at the request of the defendants' counsel dismissed the case without sending an order down to the lower court for that purpose. Pending the appeals, no supersedeas bond having been filed by either party, the plaintiffs caused an execution to issue on his judgment for costs, and caused the same to be levied on the said mining claim of the defendants, and on the twentieth day of August, 1879, bought the same at a sale under said execution for the sum of $1100.40.

About the first of November, 1879, the defendants sold and conveyed said Neutral mining claim to one H. S. Lubbock. On the sixth day of February, 1880, said Lubbock, as grantee of the defendant, redeemed said mining claim from the execution sale by paying to the plaintiff the sum of $1,216.86. After the judgment of reversal and dismissal entered in the supreme court had been certified to the district court on the twelfth day of July, 1880, the latter court on motion of defendants' counsel, based on the affidavit of Lubbock setting out his purchase and redemption as above stated, taxed the defendants costs at the sum of $1,000, and gave them an execution therefor against the plaintiff, and further ordered the plaintiff within thirty days to pay to the clerk of that court, or to the defendants' attorney, the sum of $1,216.86, the amount paid to him by said Lubbock. From this order and judgment awarding costs to the defendants and execution therefor, the plaintiff prosecutes this appeal.

Sutherland & McBride, for the appellant.

Bennett & Harkness and P. Denny, for the respondent.

EMERSON, J. The judgment of the supreme court was an actual dismissal of the cause and was as final and effective before its action was certified to the district court as it was after: Reynolds v. Hosmer, 45 Cal. 628. At the time this motion was made the case was not in court; it had been dismissed and thus terminated. If the judgment had been reversed and the case remanded with directions to dismiss it, the judgment of this court being upon the ground of a want of jurisdiction in the lower court, that court could not properly render judgment for costs, there being no statute authorizing it: Fett v. Fett, 19 Wis. 193; Blackwood v. Jones, 27 Id. 498.

The court evidently treated the proceeding upon this motion as one for restitution, and costs incurred by the defendant in the course of litigation and not received by the plaintiff would not be within the purview of such relief. The court below had no jurisdiction to make the order in relation to the payment of the $1,216.86, for, as above stated, there was no action pending in which such a proceeding could be had. The order could not have properly been made, even if this court had remanded the case for further proceedings. If the sale was valid at the time it was made, the plaintiff in the execution having become the purchaser, it was liable to be set aside upon a reversal or modification of the judgment by this court in accordance with sec. 337 of the practice act, or by the court below if the case

had been remanded and restitution made to the defendants of the thing lost in specie. If the property had come into the hands of a bona-fide purchaser, so that it could not be restored in specie, they would be left to their action for damages or compensation: Farmer v. Rogers, 20 Cal. 335; Reynolds v. Harris, 14 Čal. 668. But the court cannot properly give damages or compensation on a motion as was done in this case. It is evident this motion was made in the interest and for the benefit of Lubbock. His affidavit fails to show how the defendant had lost anything or been in the least damnified. They have not paid the plaintiff anything and he holds nothing received from them. Lubbock is a stranger to the action and this motion cannot be made by him or in his behalf. Whether he may not have relief by some other form of proceeding, we are not called upon to determine.

The judgment of the court below is reversed and the order is set aside and held for naught.

HUNTER, C. J., and Twiss, J., concurred.

TUFTS, Administrator, Etc., v. TUFTS.

Filed February 28, 1884.

CANCELLATION OF DEED PROCURED BY FRAUD.-Every person who signs, executes and acknowledges a deed, is presumed to know the contents and legal effect thereof. But where a deed is executed by reason of false and fraudulent respresentations as to its contents, and where it is falsely read to the grantor, and by reason of such false and fraudulent representations and in ignorance of its contents the grantor executes the same, such deed may be annulled and canceled, and parol evidence is admissible to show such facts.

FINDING THAT A CERTAIN DEED WAS OBTAINED BY REASON OF FALSE and fraudulent representations on the part of the grantee, held, supported by the evidence.

APPEAL from a judgment of the district court, entered in favor of the plaintiff. The opinion states the facts.

Sheeks & Rawlins and W. H. Dickson, for the appellant.

A. Brown, for the respondent.

TWISS, J. This is a suit to annul and set aside a warranty deed made by Elmira P. Tufts to the defendant, Eldridge Tufts, on the twentyfifth day of June, 1882, of certain property therein described, situated in Salt Lake City, known as the Colorado house. Since the trial in the district court, Elmira C. Tufts, the original plaintiff, has died, and the present plaintiff, Don. C. Tufts, has been appointed administrator of her estate, and has duly qualified as such.

The complaint contains allegations to the effect that the defendant had proposed to the deceased plaintiff that they would mutually enter into an agreement that she should thereby convey to the defendant the property in controversy, and that he should convey to her all of his real estate in Salt Lake City, "with the proviso in said agreement that whosoever of said plaintiff or defendant dies first, the survivor should take possession of, have, own and hold to his or her own use and benefit forever the whole real estate owned

by both, and no title was to pass from either until his or her death, as the case might be." That the defendant, in the month of June, 1882, further promised the deceased if she would execute an agreement, which he then had and read to her, in effect similar to the proposed agreement above described, that he would build for the plaintiff, at his own expense, a nice brick house upon a lot of land belonging to him and adjoining the lot described or conveyed in said deed and give her a life lease of the same, "to use for her own benefit," free from any and all expenses to her during her natural life, the said brick building to be commenced by defendant as soon as the plaintiff would sign said written agreement at the time drawn up by him. "Plaintiff (further) alleges that all said talk and actions of defendant was for the fraudulent design of procuring plaintiff's said real estate as his own property, and that he never intended to, and never at any time did, execute such an agreement, but did intend to obtain a warranty deed and the possession of said plaintiff's real estate, without giving her any consideration therefor. Plaintiff alleges that, relying upon the statements and arguments of said defendant, she signed and executed what she supposed to be said agreement as had been theretofore, to wit, June 26th, 1882, drawn by defendant and read to her by said defendant as embodying their said intentions, but which she has since learned was a warranty deed from said plaintiff to said defendant, conveying said real estate of plaintiff herein before described, from said plaintiff to said defendant. And that plaintiff, believing and relying upon the false and fraudulent statement then made by defendant, and believing said paper which she was about to sign to be the agreement or will which had been theretofore read by her and written by defendant, June 26th, 1882, then signed and executed said warranty deed;" that defendant never paid any consideration for said warranty deed; that he obtained the same from her without her will or consent of any kind whatever, and caused the same to be recorded in the office of the recorder of Salt Lake county; that since discovering the fraud of said false deed, she has made demand upon said defendant to reconvey to plaintiff her said land and premises, which defendant refused to do; that the deceased was at the commencement of this suit, and always had been, the lawful owner of said real estate; that "defendant has not commenced to build the brick house on said lot as he promised plaintiff to do, nor given or executed any agreement giving the plaintiff a life lease on any of his land, or on the property heretofore owned by the plaintiff as aforesaid;" and prays judgment that the said warranty deed from plaintiff to defendant be decreed to be fraudulent, null and void, and that the defendant be required by the decree of this court to convey to said plaintiff all right, title and interest he may have acquired in said real estate, and for cost of suit. The answer denies every material allegation contained in the complaint.

Upon the trial, before the court without a jury, there were some six or seven witnesses upon one side and the other, besides the de

ceased plaintiff and the defendant. The findings of fact and conclusions of law by the court are as follows.

1. That on the 5th day of July, 1882, and for a long time prior thereto, the plaintiff had been the owner in fee simple and in possession, and entitled to the possession, of the following-described tract of land, as set forth in the complaint, to wit: being a part of lot (5) in block fifty-three (53) of plot "A" of Salt Lake City survey, bounded and described as follows: Commencing at the northwest corner of said lot five (5), and running south seven (7) rods; thence west seven (7) rods, to the place of beginning, containing forty-nine (49) square rods of ground.

2. That at the date aforesaid the defendant sustained toward the plaintiff the relation of son to mother; that the plaintiff was seventy years of age; that the plaintiff reposed great confidence and trust in the defendant, who had been theretofore attending to business for her, and in former years they had lived together even after the defendant became of age.

3. That on the said fifth day of July, 1882, the defendant procured from the plaintiff an absolute deed of said described tract of land, which deed was afterward, on the 10th day of July, 1882, recorded in the office of the county recorder of Salt Lake county, Utah, in book F of deeds and transfers, pp. 575, 576.

4. That at the time of the execution of said deed plaintiff did not know that it was a deed of her property in question, but believed it to be a life lease of property belonging to the defendant, upon which she was agreeing to assist in building a house; that prior to the time of the execution of said deed, there had been negotiations between the said plaintiff and the said defendant to the effect that the plaintiff should assist defendant with money to build a house upon lands of his own; and that after such negotiation had taken place she directed the defendant to prepare the proper papers; that defendant, instead of preparing the papers directed by plaintiff, prepared a warranty deed of the land in question, and procured the signature of the plaintiff thereto; that the same was not read to the plaintiff, and she did not know the contents thereof; that there was no consideration for the same passed between the parties, and that the plaintiff signed the same under the belief that it was a paper relative to a life lease to her of the said land of the defendant, upon which said building was to be erected; that the signature of the plaintiff to the said deed was procured by the fraud of the defendant; that the defendant never has attempted to build any such house as was contemplated by the agreement for the life lease.

5. That the plaintiff, since the execution of the said deed, has remained in the possession and control of the property in question; that prior to the commencement of this suit the plaintiff caused demand to be made upon the defendant that he reconvey the property to her.

I find as conclusion of law that said deed set forth in the complaint from the plaintiff to the defendant for the land aforesaid was

procured by fraud and that the same should be canceled and set aside; that the plaintiff is entitled to the possession of and title to the said land and premises; that the plaintiff is entitled to a decree, that the said defendant do within five days after demand upon him, execute and deliver to the plaintiff a deed duly acknowledged of the aforesaid premises; that in case of his failure so to do, such order and decree shall stand as a cancellation of the said deed from the plaintiff to the defendant, that the same is canceled, set aside and declared null and void; that the plaintiff is entitled to recover of the defendant her costs in this behalf expended, and judgment is hereby ordered accordingly.

The law presumes that every person who puts his name to and executes a deed knows the contents of the instrument to which he puts his seal and before some magistrate acknowledges with solemnity the instrument as his act and deed; and that he knows the legal effect of it. But in a case where it is charged that a deed is executed by reason of false and fraudulent representations as to its contents, and that it was falsely read to him, and that by reason of such representations and reading he executed it in ignorance of its contents, then the validity of such deed may be inquired into and impeached by oral testimony, and if it is sufficient in strength to carry conviction to the mind of the jury or of the court sitting as a jury, of the truth of the charge, the effect may be that the solemn deed of the party be annulled and held for naught: Eaton v. Eaton, N. J. L. 108.

This principle of law is universally recognized and is necessary to protect the unwary, weak or ignorant from the cupidity of the unscrupulous sharper whose efforts to enrich himself at the loss or ruin of others is restrained only by want of opportunity, and a wholesome sense of the power and efficacy of the law to protect and avenge the injured, redress his wrongs and punish the guilty.

We are all of the opinion that the court below could, upon the testimony before it, find for the plaintiff upon all of the issues and that the record shows no error, and therefore the judgment of the district court is affirmed.

HUNTER, C. J., and EMERSON, J., concurred.

LEAVITT v. OXFORD AND GENEVA SILVER MINING COMPANY.

Filed May 19, 1883.

NOTES OF CORPORATION, POWER OF DIRECTORS TO AUTHORIZE. -The board of directors of a corporation has power to appoint two of its members a committee for the purpose of making and delivering the notes of the corporation to such stockholders as have debts against the company. If such committee, in executing the trust imposed upon them, exceed their authority, the corporation is not bound by their unauthorized acts.

MEETING OF DIRECTORS-NOTICE OF PRESUMPTION.-In the absence of any law on the subject, a meeting of the directors of a corporation is presumed to have been held after due and sufficient notice thereof to all the directors, unless the contrary affirmatively appears.