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(Hibernia etc. Soc. v. Churchill, 128 Cal. 633, [79 Am. St. Rep. 73, 61 Pac. 278).)

The order is affirmed.

James, J., and Shaw, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 20, 1916.

[Civ. No. 1922. First Appellate District.-September 22, 1916.) A. G. AINSWORTH et al., Appellants, v. ENOCH MOR

RILL, Respondent.

EXCHANGE OF REAL PROPERTY-HOMESTEAD-REFORMATION AND SPE

CIFIC ENFORCEMENT.-A husband and wife are not entitled to have & written contract for an exchange of real property reformed and then specifically enforced where the writing consisted of a written offer made and signed only by the husband and accepted in writing by the defendant, and the property of the plaintiffs was en

cumbered with a homestead declared by the wife. ID.-HOMESTEAD-ENCUMBRANCE-STRICT COMPLIANCE WITH STATUTE.

The policy and purpose of section 1242 of the Civil Code is to prevent the destruction or encumbrance of a homestead by either spouse acting alone, and a purported conveyance or encumbrance of the homestead by either spouse not made in strict compliance with the requirements of such section is invalid and inoperative for any purpose.

APPEAL from a judgment of the Superior Court of Alameda County. T. W. Harris, Judge.

The facts are stated in the opinion of the court.

Lindley & Eickhoff, and Russell T. Ainsworth, for Appellants.

Redmond C. Staats, and James M. Koford, for Respondent.

THE COURT.-In this action the plaintiff sought to have reformed and then specifically enforced a written contract

executed by and between the plaintiff A. G. Ainsworth and the defendant Morrill, for an exchange of certain real property. The defendant's general and special demurrer to the plaintiff's fourth amended complaint was sustained, and the plaintiffs declining to further amend, judgment was entered for the defendant, from which the plaintiffs have appealed.

The facts pleaded and relied upon for a cause of action are substantially these: The plaintiffs are, and at all times mentioned in the complaint were, husband and wife and living together as such in the county of Napa. The plaintiff Minerva L. Ainsworth was the owner of certain real property situate in the county of Napa, and the defendant Morrill was the owner of certain real property situate in the county of Alameda. Both properties were at the time of the making of the contract encumbered with mortgages, and the property of the plaintiff Minerva L. Ainsworth was further encumbered with a right of way and a homestead declared by her. The contract in controversy consisted of a writter! offer made and signed only by the plaintiff A. G. Ainsworth, which was accepted in writing by the defendant Morrill.

In our opinion the plaintiffs' complaint does not and cannot be made to state a cause of action, and therefore the defendant's demurrer was rightfully sustained upon that ground alone. It affirmatively appears from the allegations of the complaint that the contract in suit was not signed and acknowledged by the plaintiff Minerva L. Ainsworth; and we have no doubt that its effect, if valid and enforceable, would be an encumbrance upon the homestead previously declared by her within the meaning of section 1242 of the Civil Code, which provides that “The homestead of a married woman cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by the husband and wife.” Although the contract was signed only by the plaintiff A. G. Ainsworth and was executory in its nature, nevertheless its tendency was to cast a cloud upon the property involved, and to that extent at least constituted an encumbrance upon the existing homestead. The policy and purpose of section 1242 of the Civil Code is to prevent the destruction or encumbrance of a homestead by either spouse acting alone; and it is well settled that a purported conveyance or encumbrance of the homestead by either spouse not made in strict compliance

with the requirements of that section is invalid and inoperative for any purpose. (Freiermuth v. Steigleman, 130 Cal. 392, [80 Am. St. Rep. 138, 62 Pac. 615].) Clearly, under the pleaded and admitted facts of the present case the defendant would not be entitled to have the contract in controversy reformed and enforced as against either or both of the plaintiffs; and conversely it must be true that the plaintiffs can have no rights under the contract superior to those accorded by the law to the defendant. It is elementary that à void agreement has no standing in the law, and consequently it can neither be reformed nor enforced.

The judgment appealed from is affirmed.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 20, 1910.

[Civ. No. 1790. First Appellate District.—September 25, 1916.) MARY L. WATERS, Administratrix, etc., Appellant, v. J. C.

NEVIS, Respondent. BANK DEPOSIT - JOINT OWNERSHIP — RIGHT OF SURVIVORSHIP CON

STRUCTION OF DEPOSIT AGREEMENT.--The deposit by two persons of a sum of money in a bank in a joint account and under a written agreement that the same and any additional money deposited, and all accumulations thereof, shall be payable to and collectible by them, or either of them, during their joint lives, and then belong absolutely to and become the absolute property of the survivor, without reference to or consideration of the original or previous ownership of such moneys, creates a joint ownership in the moneys with the right of ownership in the survivor upon the death of the

other depositor. ID.-COMPETENCY TO EXECUTE AGREEMENT—FINDINGS ON CONFLICTING

EVIDENCE-APPEAL.—In an action brought after the death of one of the parties to such a deposit agreement to recover the amount of the deposit, based upon the ground that the deceased was incompetent to execute such an agreement, where the evidence is conflicting, the findings of the trial court as to competency are conclusive on the appellate court,

APPEAL from a judgment of the Superior Court of Sacramento County. Peter J. Shields, Judge.

The facts are stated in the opinion of the court.

Shinn & Hart, L. A. Kottinger, and Milton Shepardson, for Appellant.

Elliott & Atkinson, for Respondent.

RICHARDS, J.-This is an action brought by the plaintiff, as administratrix of the estate of Antone H. Waters, deceased, to recover the sum of $1,240, alleged to be money had and received by the defendant Nevis from Antone H. Waters, under the circumstances detailed in the complaint, and when, it is alleged, that said Waters was incompetent to conduct any transaction. The complaint was unverified. The answer was a general denial. The evidence was quite voluminous. The court found the facts in the defendant's favor and rendered judgment accordingly. The plaintiff prosecutes this appeal.

The facts of the case, concerning which there is little if any dispute, show that Antone H. Waters was a man of Portuguesc extraction, who had accumulated some considerable property, but who during the closing years of his life had become afflicted with various physical ailments, and having also become estranged to some extent from his family, had, in about the year 1913, gone to live at the home of the defendant Nevis, whom he had known for a number of years. While living there, and in the month of February, 1914, said Waters and Nevis went together to the National Bank of D. O. Mills & Co., in Sacramento, and there deposited the sum of $1,240 in a joint account and under a written agreement, which contained the following words: “The money now deposited and also money which shall at any time be deposited by us or either of us with the National Bank of D.O. Mills & Co. in this account No. 8340, will be so deposited by us and is to and will be received and held by it with the understanding and upon the condition that the same and all dividends and interest thereon and all accumulations thereof are payable to and shall be collectible by us or either of us during our joint lives, and then belong absolutely to and be

The money

the sole and absolute property of the survivor of us, or the heirs, administrators or assigns of such survivor, without reference to or consideration of the original or previous ownership of such moneys or any part of the same.remained on deposit at said bank until May 22, 1914, when it was withdrawn by Nevis. Waters died on December 21, 1914. It is the contention of the appellant that for a considerable period prior to the transaction at the bank, and for all the rest of his life thereafter, Waters was mentally incompetent to conduct a business transaction, and particularly to comprehend the nature and effect of the particular transaction by which the defendant Nevis became a party to the deposit of the money in question and the alleged owner thereof after the death of Waters.

It is not seriously insisted by the appellant that the defendant Nevis would not have become the joint owner of the money deposited in the bank under the foregoing agreement, with the right of survivorship thereto upon the death of Waters, had the latter been capable of making and had made the deposit of his money in that form. The construction of deposit agreements of the kind shown here has been practically settled since the decision of the case of Booth v. Oakland Bank of Savings, 122 Cal. 19, [54 Pac. 370], which has been upheld in the following cases: Carr v. Carr, 15 Cal. App. 480, (115 Pac. 261); Drinkhouse v. German Sav. & L. Soc., 17 Cal. App. 162, [118 Pac. 953]; Denigan v. Hibernia Sav. & L. Soc., 127 Cal. 137, (59 Pac. 389); Estate of Hall, 154 Cal. 527, [98 Pac. 269). The appellant's contention that Nevis' withdrawal of the money in question in May, 1914, was an act of bad faith toward Waters, which operated to terminate his rights to any portion thereof and destroy the trust relation created by the bank deposit, cannot avail against the finding of the court upon sufficient evidence that the withdrawal of said money was accomplished with Waters' consent; and even were it otherwise, the status of the parties would not be changed by such withdrawal. (Sprague v. Walton, 145 Cal. 228, [78 Pac. 645].)

This brings us to the main and, in fact, only contention upon which the appellant relied in the trial court, viz., that of Waters' mental incompetency during the period including the date of the deposit agreement and continuing up to the time of his death. The testimony upon this subject was, as

31 Cal, App.-33

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