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October 1, 1890; to John Stark, $1,000, OC- him absolutely. This clearly indicates that tober 1, 1891. And following the above is the parties intended to have some title vest. this provision: “And when said William S. in the grantee at once which would descend Stark, the said party of the second part, or to his heirs, or whicb he might assign, and his heirs or assigns, shall have performed that on performance of the conditions it the conditions in this indenture hereinbefore should be complete. The point that there expressed, the legal title to the premises de was a defect of parties defendant, because scribed as aforesaid shall vest in him abso- neither Mary Ann Stark nor her personal lutely."

representative was made a defendant, is not It is claimed for appellants that the con- well taken. Mrs. Stark died before this ditions expressed in the deed were condi- action was commenced, and no administra. tions precedent, and for respondents that tion was had on her estate. The property they were conditions subsequent. “If land was community property, and all the heirs is conveyed upon a condition precedent, the at law of herself and husband were joined title will not pass until the performance of as defendants. This was sufficient. The the condition; but, if the condition is sub- decree and order appealed from should be sequent, the title passes at the time at affirmed. which the deed is executed and delivered. Whether a covenant is to be deemed preced

We concur: HAYNES, C.; SEARLS, C. ent or subsequent depends upon the intention of the parties as shown by the instru

PER CURIAM. For the reasons given in ment, and not upon the use of any particu

the foregoing opinion, the decree and order lar set of technical words.” Devl. Deeds,

appealed from are affirmed. f 958. The deed purports to convey the land in praesenti, and if such was the intention of the parties there can be no question

(106 Cal. 199) that the court below rightly found that it RANDOLPH v. KRAEMER et al. (No. did so, and operated as a present grant.

19,447.)1 The grantors reserved to themselves the (Supreme Court of California. March 6, 1895.) right to live in and occupy the house on the SUPERIOR COURT-JURISDICTION-FAILURE TO SATpremises, and to be supported and clothed ISFY MORTGAGE-ACTION FOR PENALTY. out of the yearly proceeds of the premises

The superior court has jurisdiction of an so long as they should live, and there is no

action under Civ. Code, & 2941, providing that

where a mortgage is paid, and the mortgagee repretense that they were deprived of that fuses to satisfy the same of record, he shall forright. In this reservation we see nothing feit to the mortgagor $100, wbere the answer to indicate that they intended to retain the

puts in issue plaintiff's title to the mortgaged

land. title in themselves during their lives. On the contrary, it would seem from the lan

Commissioners' decision. Department 1. guage used that they intended to pass the

Appeal from superior court, Los Angeles title at once to the grantee, subject to the

county; J. W. McKinley, Judge. conditions named. In Hihn v. Peck, 30 Cal.

Action by W. R. Randolph against Samuel 281, it is said, on page 290: “The provision

Kraemer and another to recover a penalty for that the grantors might remain in posses

refusal to satisfy a mortgage which had sion and take the rents and profits until the

been paid. Judgment was rendered for plainlawsuit should be determined does not argue

tiff, and defendants appeal. Affirmed. that the title was to abide in the Littlejohns Kendrick & Kendrick and Victor Montgomduring the interval, but presupposes that it ery, for appellants. W. P. Hyatt, for rewas not. But, however that may be, it is spondent. apparent that the words of reservation to the grantors, and the words of conveyance VANCLIEF, O. This action was brought in praesenti to the grantee, may operate, under section 2941 of the Civil Code, of which respectively, to the full extent of the terms the following is a copy: used, and still be in perfect consonance with “Sec. 2941. When any mortgage has been each other.” Before the time arrived for satisfied the mortgagee or his assignee must making any of the payments to his sisters immediately, on the demand of the mortand brothers the grantee reconveyed the gagor, execute, acknowledge and deliver to land to his grantors. He was then relieved him a certificate of the discharge thereof, so from the duty to make the payments, and as to entitle it to be recorded, or he must it is therefore a matter of no consequence enter satisfaction, or cause satisfaction of that none were made. The obligations, how- such mortgage to be entered of record; and ever, to make the payments were clearly any mortgagee, or assignee of such mortconditions subsequent, and not precedent. gagee, who refuses to execute, acknowledge The conclusion reached seems to be fully and deliver to the mortgagor the certificate warranted by the last clause of the deed, of discharge, or to enter satisfaction, or cause to the effect that when the party of the satisfaction of the mortgage to be entered, second part, or his heirs or assigns, shall as provided in this chapter, is liable to the have performed the conditions mentioned, mortgagor, or his grantee or heirs, for all the legal title to the premises shall vest in damages which he or they may sustain by reason of such refusal, and shall also forfeit been removed to the superior court for trial, to him or them the sum of one hundred dol- and, as shown by the cases above cited, it lars."

* Rehearing denied.

was not necessary that the question of title It is alleged in the complaint that one W. to real estate should originate in a justice's H. Shinn mortgaged to defendants a tract of court in order to give the superior court juland of 80 acres, and that afterwards plain- risdiction. Appellants further contend that tiff, by purchase, became and still is the own- there is no finding on the issue as to the er of the land; that Shinn paid the mortgage demand that satisfaction of the mortgage be debt, and demanded of defendants a certif- given or entered. The finding upon this isicate of discharge of the mortgage, or that sue is "that said W. H. Shinn, mortgagor, they cause satisfaction of the mortgage to be demanded of defendants, and of each of them, entered of record, with which demand the that they satisfy said mortgage of record, defendants refused and still refuse to comply, and that they failed so to do, and that the to the damage of the plaintiff in the sum of said mortgage has never been satisfied of rec$2,500, for which, and also for the statutory ord by said defendants.” This seems to be penalty of $100, the plaintiff demands judg. sufficient. I think the judgment should be ment. By their verified answer the defend- affirmed. ants denied, among other things, that plaintiff became or still is the owner of the land.

We concur: SEARLS, C.; HAYNES, C. The plaintiff had judgment for only the stat

PER CURIAM. For the reasons given in utory penalty of $100, without costs. Defendants appeal from the judgment on the

the foregoing opinion the judgment is af

firmed. judgment roll containing a bill of exceptions. The bill of exceptions shows that when the cause was called for trial by the court, and

(4 Cal. Unrep. 978) before any evidence was offered, “the plain-| HUNTER v. HUBERT et al. (No. 15,270.) tiff, by his counsel, renounced, relinquished,

(Supreme Court of California. March 8, 1895.) and waived all claim and demand in or upon

REVIEW UPON APPEAL. his complaint, except the sum of $100 stat

Where part of the defendants have preutory penalty for the failure to satisfy the

viously appealed, and the question has been de mortgage as alleged in the complaint.” cided adversely to them, such decision will not Thereupon the defendants moved for judg- be disturbed upon appeal of other defendants, ment of nonsuit, “on the ground that the

prosecuted on the same grounds. court had no jurisdiction of the action, the

Department 2. Appeal from superior court, sum demanded being less than $300." The city and county of San Francisco; J. C. B. court denied the motion, and defendants ex- Hebbard, Judge. cepted.

Action by David Hunter against Charles Appellants contend that the court erted in Hubert and others. From a judgment for denying a nonsuit and in proceeding to judg- plaintiff, defendants appeal. Affirmed. ment, for the reason that it had no jurisdic

W. C. Burnett, for appellants. Tilden & tion of the subject-matter of the action after Tilden and H. J. Tilden, for respondent. plaintiff abandoned and withdrew his cause of action for actual damages. A sufficient HENSHAW, J. This is an action by plainanswer to this point is that the verified an

tiff to recover from defendants the amount swer of the defendants put in issue plaintiff's due him for damages to his property by the title to the mortgaged land, and that this widening of Dupont street. Judgment passissue was material. The plaintiff could noted for plaintiff, and from it the defendants have recovered the penalty of $100 under sec- Hubert and Humphreys prosecute this aption 2911 of the Civil Code without proving peal. The only proposition advanced by that he had become the owner of the mort

them is that the amended complaint does not gaged land, his allegation of such ownership state a cause of action. This point was made being denied. The superior court, therefore, by other defendants in an appeal from this had original jurisdiction of the cause of ac

judgment, and decided adversely to the contion for the penalty, though the amount of

tention in Hunter v. Bryant, 98 Cal. 250, 33 such penalty was less than $300. Hart v. Pac. 51, where this court said: “Conceding, Carnall-Hopkins Co., 103 Cal. 132, 37 Pac.

for the purposes of the case, that the original 196; City of Santa Barbara V. Eldred, 95

complaint was lacking in essentials, still the Cal. 379, 30 Pac. 562. In these cited cases all

amended complaint is unobjectionable, and possible objections to the jurisdiction of the

that is the pleading upon which the judg. lower court are answered, although it may

ment was rendered.” A review of the case be that, if the pleadings had not raised the

presents no grounds for a modification or reissue of title to real property, a justice's

versal of this decision. The judgment is court would have had jurisdiction of the affirmed, and this order directed to be enteraction. Thomas V. Justice's Court, 80 Cal.

ed as of date May 1, 1893. 40, 22 Pac. 80. Had the same pleadings been filed in a justice's court the cause must have We concur: McFARLAND, J.; TEMPLE, J.

(106 Cal. 156)

the expiration of six months, the appellants LOS ANGELES LIGHTING CO. V. CITY contending that some of the signatures thereOF LOS ANGELES et al.

to were unauthorized, and that the protests (avo. 19,434.)

did not represent a majority of the frontage

on the line of the improvement. (Supreme Court of California. Feb. 28, 1895.)

It is provided by section 3 of the street STREET IMPROVEMENTS-PROTEST - SIGNATURE OF

improvement act (St. 1889, p. 158) that "the COTENANT-CORPORATIONS-POWERS OF GENERAL MANAGER.

owners of a majority of the frontage of the 1. A cotenant of abutting property has im

property fronting on said proposed work or plied authority to sign the protest provided for improvement, where the same is for one block by St. 1889, p. 158, § 3, against a proposed street

or more, may make a written objection to improveinent. 2. Signature of one cotenant, written by

the same within ten days after the expiraanother, in the former's presence and at his re- tion of the time of the publication and postquest, is sufficient for the purpose of such pro- ing of said notice, which objection shall be test.

delivered to the clerk of the city council, 3. The protest is sufficient for the work objected to, though it does not include all the work

who shall endorse thereon the date of its reenumerated in the resolution of the council. ception by him, and such objections so de

4. The president and general manager of a livered and endorsed shall be a bar for six corporation, who, in the latter capacity, is authorized by the by-laws to supervise the affairs

months to any further proceedings in relaof the company, may sign a protest against a tion to the doing of said work or making street improvement for the corporation; and the said improvement, unless the owners of the fact that he signs it as president, instead of gen

one-half or more of the frontage, as aforeeral manager, is immaterial.

said, shall meanwhile petition for the same In bank. Appeal from superior court, Los to be done." Section 16 of the same act deAngeles county; J. W. McKinley, Judge. clares that “the person owning the fee, or

Suit by the Los Angeles Lighting Company the person in whom on the day the action is against the city of Los Angeles and others commenced appears the legal title to the lots for an injunction. Judgment for plaintiff, and lands by deeds duly recorded in the and defendants appeal. Affirmed.

county recorder's office of each county, or

the person in possession of lands, lots or C. T. H. Palmer and C. McFarland (E. W.

portions of lots or buildings, under claim, or McKinstry, of counsel), for appellants. Che

exercising acts of ownership over the same, ney & Cronin (John S. Chapman, of counsel),

for himself, or as the executor, administrafor respondent. Brewton A. Hayne, amicus

tor or guardian of the owner, shall be recuriae.

garded, treated and deemed to be the ‘own

er' for the purpose of this law, according to HARRISON, J. The city council of Los

the intent and meaning of that word as used Angeles adopted a resolution of intention, in this act.” St. 1885, p. 159. June 5, 1893, for certain improvements on 1. One of the questions involved herein is Aliso street, in said city, and at the same the effect of the signature to the protest by time, under the provisions of the act of one of the several cotenants of a lot of land February 27, 1893 (St. 1893, p. 33), deter- fronting upon the proposed improvement, mined that bonds should be issued to repay the appellant contending that such protest the cost of the improvement. Within 10 should be entirely disregarded, upon the days after this resolution of intention had ground that a cotenant has no implied aubeen published and posted, protests against thority to do any act affecting the interest the work, purporting to represent a majority of the other cotenants in the land. It is of the frontage on the line of said proposed | undoubtedly true that it is not within the improvement, were delivered to the clerk of. power of a cotenant to create an incumthe city council on behalf of the plaintitf brance upon the entire estate, or to impose and other property owners; but, notwith- any burden upon the interests of his cotenstanding said protests, that body passed an ants therein, nor can he by any act of his order authorizing the work to be done, and confer jurisdiction upon any other body or invited proposals for doing the same. The tribunal to impose such burden, as was held Bituminous Lime Rock Paving & Improve- | in Mulligan v. Smith, 59 Cal. 206. This rule ment Company, one of the appellants here- of inability is, however, entirely inapplicain, filed with the city clerk its proposal to ble to the acts of the cotenant in a case do the work in accordance with the invita- like the present. One cotenant can at any tion therefor; and its proposal having been time protect the entire estate from injury or accepted, and the contract awarded to it, loss without calling to his aid the assistance the plaintiff commenced this action to en- of the other cotenants, and his act will inure join the street superintendent and the said to their benefit. He can resist an intruder, appellants from entering into said contract. or evict a trespasser, remove an incumbrance, The plaintiff had judgment in the court be- or redeem from a burden, and, since his acts low, and the defendants have appealed. The in this behalf are in the interest of and for main issue presented at the trial was the the benefit of his cotenants, their authority sufficiency of the protests to bar any fur- therefor, if necessary, will be presumed. We ther action by the city council until after | hold, therefore, that a cotenant is authorized io sign a protest against the improvement of the president of the corporation was also its a street by the city council under the afore- general manager, and that the by-laws of said act. Upon any other rule a cotenant the corporation authorized the general manof land might be powerless to prevent an un- ager to supervise and control the affairs of warranted imposition of this burden upon the company, subject to the board of directhe land, even though he held the major in- tors. We are of the opinion that under this terest therein. His cotenant might be an power the president, as such general maninfant, or might be absent from the state, ager, had authority to do any act which in and, if the majority of the frontage of land his judgment was suitable to protect the into be assessed for the improvement was held terests of the corporation, or to preserve its in cotenancy, there would be no means of property, and that the signing of the protest avoiding the unnecessary burdens of assess- is to be regarded as such an act. The fact ment by a protest, unless such protest could that he signed it as president, rather than as be made by a cotenant. Whether the entire general manager, is immaterial. Similar obfrontage of the lands held in common, or servations may be made of the protest sign. only his proportionate share thereof, is to ed by the secretary of another corporation, be counted in determining the amount of who was also its general manager. Objecfrontage represented by the protest, is not in- tions are made to other signatures, but none volved upon this appeal. This question of them require any special notice. The sig: might arise, if one cotenant should favor and nature by the executors of the estate of another object to the improvement, but in Amestoy was properly held sufficient. The the present case it does not appear that any statute expressly designates executors as the of the cotenants signed a petition for the “owner" for the purpose of the act. improvement, and the superior court, in esti- 4. The protest was sufficient for the work mating the extent of frontage represented objected to, notwithstanding that it did not by the protest, counted only the proportion- embrace all the work enumerated in the ate share of the cotenant in the land repre- resolution of intention. The city council sented by him.

cannot, by including certain work which the 2. Roch Sarrail and Joseph Couget owned property owners object to with work which a lot of land having 25 feet frontage on the they desire, compel them to accept the objecline of the proposed improvement, and the tionable portion, or be deprived of that which protest was signed, “Sarrail ni Couget." It they wish to have done. The resolution of was shown at the trial that this signature intention is only a proposition by the council, was made by Sarrail in the presence of and frequently consists of distinct classes Couget, and at his request. This was suffi- of improvements upon designated portions cient to entitle it to be considered as a pro- of the same street or of different streets; test by them against the improvement. The and in such case it is competent for the counprotests contemplated by this statute are not cil to order only one or more of these classes required to be executed with any particular to be done. In either case the owner may formality. They do not create any burden protest against any portion of the work inor obligation, and are not to be executed with cluded in the resolution, without including the ceremonies required for a transfer of in his protest all of the work embraced therereal estate, or for creating a charge thereon. in, and it is immaterial whether the different It is sufficient if they indicate to the city classes of work upon the same street are incouncil that the proposed improvement is ob- cluded in one paragraph or in different para. jected to, and that this objection is made by graphs. The right of the owner to protest the owners of a majority of the frontage is the same in each instance. upon the line of the work. The statute does 5. A brief has been filed in this case by an not require that the authority to sign the amicus curiae, attacking the constitutionalprotest, if signed by an agent, shall accom- ity of that portion of the statute which aupany the protest, nor was it necessary that thorizes the issuance of bonds, and this ques. the authority of Couget to Sarrail should be tion has also been discussed in the briefs in writing. When the council came to con- filed on behalf of the respective parties to sider the sufficiency of the protest they could the action; but, as the filing of the protest then require the production of the author- operated to deprive the city council of Los ity, if it was challenged; but, if on its face Angeles of all power to order the improve. a protest purports to have been signed on ment, there could be no bonds issued, and behalf of the owners of a majority of the any question regarding the validity of such frontage, a disregard of it by the council bonds, or of the statute authorizing their is at the risk of their future action in order- issuance, would be purely hypothetical, and ing the improvement, being without their not a proper subject for determination herein. jurisdiction.

There are many other propositions which 3. The protest on behalf of the plaintiff was might be suggested for consideration in designed by its president, and it is contended termining the constitutionality of these statthat it should have been disregarded, for the utory provisions, aside from those presented reason that it had not been specifically di- in the briefs filed, and we must decline to rected by the board of directors of the cor- pass upon this question until an issue shall poration. It was shown at the trial that be presented in which it is directly involved. The order and judgment appealed from are part will quit," etc. The distinction be. affirmed.

comes important for this reason: Being a

lease with a privilege of renewal, it was inWe concur: TEMPLE, J.; McFARLAND, cumbent upon the lessee, desiring to exerJ.; GAROUTTE, J.; VAN FLEET, J.

cise his option, to give notice of his election before the expiration of the original term;

while, if the lease had provided merely for (106 Cal. 220)

an ext on, his remaini in possession (no

specific form of notice having been required) SHAMP v. WHITE. (No. 15,701.)

would have been sufficient notification of (Supreme Court of California. March 8, 1895.) his decision. Renoud v. Daskam, 34 Conn. REVIEW-ConflicTING EVIDENCE-SELF-SERVING

512; Delashman v. Berry, 20 Mich. 292; 1 DECLARATIONS.

Tayl. Landi. & Ten. § 332; 2 Wood, Landl. 1. A finding of fact on conflicting evidence & Ten. (2d Ed.) p. 947; 6 Lawson, Rights, as to whether defendant in an unlawful de

Rem. & Prac. $ 2833. The trial court treattainer suit gave plaintiff notice, as required by the lease, that he intended to renew it by re

ed the contract as one providing for renewal, maining another year, will not be disturbed on and found that defendant notified plaintiff appeal.

of his intention to remain for another year 2. On an issue as to whether a tenant sued

upon the 15th day of October, 1893, before in unlawful detainer gave oral notice of his intention to renew the term for another year, as the expiration of the original term. Upon provided in the lease, a communication, writ- this finding, as upon others attacked, the ten by him to the lessor after the end of the

evidence is conflicting, and, under the rule. first term, stating that the lessor is thereby notified, “as you have been informed," of the les

it will not be disturbed. Defendant remainsee's intention to remain, is inadmissible, as be- ed in possession after November 16, 1893, ing a declaration of the lessee in his own inter

and swore that he gave oral notice of his inest.

tention to plaintiff before that date. This Department 2. Appeal from superior court, plaintiff and her daughter strenuously deNapa county; E. D. Ham, Judge.

nied. In support of his contention, defendAction for unlawful detainer, brought by

ant offered in evidence a communication adP. K. Shamp against J. P. White. From a dressed by him to plaintiff, admittedly writjudgment for defendant, plaintiff appeals.

ten and delivered after the expiration of the Reversed and remanded.

first year's tenancy.

So much of it as is per

tinent to this consideration is as follows: F. E. Johnston, for appellant. T. B. Hutch

“Mrs. P. K. Shamp: You will please take inson, for respondent.

notice, and you are hereby notified, that, as

you have been informed, I intend to continue HENSHAW, J. Action for unlawful de

possession of the property which you on the tainer, brought under subdivision 1 of sec- 15th day of November, 1892, leased to me, tion 1161, Code Civ. Proc. The appeal is under and by virtue of the terms of said from the judgment. Exception is taken to lease on that day executed, for another year." the decision on the ground that it is not sup- Objection was made to the introduction of ported by the eviderce. The evidence and the writing, upon the ground that it was a the rulings complained of are presented by mere declaration of defendant in his own inbill of exceptions. The complaint averred terest, after the fact, and therefore incompedefendant's entry under a lease, which was tent. The objection was overruled, and the pleaded not in precise words, but by its legal document admitted by the court as "tendeffect. The answer denied the making of ing to show that prior to the 16th day of Nothe lease pleaded in the complaint, and af- vember, 1893, the defendant had elected to firmatively set forth in full the contract be- take the property for an additional term of tween the parties. This was sufficient to one year, and of which the plaintiff had nopresent issues for determination. Murphy tice.” The writing was inadmissible for any v. Napa Co., 20 Cal. 497; Gilman v. Bootz, such purpose. It was simply the declaration 63 Cal. 120. The findings of the court are of a party in his own interest; mere hearsay. neither inconsistent nor contradictory. They A litigant has never been allowed to bolster declare against the lease and the holding his cause by such evidence. As well permit pleaded in the complaint and in favor of a man to establish an alibi by proving statethe instrument and possession set up in ments made by him to others after the event the answer. By the indenture plaintiff as to his whereabouts upon the date in quesleased a farm to defendant "for the term tion. But, as has been set forth, the matof one year from November 16, 1892, to No- ter of this notice was vital to the case. The vember 16, 1893, with the privilege of re- court, upon a conflict of evidence, found upnewal of this lease for one year at the same on it in favor of defendant.

For the purpose terms, at the pleasure of the party of the of reaching that decision it considered desecond part.” The contract here expressed fendant's letter as part of his evidence, and, was one for a renewal of the lease, and not for aught that can be told to the contrary, in one for an extension of the term, despite the view of the sharp conflict, that epistle may language subsequently used, -"at the ex- have been determinative of the proposition. piration of this lease, if not extended as here- In any event, its admission was an error tofore mentioned, the party of the second prejudicial to the substantial rights of plain

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