October 1, 1890; to John Stark, $1,000, October 1, 1891. And following the above is this provision: "And when said William S. Stark, the said party of the second part, or his heirs or assigns, shall have performed the conditions in this indenture herein before expressed, the legal title to the premises described as aforesaid shall vest in him absolutely."

It is claimed for appellants that the conditions expressed in the deed were conditions precedent, and for respondents that they were conditions subsequent. "If land is conveyed upon a condition precedent, the title will not pass until the performance of the condition; but, if the condition is subsequent, the title passes at the time at which the deed is executed and delivered. Whether a covenant is to be deemed precedent or subsequent depends upon the intention of the parties as shown by the instrument, and not upon the use of any particular set of technical words." Devl. Deeds, § 958. The deed purports to convey the land in praesenti, and if such was the intention of the parties there can be no question that the court below rightly found that it did so, and operated as a present grant. The grantors reserved to themselves the right to live in and occupy the house on the premises, and to be supported and clothed out of the yearly proceeds of the premises so long as they should live, and there is no pretense that they were deprived of that right. In this reservation we see nothing to indicate that they intended to retain the title in themselves during their lives. On the contrary, it would seem from the language used that they intended to pass the title at once to the grantee, subject to the conditions named. In Hihn v. Peck, 30 Cal. 281, it is said, on page 290: "The provision that the grantors might remain in possession and take the rents and profits until the lawsuit should be determined does not argue that the title was to abide in the Littlejohns during the interval, but presupposes that it was not. But, however that may be, it is apparent that the words of reservation to the grantors, and the words of conveyance in praesenti to the grantee, may operate, respectively, to the full extent of the terms used, and still be in perfect consonance with each other." Before the time arrived for making any of the payments to his sisters and brothers the grantee reconveyed the land to his grantors. He was then relieved from the duty to make the payments, and it is therefore a matter of no consequence that none were made. The obligations, however, to make the payments were clearly conditions subsequent, and not precedent. The conclusion reached seems to be fully warranted by the last clause of the deed, to the effect that when the party of the second part, or his heirs or assigns, shall have performed the conditions mentioned, the legal title to the premises shall vest in

him absolutely. This clearly indicates that the parties intended to have some title vest. in the grantee at once which would descend to his heirs, or which he might assign, and that on performance of the conditions it should be complete. The point that there was a defect of parties defendant, because neither Mary Ann Stark nor her personal representative was made a defendant, is not well taken. Mrs. Stark died before this action was commenced, and no administration was had on her estate. The property was community property, and all the heirs at law of herself and husband were joined as defendants. This was sufficient. The decree and order appealed from should be affirmed.

March 6, 1895.)

(Supreme Court of California. SUPERIOR COURT-JURISDICTION-FAILURE TO SATISFY MORTGAGE-ACTION FOR PENALTY.

The superior court has jurisdiction of an action under Civ. Code, § 2941, providing that where a mortgage is paid, and the mortgagee refuses to satisfy the same of record, he shall forfeit to the mortgagor $100, where the answer puts in issue plaintiff's title to the mortgaged land.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; J. W. McKinley, Judge.

Action by W. R. Randolph against Samuel Kraemer and another to recover a penalty for refusal to satisfy a mortgage which had been paid. Judgment was rendered for plaintiff, and defendants appeal. Affirmed.

Kendrick & Kendrick and Victor Montgomery, for appellants. W. P. Hyatt, for respondent.

VANCLIEF, C. This action was brought under section 2941 of the Civil Code, of which the following is a copy:

"Sec. 29+1. When any mortgage has been satisfied the mortgagee or his assignee must immediately, on the demand of the mortgagor, execute, acknowledge and deliver to him a certificate of the discharge thereof, so as to entitle it to be recorded, or he must enter satisfaction, or cause satisfaction of such mortgage to be entered of record; and any mortgagee, or assignee of such mortgagee, who refuses to execute, acknowledge and deliver to the mortgagor the certificate of discharge, or to enter satisfaction, or cause satisfaction of the mortgage to be entered, as provided in this chapter, is liable to the mortgagor, or his grantee or heirs, for all damages which he or they may sustain by 1 Rehearing denied.

reason of such refusal, and shall also forfeit to him or them the sum of one hundred dollars."

It is alleged in the complaint that one W. H. Shinn mortgaged to defendants a tract of land of 80 acres, and that afterwards plaintiff, by purchase, became and still is the owner of the land; that Shinn paid the mortgage debt, and demanded of defendants a certificate of discharge of the mortgage, or that they cause satisfaction of the mortgage to be entered of record, with which demand the defendants refused and still refuse to comply, to the damage of the plaintiff in the sum of $2,500, for which, and also for the statutory penalty of $100, the plaintiff demands judgment. By their verified answer the defendants denied, among other things, that plaintiff became or still is the owner of the land. The plaintiff had judgment for only the statutory penalty of $100, without costs. Defendants appeal from the judgment on the judgment roll containing a bill of exceptions. The bill of exceptions shows that when the cause was called for trial by the court, and before any evidence was offered, "the plaintiff, by his counsel, renounced, relinquished, and waived all claim and demand in or upon his complaint, except the sum of $100 statutory penalty for the failure to satisfy the mortgage as alleged in the complaint." Thereupon the defendants moved for judgment of nonsuit, "on the ground that the court had no jurisdiction of the action, the sum demanded being less than $300." The court denied the motion, and defendants excepted.

Appellants contend that the court erred in denying a nonsuit and in proceeding to judgment, for the reason that it had no jurisdiction of the subject-matter of the action after plaintiff abandoned and withdrew his cause of action for actual damages. A sufficient answer to this point is that the verified answer of the defendants put in issue plaintiff's title to the mortgaged land, and that this issue was material. The plaintiff could not have recovered the penalty of $100 under section 2941 of the Civil Code without proving that he had become the owner of the mortgaged land, his allegation of such ownership being denied. The superior court, therefore, had original jurisdiction of the cause of action for the penalty, though the amount of such penalty was less than $300. Hart v. Carnall-Hopkins Co., 103 Cal. 132, 37 Pac. 196; City of Santa Barbara v. Eldred, 95 Cal. 379, 30 Pac. 562. In these cited cases all possible objections to the jurisdiction of the lower court are answered, although it may be that, if the pleadings had not raised the issue of title to real property, a justice's court would have had jurisdiction of the action. Thomas v. Justice's Court, 80 Cal. 40, 22 Pac. 80. Had the same pleadings been filed in a justice's court the cause must have

been removed to the superior court for trial, and, as shown by the cases above cited, it was not necessary that the question of title to real estate should originate in a justice's court in order to give the superior court jurisdiction. Appellants further contend that there is no finding on the issue as to the demand that satisfaction of the mortgage be given or entered. The finding upon this issue is "that said W. H. Shinn, mortgagor, demanded of defendants, and of each of them, that they satisfy said mortgage of record, and that they failed so to do, and that the said mortgage has never been satisfied of record by said defendants." This seems to be sufficient. I think the judgment should be affirmed.

We concur: SEARLS, C.; HAYNES, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed.

(4 Cal. Unrep. 978)

HUNTER v. HUBERT et al. (No. 15,270.) (Supreme Court of California. March 8, 1895.)

REVIEW UPON APPEAL.

Where part of the defendants have previously appealed, and the question has been decided adversely to them, such decision will not be disturbed upon appeal of other defendants, prosecuted on the same grounds.

Department 2. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Action by David Hunter against Charles Hubert and others. From a judgment for plaintiff, defendants appeal. Affirmed.

W. C. Burnett, for appellants. Tilden & Tilden and H. J. Tilden, for respondent.

HENSHAW, J. This is an action by plaintiff to recover from defendants the amount due him for damages to his property by the widening of Dupont street. Judgment passed for plaintiff, and from it the defendants Hubert and Humphreys prosecute this appeal. The only proposition advanced by them is that the amended complaint does not state a cause of action. This point was made by other defendants in an appeal from this judgment, and decided adversely to the contention in Hunter v. Bryant, 98 Cal. 250, 33 Pac. 51, where this court said: "Conceding, for the purposes of the case, that the original complaint was lacking in essentials, still the amended complaint is unobjectionable, and that is the pleading upon which the judg ment was rendered." A review of the case presents no grounds for a modification or reversal of this decision. The judgment is affirmed, and this order directed to be entered as of date May 1, 1893.

We concur: MCFARLAND, J.; TEMPLE, J.

(106 Cal. 156)

LOS ANGELES LIGHTING CO. v. CITY OF LOS ANGELES et al. (ANO. 19,434.)

(Supreme Court of California.

Feb. 28, 1895.) STREET IMPROVEMENTS-PROTEST- SIGNATURE OF COTENANT-CORPORATIONS-POWERS OF GENERAL MANAGER.

1. A cotenant of abutting property has implied authority to sign the protest provided for by St. 1889, p. 158, § 3, against a proposed street improvement.

2. Signature of one cotenant, written by another, in the former's presence and at his request, is sufficient for the purpose of such protest.

3. The protest is sufficient for the work objected to, though it does not include all the work enumerated in the resolution of the council.

4. The president and general manager of a corporation, who, in the latter capacity, is authorized by the by-laws to supervise the affairs of the company, may sign a protest against a street improvement for the corporation; and the fact that he signs it as president, instead of general manager, is immaterial.

In bank. Appeal from superior court, Los Angeles county; J. W. McKinley, Judge.

Suit by the Los Angeles Lighting Company against the city of Los Angeles and others for an injunction. Judgment for plaintiff, and defendants appeal. Affirmed.

C. T. H. Palmer and C. McFarland (E. W. McKinstry, of counsel), for appellants. Cheney & Cronin (John S. Chapman, of counsel), for respondent. Brewton A. Hayne, amicus curiae.

HARRISON, J. The city council of Los Angeles adopted a resolution of intention, June 5, 1893, for certain improvements on Aliso street, in said city, and at the same time, under the provisions of the act of February 27, 1893 (St. 1893, p. 33), determined that bonds should be issued to repay the cost of the improvement. Within 10 days after this resolution of intention had been published and posted, protests against the work, purporting to represent a majority of the frontage on the line of said proposed improvement, were delivered to the clerk of the city council on behalf of the plaintiff and other property owners; but, notwithstanding said protests, that body passed an order authorizing the work to be done, and invited proposals for doing the same. The Bituminous Lime Rock Paving & Improvement Company, one of the appellants herein, filed with the city clerk its proposal to do the work in accordance with the invitation therefor; and its proposal having been accepted, and the contract awarded to it, the plaintiff commenced this action to enjoin the street superintendent and the said appellants from entering into said contract. The plaintiff had judgment in the court below, and the defendants have appealed. The main issue presented at the trial was the sufficiency of the protests to bar any further action by the city, council until after

the expiration of six months, the appellants contending that some of the signatures thereto were unauthorized, and that the protests did not represent a majority of the frontage on the line of the improvement.

It is provided by section 3 of the street improvement act (St. 1889, p. 158) that "the owners of a majority of the frontage of the property fronting on said proposed work or improvement, where the same is for one block or more, may make a written objection to the same within ten days after the expiration of the time of the publication and posting of said notice, which objection shall be delivered to the clerk of the city council, who shall endorse thereon the date of its reception by him, and such objections so delivered and endorsed shall be a bar for six months to any further proceedings in relation to the doing of said work or making said improvement, unless the owners of the one-half or more of the frontage, as aforesaid, shall meanwhile petition for the same to be done." Section 16 of the same act declares that "the person owning the fee, or the person in whom on the day the action is commenced appears the legal title to the lots and lands by deeds duly recorded in the county recorder's office of each county, or the person in possession of lands, lots or portions of lots or buildings, under claim, or exercising acts of ownership over the same, for himself, or as the executor, administrator or guardian of the owner, shall be regarded, treated and deemed to be the 'owner' for the purpose of this law, according to the intent and meaning of that word as used in this act." St. 1885, p. 159.

1. One of the questions involved herein is the effect of the signature to the protest by one of the several cotenants of a lot of land fronting upon the proposed improvement, the appellant contending that such protest should be entirely disregarded, upon the ground that a cotenant has no implied authority to do any act affecting the interest of the other cotenants in the land. It is undoubtedly true that it is not within the power of a cotenant to create an incumbrance upon the entire estate, or to impose any burden upon the interests of his cotenants therein, nor can he by any act of his confer jurisdiction upon any other body or tribunal to impose such burden, as was held in Mulligan v. Smith, 59 Cal. 206. This rule of inability is, however, entirely inapplicable to the acts of the cotenant in a case like the present. One cotenant can at any time protect the entire estate from injury or loss without calling to his aid the assistance of the other cotenants, and his act will inure to their benefit. He can resist an intruder, or evict a trespasser, remove an incumbrance, or redeem from a burden, and, since his acts in this behalf are in the interest of and for the benefit of his cotenants, their authority therefor, if necessary, will be presumed. We hold, therefore, that a cotenant is authorized

to sign a protest against the improvement of a street by the city council under the aforesaid act. Upon any other rule a cotenant of land might be powerless to prevent an unwarranted imposition of this burden upon the land, even though he held the major interest therein. His cotenant might be an infant, or might be absent from the state, and, if the majority of the frontage of land to be assessed for the improvement was held in cotenancy, there would be no means of avoiding the unnecessary burdens of assessment by a protest, unless such protest could be made by a cotenant. Whether the entire frontage of the lands held in common, or only his proportionate share thereof, is to be counted in determining the amount of frontage represented by the protest, is not involved upon

this appeal. This question might arise, if one cotenant should favor and another object to the improvement, but in the present case it does not appear that any of the cotenants signed a petition for the improvement, and the superior court, in estimating the extent of frontage represented by the protest, counted only the proportionate share of the cotenant in the land represented by him.

2. Roch Sarrail and Joseph Couget owned a lot of land having 25 feet frontage on the line of the proposed improvement, and the protest was signed, "Sarrail ni Couget." It was shown at the trial that this signature was made by Sarrail in the presence of Couget, and at his request. This was sufficient to entitle it to be considered as a protest by them against the improvement. The protests contemplated by this statute are not required to be executed with any particular formality. They do not create any burden or obligation, and are not to be executed with the ceremonies required for a transfer of real estate, or for creating a charge thereon. It is sufficient if they indicate to the city council that the proposed improvement is objected to, and that this objection is made by the owners of a majority of the frontage upon the line of the work. The statute does not require that the authority to sign the protest, if signed by an agent, shall accompany the protest, nor was it necessary that the authority of Couget to Sarrail should be in writing. When the council came to consider the sufficiency of the protest they could then require the production of the authority, if it was challenged; but, if on its face a protest purports to have been signed on behalf of the owners of a majority of the frontage, a disregard of it by the council is at the risk of their future action in ordering the improvement, being without their jurisdiction.

3. The protest on behalf of the plaintiff was signed by its president, and it is contended that it should have been disregarded, for the reason that it had not been specifically directed by the board of directors of the corporation. It was shown at the trial that

the president of the corporation was also its general manager, and that the by-laws of the corporation authorized the general manager to supervise and control the affairs of the company, subject to the board of directors. We are of the opinion that under this power the president, as such general manager, had authority to do any act which in his judgment was suitable to protect the interests of the corporation, or to preserve its property, and that the signing of the protest is to be regarded as such an act. The fact that he signed it as president, rather than as general manager, is immaterial. Similar observations may be made of the protest signed by the secretary of another corporation, who was also its general manager. Objec tions are made to other signatures, but none of them require any special notice. The signature by the executors of the estate of Amestoy was properly held sufficient. The statute expressly designates executors as the "owner" for the purpose of the act.

4. The protest was sufficient for the work objected to, notwithstanding that it did not embrace all the work enumerated in the resolution of intention. The city council cannot, by including certain work which the property owners object to with work which they desire, compel them to accept the objectionable portion, or be deprived of that which they wish to have done. The resolution of intention is only a proposition by the council, and frequently consists of distinct classes of improvements upon designated portions of the same street or of different streets; and in such case it is competent for the council to order only one or more of these classes to be done. In either case the owner may protest against any portion of the work included in the resolution, without including in his protest all of the work embraced therein, and it is immaterial whether the different classes of work upon the same street are included in one paragraph or in different paragraphs. The right of the owner to protest is the same in each instance.

5. A brief has been filed in this case by an amicus curiae, attacking the constitutionality of that portion of the statute which au thorizes the issuance of bonds, and this question has also been discussed in the briefs filed on behalf of the respective parties to the action; but, as the filing of the protest operated to deprive the city council of Los Angeles of all power to order the improvement, there could be no bonds issued, and any question regarding the validity of such bonds, or of the statute authorizing their issuance, would be purely hypothetical, and not a proper subject for determination herein. There are many other propositions which might be suggested for consideration in determining the constitutionality of these statutory provisions, aside from those presented in the briefs filed, and we must decline to pass upon this question until an issue shall be presented in which it is directly involved.

The order and judgment appealed from are affirmed.

We concur: TEMPLE, J.; MCFARLAND, J.; GAROUTTE, J.; VAN FLEET, J.

(106 Cal. 220)

SHAMP v. WHITE. (No. 15,701.) (Supreme Court of California. March 8, 1895.) REVIEW-CONFLICTING EVIDENCE-SELF-SERVING

DECLARATIONS.

1. A finding of fact on conflicting evidence as to whether defendant in an unlawful detainer suit gave plaintiff notice, as required by the lease, that he intended to renew it by remaining another year, will not be disturbed on appeal.

2. On an issue as to whether a tenant sued in unlawful detainer gave oral notice of his intention to renew the term for another year, as provided in the lease, a communication, written by him to the lessor after the end of the first term, stating that the lessor is thereby notified, "as you have been informed," of the lessee's intention to remain, is inadmissible, as being a declaration of the lessee in his own inter

est.

Department 2. Appeal from superior court, Napa county; E. D. Ham, Judge.

Action for unlawful detainer, brought by P. K. Shamp against J. P. White. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

F. E. Johnston, for appellant. T. B. Hutchinson, for respondent.

HENSHAW, J. Action for unlawful detainer, brought under subdivision 1 of section 1161, Code Civ. Proc. The appeal is from the judgment. Exception is taken to the decision on the ground that it is not supported by the eviderce. The evidence and the rulings complained of are presented by bill of exceptions. The complaint averred defendant's entry under a lease, which was pleaded not in precise words, but by its legal effect. The answer denied the making of the lease pleaded in the complaint, and affirmatively set forth in full the contract bêtween the parties. This was sufficient to present issues for determination. Murphy v. Napa Co., 20 Cal. 497; Gilman v. Bootz, 63 Cal. 120. The findings of the court are neither inconsistent nor contradictory. They declare against the lease and the holding pleaded in the complaint and in favor of the instrument and possession set up in the answer. By the indenture plaintiff leased a farm to defendant "for the term of one year from November 16, 1892, to November 16, 1893, with the privilege of renewal of this lease for one year at the same terms, at the pleasure of the party of the second part." The contract here expressed was one for a renewal of the lease, and not one for an extension of the term, despite the language subsequently used,-"at the expiration of this lease, if not extended as heretofore mentioned, the party of the second

part will quit," etc. The distinction be comes important for this reason: Being a lease with a privilege of renewal, it was incumbent upon the lessee, desiring to exercise his option, to give notice of his election before the expiration of the original term; while, if the lease had provided merely for an extension, his remaining in possession (no specific form of notice having been required) would have been sufficient notification of his decision. Renoud v. Daskam, 34 Conn. 512; Delashman v. Berry, 20 Mich. 292; 1 Tayl. Landl. & Ten. § 332; 2 Wood, Landl. & Ten. (2d Ed.) p. 947; 6 Lawson, Rights, Rem. & Prac. § 2833. The trial court treated the contract as one providing for renewal, and found that defendant notified plaintiff of his intention to remain for another year upon the 15th day of October, 1893, before the expiration of the original term. Upon this finding, as upon others attacked, the evidence is conflicting, and, under the rule. it will not be disturbed. Defendant remained in possession after November 16, 1893, and swore that he gave oral notice of his intention to plaintiff before that date. This plaintiff and her daughter strenuously denied. In support of his contention, defendant offered in evidence a communication addressed by him to plaintiff, admittedly written and delivered after the expiration of the first year's tenancy. So much of it as is pertinent to this consideration is as follows: "Mrs. P. K. Shamp: You will please take notice, and you are hereby notified, that, as you have been informed, I intend to continue possession of the property which you on the 15th day of November, 1892, leased to me, under and by virtue of the terms of said lease on that day executed, for another year." Objection was made to the introduction of the writing, upon the ground that it was a mere declaration of defendant in his own interest, after the fact, and therefore incompėtent. The objection was overruled, and the document admitted by the court as "tending to show that prior to the 16th day of November, 1893, the defendant had elected to take the property for an additional term of one year, and of which the plaintiff had notice." The writing was inadmissible for any such purpose. It was simply the declaration of a party in his own interest; mere hearsay. A litigant has never been allowed to bolster his cause by such evidence. As well permit a man to establish an alibi by proving statements made by him to others after the event as to his whereabouts upon the date in question. But, as has been set forth, the matter of this notice was vital to the case. The court, upon a conflict of evidence, found upon it in favor of defendant. For the purpose of reaching that decision it considered defendant's letter as part of his evidence, and, for aught that can be told to the contrary, in view of the sharp conflict, that epistle may have been determinative of the proposition. In any event, its admission was an error prejudicial to the substantial rights of plain