a partner with, Costello in mines situate in that mining district. Such statements and declarations, standing alone, are not sufficient evidence'' to determine, or sufficient evidence of its nature to warrant the court in finding that Costello and Cunningham acquired mines by each paying an equal share of the expenditures laid out in their acquisition, and that Costello took the record title thereto to hold in his name in trust for the use and benefit of himself and his co-owner, Patrick Cunningham. Such statements and declarations made by Costello are insufficient, standing alone, to establish the trust contended for. Leatherwood v. Richardson, 11 Ariz. 278, 94 Pac. 1110. A common requirement is that the' evidence be clear, explicit and convincing, not only as to the existence of the trust, but as to its terms and conditions. 39 Cyc. 84. The rule requiring the evidence to be clear and satisfactory is especially applicable where the trust is attempted to be proved by parol evidence, as well as when it is sought to convert into a trustee a person holding the title to property ostensibly as absolute owner. 39 Cyc. 84, 85." The statements and declarations of a holder of the record title of mines, made against such title, can affect the holder’s title only by way of working an estoppel. Oral state ments or silence could never have the effect to pass title which the statute expressly declares shall be transferred by deed only. Hayes v. Livingston, 34 Mich. 384, 22 Am. Rep. 533; Nims v. Sherman, 43 Mich. 45, 4 N. W. 434. Paragraph 721, Civil Code of 1901, provided that: “No estate of inheritance or freehold or for a term of more than one year, in lands and tenements, shall be conveyed from one to another unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, of by his agent thereunto authorized by writing. ’ ’ To justify a recovery the plaintiffs must prove their interest to have been in existence from the acquisition of the title by Costello. His subsequent oral statements and declarations could not have the effect to transfer any rights to plaintiffs nor to their intestate. As regards the title of Cunningham in the Irish Mag group of mines, the only evidence produced by the plaintiffs is the oral statements and declarations made by Costello and evidence that Cunningham performed the necessary assessment ,;work thereon. Such evidence is insufficient to sustain the findings to the effect that Cunningham was a co-owner with Costello in said mines, or that Costello held title thereto in trust for the use and benefit of himself and Cunningham. As regards the Belflower and Smogler mines, the plaintiffs’ evidence is to the further effect that Cunningham paid one-half the price paid therefor at the time of théir purchase. The inference may be fairly drawn therefrom, and from the oral statements and declarations made by Costello, that Cunningham contributed half of the purchase price pursuant to some understanding with Costello that he (Cunningham) should acquire an interest in the property in proportion to the payment made by him in the purchase of the property. So considered, the evidence is sufficient to sustain the findings that Cunningham was a co-owner with Costello of the Belflower and Smogler mines, and that Costello held the title thereto in trust as found. The court erred in refusing a new trial. The defendant assigns as error the order of the court refusing to reopen'the trial of thp cause for the purpose of hearing additional testimony. The motion was made at a time subsequent to the close of the evidence, and after the cause had been submitted for decision. The motion was addressed to the sound legal discretion of the trial court, and the exercise of such discretion is not reversible except upon a clear showing of abuse. Other grounds for reversal are assigned by defendant, which we will not discuss, for the reason their discussion would unduly extend this already long opinion, and for the further reason we deem justice requires a new trial of this cause,- and if errors occurred in the former trial, they will not again occur upon a new trial. Because the evidence is insufficient to sustain findings of fact material to the case made by the court, the judgment is vacated and the cause remanded, with instructions to grant a new trial. Reversed and remanded. ROSS, G. J., and FRANKLIN, J., concur.

"FRANKLIN, C. J.\nThis is an action to recover the possession of certain personal property, with dam(...TRUNCATED)

"FRANKLIN, G. J.\nThe appellee had judgment against the appellant for the restitution of certain lan(...TRUNCATED)

"CUNNINGHAM, J.\nThe defendant admits the execution and the delivery of the written instrument sued (...TRUNCATED)

"ROSS, C. J.\nThe petitioner, Knox Laird, was serving in the state prison a term of not less than te(...TRUNCATED)

"ROS-S, J.\nThe appellant was convicted of the crime of murder and sentenced to life imprisonment. H(...TRUNCATED)