(136 Cal. 631)

KIMBALL v. TRIPP. (S. F. 2,397.) (Sapreme Court of California. June 23, 1902.) GIFT CAUSA MORTIS-CONSTRUCTIVE TRUSTEQUITABLE RELIEF-PARTIES-JURIS

DICTION-ESTOPPEL.

1. Deceased, in fear of death, attempted to convey to an agent all her property, and instructed him, in the event of her death, to make certain gifts to others and retain the balance. The delivery was insufficient to constitute a gift causa mortis as to a part of such property. At the same time she executed to him certain conveyances of land and assignments of mortgages. Held, that these conveyauces and assignments created in the agent a constructive trust, and did not constitute a gift causa mortis of the realty, and, on his appropriation of the property to his own use, should be set aside.

2. Where deceased, in fear of death, executed to an agent certain conveyances and assignments of mortgages, to be disposed of by him as she directed, and he converted such property to his own use, relief could be had in equity, though there had been no fraud in the procurement of the instruments.

3. Under Code Civ. Proc. § 384, providing that tenants in common may jointly or severally commence any civil action to protect their rights, and section 1452, providing that heirs may themselves, or jointly with the administrator, maintain an action for possession of the real estate, but that they shall not be required to do so, one heir alone could bring action for the recovery of real property left by deceased.

4. Under Const. art. 6, § 5, and Code Civ. Proc. 88 78, 392, providing that an action to recover real property shall be brought in the county wherein it is situated, the action may be brought in any county in which any part of the land lies.

5. An action by an administrator to recover personal property conveyed by deceased to an agent, where the legal title alone was involved, was not a bar to an action in equity by an heir to enforce a constructive trust in certain real property conveyed at the same time.

Commissioners' decision. Department 2. Appeal from superior court, Alameda county; W. E. Greene, Judge.

Suit by Rachel Kimball against W. G. Tripp. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

Cary Howard and Welles Whitmore, for appellant. Reddy, Campbell & Metson, Reed & Nusbaumer, and F. E. Whitney, for respond

ent.

SMITH, C. The plaintiff is one of the heirs of Elizabeth L. Cook, deceased, and brings this suit, on behalf of herself and coheirs, to set aside certain conveyances of lands, and releases of interests therein, and certain assignments of mortgages made to the defendant by the deceased. The plaintiff had judgment, from which, and from an order denying his motion for new trial, the defendant appeals.

The case involves the same general transaction as was involved in the case of Knight v. Tripp, 121 Cal. 674, 54 Pac. 267, to which reference may be made for a fuller statement of the circumstances of the case than we deem it necessary to give here. The ma

terial facts of the case are presented by the following allegations of the complaint, which are found by the court to be true: The deceased, in her lifetime, was the owner of the real property and choses in action described in the complaint, and also of the other personal property, consisting of deposits in bank and other items, of the value of $10,802.13, which was recovered by the administrator in the former suit. The conveyances and assignments in question were made on the 31st day of May, 1895; and it is alleged and found with regard to them that on the day named the deceased "was in great fear and peril of death, and believed she

was so, and so believing, and so in fear of death, then and there did appoint and constitute W. G. Tripp, the defendant, her agent, and did then and there purport to convey and attempt to convey and transfer to him, as such agent, all of her said property, real and personal, and did then and there, contemporaneously with such purported and attempted conveyance and transfer, orally instruct said Tripp [the defendant], in the event of her death occurring, to make the following disposition of her said property, to wit: [Here follow instructions, being substantially as set out in the report of the former case,-121 Cal. 677, and 54 Pac. 268;] and that all property remaining after said instructions were carried out said Tripp was further instructed to retain for himself. That then and there said [deceased] did transfer and deliver to said * Tripp certain of said property, and attempted to transfer, convey, and deliver the whole thereof to him as gifts causa mortis for the persons so designated by her instructions. That none of said gifts sought to be made as aforesaid were ever in her lifetime, or at all, delivered to the said persons, except as herein before stated. That the said Elizabeth L. Cook died on the 14th day of June, 1895." These findings, which are not attacked by the specifications, bring the case, we think, within the authority of the decision in Knight v. Tripp, supra. This is clearly the case with reference to the assignments of the notes and mortgages, which come directly within the decision. Nor do we think the principle of the decision is less applicable to the conveyances of land. The lands were conveyed on the same trusts as the personal property, and the only distinction between the two classes of transfers is that, under the provisions of the law, conveyances of land are subject to the rule that an express trust can be created only by writing. But these provisions have no application to trusts created "by operation of law" (Civ. Code, § 852), of which we think the case here is one. The position of the appellant on this point is that, as there was no fraud in the procurement of the conveyances, the plaintiff can have no relief. But assuming the absence of fraud (though, in view of the defendant's relation to the grantor as her agent, this can hardly be assumed), it does

not follow that equity cannot afford relief. The deeds, it is found, were made to the defendant simply as her agent, and were therefore taken by him in trust for her; and, though the trust was not expressed in writing, equity will not permit the defendant to convert the property to his own use, contrary to the intention of the parties and to the confidence reposed in him. "The doctrine is both novel and startling which restricts, in matters of fraud, its jurisdiction over the operation of written instruments to those cases where the fraud has been committed in their creation. If maintained, it will sweep away its heretofore admitted jurisdiction in an infinite variety of cases, of almost daily occurrence, where the fraud alleged consists in the use of instruments entered into upon a mutual confidence between the parties. Fraud in their use is as much a ground for the interposition of equity as fraud in their creation. There is no distinction in the principle upon which the jurisdiction is asserted in the two cases. In both there is the same abuse of confidence, and from both the same injury results." Pierce v. Robinson, 13 Cal. 127. In the case cited, the instrument involved was a deed absolute in its terms, shown by parol evidence to have been intended as a mortgage. But the principle applies equally to other cases,-as, for example, to the cases involved in Hultz v. Wright, 16 Serg. & R. 346, 16 Am. Dec. 575, and Oliver v. Oliver. 4 Rawle, 144, 26 Am. Dec. 123, cited in the principal case, and in Thompson's Lessee v. White, 1 Dall. (Pa.) 424, 1 L. Ed. 206, 1 Am. Dec. 252. In the last, which is a very instructive case, the subject is fully discussed. Another example is that of the purchase of an outstanding title by a tenant in common, considered in Mandeville v. Solomon, 33 Cal. 44, where it is said: "Where the circumstances of a transaction are such that the person who takes the title to property cannot be permitted to enjoy it, in whole or in part, without necessarily violating some principle of equity, a constructive trust will be raised for the party entitled in equity to its beneficial enjoyment," which is the same principle that at law governs the action for money had and received. This principle has not always been consistently applied by the courts, but in this state it has been held applicable to cases where there were fiduciary relations between the parties, as in this case. Alaniz v. Casenave, 91 Cal.

46, 27 Pac. 521; Brison v. Brison, 75 Cal. 525, 17 Pac. 689, 7 Am. St. Rep. 189; Feeney v. Howard, 79 Cal. 525, 21 Pac. 984, 4 L. R. A. 826, 12 Am. St. Rep. 162. And the defendant comes directly within this restricted application of the doctrine. There is also another principle upon which the rule may be sustained, which is that in such cases generally, and in this case especially, there is an entire failure of consideration. Civ. Code, § 1689, subd. 2 et seq.; Knight v. Tripp, 121 Cal. 681, 54 Pac. 269.

Other points urged by the appellant are defect of parties plaintiff, want of jurisdiction of the court to render judgment as to the Los Angeles county property, and estoppel by the judgment in the former suit. But none of these objections are tenable. The plaintiff, as one of several tenants in common, was entitled to maintain the action. Code Civ. Proc. §§ 384, 1452. It is therefore unnecessary to consider the application of section 382, Code Civ. Proc. As to the question of jurisdiction, assuming, without deciding, that the provisions of the Code and of the constitution cited apply to cases of this kind, yet under them the action may be brought in any county in which part of the land affected by the action is situated. Const. art. 6,5; Code Civ. Proc. §§ 78, 392. On the question of estoppel, the specific ground of the objection is that a suit having been brought by the administrator for the recovery of the personal property in this state, and a recovery had, a suit for the remainder of the property cannot now be maintained either by the heirs or the administrator. But the causes of action in the two cases are different. The former suit was to recover possession of certain personal property, and the legal title only was involved. The present suit is in equity to enforce a constructive trust.

We advise that the judgment and order ap pealed from be affirmed.

We concur: GRAY, C.; COOPER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

(136 Cal. 613) FLORENCE et al. v. HELMS et al. (8. F. 2,098.)

(Supreme Court of California. June 20, 1902.) CONVERSION-COMPLAINT-SUFFICIENCY

GENERAL DEMURRER-PARTIES.

1. A complaint in conversion alleging that a certain association of which plaintiffs are members has a membership of about 200, and that plaintiffs prosecute the action on behalf of the association and its members, makes a case Iwithin Code Civ. Proc. § 382, providing that where the parties are numerous, and it is impracticable to bring all before the court, one or more may sue for all.

2. Under Code Civ. Proc. §§ 430, 434, specifying grounds of demurrer to a complaint, including defects of parties, and declaring that, if no objections be taken either by demurrer or answer, they must be deemed waived except as to the questions of jurisdiction and statement of a cause of action, a general demurrer admits sufficiency of parties.

3. A complaint in conversion brought by members of a certain union against its former officers and a certain other society, alleging that while such former officers were in possession of its property they wrongfully appropriated and transferred it to the other society, and afterwards withdrew, and were "no longer members or officers of the association," and asking for the value of the property so converted, and not the recovery of the property, was good against general demurrer.

Department 2. Appeal from superior court, city and county of San Francisco.

Action by J. G. Florence and others against John E. A. Helms and others. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Reversed.

Welles Whitmore, for appellants. Albert M. Armstrong, for respondents.

HENSHAW, J. Plaintiffs sought to recover from defendants the sum of $4,750, value of certain personal property which the complaint charges the defendants with having converted to their own use. Defendants interposed a general demurrer to the complaint. The demurrer was sustained by the court without leave to amend. From the judgment following this demurrer plaintiffs appeal.

The essential allegations of the complaint are: That the Retail Grocers' Protective Union of San Francisco is an association with a membership of about 200; that the plaintiffs are members of the association, and, the membership being large, plaintiffs prosecute the action on behalf of the association and all the members thereof. The plaintiffs are thus shown to be proper parties to prosecute the action (Code Civ. Proc. § 382), and, indeed, the sufficiency of the parties is admitted upon the demurrer (Code Civ. Proc. §§ 430, 434). The action is in conversion. It charges that certain named defendants were all of the officers of the association, and as such officers were in possession of the property of the association, subject always to the orders and directions of the association; that, while so in possession of the property, they wrongfully and unlawfully appropriated it to their own use. The Retail Grocers' Association of San Francisco is made a party defendant by proper averment, and it is charged that the defendant officers transferred and delivered the property to the Retail Grocers' Association; that the Retail Grocers' Association, knowing the facts, wrongfully took and accepted the property, and paid no consideration therefor. Since this conversion, the defendant officers have withdrawn from the Retail Grocers' Protective Union, and ceased to be members and officers thereof. It is further charged that the Retail Grocers' Protective Union, represented by these plaintiffs, demanded from the defendants and each of them the return of the property, and that they have failed and refused to return it. Judgment is sought, as has been said, for the value of the property so wrongfully converted, for damages and interest.

From the opinion of the court which sustained defendants' demurrer, and which opinion is embodied in their brief, it appears that the court viewed the action as one for the recovery of specific property, and held that the allegation that the officers of the association had withdrawn from it, and ceased to be members and officers of it, "amounted to a

mere conclusion of law, not sufficient to raise any issue of fact." It therefore held that, "as it nowhere sufficiently appears that said defendants are no longer directors or trustees, or that others have been elected and qualified in their places, it must be presumed that said defendants are still directors or trustees. In such event, said defendants would be entitled to the custody of the property of said association." The conclusion drawn was that the association could not seek to maintain an action to recover from its officers or trustees property which was in their rightful possession. But the demurrer in this case is general, and if it be conceded that the allegation that the defendants have withdrawn from the association, and ceased to be members and officers thereof, could have been more aptly worded, nevertheless it is a sufficient allegation upon general demurrer. But more important than this is the fact that the complaint does not seek, on behalf of the association, to recover property of the association rightfully in the possession of the trustees, or to recover any specific property at all. It seeks damages because the trustees have unlawfully, and without consideration, disposed of the personal property of the association, and the amount of the damages is properly charged to be the value of the property so converted.

The judgment appealed from is therefore reversed, with directions to the trial court to overrule defendants' demurrer.

en

On the hearing of a petition for distribution of an estate, the legatees, whose interests were common, were represented by two different attorneys, and a stipulation was tered of record that an objection or exception on behalf of one of the legatees should be deemed to be in behalf of all. During the hearing certain letters were received over the objection and exception of the legatees. Thereafter counsel who offered the letters stated that he had doubts as to their admissibility, and desired to withdraw them unless opposing counsel waived their objections. The attorney representing some of the legatees, and who had examined all the witnesses, and managed the conduct of the case for the legatees, then stated that he had examined the letters, and had no objection to their all going in. The attorney for the other legatee made no objection to such statement. Held, that the objection and exception to the admission of the letters were waived as to all the legatees.

In banc. Appeal from superior court, city and county of San Francisco; J. V. Coffey, Judge.

Application to prove an exception to the admission in evidence of certain letters on the hearing of a petition for distribution of

the estate of Joseph Ross, deceased. Application denied.

Geo. C. Sargent, for applicant. Vogelsang & Brown and Gavin McNab, for respondent.

PER CURIAM. This is an application to prove an exception. The proceeding was one arising upon the hearing of a petition for distribution, and the present application is based upon a ruling of the court admitting certain letters in evidence. Mr. George C. Sargent represented one devisee, and Messrs. Campbell & Metson represented certain other devisees. Messrs. Vogelsang & Brown and Gavin McNab represented the interests opposed to the aforesaid devisees. Various objections were made by counsel representing the devisees to the admission of these letters in evidence, and exception taken to the ruling of the court in admitting them. Thereafter, upon a subsequent day of the trial, counsel who offered the letters in evidence addressed the court as follows: "If your honor please, there is a preliminary matter which we wish to call to your attention. We are in doubt as to the admissibility in evidence of the Pinkerton letters, and I desire now to withdraw them unless opposing counsel waive their objections to the same." In answer to this statement, J. C. Campbell stated to the court: "We have no objections to all the Pinkerton letters going in. I have examined them." Mr. Brown then stated: "I wish that to go down in the record. Mr. Reporter, please put that down in the record." Thereupon Mr. J. C. Campbell replied: "It may go down in the record." It is now claimed by the aforesaid George C. Sargent that the waiver made by the aforesaid Campbell was not broad enough to include his client. In other words, it is claimed that Campbell had no authority to waive the exception to the admission of these letters as far as his (Sargent's) client was concerned, and this claim presents the real question at issue here. Let us look at the facts as disclosed by the return of the judge, and the affidavits accompanying it. It fully appears by the records that the interests of these various devisees represented by J. C. Campbell and George C. Sargent were entirely a common interest, and at the commencement of the trial the following stipulation was entered upon the record: "Here it was stipulated that an objection or exception on behalf of one of the devisees or legatees should be deemed the objection or exception of all the devisees or legatees." It is further shown that said Campbell examined all of the witnesses, and managed the conduct of the case; that said Sargent was present during the trial, and consulted and advised with said Campbell; that these attorneys, as far as appearances could determine, were acting jointly in the conduct of the case; and that said Sargent was present at the time when Campbell made the waiver of the exception, and made no objection of

any kind thereto. Under the foregoing circumstances, this court agrees with the trial court in holding that Sargent's client is bound by the waiver made by Attorney Campbell, and that therefore the action of the trial judge in refusing to allow the exception to be incorporated in the bill of exceptions was proper.

The application is denied.

BEATTY, C. J. I concur in the judgment. As to the question whether Mr. Sargent was present at the time when Mr. Campbell made the waiver, there is an issue of fact which has not been determined. He claims that he was temporarily absent from the court room at that time, and had no opportunity to object. But whether he was actually present or not, I think he should be bound by Mr. Campbell's waiver. His temporary absence from the court room during the trial, considering the manner in which the proceeding had been conducted, must have been upon at least a tacit understanding that during such absence Mr. Campbell was to protect their common interests.

(136 Cal. 670)

SALCIDO ▼. ROBERTS. (Sac. 938.) (Supreme Court of California. June 25, 1902.) ELECTIONS-BALLOTS-INTENTION OF VOTER -IDENTIFYING MARKS.

1. Where ballots have the name of "H." written, not in the blank column, where the law directs, but under the words "Justice of the Peace," in the Republican, Democratic, or Prohibition column, they are invalid, as bearing distinguishing marks.

2. Where a ballot bears a cross opposite the name of a candidate for supervisor, but also contains the name of another in the blank column under the heading "For Supervisor," it caunot be counted for either, under Pol. Code, § 1211, providing that if a voter marks more names than there are persons to be elected to an office, or for any reason the voter's choice as to any office cannot be determined, the ballot shall not be counted for such office.

3. Where a voter has written a name under the words "For District Attorney," in the blank columu, and stamped another name for district attorney in another column, and then attempted to rub out the writing, leaving a conspicuous mark on the ballot, the ballot is invalid.

4. Where a voter has stamped both "Yes" and "No" after a proposed constitutional amendment, and then partially rubbed out the cross after "Yes," the ballot is invalid, as bearing a distinguishing mark.

5. A ballot is invalid when a cross has been stamped twice after the name of a candidate. 6. A ballot is invalid where a cross has been stamped after names written in the blank column.

Proceedings by J. Salcido to contest the election of J. W. Roberts to the office of supervisor of district No. 1 in Andreas township, Calaveras county. From a judgment for defendant, affirmed in department (67 Pac 1077), contestant appeals. Reversed.

5. See Elections, vol. 18, Cent. Dig. 167.

J. A. Loutit, Ira H. Reed, and F. J. Solinsky, for appellant. Nicol, Orr & Nutter and J. P. Snyder, for respondent.

BEATTY, C. J. This is an election contest. Upon a canvass of the returns the board of supervisors found that the appellant had received 252, and the respondent 250, votes for the office of supervisor of San Andreas township, Calaveras county, and issued their election certificate accordingly. Upon a recount of the ballots in this proceeding the court decided that the appellant had received but 226 legal votes, and that the respondent had received 228. A judgment was accordingly entered in favor of the latter, from which the defendant prosecutes this appeal.

1. The court erred in counting for respondent the eight ballots numbered 17, 21, 30, 48, 53, 56. 72, and 80. They each bear what has been held to be a distinguishing mark. The name of Halley was written, not in the blank column, where the law directs that it shall be written, but under the words "Justice of the Peace," in the Republican, Democratic, or Prohibition column. So written, it could not be counted, and served no purpose, unless to identify the ballot. It was a legal mark, but in an illegal place, and therefore invalidated the ballot, under the principle decided in the several cases referred to in the late case of Patterson v. Hanley, 68 Pac. 821, 975, and there followed.

2. The court also erred in counting ballot No. 55 for respondent. It contained a cross stamped opposite the name of respondent in the proper place, but it also contained the name "J. J. Halley," written in the blank column under the heading "For Supervisor, District No. 1" (San Andreas township). It cannot be said for which party the voter intended to vote, and the ballot should not have been counted for either. Pol. Code, § 1211.

We discover no other error in the rulings of the court upon the defendant's objections, but the deduction of the 9 votes above specified from the total of 228 legal votes found to have been cast for respondent necessarily involves a reversal of the judgment, unless it should appear that at least 8 of respondent's exceptions are well taken. Of the ballots objected to by respondent, we think that No. 14 should not have been counted for appellant. The voter had written a name under the words "For District Attorney," in the blank column. He had also stamped the name of A. I. McSorley for district attorney in the Democratic column. It he had left it in this condition, it would have been valid in all respects, except that it could not have been counted for any one for the office of district attorney; but the voter attempted to rub out the written name, and succeeded in rendering it illegible, but at the same time left a conspicuous mark on the ballot, by which it might easily have been identi

It was

fied. To count this ballot was error. likewise an error, for the same reason, to count ballot No. 57 for appellant. The voter had stamped both "Yes" and "No" after a proposed constitutional amendment, and had then partially rubbed out the cross after "Yes." Ballots No. 20 and No. 32 were properly rejected. On each ballot the cross had been stamped twice after the name of a candidate. Farnham v. Boland, 134 Cal. 151, 66 Pac. 200, 366; Patterson v. Hanley, supra. Neither did the court err in rejecting ballots No. 41 and No. 82, upon each of which the cross was stamped after names written in the blank column. This was placing the stamp in an illegal place within the principle of the above-cited cases. This disposes of all the exceptions which the respendent has referred to in his argument, and leaves the appellant an apparent majority of 5 votes.

The judgment of the superior court is therefore reversed, and the cause remanded.

We concur: HARRISON, J.: GAROUTTE, J.; VAN DYKE, J.; HENSHAW, J.

(136 Cal. 605) HOWLIN v. CASTRO et al. (S. F. 2,211.) (Supreme Court of California. June 20, 1902.)

CONTRACTS-RESCISSION-FRAUD-COMPLAINT -SUFFICIENCY TO SUPPORT FINDINGS.

1. Allegations in a complaint setting up an agreement that defendant would live with and properly care for plaintiff during his life, and that after his death defendant should have plaintiff's farm, and that as a security to de fendant, and fully believing he would perform his part of the agreement, and as a part of such agreement, plaintiff executed a deed and delivered it to a third person, to be delivered to defendant on plaintiff's death, are suflicient to support a finding that the deed was delivered pursuant to the alleged agreement.

2. Plaintiff could rescind an agreement that defendant should have his farm at his death in consideration of living with and properly caring for him until then, and recover a deed executed as security, and left with a third person to be delivered to defendant at plaintiff s death, on proving defendant's willful failure to perform his part of the agreement, without alleging or proving fraud.

Commissioners' decision. Department 2. Appeal from superior court, Monterey county; N. A. Dorn, Judge.

Action by Jasper Howlin against Thomas Castro and J. W. Rowling. From a judgment for plaintiff, Castro appeals. Affirmed.

H. L. Bradford and W. M. Pence, for appellant. Dougherty & Lacey, for respondent

CHIPMAN, C. The court made the following findings: (1) Plaintiff is, and since December 1, 1894, has been, the owner in fee of the land in question. (2) In the month of March, 1895, plaintiff and defendant Castro made an oral agreement, Castro agreeing "to 12. See Contracts, vol. 11, Cent. Dig. § 1174.