MISTAKE. See Account Stated, 1, 5. MONEY HAD AND RECEIVED. See Judgments, 2. MONOPOLIES. See Contracts, 1. MORTGAGES. 1. SHARES OF STOCK.-Where the purchaser of land gave in payment shares of stock and a note, secured by a mortgage on the land with a proviso in the note for its cancellation if the payee received dividends from the shares equal to the amount of the note, such stock did not constitute additional security for the payment of the sum. (Fratessa v. Roffy, 179.) 2. FORECLOSURE-PARTIES.-A mortgagor who has disposed of his entire interest is an unnecessary party to the foreclosure of a mortgage. (Id.) 3. PLEADING.-In a foreclosure action a defense that the land has been exonerated from liability must be specially pleaded. (Id.) 4. FORECLOSURE - APPEAL.-In an action to foreclose a mortgage which was given by the mortgagors to secure a fixed sum and also further advances, and the fulfillment of any covenants or agreements which the mortgagors might agree in writing with the mortgagees should be secured thereby, the finding of the court that the mortgagors had agreed that a certain further advance should be secured by the mortgage will not be disturbed by the appellate court where the evidence is conflicting. (Palo Alto Mut. etc. Assn. v. Mullen, 197.) 5. INSTRUCTION. - The construction of the clause in question is that the necessity of an agreement in writing under said clause is limited to the fulfillment of "any covenants or agreements," and does not apply to the further advances designated in the same clause. (Id.) 6. COMMUNITY PROPERTY SECURITY FOR HUSBAND'S DEBT- SUBSEQUENT CONVEYANCE TO WIFE-NEW MORTGAGE-CONSIDERATION.Where a husband mortgaged community property as security for his individual indebtedness, and thereafter conveyed the property to his wife, and after his debt had been extended from time to time and he had made several payments by which the debt had been reduced, the wife joined him in the execution of a new mortgage on the property to secure his promissory note for the amount then remaining unpaid, the original indebtedness and the various extensions of time granted the husband in which to pay the same furnished a valuable consideration to him for the note and mortgage. (Smith v. Hernan, 217.) 7. WIFE'S LIABILITY-SURETYSHIP.-The debt in such case not being that of the wife, and the property being her separate property, she stands as surety for the payment of the debt. (Id.) MORTGAGES (Continued). 8. FORECLOSURE-EXPENSE OF SEARCH OF TITLE.-On the foreclosure of such mortgage, there being no provision in the instrument securing the expense of a search of title prior to foreclosure proceedings, the allowance in the judgment of twenty-five dollars for such expense was erroneous, and the judgment should be modified ac cordingly. (Id.) 9. SIGNATURE OF WIFE-RELATING TO OBLIGATION.-Where the wife signs a mortgage given as security for the payment of a community debt, she is not merely a surety, but one of the principal obligors to the mortgage. (Good v. Brown, 753.) 10. HYPOTHECATION OF COMMUNITY INTEREST CONSIDERATION.-A promise by the mortgagee "to put up barley and groceries and summer-fallow the land," and to bring no action until after harvest, constitutes sufficient consideration to support the hypothecation by the wife of her interest in the community real estate. (Id.) 11. EXISTENCE OF PRIOR MORTGAGE EFFECT ON FORECLOSURE OF SUBSEQUENT MORTGAGE.-The foreclosure of a mortgage will not be barred by the existence of another prior mortgage which is security for the same debt, even though the prior one is a chattel mortgage. (Id.) 12. FORECLOSURE-MARSHALING OF ASSETS-PRESERVATION OF HOMESTEAD.-Where a creditor holds two mortgages as security for the same indebtedness, one of which covers real property on which a declaration of homestead has been duly executed and recorded, the humane policy of the law requires that such homestead, if possible, be preserved for the use and home of the family, and that the creditor first exhaust the other security in satisfaction of the indebtedness. (Id.) 13. EFFECT OF SECURITY BEING INCLUDED IN TWO MORTGAGES— RIGHTS WHERE BOTH COVER COMMUNITY PROPERTY.-It can make no difference in the application of the principle requiring the creditor to first exhaust other than the homestead property given as security that the security is included in two mortgages instead of one, or that one covers personal property instead of real estate; nor is the question affected in the least by the fact that both mortgages cover community property. (Id.) MOTIVE. See Criminal Law, 15. MOTOR VEHICLE ACT. See Title. MUNICIPAL CORPORATIONS. NON 1. CARE OF BRIDGES AND STREETS - - NEGLIGENCE OF OFFICERS LIABILITY.-In the absence of a statutory provision declaring otherwise, a municipal corporation in California is not liable in MUNICIPAL CORPORATIONS (Continued). damages for the neglect of its officers or agents in the maintenance or care of streets or bridges. (South v. County of San Benito, 13.) 2. COUNTIES-JOINT BRIDGE - FAILURE TO MAINTAIN NONLIABILITY FOR ACCIDENT.-Neither a county nor its board of supervisors is liable for personal injuries received by one who, while riding in an automobile, was precipitated into the bed of a creek, the center line of which was the dividing line between this county and another, the accident having occurred in the latter county and the embankment over which the automobile was precipitated being in that county, and the accident having been caused by the failure to maintain a bridge over the creek as had formerly been done, there being no showing of a joint duty imposed by law upon the boards of supervisors of the two counties to construct the bridge, in the absence of an allegation in the complaint that they had come to an agreement as to the proportion of cost to be borne by each county and that funds were available for the construction of the bridge. (Id.) 3. PARKS AND PLAYGROUNDS-ACQUIRING OF LANDS-SALE OF PROPERTY FOR DELINQUENT ASSESSMENTS.-Under the act of the legislature approved April, 1909 (Stats. 1909, p. 1066), authorizing the acquiring of land by municipalities for purposes of public parks or public playgrounds, the establishment of assessment districts and the assessment of the property therein to pay the expense of acquiring such land, it is the fact of the delinquency of a given assessment, rather than the attachment of a certificate as to that fact, which establishes the jurisdiction of the board of public works to proceed with the sale of the property. (O'Neil v. Brode, 371.) 4. CERTIFICATE OF SALE-EXECUTION-FACSIMILE STAMP SIGNATURE.The requirement of such act that, after making sale of property for delinquent assessment, the street superintendent must execute in duplicate a certificate of sale, one copy of which is to be filed in the superintendent's office and the other delivered to the purchaser, is sufficiently complied with by the signing of one certificate by the president of the board of public works (such board acting in the stead of the street superintendent), which is delivered to the purchaser, and the signing of the other by a facsimile stamp signature of the same officer, which is impressed by the assessment clerk at the direction of such officer. (Id.) 5. EXECUTION OF DEED BY PRESIDENT OF BOARD.-The board of public works has power to direct its president to make all deeds of property sold for delinquent assessments, as the act to be done is one which involves no discretion on the part of the board. (Id.) MUNICIPAL CORPORATIONS (Continued). 6. AUTHORITY OF PRESIDENT - DATE OF RESOLUTION IMMATERIAL.— The fact that the resolution of the board of public works directing the president thereof to execute such deeds was adopted before the passage of the act under which the assessment was levied and sale had does not affect his authority to execute such deed. (Id.) 7. NOTICE TO REDEEM-RECITAL OF UNAUTHORIZED ITEM-EFFECT.Where the notice to redeem, as given by the purchaser, sufficiently refers to the improvement for which the property was sold and states the amount required to be paid to effect redemption, the fact that it also contains a statement that there will be added "$3.00 for the service of this notice and making affidavit thereto, as allowed by law," even though such charge is unauthorized, does not invalidate the notice. (Id.) 8. SERVICE OF NOTICE-SUFFICIENCY OF AFFIDAVIT.-The affidavit of service of the notice to redeem is not faulty in failing to state the name of the person upon whom service was made, it stating that on a given date the purchaser did "serve upon the owner and occupant of said property a notice," etc. (Id.) OF 9. ANNEXATION PROCEEDINGS ORGANIZATION OF CITY-OVERLAPPING TERRITORY - JURISDICTION OF SUPERVISORS.-After a valid petition for annexation, pursuant to the Annexation Act of 1913, is received and acted upon by the commission of the city to which the territory is proposed to be annexed and an annexation election is called, the board of supervisors of the county have no jurisdiction to entertain and act upon a petition calling for proceedings to organize a city including a part of the same territory while the annexation proceedings are pending. (People v. City of Monterey Park, 715.) 10. CONSTRUCTION OF SECTION 7 OF ANNEXATION ACT SCOPE OF ACT.--Section 7 of the Annexation Act of 1913, as amended in 1915, is merely declaratory of existing law, and was intended to declare and place beyond doubt the disability of one city to annex territory during the pendency of proceedings by another city to annex the same territory, and was not enacted as a limitation of the jurisdiction of the municipality first acting in the matter.. The creation of a new and separate municipal corporation through the action of the county authorities and including the territory proposed to be annexed is not a part of the subject matter of the Annexation Act. (Id.) 11. CASE AT BAR-IMPROPER CLASSIFICATION OF TERRITORY.-In this action the petition for annexation showed that the proceedings were on their face an attempt by the flimsiest subterfuge to treat as inhabited various uninhabited tracts of land, and to annex them 40 Cal. App.-55 MUNICIPAL CORPORATIONS (Continued). under the proceedings prescribed by a statute which applies solely to annexation of inhabited territory. (Id.) 12. STATUS OF TERRITORY - - DECISION OF COMMISSION NOT FINAL.Assuming that the question whether or not all the territory included in an annexation petition is inhabited is regularly submitted to and decided by the commission of the city to which such territory is sought to be annexed, such decision is not final where the annexation petition "on its face" is not sufficient. (Id.) 13. ANNEXATION PROCEEDINGS INVALID JURISDICTION OF SUPERVISORS TO ENTERTAIN INCORPORATION PROCEEDINGS.-Where, as in this case, there is in fact no valid pending annexation proceeding in existence at the time affecting any of the territory included in the proceedings for the incorporation of the new city, the board of supervisors is authorized to receive and act upon a petition for such incorporation. (Id.) COM PLUNGING DOWN EMBANKMENT PLEADING-INSUFFICIENT 2. AUTOMOBILE COLLISION ACTION FOR PERSONAL INJURIES VERDICT FOR PLAINTIFFS SUSTAINED BY EVIDENCE. - In this action by husband and wife against two defendants for personal injuries sustained by the wife in an automobile collision, the evidence from the typewritten transcript, so far as printed in the briefs, is found sufficient to support the verdict of the jury in favor of the plaintiffs against both defendants. (Hammond v. Hazard, 45.) 3. IMPLIED FINDINGS-OWNERSHIP OF CAR AND AGENCY OF DRIVER.— In such case the evidence was also sufficient to sustain the implied finding that the female defendant who occupied the car with the driver was the owner of the car, and the driver was her agent. |