to San Diego, knowing her mother's weak condition, and had used the coercive measures described in a finding heretofore quoted herein; that the deeds were only signed because of the undue influence, duress, etc., as previously set forth; that they should, therefore, be set aside, and that Mrs. Hubbs obtained possession of the deeds in December, 1910, and caused their recordation. The other findings relate to Mrs. Hubbs' marriage to Mr. Genshlea, and other formal matters not necessary to be set forth here. That such findings support the judgment there can be no doubt. The finding that Mrs. Rayner was and her estate is the owner and entitled to the possession of the property is a finding of ultimate fact which supports the judgment of ownership. (Estate of Hill, 167 Cal. 59-63, [138 Pac. 690].) The findings regarding the menace, fraud, etc., of the daughter are also findings of ultimate fact, and, as we have indicated in the discussion of the pleadings, sufficient to support the judgment.

Finally, the appellant insists that the vital findings are not sustained by the evidence. It would subserve no good purpose to review in detail the conflicting testimony regarding the competency or capacity of Mrs. Rayner. Her physician described her condition at the time the deeds were signed as feeble, and expressed the opinion that thereafter she was incompetent, and many others, who had ample opportunities to know the facts, told of the aged woman's physical and mental feebleness and her susceptibility to influence. She was suffering from paralysis and senility, as one of the physicians testified. Such evidence fully supported the finding that she was incompetent and easily influenced.

The finding of undue influence is supported by the evidence. It appears that when she was in better mental condition than that under which she labored later, Mrs. Rayner, in 1908 made deeds to the property in favor of her daughter, but that these were not intended for delivery during her life. Her conduct in 1910 with reference to the deeds here involved would indicate a like purpose, and when she took the documents from Mr. Fishburn's custody she did not declare a purpose to deliver them, but said she wanted them because she was going away. After she came under the influence of her daughter the evidence shows that she turned against friends and became suspicious of them; that she left the climate of San Diego, which she loved; that she abandoned cherished

plans for visiting, at her daughter's suggestion, and that she was not allowed to talk with friends and relatives except in her daughter's presence. By her daughter this old woman was taken from the friends she cherished, from the property which her son had given her, and from the grave of that son. Dying, the daughter left a will by which this property was to go to strangers.

There was evidence which tended to support, and if believed did support, the finding that there was no delivery of the deeds. True, the recordation raised a presumption of delivery, but there was evidence that long after that time Mrs. Rayner continued to receive the rent from her agent in Los Angeles. Not until April, 1911, did Mrs. Hubbs demand that checks and mail should be sent to her. The daughter wrote and the mother signed a letter in October, 1910, directing the agent to "send all money you collect to Mrs. Rayner at this address. In the latter part of 1910 Mrs. Hubbs took her mother to the home of Mrs. Lohse in Alameda. At first, according to the testimony of Mrs. Lohse, Mrs. Hubbs said her name was Higgins. She directed that no one should see the mother, and when absent for a number of hours she kept the old lady locked in their apartments. She also told Mrs. Lohse that her mother was "not all there in the head," but that she was harmless. The date when possession of the deeds. was obtained was found by the court evidently upon the testimony of this witness, who said, among other things, after fixing the date of a notary's call, at about December 6, 1910, "I had a conversation with Helen Hubbs the day after the notary was there. She came downstairs and showed me some papers, which she took out of her stocking and said to me at the time 'Now I am on velvet and I am not a bit afraid.' . . . She spoke to me of property that belonged to her mother in Los Angeles and San Diego. Mrs. Hubbs had no property when she first came but said she was expecting or waiting for some property. She said she was putting a deal through, she didn't say what deal it was, and if she could work it the way she wanted to she would be pretty well to do. . . . She showed me the papers and I recall what some of them were. I couldn't recall all of them. One was for a deed of love and affection for the Westlake property, and the mention of some property in San Diego I can't tell just exactly what it was, and there was some other property that she had the

deed to that I casually looked over but I couldn't tell you what they were. I happened to recall that the consideration mentioned in the deed of this property was love and affection because it was typewritten in there as far as I can remember." Without further lengthening the recital of testimony, it is enough to say that the finding of undue influence and coercion, as well as that of nondelivery, are justified and upheld.

[11] It is to be remembered that in a case involving a purported gift inter vivos, based upon an alleged consideration of love and affection, where the donee is a daughter having the control and direction of the aged donor, a strong presumption of confidential relation arises which would place upon the beneficiary in the transaction the burden of showing fairness in dealing and full understanding on the part of the person parting with the property. (Nobles v. Hutton, 7 Cal. App. 14, [93 Pac. 289].) In the absence of such showing, the conveyance is presumed to have been obtained by undue influence and to be void. (Piercy v. Piercy, 18 Cal. App. 751, [124 Pac. 561]; Odell v. Moss, 130 Cal. 352, [62 Pac. 555]; Ross v. Conway, 92 Cal. 632, [28 Pac. 785].) Applying these presumptions to the facts of this case, as disclosed by the record, we must conclude that the finding of undue influence in the production of the deeds, as well as that of nondelivery, were fully sustained, and in relation to the latter finding it should be remembered that before Mrs, Hubbs obtained manual custody of the deeds (as shown by the record) she herself had announced her mother's feeble mental condition. One so afflicted and so situated as was Mrs. Rayner could not make a valid delivery of a deed. The judgment would, of course, be supported upon either the finding of duress, etc., or that of nondelivery. (American National Bank v. Donnellan, 170 Cal. 9-15, [Ann. Cas. 1917C, 744, 148 Pac. 188].)

No other assignments of error require analysis or discussion. The judgment is affirmed.

Wilbur, J., and Lennon, J., concurred.

[L. A. No. 4681. Department One.-April 15, 1919.]

J. H. MALLETT, Appellant, v. W. J. DOHERTY, Respondent.

[1] SALE OF STANDING TIMBER - REMOVAL WITHIN SPECIFIED TIMECONSTRUCTION OF INSTRUMENT.-A written instrument providing that the first party thereto for a money consideration grants and sells to the second party all timber suitable for sawmill purposes standing upon certain land, together with the free use and occupation of the premises for the purpose of such removal, and further providing that the second party shall have six years within which to make such removal and an extension of four years thereafter, if the first party does not sell the land, and in the event the land is sold, that no part of the timber shall be cut or used in the manufacture of timber during said four years, does not convey absolute title to the timber, but only so much thereof as is removed within the ten years.

[2] ID. RECORDATION OF INSTRUMENT RIGHT TO REMOVE TIMBERCONSTRUCTIVE NOTICE TO PURCHASER OF LAND.-Where such an instrument is recorded, a subsequent purchaser of the land is put upon constructive notice of the provision giving the holder of the instrument the right to remove the timber within the specified period.

[3] ID.

CONSTRUCTION OF CONTRACTS.-Contracts for the sale of standing trees to be removed within a specified time have generally been construed by the courts as sales of only so many trees as the vendee might cut and remove within the time designated, the balance remaining the property of the vendor.

[4] ID.-PREVENTION OF REMOVAL BY OWNER-EXTENSION OF TIME.Where the land owner prevents the holder of such an instrument from exercising his right of removal, the period of interruption is to be taken into account and the term extended by operation of law for the time of the interruption.

APPEAL from a judgment of the Superior Court of Kern County and from an order denying a new trial. Milton T. Farmer, Judge. Reversed.

The facts are stated in the opinion of the court.

Alfred Siemon and W. W. Kaye for Appellant.

Borton & Thiele and Anderson & Borton for Respondent.

CLXXX Cal.-15

LAWLOR, J.-This action was brought by the plaintiff against the defendant to quiet the title of the former to an undivided one-half interest in certain standing timber.

On October 5, 1905, the Kern County Lumber Company, a corporation, being the owner of a tract of land on Mount Breckenridge, in Kern County, executed and delivered an instrument in writing which purported to convey the standing timber on the said land to the plaintiff. This instrument was duly acknowledged and recorded.

The plaintiff, on October 27, 1905, assigned to the Madera Sugar Pine Company, a corporation, the Fresno Flume & Irrigation Company, a corporation, the Sanger Lumber Company, and the West Side Lumber Company, a corporation, an undivided one-half interest in the said timber.

On November 12, 1908, the Kern County Lumber Company conveyed to the defendant the land upon which the said timber stands. This deed was placed in escrow with the Producer's Savings Bank in Bakersfield on June 19, 1909, with escrow instructions to the effect that the deed be not delivered until the balance of the purchase price, which included a subsisting mortgage of five thousand dollars on the land, was paid by the defendant. The final payment was made and the deed delivered on May 22, 1912.

In his complaint, filed on December 6, 1912, the plaintiff alleged that he was the absolute owner of an undivided onehalf interest in the timber, with a right to the free use of the land without charge for the purpose of removing the timber until the fifth day of October, 1915. It was further alleged that the defendant claims the ownership of the land and the timber; that on November 1, 1912, the defendant evicted the plaintiff from the real property, and ever since then has held possession thereof against the plaintiff. The plaintiff prayed that the defendant be required to set forth his right to the timber, and the real property; that a decree be entered quieting the title of the plaintiff to an undivided one-half interest in the timber, that the defendant be enjoined from claiming any right, title, and ownership therein, and that he be enjoined from hindering and preventing or in any way obstructing the plaintiff in the free use and occupation of the land for the purpose of cutting and removing the timber.