felt, and its application is more frequent, in the private relations in which the vendor and purchaser may stand towards each other. The disability to purchase is a consequence of that relation between them which imposes on the one a duty to protect the interest of the other, from the faithful discharge of which duty his own personal interest may withdraw him. In this conflict of interest, the law wisely interposes. It does not act on the possibility that in some cases the sense of that duty may prevail over the motives of self-interest, but it provides against the probability in many cases, and the danger in all cases, that the dictates of self-interest will exercise a predominant influence and supersede that of duty." And once again: "The inquiry in such a case is not whether there was or not fraud in fact. The purchase is void, and will be set aside at the instance of the cestui que trust, and a resale ordered, on the ground of the temptation to abuse, and of the danger of imposition inaccessible to the eye of the court." See, also, 1 Story, Eq. Jur. § 383; 2 Pom. Eq. Jur. § 955 and following. In section 956 the author quotes with approval the language of Lord CHELMSFORD, Tate v. Williamson, L. R. 2 Ch. 55, as follows:

"Wherever two persons stand in such a relation that, while it continues, confidence is naturally reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed."

Now, can it be doubted that complainant, living at a distance, and for years never seeing this property or the city in which it was located, had a right to rely, and did rely, upon defendant, who knew the property and its surroundings, its present value, and all the future prospects; who was his relative by marriage; who had paid his taxes for years, and had looked after every matter affecting the land that had arisen during those years, and who was annually receiving out of the rental of the land compensation for such care and watchfulness,-can there be a doubt, I repeat, that he did rely, and had a right to rely, upon him as upon one who, having cared for his interests in the past, would do so in the present? Not only is this reliance deducible from and justified by their past relations; its existence is evident also from the tenor of the letters during the negotiations for this sale. In May, 1886, complainant wrote to Kellam, and closed his letter with an inquiry as to what the land could be sold for. Then, on June 30th, Kellam, at the instance of his co-defendant, opens the correspondence which results in the sale. This correspondence continued, there being some 14 letters backward and for.ward, to the 20th of September, 1886. It is scarcely necessary to copy these various letters; the perusal of them shows that Keith was relying upon Kellam to protect his interests. Though situated only a day's ride or such a matter from Topeka, and though the transaction was one amounting to $60,000, complainant does not go there, nor make any personal inquiries, but acts upon the offer communicated from Kellam.

The very carelessness in which some of the letters are expressed, and the manner in which the negotiations were carried on, make it apparent that complainant supposed that Kellam was looking after his interests. This, as I said, is the pivotal question; and yet I think it unnecessary to comment on these facts further. It seems to me clear that complainant did rely, and had a right to rely, upon Kellam as one who was looking after his interests, and that Kellam must have felt conscious of that trust, or, if not actually conscious of it, was at least bound by it. While at the inception of the negotiations he may not have been interested with Holliday in the purchase, yet before the contract was finally closed he did become interested, and the purchase was on the joint account of Kellam and Holliday; and while Holliday may not have been possessed with knowledge of all of the relations between Keith and Kellam, yet he knew enough to put him upon inquiry, and that is equivalent to knowledge. So the purchase was in fact made by those who stood in confidential relations to the complainant. It goes without question, under the testimony that Kellam did not disclose all the facts within his knowledge which would tend to affect complainant's willingness to sell, or the matter of price. Hence, whether the price paid was adequate or not, complainant has a right to rescind the contract. Without entering into particulars, it is enough to say that Kellam did not disclose offers which were made to him, prices which were put upon the land, the building of railroads into Topeka, which would naturally tend to affect the growth and prosperity of the place, or the speculation in real estate, which was rapidly developing during that summer. It well may be that, if these facts had been reported, complainant might have declined to sell, or at least named a higher price. It is certainly suggestive that within less than one month the purchasers who had paid $60,000 named twice that sum as their selling price. In conclusion let me say that, while I think complainant has a right to rescind this contract by reason of the failure on the part of his agent, a joint purchaser, to disclose all facts material to the matter of sale and the question of price, it is also due to the defendants to say that it does not appear that there was any conspiracy between them to defraud complainant, or that they were seeking to obtain the land at less than its then real value. They stood in the early days of a remarkable real-estate speculation, and they offered and gave what was probably an adequate price, seeking only the chances of that growing speculation; but even that complainant was entitled to, and should have been advised of all facts that were known to Kellam throwing light upon present value or future prospects. Complainant is entitled to a decree in accordance with the terms of his bill.

HUGHES v. CAWTHORN.

(Circuit Court, S. D. California. January 9, 1888.;

BOUNDARIES-MONUMENTS-COURSES AND DISTANCES.

Where there are well-established monuments of a boundary, and the line run from the point of beginning by courses and distances does not conform to one of the natural calis, whereas by starting from the other point all the natural calls are answered, the first course and distance from the point of beginning must give way, especially when by following it the line is taken out in an open valley were there is no apparent reason for its frequent changes of course, but taken the other way it runs along the base of mountains, which render such changes necessary.1

At Law.

Ejectment to recover designated lots of land situated in Los Angeles county, Cal. Plaintiff relied upon the land being found to be within the boundaries of the Tujunga rancho; and defendant resisted plaintiff's claim on the theory that the land was public land of the United States, lying north of the northerly line of the rancho, according to the courses and distances given in the patent thereto.

Wells, Van Dyke & Lee, for plaintiff.
Williams & McKinley, for defendant.

Ross, J. There is but a single question in this case, and that relates · to the boundaries of the Rancho Tujunga, a Mexican grant, confirmed and patented by the government of the United States. At the trial it was conceded by the respective parties that if the land in controversy is to the south of the northerly line of the rancho, the plaintiff is entitled to recover; otherwise not. There is no dispute in respect to the starting point of the Tujunga, which is also the third station of the adjoining Rancho Ex-Mission of San Fernando, and is situated at the mouth of a canada on the south base of the San Fernando mountains. From this point of beginning, the line, according to the patent, runs along the base of the San Fernando mountains a given course and distance to a stake station; thence a certain other course and distance to a stake station; thence a certain other course and distance to a stake station; thence a certain other course and distance to a stake station; thence a certain other course and distance to a stake station; thence a certain other course and distance to a stake station on the south base of a mountain, opposite which point, it is declared, the Tujunga valley. bearing east and west, is about 50 chains wide; thence a certain other course and distance to a stake station; thence a certain other course and distance to "a sycamore six inches in diameter, marked 'T 8 station;"" thence "south 11° 45′ east, eleven chains, to Tujunga creek, 20 links wide, course west, thirtythree chains to a stake station;" thence "south 47° 30′ east, at seven chains, across a dry arroyo, 30 links wide, course west, thirty-seven

That monuments govern courses and distances, see Beaubien v. Kellogg, (Mich.) 37 N. W. Rep. 691, and note.

chains, to a stake station;" thence "south 22° east ninety-six chains to a stake station;" thence "south 80° east, ninety-six chains, to a gray granite rock, eighteen inches long, twelve inches wide, and ten inches thick, station, on the south-west slope of a high mountain;" thence, etc. That there is a mistake somewhere in this description is admitted on both sides. If, commencing at the starting point, the line be run according to the courses and distances given, it will not follow the base of the San Fernando mountains, as in the patent it is declared to do, but so far deflects into the valley as that, when station 6 is reached, it is fixed at a point, not, as declared in the patent, on the south base of a mountain, but 18 chains therefrom in the valley, and within 100 feet of the Tujunga creek, and opposite which point the Tujunga valley, bearing east and west, is not, as stated in the patent, about 50 chains wide, but 35 chains only. Still following the courses and distances given in the patent, the line between stations 6 and 7 continues in the valley, crossing to the south of the creek, and between stations 7 and 8 crosses the same creek twice. As shown on the plat of the rancho annexed to the patent, and forming part of it, the line from station 6 to station 8 follows the mountains, and does not cross or touch the creek at all. In running from station 8 to station 9 the line, according to the description given in the patent, at 11 chains crosses the Tujunga creek course west, 20 links wide; and in running from station 9 to station 10, at seven chains crosses a dry arroyo 30 links wide; and the plat annexed to the patent so represents it. Continuing the courses and distances as given in the patent to station 12, that point is found, not as declared in the patent, on the south-west slope of a high mountain at a gray granite rock, but far out in the valley, about 18 chains, from a gray granite rock, which, according to the testimony in the case, is found on the south-west slope of a mountain, and which is one of the boundaries of the adjoining Rancho La Canada, and a point from which the adjacent government land was surveyed. Of the rock in question Lecouvreur, the surveyor who made the survey of the Rancho La Canada about the year 1873, said at the trial: "It was a very conspicuous rock, and it was naturally such as a surveyor would take as a boundary mark, because there were no large rocks to be seen there anywhere." The evidence shows that this rock has for many years been recognized by the people in the neighborhood as a common point in the boundaries of the Ranchos Tujunga and La Canada; and that it was so recognized by the government surveyors in making the survey of the government land in the vicinity, is beyond dispute. Norway, the United States deputy-surveyor who made the survey of the government land, testified on the trial of this case to the effect that, when he did so, which was a number of years ago, he ran from the gray granite rock in question back to station 11 of the Tujunga, and there found the old monument, and thus satisfied himself of the true location of the rock. But what to my mind conclusively establishes that the gray granite rock referred to in the evidence is the gray granite rock described in the patent, and at which station 12 of the Tujunga is thereby fixed, is that, by accepting that as station 12, and reversing the courses and distances, the line so

run answers all of the natural calls of the patent, and conforms to the plat of the survey therein embodied. It is true that at 11 chains to the south-east of station 8 as thus located the Tujunga creek is not now found, nor is there now at that station a sycamore tree; but the evidence shows that the Tujunga creek is a changeable stream, discharging in the rainy season tremendous volumes of water; and while it is, along the easterly line of the rancho, confined by the hills to somewhat narrow limits, yet, within those limits, it, like many other California streams that serve as an outlet for a large water-shed, often shifts. The stream of this year, therefore, may not be, and often is not, the stream of next. In traversing, by the reversed courses and distances given in the patent, between stations 9 and 8, the line strikes what is now a narrow alfalfa patch, which is just 11 chains south-east of station 8 as located by such reversed courses and distances, and which is lower than the present bed of the stream, and within the limits of the Tujunga canyon as defined by the hills. I am satisfied that this alfalfa patch was the bed of the Tujunga creek at the time of the government survey of the rancho. At station 8, as thus located, there is now no sycamore, but the evidence shows that it is located in one of a number of small canyons running northerly from the Tujunga canyon, in some of which, similar in all respects to that in which station 8 is thus located, sycamore trees are now standing and growing, and in some of which stumps of others that have been cut down are still standing. And two witnesses, whose veracity there is no reason to doubt, testified that during the trial of this case they went into the canyon in which by the reversed courses and distances from the gray granite rock station 8 is located, and about 100 yards below the point found some small limbs and branches of sycamore, some of which were partly imbedded in sand. They testified further that the limbs and branches did not have the appearance of having been put in position for a purpose. As it is a matter of common knowledge as well as one of evidence in the present case, that the cutting of wood in the mountains and canyons hereabouts is not uncommon, it is not unreasonable to conclude, if other circumstances sufficiently combine to locate station 8 in the canyon in question, that the sycamore called for in the patent at that station was subsequently cut down, and that the sycamore branches above referred to came from it. Continuing the reversed courses and distances from station 8, the line runs along the base of the mountains, as represented on the plat annexed to the patent, to station 6, which, as thus located, answers the calls of the patent almost exactly. Most of the witnesses who testified on the point testified, and a photograph of the premises introduced in evidence shows clearly, that section 6, as thus located, is at or near the base of a prominent mountain, which runs out from the range of mountains. While it is true that the base of a mountain is an indefinite call, yet, at the point now in question, there is a very narrow slope to the south-in width about 300 feet-between the mountain itself and a somewhat precipitous bluff, and opposite the point on this slope, where the reversed courses and distances locate station 6, the Tujunga valley, bearing east and west, is just 53 chains wide. I think,