JOHN C. WHITE v. WILLIAM H. LYONS, 42 Cal. 279

By the Court, Crockett, J.: The demurrer to the complaint was properly overruled. Under the code there is but one form of action in this State, and if the complaint states facts which entitle the plaintiff to relief, either legal or equitable, it is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action. If the facts stated are such as address themselves to the equity side of the Court, the appropriate relief will be granted by the Court, sitting as a Court of equity.

On the other hand, if the facts alleged are purely cognizable in a Court of law, the proper relief will be administered in that form of proceeding. But a complaint which states a sufficient cause of action, either at law or in equity, is not demurrable as not stating facts sufficient to constitute a cause of action. In this case the defendant does not question the sufficiency of the facts alleged to constitute a cause of action in a proceeding at law, but insists that this complaint is a bill in equity, and that a Court of equity has no jurisdiction of the case.

In that event, the Court will treat it as an action at law, and administer the proper relief in that form of proceeding. Nor can we disturb the judgment on the ground that the findings are not justified by the evidence. If the evidence does not preponderate in support of the findings, there is at least a substantial conflict in it; and in such cases it is the well settled practice of this Court not to disturb the judgment.

The defendant, however, insists that the plaintiff is not entitled to recover, because the transaction between the parties was illegal, and the money which is sought to be recovered was paid by the plaintiff and received by the defendant for an unlawful purpose, and that no cause of action can arise out of a transaction which was in itself illegal and contrary to public policy. But the answer to this point is, that the contract between the parties under which the money was received by the defendant was not unlawful or contrary to public policy.

The plaintiff desired to secure for himself the title of the State to certain lands, and employed the defendant, as an attorney at law and as a person skilled in that branch of business, to procure the title. The plaintiff appears to have been ignorant of the particular method by which the title of the State was to be obtained, except that it was to be effected by means of school land warrants, or certificates of purchase, for what are termed “ lieu lands;” that is, lands to be selected by the State in lieu of sixteenth and thirty-sixth sections, as authorized by law in certain cases.

It appears from the findings that the defendant aecepted this employment, and undertook to procure the title in this method. The money was paid by the plaintiff for this purpose. But subsequently, under the advice of the defendant, and at his suggestion, certain of the certificates were taken in the names of other persons, for the use of the plaintiff, and were afterwards assigned to him. This part of the transaction is claimed to have been illegal, and a fraud upon the law. If this be conceded, it does not aid the defendant.

He has been credited in the judgment with all sums paid by him on account of these certificates, and there is no proof that any portion of the money which he received from the plaintiff, except that which was paid on account of these certificates, was to be, or was, in fact, applied or used in any illegal transactions. On the contrary, after crediting the defendant with all his disbursements and a reasonable compensation for his services, there remains in his hands a large sum, which the findings show he has converted to his own use.

Ho reason, founded either in law or justice, is perceived, why this money should not be refunded with interest. But, I think, the Court erred in fixing the rate of interest at ten per cent per annum up to the date of the judgment. When the conversion occurred that was the rate fixed by statute in transactions of this character. But the Act of March 30th, 1868, reduced the rate from ten to seven per cent per annum; and from the time when this Act took effect the interest should have been computed at seven percent per annum.

In the absence of a contract for interest, it is only allowed as damages for a failure to pay the money due (15 Wend. 80); and it is competent for the Legislature to fix the amount which shall be recovered. But the Act reducing the rate was only prospective in its operation, and was not intended to take away or impair rights which had already accrued under the prior statute-. In Bullock v. Boyle, 1 Hoffman, N. Y. Ch.

R., 294, the effect of statutes modifying the rate of interest is fully and elaborately discussed, and the authorities collated by the Vice Chancellor; and the conclusion at which he arrived is, that a change in the rate, as a general rule, operates only prospectively, and does not affect rights already accrued. On this point, see, also, Thornton v. Fitzhugh, 4 Leigh R. 209. The judgment is affirmed, except as to the rate of interest; and in respect to the computation of interest, the Court below is directed to modify the judgment by computing the interest at ten per cent per annum up to the time when the Act of.

March 30th, 1868, took effect, and thereafter at the rate of seven per cent per annum; and it is further ordered that neither of the parties recover costs on this appeal. Mr. Justice Wallace did not participate in the foregoing decision.