3440), and void not only as to creditors but as to the executrix of the will (Kelly v. Murphy, 70 Cal. 560, [12 Pac. 467])."

It seems to us that the decision in this case must turn upon the admissibility of the evidence objected to by plaintiff. If that evidence can be considered, it has a tendency to show that the donor or assignor did not intend to presently pass the title to the property. We cannot attribute to Mrs. Doty a purpose to knowingly violate her transfer of the notes and mortgage to Mrs. Burkett. She must be held to have acted upon the assumption that she had a right to dispose of the note in question, and to convert the proceeds to her own use notwithstanding the assignment to plaintiff. We are brought, therefore, to consider the character and legal effect of the assignment.

The assignment bears date December 30, 1911, was signed and acknowledged of that date and recites: "Signed, sealed and delivered in the presence of F. F. Carduff." "A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor." (Civ. Code, sec. 1054.) "A grant cannot be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made." (Civ. Code, sec. 1056.) There is a presumption that the instrument was delivered on the day of its date. (Civ. Code, sec. 1055.) Plaintiff had possession of the instrument and produced it at the trial, having previously caused it to be recorded. This sufficiently established delivery, and there was no evidence to the contrary. (Towne v. Towne, 6 Cal. App. 697, 701, [92 Pac. 1050].) The fact that the grantor did not deliver possession of the property to the grantee was a matter of no importance as affecting the completion or efficiency of the transfer. (Driscoll v. Driscoll, 143 Cal. 528, [77 Pac. 471]; Francoeur v. Beatty, 170 Cal. 740, [151 Pac. 123].) The instrument of assignment was not rendered executory because accompanied by no actual delivery to the transferee of the property transferred. "A sale of personal property is, however, good as between the parties whether the possession be delivered or not. Want of delivery renders it only void as to creditors and subsequent purchasers." (Driscoll v. Driscoll, 143 Cal. 528, [77 Pac.

471].) No question arises here as to the rights of creditors or subsequent purchasers.

What Mrs. Doty's motive was in inserting in the grant the provision that "this assignment of said mortgage is not to be placed of record during" her life, is not apparent, and can only be conjectured. We have seen that by section 1056 of the Civil Code a grant cannot be delivered to the grantee conditionally. The placing of the instrument of record was not essential to its efficacy. Recordation has no other function than that of notice to the world (Civ. Code, sec. 1213); and "an unrecorded instrument is valid as between the parties thereto and those who have notice thereof." (Civ. Code, sec. 1217.)

We must look alone to the terms of the instrument to determine whether it is testamentary in nature and not to be operative as a transfer of the property purported to be conveyed by it, until the death of the maker. As was said in Tennant v. John Tennant Memorial Home, 167 Cal. 570, 579, [140 Pac. 242, 246]: "This is always essential. If the instrument, according to its proper legal effect under the rules of conveyancing, passes at the time of its execution a present interest or title in the property to a third person, although it may be only an interest in a future estate and may be subject to defeat on the happening or nonoccurrence of a future event, it is a present conveyance and not a will."

That the assignment is absolute in its terms and conveyed a present interest in the notes and mortgage cannot be doubted. We can discover nothing in the provision as to recording which shows, or has a tendency to show, an intention of the grantor to reserve to herself the title to the property, or to postpone its enjoyment by the grantee until after the death of the grantor. Nor do we think the clause in question gives any indication that the grantor did not intend to divest herself completely of control or dominion over the property, which is the test given in the cases cited by respondent, such as Estate of Hall, 154 Cal. 529, [98 Pac. 269], and others. We cannot see that the provision amounted to anything more than a request that the assignment be not recorded until after the assignor's death. But it was held in Dimmick v. Dimmick, 95 Cal. 323, 328, [30 Pac. 547], that the fact that the grantor requested the grantee to refrain from recording the instrument until after his death was entirely immaterial.

If, as we hold, the clause in question had no operative effect upon the instrument as a present grant of the property, it was not competent to prove by parol any facts "tending to establish an agreement contrary to the plain import of the written assignment, which on its face is absolute." (Albert v. Albert, 12 Cal. App. 268, 271, [107 Pac. 156]. See Mowry v. Heney, 86 Cal. 471, 476, [25 Pac. 17].)

Proof that no consideration was paid for the assignment doubtless was admitted to show that the transaction was a gift, but even so, the rule of construction would be the same as in case of a grant-i. e., the language of the instrument must control. As was said in the Driscoll case: "Where a gift inter vivos is perfected by delivery of possession of the thing or delivery of a deed of gift it is complete, although made without any consideration."

The assignment stated that it was made in consideration of ten dollars in hand paid to and received by the assignor. The rule is thus stated in Arnold v. Arnold, 137 Cal. 291, 296, [70 Pac. 23, 24]: "As to the subject of consideration, the law is, that while the recitals of consideration in written instruments are not conclusive as to the amount or character or payment of the consideration, when these latter matters are the subject of litigation, evidence of want of consideration, or of a different consideration, is not admissible for the purpose of varying, contradicting and defeating covenants by which rights are expressly vested." Hendrick v. Crowley, 31 Cal. 472, Feeney v. Howard, 79 Cal. 525, 530, [12 Am. St. Rep. 162, 4 L. R. A. 826, 21 Pac. 984], and many other cases are cited to like effect.

The evidence showed a conversion by defendant. (38 Cyc. pp. 2005, 2009; Dodge v. Meyer, 61 Cal. 405; Wood v. McDonald, 66 Cal. 546, [6 Pac. 452].) Defendant cannot escape liability on the ground that he was acting as the agent of Mrs. Doty. (28 Am. & Eng. Ency. of Law, p. 688; 38 Cyc. p. 2056 (d); Swim v. Wilson, 90 Cal. 126, [25 Am. St. Rep. 110, 13 L. R. A. 605, 27 Pac. 33].)

The judgment is reversed.

Burnett, J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 12, 1917.

[Civ. No. 1553. Third Appellate District.-December 15, 1916.] VALLEJO AND NORTHERN RAILROAD COMPANY (a Corporation), Respondent, v. REED ORCHARD COMPANY (a Corporation) et al., Defendants and Respondents; SACRAMENTO AND YOLO BELT LINE (a Corporation) et al., Defendants; S. KOMANO, Appellant. EMINENT DOMAIN-LANDS WITH GROWING CROPS-AWARD OF DAMAGES -VALUE OF CROPS NOT INCLUDED-RECOVERY BY TENANT.-In an action for the condemnation of orchard lands in the possession of a tenant, under a lease which provided that the lease should terminate in the event that any of the demised lands should be condemned for public use, the tenant cannot recover the value of the crops growing on the lands at the time of the condemnation proceedings out of the damages awarded to the landlord, where he was made a defendant in the condemnation proceedings, but did not appear therein, or make any claim for damages on account of the taking of the right to remove the crops, and no evidence was introduced as to their value, or that he was prevented from harvesting them, or that plaintiff took possession of the lands before the crops were harvested.

ID.-AGREEMENT OF TENANT AS TO PROCEEDS OF CROPS-PENDENCY OF ACTION TO DETERMINE RIGHTS-RECOVERY PREVENTED.-Such a tenant cannot recover the value of the crops from his landlord out of the award of condemnation, where he entered into an agreement with the plaintiff and others, whereby he was entitled to retain possession of the lands and harvest the crops therefrom, the proceeds to be deposited in a bank to be paid to the person or persons finally determined to be entitled thereto, and a suit was pending in the federal court to determine such rights.

APPEAL from an order of the Superior Court of Yolo County denying an application to share in the damages awarded in an action for condemnation of land. W. A. Anderson, Judge.

The facts are stated in the opinion of the court.

White, Miller, Needham & Harber, for Appellant.

C. E. McLaughlin, and Arthur C. Huston, for Respondents Reed Orchard Company et al.

Garret W. McEnerney, and Walter Rothchild, for Respondent, John P. Coghlan, Receiver, etc., Successor of Vallejo and Northern Railroad Company.

BURNETT, J.-The question involved respects the claim of appellant to share in the damages awarded for condemnation in the above-entitled action. Komano was a tenant in possession of the Reed orchard property under a five-year lease expiring November 1, 1912. The fee was in the said Reed Orchard Company. The condemnation proceedings were commenced in 1910 and tried in 1912, the preliminary order of condemnation being entered April 18, and the final decree of condemnation April 29, 1912. Komano was named as one of the defendants and he was personally served, but he did not appear in the action. As to him the court found: "That the said defendant, S. Komano, is in the possession of the property herein condemned and also the larger tract or parcel of which the same is a part, as the tenant of the said defendant Reed Orchard Company, a corporation, but that the tenancy and possession of the said S. Komano is by virtue of a certain indenture of lease, . . . but that under and by virtue of the terms of the said lease, it was by and between the said Reed Orchard Company and the said S. Komano understood and agreed that the said lease should be terminated in the event that the said land herein condemned, and the said larger parcel, or any part thereof, should be condemned by any judgment of condemnation, and that the estate, right, title and interest of the said S. Komano therein is of no value." The rental under the lease was seven thousand five hundred dollars per year, payable $3,750 January 1st and $3,750 July 1st of each year. On January 1, 1912, Komano made the semi-annual payment, and there is no dispute that he proceeded as required by the lease to cultivate, prune, spray, and otherwise care for and protect the orchard and fruit crops growing on the premises. An appeal was taken from the decree of condemnation, and pending the appeal, to wit, on July 1, 1912, Komano and the plaintiff and others entered into an agreement whereby the crops of 1912 were harvested and the proceeds applied to the payment of the July rental; to the expenses of harvesting and selling the crops and to certain other items, and the balance of the money was deposited in bank, to be paid to the persons entitled thereto. This