sive right of possession and enjoyment" to the claim, is in the nature of a legislative grant of an interest in the land; and the interest thus conveyed to the locator by the government cannot be transferred by parol, or otherwise than in accordance with the statute of frauds. (Goller v. Fett, 30 Cal. 481; Garthe v. Hart, 73 Cal. 541.) The location may be made in the name of another than the actual locator (Morton v. Solambo Copper Mining Co., 26 Cal. 527; Rush v. French, 1 Ariz. 150), and when so made the person in whose name it is made becomes vested with the legal title to the claim (Van Valkenburg v. Huff, 1 Nev. 142); and it is not necessary for its validity that it should be recorded. (Thompson v. Spray,

72 Cal. 533.)

By virtue of the acts done by the plaintiff in reference to the mining claim in question, the defendant became vested with the legal title thereto as fully as if the plaintiff had located the claim in his own name, and afterward by a conveyance absolute in form, and without any consideration, transferred it to the defendant. The defendant could not by any oral declarations subsequent to such conveyance render himself a trustee for the plaintiff or bind himself to transfer the claim to him. An absolute conveyance of lands cannot after its execution be turned into a trust by any oral declarations of the parties thereto. (Feeney v. Howard, 79 Cal. 525; 12 Am. St. Rep. 162; Hasshagen v. Hasshagen, 80 Cal. 514; Sherman v. Sandell, 106 Cal. 373.) The plaintiff did not locate the claim in the name of the defendant by reason of any fiduciary relations between them (see Feeney v. Howard, supra), nor was it made under any prior agreement on the part of the defendant to hold the same in trust for him. The cases of Gore v. McBrayer, 18 Cal. 582, and Moritz v. Lavelle, 77 Cal. 10, 11 Am. St. Rep. 229, do not aid the plaintiff, and are not in contravention of this rule. In both these cases the location was made under a prior agreement between the parties that it should be for the joint interest of both. At the time of the transaction involved in Gore v. Mc

Brayer, supra, a mining claim could be transferred by parol, the statute requiring it to be in writing, having been passed in 1860; and in Moritz v. Lavelle, supra, the location was made by both parties in the name of the defendant, upon the express agreement between them at the time of the location that in consideration of the prior agreement of the plaintiff to furnish the means for its location and working the defendant would transfer an interest therein. In Gore v. McBrayer, supra, the location was originally made in the name of both parties, and it was held that the interest thereby vested in the plaintiff could not be defeated by tearing down the notice and making a new location, in which the plaintiff's name was omitted.

The court should have excluded the oral evidence of the agreement by the defendant to reconvey the mining claim to the plaintiff, and should have granted the nonsuit asked by the defendant.

The judgment and order are reversed.

VAN FLEET, J., and GAROUTTE, J., concurred.

[No. 18326. Department One.-September 12, 1895.] G. B. GARBERINO, APPELLANT, v. JAMES ROBERTS, RESPONDENT.

VENDOR AND PURCHASER-CONVEYANCE TO THIRD PARTY-BREACH OF CONTRACT-RESCISSION.-The mere conveyance to a third party of premises contracted to be sold, pending the contract and be fore the time of performance, is not a breach of the contract, and does not authorize the purchaser to rescind it and demand a return of installments of purchase money paid if the vendor has not repudiated the contract, or refused to carry it out, other than by the mere fact of the conveyance to such third party. ID. PLEADING-WANT OF POWER TO PERFORM-CONCLUSION OF LAW.— A complaint by a purchaser, seeking to rescind the contract of sale before the time of performance, upon the ground that the vendor has conveyed the property to a third person, which does not allege that the defendant has repudiated the contract, or refused to carry it out, does not state a cause of action; and the allegation that the act of the defendant in conveying the lot put it absolutely out of his power to perform his contract is a mere legal conclusion, improperly drawn from the fact of the conveyance alleged.

ID.-DEFAULT OF PURCHASER MUST BE SHOWN.-Although the plaintiff is not himself in default, he cannot rescind the contract and recover the purchase money unless he shows a state of facts putting the defendant in default. ID.-PREMATURE ACTION-TIME OF

PERFORMance-Tender-DEMAND FOR DEED. In order to put the vendor in the wrong it is incumbent upon the purchaser to await the time of performance provided in the contract, and thereupon make his tender of performance and demand his deed; and he cannot treat a prior conveyance by the vendor as a rescission of the contract, and bring his action without waiting for the day of performance.

APPEAL from a judgment of the Superior Court of Fresno County. J. R. WEBB, Judge.

The facts are stated in the opinion of the court.

James Gallagher, and W. D. Grady, for Appellant.

The vendor, by his deliberate and wrongful act, put it out of his power to convey, and caused a failure of consideration which entitled the vendee to declare a rescission. (Civ. Code, sec. 1689, subd. 2; Phelps v. Brown, 95 Cal. 572; Anthony Main's case, 5 Coke, 21; Merrill v. Merrill, 95 Cal. 335; Easton v. Montgomery, 90 Cal. 307; 25 Am. St. Rep. 123; Burks v. Davis, 85 Cal. 110; 20 Am. St. Rep. 213; Sanders v. Lansing, 70 Cal. 429; Dowd v. Clarke, 54 Cal. 48; Wolf v. Marsh, 54 Cal. 228; Marshall v. Caldwell, 41 Cal. 614; Lawrence v. Taylor, 5 Hill, 115; Judson v. Wass, 11 Johns. 525; 6 Am. Dec. 392; Delamater v. Miller, 1 Cow. 75; 13 Am. Dec. 512; Heard v. Bowers, 23 Pick. 455; Newcomb v. Brackett, 16 Mass. 161; Buttrick v. Holden, 8 Cush. 233; Burwell v. Jackson, 9 N. Y. 535; Harrington v. Higgins, 17 Wend. 378; Hawley v. Keeler, 53 N. Y. 115; James v. Burchell, 82 N. Y. 109.) Where a party bound to do a thing on a certain day incapacitates himself to do that thing on that day, an action may be commenced at once without waiting for the day. (2 Parsons on Contracts, 666, 678; 3 Am. & Eng. Ency. of Law, 907.)

Frank H. Short, for Respondent.

The mere conveyance of the land was not a breach,

and the purchaser cannot consider the contract as abandoned and recover money paid. (Joyce v. Shafer, 97 Cal. 335; Shively v. Semi-Tropic Land and Water Co., 99 Cal. 259.)

VAN FLEET, J.-A general demurrer was sustained to the complaint, and plaintiff electing not to amend, judgment was entered dismissing his action from which he appeals.

The action was to recover back the first installment paid under an executory contract for the sale of land, and damages for the breach of said contract by defendant. The material averments of the complaint are that plaintiff and defendant, on the ninth day of November, 1891, entered into a contract whereby, in consideration of the payment by plaintiff of two hundred dollars down. and four hundred dollars to be paid in one and two years thereafter, with interest, defendant sold and agreed. to convey to plaintiff a certain lot in the town of Fresno. That at the time of the execution of the contract defendant was the owner of the title in fee of the lot to be conveyed, but thereafter, on the twenty-fifth day of January, 1892, and before the date at which said contract was to be performed, defendant, without the knowledge and against the will and consent of the plaintiff, conveyed the said lot by grant to a third party; and did thereby, as it is alleged, "place without and beyond his, the said defendant's, power the fulfillment and performance of the covenants, conditions and agreements on his part to be observed and performed," by reason of which plaintiff "elects to rescind said agreement."

The only question, of course, is whether the complaint states a cause of action, and this question depends upon the further one whether the facts pleaded show a breach of the alleged contract of sale by defendant. The sole ground relied upon as constituting such breach is the conveyance of the lot by the defendant to a third party pending his contract with the plaintiff to convey to the latter, the plaintiff's contention being that the defend

ant, by conveying away his title, put it absolutely without his power to fulfill his contract with plaintiff, and thereby gave plaintiff an immediate right of action for rescission.

There is no question but that, where a party having contracted to do a thing upon a given day, before the day of performance arrives repudiates his contract, or voluntarily puts it out of his power to perform, the other party to the contract may treat it as rescinded, and bring his action for the breach immediately and without awaiting the stipulated day. But the question here is, whether the mere fact that defendant conveyed the lot under the circumstances alleged had the effect to put it without his power to perform at the future date agreed upon, since it is not alleged that defendant has repudiated his contract or refused to carry it out, unless the fact of conveying the lot to another is the legal equivalent of such repudiation. In Joyce v. Shafer, 97 Cal. 335, a case of precisely the same character as the present, it was held that the conveyance by the vendor of the land contracted for to a third party before the time for performance of the contract of sale is not a breach of that contract, and does not entitle the purchaser to treat the contract as abandoned or rescinded before the time of performance arrives. "One may sell land," say the court in that case, "which he does not own, and yet be able when the time of performance arrives to furnish a good title. In the mean time the purchaser would not be at liberty to disaffirm the contract on the ground that then the vendor was unable to make a good title. It would be incumbent upon him to offer to perform, or to show that at the time of performance the vendor could not furnish the title." And in Shively v. Semi-Tropic Land and Water Co., 99 Cal. 259, another action of like character and purpose, it is said: "Rescission or abandonment of the contract by defendant gives plaintiff his cause of action, but a transfer of the land to third parties of itself does not constitute such abandonment or rescission. It does not necessa