[Sac. No. 1246. Department Two-January 20, 1908.] WILLIAM MUIR, Respondent, v. GEORGE W. HAMILTON et al., Appellants.

NEGOTIABLE INSTRUMENTS-WANT OR FAILURE OF CONSIDERATION-EVIDENCE. As between the original parties to a negotiable instrument, the maker may show an original lack of consideration, or subsequent failure of consideration, and such lack or failure of consideration may be shown by parol.

ID.-DEED GIVEN AS SECURITY-QUIETING TITLE-CANCELLATION.—AS between the original parties, the grantor in a deed given to secure the payment of promissory notes, the consideration of which has failed, may maintain an action to quiet his title to the premises conveyed, and for the cancellation of the deed.

APPEAL from a judgment of the Superior Court of Placer County and from an order refusing a new trial. Albert G. Burnett, Judge.

The facts are stated in the opinion of the court.

J. M. Fulweiler, Chas. Tuttle, L. L. Chamberlain, and George W. Hamilton, for Appellants.

W. H. Slade, J. D. Meredith and F. P. Tuttle, for Respondent.

HENSHAW, J.-Plaintiff brought his action to quiet title to certain parcels of land situated in the county of Placer. The gravamen of the action rests upon the following facts which plaintiff alleges, and which the court found upon ample testimony to be true. In the year 1897 plaintiff was engaged, as plaintiff, in a certain litigation with F. P. Tuttle. He employed the defendants, father and son, who were attorneys at law, to prosecute on his behalf this litigation, under an agreement that the defendants were to devote their time and legal services to the prosecution of the action, and in the event that its final determination should be in favor of plaintiff, defendants should receive as compensation for their services the sum of five thousand five hundred dollars, of which sum the defendant George W. Hamilton was to receive

two thousand five hundred dollars, and the defendant Joe Hamilton was to receive three thousand dollars. In the event, however, that the action was determined adversely to plaintiff, defendants were to receive no compensation whatever. For the purpose of securing this contingent obligation plaintiff executed and delivered to the defendant Joe Hamilton his promissory note for three thousand dollars, and to the defendant George W. Hamilton his promissory note for two thousand five hundred dollars. Furthermore, for the sole purpose of securing the payment of this contingent fee, so evidenced by the promissory notes, plaintiff executed a deed of all the property here in controversy to defendant George W. Hamilton. At the time it was agreed that this deed should be deposited by way of escrow with the defendant Joe Hamilton, and the defendant Joe Hamilton would hold the same in escrow until the final determination of the action of Muir v. Tuttle. In the event that the action of Muir v. Tuttle was finally decided in favor of plaintiff, Joe Hamilton was to deliver the deed to the defendant George W. Hamilton, who, under these circumstances would take the same as security for the contingent fees. But in the event that the action of Muir v. Tuttle was finally determined in favor of defendant, said Joe Hamilton agreed to redeliver to plaintiff the deed and the promissory notes. The action of Muir v. Tuttle resulted in a final judgment for defendant. The defendant George W. Hamilton delivered his promissory note for two thousand five hundred dollars to plaintiff, but the defendant Joe Hamilton failed, neglected and refused to surrender his note for three thousand dollars with the other securities and documents. The defendant George W. Hamilton secured possession of the deed, and in violation of the agreements caused it to be placed of record in the office of the recorder of the county of Placer.

These findings, which as we have said are amply supported by the evidence, are sufficient to uphold the conclusions of law to the effect that plaintiff was the absolute owner of the land, and was not indebted to the defendant Joe Hamilton in the sum of three thousand dollars, or in any sum whatever, nor to George W. Hamilton in any sum whatever; that the consideration for which the notes were given had wholly failed, and that plaintiff was entitled to his decree quieting

title to the land in the complaint described, as a part of the relief under which decree, it was ordered that the deed of plaintiff to Hamilton be declared void and canceled.

The trial court stated that the vital question in the case was whether the agreement of plaintiff was to pay an unconditional or contingent fee. This, appellants say in their brief, is an illustration and a demonstration that the court has confused the true issue, and that the true issue is, Did the execution and unconditional delivery of the promissory notes create an obligation against the plaintiff, and has that obligation been discharged? Under the facts of this case, the note still being in the hands of the original payee, we think the distinction that counsel makes is rather of form than of substance. There was not an unconditional delivery of the promissory notes. However closely the lips of the plaintiff might have been sealed under the law governing negotiable paper if his notes had passed into the hands of an innocent purchaser for value before maturity, as between the original parties to an instrument nothing is better settled than that the maker may show an original lack of consideration, or subsequent failure of consideration, which latter was done in this case. And it is equally well settled that such lack or failure of consideration may be shown by parol. (Billings v. Everett, 52 Cal. 661; Braly v. Henry, 71 Cal. 483, [60 Am. Rep. 543, 11 Pac. 385, 12 Pac. 623]; Jefferson v. Hewitt, 103 Cal. 624, [37 Pac. 638]; 4 Am. & Eng. Ency. of Law, 2d ed., pp. 186, 196.)

The deed which plaintiff gave was, in effect, a mortgage, and was given as security for the payment of the promissory notes. The consideration for the notes having failed totally, it was plaintiff's right, as the court decreed, that the deed itself should be canceled and annulled.

The judgment and order appealed from are, therefore, affirmed.

McFarland, J., and Lorigan, J., concurred.

[S. F. No. 4381. Department Two.-January 21, 1908.]

JOHN MCKEE, Respondent, v. REBECCA A. DODD, Executrix of Will of JAMES DODD, Deceased, Appellant.

ESTATES OF DECEASED PERSONS-ANCILLARY ADMINISTRATION-CLAIM UPON NOTE EXECUTED AND PAYABLE OUT OF STATE-STATUTE OF LIMITATIONS.-Where a note was executed and made payable in the State of New York, and the maker was non-resident therein when the note became due, and afterwards resided in this state, but his whole stay therein was less than two years, and he became a resi dent of Honolulu, where he died, leaving property there, and also in this state. where ancillary administration was had, the cause of action upon the note in this state is not barred by the statute of limitations, and a claim thereon may be presented and enforced in such ancillary administration.

ID. CONSTRUCTION OF CODE-ORIGIN OF CAUSE OF ACTION-BAR OF STATUTE.-Section 361, of the Code of Civil Procedure, providing that "when a cause of action has arisen in another state, or in a foreign country; and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state, and who has held the cause of action from the time it accrued," refers only to the primary and original jurisdiction in which the cause of action arose, independent of the whereabouts of the maker at the time of the maturity thereof.

ID.-BREACH OF DUTY OF MAKER OF NOTE-CAUSE OF ACTION.-It is the duty of the maker of a note executed and made payable in another state, to make payment in that state at maturity, as agreed, though he had become a non-resident thereof before maturity of the note. The cause of action fully arose in that state, upon breach of that duty on the part of the maker.

ID.-SINGLE CAUSE OF ACTION-LOCAL REMEDIES-RESIDENCE

MAKER-BAR IN ONE JURISDICTION NOT AFFECTING ANOTHER.-The original cause of action is single and cannot have two places of origin. Whatever other local remedies are given in different jurisdictions, owing to changes in the residence of the maker of the note, each must depend on the original cause of action. The fact that the local remedy has become barred in one jurisdiction cannot affect the local remedy given in another jurisdiction which is not barred by the laws thereof.

ID.-BAR OF REMEDY IN HAWAII-ORIGINAL ADMINISTRATION—ANCILLARY ADMINISTRATION IN CALIFORNIA-REMEDY NOT BARRED.-The fact that the local remedy had become barred in Hawaii by reason of

the residence of the maker therein for the statutory period, prior to his death there, and that no claim could be enforced in the original administration of his estate in Hawaii, cannot affect the local remedy in California. It is sufficient that the remedy is not barred in this state, and may be enforced as a claim therein in proceedings for the ancillary administration of property situated in this state.

ID. RIGHT OF NON-RESIDENT CREDITOR TO PRESENT CLAIM-COMITY.— When the claim of a non-resident creditor is not barred in this state, there is nothing in our statutes which would deny to him the right to present a claim against the estate of a deceased person, in the course of administration in this state, whether such administration be primary or ancillary; and comity will dictate that such claim should be entertained.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Thos. F. Graham, Judge.

The facts are stated in the opinion of the court.

W. M. Cannon and A. P. Black, for Appellant.

Mullany, Grant & Cushing, for Respondent.

HENSHAW. J.-This is an action on a claim against the estate of James Dodd, deceased, based upon three promissory notes which were executed in 1891 in New York to plaintiff and payable in that state, plaintiff and the deceased at that time both being residents thereof. All of these notes by their terms became due and payable before the expiration of the year 1891. Shortly after their execution Dodd left New York and never returned. He was in Europe until May, 1892, and thence came to California, arriving here in June, 1892. He kept a liquor saloon in San Francisco until April, 1893, when he sold out his business and went to Honolulu, H. I. He entered business in Honolulu, resided, and had his domicile there until his death in January, 1900. During the time of his residence in Honolulu he made visits to San Francisco, but the total length of his stays in this state aggregated less than two years. He left estate, consisting of real and personal property, in Hawaii and in California. His will was duly admitted to probate in Honolulu and ancillary administration was had in the superior court of the city and county of San Francisco. Such property as he left in this state is here in