all mortgages now existing against said above-described land." Neither the plaintiff nor any of his grantors ever paid the seven thousand dollars above mentioned, or any part thereof.

The Sacramento tract was sold and conveyed by Segur to the defendant, for the sum of eighteen thousand dollars. Of this sum, half was paid down, and the defendant agreed to pay the remaining nine thousand dollars to Mrs. Scott on account of the principal of her mortgage. This agreement was performed by the defendant. He paid Mrs. Scott the nine thousand dollars, with the accrued interest thereon, leaving due to her the seven thousand dollars, and accrued interest thereon, which had been assumed by the plaintiff's grantors.

In this condition of affairs, Mrs. Scott commenced a suit to foreclose her mortgage for the balance due to her, joining both the parties here as defendants in such suit and in due course a decree of foreclosure was entered, adjudging that there was due to the plaintiff, in said foreclosure suit, the sum of $8,756.54, and decreeing that the two tracts be sold to satisfy the same, by a receiver who had been appointed by the court. But in view of the fact that the defendant here had paid such portion of the common burden as he had agreed to pay, and that the grantors of the plaintiff had not paid the portion which they had agreed to pay, and subject to which the plaintiff took his tract, the court in the foreclosure suit very properly decreed that the El Dorado tract be sold first. This was an adjudication that the burden of the Scott mortgage should rest primarily upon the tract of the plaintiff here.

As a matter of course, it was important to the defendant to see that the full amount of the judgment was bid upon this tract. But by a stupid blunder he did not bid that amount, but only the sum of two thousand five hundred dollars, for which sum the property was struck off to him. Within a few days he was informed of the mis

take he had made, and he then applied to the receiver for leave to increase his bid. This the receiver allowed him to do, and reported the sale to the court as for the amount of the increased bid, and the court confirmed the same. The defendant thereupon paid the full amount of the increased bid, viz., the sum of $8,756.54. We think that the evidence shows without substantial conflict that this sum was paid by the defendant here, and received by the receiver, as and for the purchase price of the El Dorado tract, and not, as found by the court, as "a voluntary payment, not in pursuance of his bid, but to prevent a sale of the balance of said land."

The plaintiff tendered to the defendant the two thousand five hundred dollars, for which the property was struck off at the auction sale, with the necessary percentage, etc., and this being refused, he brings the present action to be allowed to redeem for the sum as tendered. The value of the El Dorado tract is shown to be seven or eight thousand dollars.

It will be observed that the defendant had a perfect right to bid in the first instance the sum to which he increased his bid, and which he afterward paid for the property. His not doing so was the result of a mistake of law on his part, and we think his subsequent action, and that of the receiver, was in perfect good faith, and not with any fraudulent intent whatever, but simply to rectify the mistake, and to do what he had a perfect right to do in the first instance. If the mistake had not been corrected by the parties, the result would be to relieve the plaintiff's property of the burden which was put upon it primarily by the decree of foreclosure, and to cast the same upon the defendant. The plaintiff appeals to a court of equity to assist him to profit by the defendant's mistake. We think the court should not lend its aid for any such purpose. He is entitled to redeem the property. But as a condition of this relief, the court will require him to assume the burden which was

properly placed upon him by the decree of foreclosure; that is to say, as a condition of relief, he will be required to pay to defendant, in addition to the amount placed in bank to the credit of defendant, the difference between the sum which he tendered and deposited, and the amount due under the decree of foreclosure. It is immaterial that the plaintiff is not legally liable to the defendant for this difference. In imposing a condition, a court of equity is not bound down to the strict legal rights of the parties, but will take into consideration all the circumstances in order to arrive at the justice of the case. (Johnston v. S. F. Savings Union, 75 Cal. 134.)

The judgment and order are reversed, and the cause is remanded for a new trial in accordance with the views herein expressed.

SHARPSTEIN, J., WORKS, J., MCFARLAND, J., con

curred.

Rehearing denied.

[No. 12785. In Bank.-February 26, 1889.]

FREDERICK H. HAUSMAN, APPELLANT, v. FERDINAND M. HAUSLING, RESPONDENT.

ACTION TO COMPEL CONVEYANCE-EVIDENCE-LETTERS.—In an action to compel a conveyance, it is error to admit in evidence, on behalf of the defendant, letters written by himself to a third person for the purpose of explaining that he held the title as security for indebtedness due from the plaintiff, and to enable him to mortgage it therefor. APPEAL INJURY PRESUMED FROM ERROR.-All errors are presumed to work injury to the party against whom they are committed, unless it clearly appears that no injury could have resulted.

APPEAL from a judgment of the Superior Court of Placer County, and from an order refusing a new trial.

The facts are stated in the opinion, and in the former case between the same parties therein referred to.

Otto Tum Suden, and W. B. Lardner, for Appellan.

J. M. Fulweiler, and F. P. Tuttle, for Respondent.

BELCHER, C. C.-This is a suit in equity to compel the defendant to convey to plaintiff an undivided ninetenths part or interest in a certain mining claim situate in Placer County. The court below gave judgment for the defendant and denied a motion for new trial, and the plaintiff appealed from the judgment and order.

The facts of the case, as shown by the pleadings, are substantially the same as those set forth in the affidavits which were under review in Hausling v. Hausman, 73 Cal. 276. It need only be added that defendant by his answer denied that he ever agreed to purchase from the plaintiff a one-tenth interest in the mining claim, or ever became liable to pay any part of the losses resulting from working the claim, or that the deed from plaintiff to him was made upon the terms and conditions stated in the complaint, and he alleged that the deed was made "to prevent other creditors from attaching plaintiff's property, and as a further security upon said indebtedness of $1,425, due as aforesaid to defendant from plaintiff."

At the trial the plaintiff was a witness, and testified to all the facts as alleged in his complaint. He also called three other witnesses, and each of them testified that in the fall of 1885 defendant several times told witness he owned a one-tenth part or share in the mine, and further, that in the spring or early summer of 1886, defendant had said that he had a deed to the mine from plaintiff, and wished to borrow fourteen hundred dollars, and secure the payment thereof by a mortgage on the mine, and would pay fifty dollars commission to any one who would help him to do so.

In defense the defendant's deposition was read in evidence, and in it he stated the facts to be as alleged in

his answer, and among other things that "the deed of the property was given to me as a further security.

I never at any time claimed to be the owner of the property by virtue of the deed made to me by Hausman, but always considered the same as security for the payment of the $1,425 sued for by me, and so always told Hausman." Counsel then offered in evidence two letters written by defendant in April, 1886, "solely as explaining why the defendant had sought to mortgage the claim, as testified to by plaintiff's witnesses, and as explanatory of the deed defendant held of the mine."

Counsel for plaintiff objected to the letters, on the ground that they were incompetent, immaterial, and irrelevant, but the court overruled their objections, and admitted them in evidence. One of the letters reads as

follows:

"SAN FRANCISCO, April 25, 1886. "JOHN M. FULWEILER, Auburn, Cal.,-Dear Sir: If you can find me a party in Auburn, or any place, who will take a mortgage on the 31 property for the amount of my claim ($1,425), I will pay you $50 for doing so. I am anxious to leave here as soon as possible. Address me and send all papers to care of M. Konig, No. 1527 Dupont Street, San Francisco. Respectfully yours, "F. M. HAUSLING."

"A

The other letter was dated April 12th, and addressed to the same party. Among other things it says: deed has been sent up for record of all Hausman's rights, title, and interest to me, and as it is the wish of those interested to stop all further proceeding, I want the case of Luce et al. dismissed, so as to avoid any further expense. Concerning my suit, you will take no further steps whatever; let it stand in statu quo."

The court found that the defendant never at any time made the contract alleged in the complaint, to purchase one tenth or any part of the mine, and as to the deed, which he received from the plaintiff as follows: