under his control he had the right as incident to his ownership of them to make such disposition of their use as he saw fit, limited, of course, to a beneficial use of them. As he had purchased the right to the use of all the waters conveyed from the irrigation ditch, he was entitled to an unrestricted control over that use. He was not limited by any contract with defendant upon the subject. He is not taking any more water than he purchased, and is not using himself or licensing to his neighbors more than he bought. Having purchased the use of a given quantity, if he cannot use it all himself, we see no reason why he cannot sell the right to a temporary use of it to his neighbors, as wanted, for a beneficial purpose. To hold that he cannot do so would be to impose a restriction for which no warrant is found in the agreement of purchase, and would be in effect to deprive him of a valuable incident to the ownership of this character of property, the right to dispose of its use to others when it is not required for use by the owner himself. There is no law which will impose the limitation contended for by appellant. As there is, then, nothing in the terms of the agreement or the covenant relied on limiting the use of the waters purchased by plaintiff to his own lands, or any rule of law that we are advised of so restricting him from disposing of such use, the conclusion reached by the lower court that plaintiff had a right to make such disposal of the waters purchased by him was correct.

As to the only other point in the case, the award of special damages. Appellant insists that the finding upon which the judgment therefor is based is not supported by the evidence. The evidence upon this subject is very meager, and consists of that of the plaintiff. He testified that between January 16, 1902, and April 19th of the same year, he was selling, or had contracted to sell, the waters to be used on his neighbors' lands; that under the contracts therefor he had negotiated for twenty-one days' sale of water at twenty dollars per day; and that the flume of plaintiff was obstructed by defendant on April 19, 1902. On this evidence the court made its finding of special damages in the sum of four hundred and twenty dollars. This finding is not sustained by the evidence. It was necessary in support of the claim for special damages that clear proof of them be made. All that the evidence shows is that plaintiff was selling water under contracts for twenty

one days' use between January 16th and April 19, 1902. It does not appear when any of the contracts were made, or at what time the supply of water was to be furnished, or whether any of it had been furnished during the above dates. As the obstruction was not placed in the flume until April 19th, it does not appear how many days' use was had under the contracts between January 16, 1902, and the damming of plaintiff's flume, or whether the contracts were for the supply of water before April 19th or after. It cannot be said that there is any evidence of a definite character upon the subject of special damages.

The judgment, therefore, is reversed as to that portion of it which awards special damages, and a new trial is ordered to be had solely upon the issue of special damages. As to all the rest of the judgment, it is affirmed. Appellant is entitled to its costs on appeal.

McFarland, J., and Henshaw, J., concurred.
Hearing in Bank denied.

[S. F. No. 3607. In Bank.-February 6, 1907.]

and

E. H. RIXFORD (Substituted for F. G. Halsey), Respondent, v. ROBERT E. ZEIGLER, Respondent, GEORGE M. PERINE, Appellant.

DEEDS GRANTEE-UNINCORPORATED

TION

"CHURCH COMMUNITY"-POSSES

SION AND USE NOT TAKEN-TITLE NOT Passed-DEED UNDER EXECU-
AGAINST GRANTOR.-A deed to an unincorporated "church
community" for "school and church purposes,'
," not naming its
members or any other grantee, under which it appears that no pos-
session was taken or use had of the property conveyed for any
purpose by the "church community" or its members, or by any
one claiming to act for it, and that no claim thereto has been
asserted by or for its members, passed no title, legal or equitable,
from the grantor, and a sheriff's deed under execution against him
passed the title as against his subsequent grantee.

ID.-GENERAL RULE APPLICABLE-GRANTEE MUST BE CAPABLE TO TAKE. -In such case the general rule applies that to make a deed effective the grantee must be a person either natural or artificial, capable of taking the property conveyed, and that a deed is void unless the grantee named has such capability.

ID.-EXCEPTION AS TO GRANT FOR CHARITABLE PURPOSES INAPPLICABLE-

RULE IN EQUITY.-The exception to the general rule that where a grant for charitable purposes is sought to be enforced by heneficiaries, who have taken possession of the property granted, and have continuously used the same for such purposes, equity will devise plans for carrying it out, has no application to the facts of the present case.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Seawell, Judge.

The facts are stated in the opinion of the court.

D. H. Whittemore, for Appellant.

E. H. Rixford, and J. A. Fairweather, for Respondent.

MCFARLAND, J.-This action was brought by the original plaintiff, F. G. Halsey, for the partition of a certain piece of land. It was averred in the complaint that Halsey and defendant Zeigler were the owners in fee of the land as tenants in common; and the other defendants were made parties, as claiming some interest in the property. Zeigler answered, admitting and averring that plaintiff and himself were owners of the land in contest as tenants in common, and united in plaintiff's prayer for partition. Defendant Perine answered, denying that plaintiff and Zeigler were the owners of the land, and averring that he, Perine, was the sole owner thereof. The other defendants made default. The court found that plaintiff and defendant Zeigler were the owners of the property, that Perine had no interest therein, and rendered an interlocutory judgment for a partition as prayed for in the complaint. From this judgment defendant Perine appeals.

The material facts are these: On July 8, 1864, one B. C. Vandall recovered judgment in the district court in and for the city and county of San Francisco against Harvey S. Brown for $1,759.26, with interests and costs. On July 23, 1864, an execution was issued under said judgment, and was levied upon the land in contest in the case at bar as the property of said Brown; and by virtue of said execution the property was sold by the sheriff to said Vandall, and on June 7, 1865, the sheriff executed a deed to Vandall conveying to the latter all the title which Brown had in the land at the date of said judgment. Afterwards, and before the commencement

of this suit, whatever title Brown had in the land at the time of the execution sale, etc., vested by mesne conveyances in the plaintiff Halsey and the defendant Zeigler.

Brown was admittedly the owner of the land at the time of the suit by Vandall, the execution sale, etc., unless before that, on the 22d of December, 1862, he parted with the title by an instrument in writing which he that day executed. This instrument purported to be a deed conveying the land in contest here to "the community styling itself the German Roman Catholic St. Bonifazieus Church Community." This instrument contains the following provision: "This conveyance is upon express condition that said property is to be used by said. community for school and church purposes and for no other purpose whatever, nor shall said community sell or transfer the same or any part thereof, but the same shall be and remain the property of said community as long as they shall make use of said property for above purposes; but if they sell or transfer the same, or use it for any other purposes than those above mentioned, they shall forfeit all rights under this conveyance, and the said property shall revert to the first party and his heirs." It is found by the court upon sufficient evidence that at the time of the execution of said instrument the said church community was and still is an unincorporated association of persons associated together for the purpose of religious worship. It was not a corporation either de jure or de facto; it never pretended to act as a corporation. In the instrument no individual person was named as a grantee, nor was there any statement as to who constituted said church community. Neither the said community nor any of its members, nor any person claiming to act for it, ever took possession or used the said property for school or church purposes, or for any other purpose whatever, and never undertook to make any use whatever of the properties named in said instrument. In the case at bar all persons who are members of said community were made defendants, and they all made default.

Under these facts we are of opinion that no title ever passed out of Brown to any persons whatever by said instrument. The general rule is, beyond doubt, that a deed of conveyance is void unless the grantee named is capable of taking and holding the property named in the deed; and the general rule also is that to make a deed effective the grantee must be a person,

either natural or artificial, capable of taking and holding the property. In Wiseman v. McNulty, 25 Cal. 230, a deed had been made to the "Hibernia Company," and it was held void, the court saying: "The company does not appear to be a corporation nor even a partnership, holding the claims as partnership property, but simply a voluntary association not formed by articles in writing and without legal existence-a body unknown to the law. As such, the company would be incapable of taking and holding mining claims, by grant, or by any other means, by which title to real estate would pass." In Winter v. Stock, 29 Cal. 408, [89 Am. Dec. 57], the court approves a decision in the case of Arthur v. Weston and Strode, 22 Mo. 378. In that case it appeared that lands had been conveyed to "W. W. Phelps & Co." At the trial Arthur offered to prove that when the conveyance was made to Phelps & Co. said firm was composed of Phelps, Cowdry, and Whitmore, but the court rejected the offered evidence, holding the law to be that "the deed to W. W. Phelps & Co. operated to vest the legal title in W. W. Phelps alone, and that the entire title passed by the sheriff's deed under the execution sale, and gave judgment accordingly." Upon writ of error the supreme court sustained the decision of the court below, holding that the deed to W. W. Phelps & Co. did not take effect as a legal conveyance of the premises to Phelps, Cowdry, and Whitmore jointly, but that it operated to convey the property to Phelps alone. The court observed that the question "is not merely whether the grantor intended to convey to the persons composing the firm, but whether the partnership style is, as a matter of law, a good name of purchase in a conveyance of real property sufficient to pass the legal title to all the individuals of the firm. A conveyance of real property being required by the statute to be put in writing, the party who is to take as grantee must be sufficiently ascertained by the written instrument, or it is a nullity, so far as it purports to effect a transfer of the legal title." (See, also, Sunol v. Hepburn, 1 Cal. 254; Phelan v. San Francisco, 6 Cal. 531.) In Encyclopedia of Law and Procedure (vol. 13, p. 624) it is said: "If the firm name is given and it consists of the surnames of the several parties it will vest the legal title in them, and generally if members of a partnershp are designated with sufficient certainty under a firm name they will take, but a general