author: WASTE, C. J.

text:
    [L. A. No. 16837.
    In Bank.
    April 12, 1940.]
    FRANCES GOMEZ, Appellant, v. ROBERT CECENA et al., Defendants; VICTORIA CECENA, Respondent.

      Peter J. Youngdahl for Appellant.
    H. M. Dalton for Respondent.
   WASTE, C. J.

In this suit to impress a trust upon and quiet title to real property, the plaintiff appeals from an adverse judgment and from an order denying her motion for a new trial. The defendant Robert Cecena, who is the appellant’s son, suffered a judgment to be entered against himself by default. His former wife, the defendant Victoria Cecena, contested the appellant’s right to relief, and recovered judgment for costs. The only question raised on the appeal is whether there is sufficient evidence to support the judgment.

The appellant’s claim to the property rests upon her contention that she furnished the money for its purchase and improvement upon the understanding, that it would belong to her. In 1923, Robert Cecena, who was then unmarried, and one Mike Barrera agreed to buy a lot, each paying $50 down and undertaking to pay a total of $1200 in monthly $30 instalments. This agreement was later superseded by new contracts of purchase by which each buyer would obtain a specific one-half interest in the lot. According to the appellant’s evidence her son kept up his share of the payments for seven or eight months and then came to her with the suggestion that if she would build a house upon his half of the property he would give her the property and that he knew of a building contractor named Blinn who would erect a house for $1400. The appellant testified that she agreed to this and gave her son $400 to deliver to Blinn as the initial payment, and that thereafter she paid the balance due on the house in instalments of $50 a month. These payments were all made by her son who had executed a note and trust deed for the purchase price. She also testified that she paid the remaining instalments due on the purchase of her son’s half of the lot and likewise put up an additional $200 for some concrete work after the completion of the house. In support of this testimony her savings account passbook was introduced showing withdrawals in 1924 of $450, $200, and two items of $40 each. She explained that all of the transactions were completed by her son in his own name because she could speak no English and had no knowledge of business affairs.

The appellant’s testimony was substantiated by evidence given by her son. Concerning the building of the house he testified: “I told my mother I didn’t have any money and she had money; I told her that if she wanted to build on the lot, that I would let her have the lot, my part of it, so she agreed with me to build. . . . My mother said it would be in my name because I was going to make the arrangements and all of that, and I was her son; in ease of her death the property would be mine, you see.” He also testified that he paid half the taxes on the property during the period that he and his mother lived there together and that he also paid a final balance of $87 due on the house in 1928.

The evidence concerning the building of the house and the payments made by the appellant was likewise corroborated by Robert Cecena’s friend, Mike Barrera, who was living with the appellant and her son at the time.

The respondent and Robert Cecena were married in 1926, and from that time she and he and the appellant lived together on the property until 1930 when the appellant moved to a separate residence. In 1928, Robert Cecena borrowed $1400 from a bank, and he and the respondent together executed a trust deed on the property to secure the loan. During the ensuing years payments were made on this debt out of the joint earnings of the husband and wife. In 1932 they built a garage, enlarged one room and added two rooms to the house, also paying for these improvements out of community funds. Robert Cecena left the respondent in 1936, and she remained on the property and continued to make payments upon the balance ($500) of the mortgage debt without the help of her husband.

In that year she brought suit against him for a divorce, seeking in her complaint to have the property in question set aside to her as community property of the marriage. When this complaint was served upon Robert Cecena,1 he was living with his mother, and he testified that he told her that the respondent claimed the house and lot as community property. He cross-complained, asserting that part of the property in question was community and the remainder his separate property. After a hearing upon this and other issues, the court granted the respondent an interlocutory decree of divorce and also awarded the house and lot to her. A short time later, the appellant commenced this suit to establish a resulting trust in the property.

By this appeal the appellant contends that the judgment denying her relief is erroneous for the reason that the trial court was bound to accept the evidence showing her beneficial interest in the property. That evidence, she asserts, is not inherently improbable, and is neither contradicted nor impeached and hence was entitled to full credit.

While no universal and immutable formula can be prescribed for determining the weight to be accorded testimonial evidence, it has frequently been said that testimony which is not inherently improbable and is not impeached or contradicted by other evidence should be accepted as true by the trier of fact. (Michaels v. Pacific Soft Water Laundry, 104 Cal. App. 366 [286 Pac. 172]; Shepard v. Shepard, 65 Cal. App. 310 [223 Pac. 1012] ; Hynes v. White, 47 Cal. App. 549 [190 Pac. 836]; Lee Sing Far v. United States, 94 Fed. 834; see Wigmore on Evidence, 2d ed., sec. 2034.) On the other hand, one who claims a resulting trust in property has the burden of proving the facts establishing his beneficial interest by clear and convincing evidence. (Woodside v. Hewel, 109 Cal. 481, 484 [42 Pac. 152] ; Moulton v. Moulton, 182 Cal. 185, 190 [187 Pac. 421].) Even where it is satisfactorily established that all or part of the purchase price was furnished by one other than the grantee, if it appears in addition that the grantee was a child or other natural object of bounty of the person who made the payment, it will be presumed that a gift was intended. (Quinn v. Reilly, 198 Cal. 465 [245 Pac. 1091]; Lezinsky v. Mason etc. Distilling Co., 185 Cal. 240 [196 Pac. 884]; Faylor v. Faylor, 136 Cal. 92 [68 Pac. 482]; Rest. Trusts, sec. 442; 15 Cal. Law Rev. 160.) It is true, however, that such a presumption may be rebutted by adequate proof that the grantee was not intended to have the beneficial interest. (Parks v. Parks, 179 Cal. 472 [177 Pac. 455]; Buell v. Buell, 191 Cal. 53 [214 Pac. 844] ; Quinn v. Reilly, supra; Rest. Trusts, sec. 443.)

Applying these principles to the present controversy, we think that the judgment has substantial support in the record. Conceding that the appellant satisfactorily proved that she contributed a substantial part of the purchase price of the property, we think that nevertheless the trial court was not bound to credit her testimony that she intended to acquire the beneficial interest. Her subsequent conduct was more consistent with the presumption that she intended a gift to her son. Thus, in 1928 she acquiesced in her son’s conveyance of the property upon a deed of trust to secure his own debt. In 1930 she moved out of the house, leaving Robert Cecena and the respondent in sole possession. They made alterations and improvements on the premises, apparently without permission or objection from the appellant. In short, all of the ordinary rights and incidents of ownership over the property were exercised and asserted by Robert Cecena and his wife, and not by the appellant. Considering all of the circumstances of the case, we think that the court was warranted in concluding that the appellant has no interest in the property.

The judgment is affirmed.

Curtis, J., Shenk, J., Houser, J., Carter, J., Gibson, J., and Edmonds, J., concurred.


source: Caselaw Access Project

author: THE COURT.

license: Public Domain

text:
    [L. A. No. 16351.
    In Bank.
    April 15, 1940.]
    COUNTY OF LOS ANGELES, Respondent, v. MORRISON MORRISON, Executor, etc., Appellant.

      Golden & Kaufman and A. V. Kaufman for Appellant.
    Everett W. Mattoon, County Counsel, Douglas De Coster, Chief Deputy County Counsel and Gordon Boiler, Deputy County Counsel, for Respondent.
   THE COURT.

The facts of this case are as follows: Louis W. Morrison died March 26, 1935, possessed of several shares of stock in a New York corporation valued at $342,820. For two months prior to his death he was in a state of coma, and was unable to make a tax return or otherwise to attend to his affairs. After his death, and on April 15, 1935, Morrison Morrison was appointed and qualified as executor of his will.

No personal property tax return was filed with the county assessor by either the deceased or the executor of his will during the assessment period of the year 1935. However, in accordance with the provisions of section 3627a of the Political Code it is the duty of any person owning, possessing, or in control of shares of taxable stock to make a return thereof for assessment purposes between the first Monday in March and the first Monday in July of each year; and in event of failure to make a return within the required time it is provided that the property “shall, upon the discovery of the escape, be assessed and levied upon”, and that “a penalty shall attach to the tax so levied and entered in an amount equal to two times the tax'”. On December 11, 1935, an inventory and appraisement of the property of the estate was filed in the probate court and a copy thereof was transmitted by the clerk of that court to the county assessor, as required by section 600 of the Probate Code.

Upon receipt of the copy of inventory the assessor discovered that the stock had escaped assessment during the assessment period earlier in the year. Therefore, pursuant to the provision of section 3627a of the Political Code the assessor immediately levied a tax on the stock, at its appraised value, in the sum of $685.64, together with a penalty of two times the tax, amounting to $1,371,28. Without success as far as an evasion or a reduction of such tax was concerned, the executor protested the imposition of the penalty before the Los Angeles board of supervisors sitting as a board of equalization. On February 28, 1936, the county filed the present action for said sums of $685.64 and $1,371.28, plus a delinquent penalty of $20.56, making a total of $2,077.48. As sole defendant in said action the complaint therein named “Morrison Morrison, Executor of the Estate of Louis W. Morrison, deceased”.

The trial court found the facts to be as above recited and rendered judgment for plaintiff in the said sum of $2,077.48, and costs. Defendant has appealed from that judgment.

Appellant contends that the judgment is erroneous for the reason asserted by him that the assessment should have been levied against Morrison Morrison, the executor, as an individual and not against the estate. In that connection appellant cites the further provision of section 3627a of the Political Code, which reads as follows: “If any property taxable under the provisions of this section is held in trust by any person, association, or corporation domiciled or the principal place of business of which is located in this State, such property shall be taxable solely to the trustee thereof.” (Emphasis added.) Appellant argues that the provision for taxing the property solely to the trustee was made for the purpose of holding the latter personally responsible, instead of the trust estate—upon the contention that the legislature must have intended that any failure or neglect on the part of a trustee to comply with the provisions pertaining to the making and filing of a return should be chargeable solely to him. With regard to that contention it has been said that although a personal representative of an estate, in a broad sense, does act in the capacity of a trustee during the time the property of the decedent is in his possession as such personal representative, nevertheless he is not a trustee in the general acceptation of the term. (23 Cor. Jur., p. 1170.) That distinction is well set forth in the case of In re Hibbler’s Estate, 78 N. J. Eq. 217 [78 Atl. 188, 189], wherein it is said: “The duties of an executor and those of a trustee are well recognized in the law as being distinct. The general duties of the executor are to collect the effects of the deceased, pay the claims against his estate and distribute the residue to those entitled. ... A trustee is a person in whom some estate, interest or power, in or affecting property is vested for the benefit of another. ... Of course, an executor is a trustee in the broadest sense, but not in the general acceptation of the term. ” The probate court or judge is the guardian of estates of deceased persons and all proceedings are under the direction of the judge. An executor or administrator derives his power to act from the order of the court. (11 Cal. Jur., sec. 6, p. 214, and cases there cited. ) Furthermore, even if the assessment here concerned had been made in the name of Morrison Morrison, as trustee, it cannot be said that such assessment would have been imposed against him as an individual. Section 3639, Political Code, provides that when a person is assessed as “trustee” his representative designation must be added to his name and the assessment entered separately from his individual assessment. That section reads as follows: “When a person is assessed as agent, trustee, bailee, guardian, executor, or administrator, his representative designation must be added to his name, and the assessment entered on a separate line from his individual assessment.” (Emphasis added.) The language of that section not only indicates that for purposes of assessment, as to one who acts in a representative capacity, a “trustee” is to be distinguished from an executor, but also that when the latter is assessed in his representative capacity—the tax having been levied upon the property of the decedent—the executor’s representative designation must be added to his name, and any assessment to him as an individual must be indicated separately. Further, the provisions of section 3642, Political Code, authorize the making of an assessment in the manner followed in the instant ease. (See, also, People v. Olvera, 43 Cal. 492.) That section provides that “The undistributed or unpartitioned property of deceased persons may be assessed to the . . . executors, ...” The ruling of the court in the case entitled San Francisco v. Pennie, 93 Cal. 465, 471, 475 [29 Pac. 66], is applicable herein. There it was said: “Mrs. Shillaber died February 18, 1885, and the original defendant was appointed special administrator for her estate February 25,1885. The assessment is of the property belonging to her estate on the first Monday of March of that year. Section 3642 of the Political Code provides that ‘the undistributed . . . property of deceased persons may bé assessed to the heirs, guardians, executors, or administrators’; and section 3639 provides that ‘when a person is assessed as . . . administrator, his representative designation must be added to his name, and the assessment entered on a separate line from his individual assessment. ’ The assessment in the present case was made to Carroll Cook, as the administrator of Mrs. Shillaber’s estate. Whether he was special administrator or general administrator was immaterial. It was an assessment to him of only the property of the decedent whose estate he represented, and not of any of his individual property. This fact of itself eliminated all uncertainty as to whose property was intended by the assessment. . . . The cause of action is for taxes due from the estate of Mrs. Shillaber (Pol. Code, sec. 3642), and is properly brought against the custodian of that estate. No order or decree for the distribution of the property can be made until they have been paid. (Pol. Code, sec. 3752.) The liability of the administrator, therefore, is official, and not personal, and upon his resignation or discharge such liability is assumed by his successor in the same manner as is any other obligation of the estate. ’ ’ (Emphasis added.) (See, also, 24 Cal. Jur., see. 247, p. 270.)

It has always been recognized that an executor of a will or an administrator of an estate has authority and it is his duty to preserve the property by paying taxes which have been legally imposed. As was held in the case entitled San Francisco v. Pennie, hereinbefore cited, the taxes are a charge upon the estate, and the liability of the representative is official only. (11 Cal. Jur., sec. 649, p. 1018.)

Appellant admits that “it was his duty to file the return in accordance with the provisions of the Political Code and his failure to do so had the effect of creating a liability against the estate”. But he argues that the estate may not be held liable for the penalty which was incurred by reason of his failure or neglect in that regard, and that liability therefor should be imposed on him as an individual and not as executor of the estate. The statute provides (sec. 3627a, Pol. Code) that if a return is not made within the time specified therein, “a penalty shall attach to the tax so levied”. The language of the statute makes it clear that the penalty is intended to “attach to the tax”. Therefore, the penalty, in effect, becomes a part of the tax. And since, in the instant case, the taxes which were assessed against property owned by decedent at the time of his death became an obligation due from his estate, it follows that the penalty— being a part of the tax—likewise was chargeable to the estate. Appellant further argues that inasmuch as the omission to make the return was because of his own failure in that regard, the penalty should not be made a charge against the heirs of the estate. However, whatever equities may be claimed to exist between the executor—for an act of nonfeasance in the administration of the estate—and those to whom the estate ultimately is distributed may not be successfully urged in this action, which, in accordance with statutory authorization therefor, is brought by the county solely for the purpose of collecting taxes and the attaching penalties from the estate. There is no language to be found in section 3627a, Political Code, which would give rise to an implication that on a state of facts such as here is presented it was the legislative intent that although the tax should be made collectible from the estate, the penalty might be collected from another source. In the instant case, therefore, in the absence of statutory authority in that respect, we may not hold that the tax was chargeable against the estate but that the attaching penalty was intended to be imposed against the appellant as an individual,—a procedure which, in any event, would unnecessarily complicate the collection of taxes and penalties legally imposed under legislative authority. The movable and elusive character of intangible property requires that tax assessments thereon shall be followed by prompt collection. (Peterson v. Hopkins, 124 Cal. App. 33 [12 Pac. (2d) 104].)

Appellant also argues that his compliance with section 600, Probate Code, by the filing of an appraisement and inventory with the probate court—a copy of which was submitted to the assessor—in effect excused his nonperformance of the requirements of section 3627a, Political Code. There is no merit in that contention. The provisions of the latter section require that the return be made during the four-month period therein mentioned. The inventory was not filed until some time in December, several months after the assessment season had closed. The duty of compliance- with the provisions of section 3627a, Political Code, by the representative of an estate is independent of the duty also imposed on him to comply with the provisions of section 600, Probate Code. The latter section provides for one of the procedural steps necessary in probate matters, and in no wise may be construed as relieving the executor or administrator of an estate of his separate duty to make the tax returns provided for by the Political Code.

Nor is there any merit in appellant’s contention that by reason of the fact that he did not know the value of the stock prior to the filing of the inventory and appraisement, he theretofore could not have made the return provided for by section 3627a of the Political Code. An owner or person in control of property is not required to fix its value for taxation purposes, since that is a duty to be performed by the assessor. (24 Cal. Jur., sec. 155, p. 172; Woolridge v. Boardman, 115 Cal. 74 [46 Pac. 868] ; Clunie v. Siebe, 112 Cal. 593 [44 Pac. 1064] ; San Jose etc. R. R. Co. v. Mayne, 83 Cal. 566 [23 Pac. 522].)

The final contention of appellant is against the legality of the tax itself. In that regard appellant contends that where, as here, the tax is imposed on shares of stock in a holding corporation whose sole property consists of real estate owned in fee in the State of New York, and there taxed, it amounts to double taxation. That contention, likewise, is without merit. (Chesebrough v. San Francisco, 153 Cal. 559 [96 Pac. 288] ; Canfield v. County of Los Angeles, 157 Cal. 617 [108 Pac. 705]; Lacoe v. County of San Diego, 33 Cal. App. (2d) 692 [92 Pac. (2d) 809].)

From the foregoing, it follows that the judgment should be, .and is, affirmed.


text:
    [L. A. No. 16755.
    In Bank.
    April 15, 1940.]
    ANTHONY D. MARRA et al., Respondents, v. AETNA CONSTRUCTION COMPANY (a Corporation), Appellant.

      Harold Larson for Appellant.
    William L. Kuehn and Franz R. Sachse for Respondents.
   WASTE, C. J.

This is an appeal from a judgment quieting the plaintiffs’ title to real property and declaring the property free of certain building restrictions. The defendant and appellant Aetna Construction Company, is the owner of adjoining property. The question decisive of the case is whether certain covenants in the plaintiffs’ chain of title are binding upon them, either as covenants running with the land or as equitable servitudes.

The parties are substantially agreed upon the facts. In 1922 F. E. Woodley and his wife owned two adjoining lots (designated herein as lots 6 and 7) on Havenhurst Drive in the city of Los Angeles. In that year they conveyed lot 6 to W. P. Stroh and his wife by a grant deed which recited that “the grantees, their successors and assigns” covenanted that for forty years thereafter no structure other than a one-family residence costing at least $8,000 would be built upon the land. The deed also declared that this provision should be deemed a “covenant running with the land” and should at all times be binding upon and enforceable against the grantees, their successors and assigns, or against any and all persons who should at any time thereafter become the owner of the land conveyed by the deed. This covenant was not made in contemplation of any general or uniform plan of improvement for establishing a district of one-family residences, but the deed did recite that the covenant was made for the benefit of lot 7.

In 1937 the Strohs conveyed lot 6 to the respondents by ordinary deed. The appellant maintains that the respondents took title to the property with actual knowledge of the restrictions contained in the 1922 deed, but the respondents point out that the record contains no evidence that they had such knowledge. The appellant is the owner of lot 7, having acquired the title of the Woodleys by mesne conveyances with knowledge of the restrictions contained in their grant of lot 6.

Findings of the trial court state that conditions in the neighborhood where lots 6 and 7 are situated have changed substantially since 1922, and recite with particularity facts showing the nature and scope of the change. It was also found that if its use were unrestricted, lot 6 would be reasonábly worth $12,000, while the value, subject to the restrictions, is only $2,000. The court concluded that the covenant did not run with the land, that it would be inequitable to enforce the restrictions against the respondents as a servitude and consequently that the covenant was not binding upon them.

At the outset, the appellant challenges the propriety of giving affirmative equitable relief against restrictive covenants, even assuming a substantial change of conditions in the neighborhood. (Strong v. Shatto, 45 Cal. App. 29, 37 [187 Pac. 159].) Plowever, since the decision of this court in Hess v. Country Club Park, 213 Cal. 613 [2 Pac. (2d) 782], it has been settled that an owner may test the enforceability of covenants or servitudes asserted against his property in a suit for declaratory relief and to quiet title. He is not required to violate the restrictions at the risk of suffering the penalties which might result from such a breach in order to ascertain his legal rights. (See 50 Harv. L. Rev. 171, 217; 88 A. L. R. 405; [Osius v. Barton, 109 Fla. 556, 147 So. 862, 88 A. L. R. 394].)

To support its contention that the covenant contained in the 1922 deed runs with the land, the appellant relies upon section 1468 of the Civil Code. That provision reads: “A covenant made by the owner of land with the owner of other land to do or refrain from doing some act on his own land, which doing or refraining is expressed to be for the benefit of the land of the covenantee, and which is made by the covenantor expressly for his assigns or to the assigns of the covenantee, runs with both of such parcels of land.” But it is apparent that this section of the code applies only to covenants entered into between owners of property. Covenants, like the present one, contained in a grant in fee of real property, are governed solely by section 1462 of the Civil Code, which provides: “Every covenant contained in a grant of an estate in real property, which is made for the direct benefit of the property, or some part of it then in existence, runs with the land.” The decisions have interpreted this provision to mean that a burdensome covenant contained in a deed which in no way benefits the property conveyed is not binding at law upon the transferees of the grantee. (Los Angeles Terminal Land Co. v. Muir, 136 Cal. 36 [68 Pac. 308]; Breese v. Dunn, 178 Cal. 96 [172 Pac. 387]; Werner v. Graham, 181 Cal. 174 [183 Pac. 945]; 4 So. Cal. L. Rev. 343, 355.) Since the restrictions involved here are of no conceivable benefit to lot 6, it is clear that they are not binding upon the respondents under the provisions of the code.

Even though a covenant does not run with the land, it may be enforceable in equity against a transferee of the covenantor who takes with knowledge of its terms under circumstances which would make it inequitable to permit him to avoid the restriction. (Bryan v. Grosse, 155 Cal. 132 [99 Pac. 499]; Martin v. Holm, 197 Cal. 733 [242 Pac. 718] ; Coulter v. Sausalito Bay Water Co., 122 Cal. App. 480, 495 [10 Pac. (2d) 780]; 10 So. Cal. L. Rev. 281; 11 Cal. L. Rev. 48.) The doctrine of equitable servitudes has been invoked chiefly in cases where uniform building restrictions have been imposed pursuant to a general plan for improving an entire tract or real estate subdivision, but it is by no means true, as the respondents contend, that the doctrine is restricted to such cases. Tulk v. Moxhay, 41 Eng. Rep. 1143, in which the doctrine was first applied, was itself a case involving restrictions imposed upon a single lot. Bryan v. Grosse, supra, and Relovich v. Stuart, 211 Cal. 422 [295 Pac. 819], furnish examples of decisions in this state which have enforced covenants in equity although they benefit or restrict only a single parcel of land. It is true, however, that a servitude cannot exist in gross, but must be appurtenant to other benefited property. (Berryman v. Hotel Savoy Co., 160 Cal. 559 [117 Pac, 677, 37 L. R. A. (N. S.) 5].) Also well recognized is the rule that a building restriction in the nature of a servitude will not be enforced where changed conditions in the neighborhood have rendered the purpose of the restrictions obsolete. (Downs v. Kroeger, 200 Cal. 743 [254 Pac. 1101]; Hess v. Country Club Park, supra; Hurd v. Albert, 214 Cal. 15 [3 Pac. (2d) 545, 76 A. L. R. 1348]; 1 So. Cal. L. Rev. 486, 489.) But, if the original purpose of the covenant can still be realized, it will be enforced even though the unrestricted use of the property would be more profitable to its owner. (Strong v. Hancock, 201 Cal. 530 [258 Pac. 60] ; 16 Cal. L. Rev. 58.)

In the present case the respondents assert that they cannot be bound by the restrictions because there is no proof that they acquired their property with notice of the covenant. However, since they were seeking affirmative relief, it was incumbent upon them to show that they lacked such knowledge rather than upon the appellant to prove the contrary. Moreover, the respondents’ pleadings were framed and their entire case was tried upon a theory which assumed their original knowledge of the covenant but sought to avoid its effect by proof of changed circumstances. This court is not inclined to decide an appeal upon a state of facts which, as the record plainly demonstrates, is contrary to an assumption entertained by the court as well as by the parties throughout the trial of the case.

We think, however, that the trial court was warranted in concluding that conditions have undergone a sufficient change since the covenant was made to render the limitation upon the use of the respondents’ land obsolete and unreasonable in its purpose. The evidence shows that the house on lot 7 is no longer used as a residence but has been converted into a nursery school and kindergarten. Hence, if the sole purpose of the restriction on the servient property was to protect the value of the dominant estate for residential use, that purpose is at present not being realized.

The evidence also shows that the nature of the neighboring property has substantially changed. The two lots are located on the west side of Havenhurst Drive between Sunset Boulevard and Fountain Avenue in the city of Los Angeles. While the west side of the street in that block is still predominantly residential, it contains two bungalow courts, one of which immediately adjoins lot 6. Directly across the street from lot 6 is a seven-story apartment house, and adjoining it on the north is a gown shop and beyond that a large one-story apartment court. South of the seven-story apartment is a three-story apartment house, and beyond that are one- and two-story residences. Sunset Boulevard at this location is devoted almost entirely to commercial uses. This evidence supports the trial court’s conclusion that the property in question is no longer sufficiently desirable for residential use to warrant the enforcement of the restrictions against the respondents.

The -judgment is affirmed.

Shenk, J., Curtis, J., Carter, J., Gibson, J., Edmonds, J., and Houser, J., concurred.


author: HOUSER, J.

text:
    [L. A. No. 17319.
    In Bank.
    April 15, 1940.]
    ROLLAND J. JOHNSON, Appellant, v. FONTANA COUNTY FIRE PROTECTION DISTRICT (a Body Politic), et al., Respondents.

      A. J. Getz for Appellant.
    Jerome B. Kavanaugh, District Attorney, and Swing & Swing for Respondents.
    Lasher B. Gallagher, Amicus Curiae, on Behalf of Respondent.
   HOUSER, J.

This is an appeal from a judgment denying petitioner’s application for a writ of mandamus. The proceeding was instituted for the purpose of compelling the payment of a judgment which the petitioner theretofore had recovered against the Fontana County Fire Protection District, and against one George Calkins, asserted to be the agent or employee of the district.

A hearing was granted by this court after decision by the District Court of Appeal, on rehearing, -in which that court upheld the judgment of the trial court denying issuance of a peremptory writ upon the ground that the peremptory writ, if issued, could not be made to conform legally to the exact terms of the alternative writ—the hearing having been granted herein in order to give further consideration to the several questions presented on the appeal. After a review of the entire record we conclude that the first opinion prepared by the District Court of Appeal, and filed on February 8, 1939, correctly expresses the views of this court with respect to the principal issues presented by the appeal. Therefore, we shall incorporate hereinafter, as a part of this opinion, certain portions of the language of that decision.

It appears that on May 23, 1923, an act of the legislature (Stats. 1923, p. 431) with relation to the organization and maintenance of fire protection districts was approved by the governor, and in due course thereafter became the law of this state.

Briefly, as far as here seems essential to be noted in that respect, the provisions of the act authorize the board of supervisors of any county of the state to proceed in a specified manner toward the formation and organization of fire protection districts within the county; and in the event that any objection be made to the proposed creation of any fire protection district, the board is authorized to call and conduct an election by the qualified voters of the proposed district on the question whether the organization and establishment of such district shall become effective. The act also provides that the board of supervisors “shall be the governing body” of the district; and among the various powers and duties of such body as are therein specified is included the right to appoint “agents and employees ... to police the district”, and “to perform all other acts necessary or proper to accomplish the purposes” of the act. (Emphasis added.) By the terms of the act the said governing body is also authorized “to maintain and operate the property acquired for the purposes of the district”, as well as to “acquire real or personal property needful for the purposes of said district and to dispose of the same when no longer needed”,—the title to such properties to be vested in the county in which such district is located. Furthermore, power is conferred upon the board of supervisors to levy taxes on the taxable property in the district to defray the cost of maintenance and other expenditures of the district; and, in specified circumstances, procedure is outlined for the dissolution of the district, the determination of which is effected by a majority vote of the voters of the district,—and for the disposition of the property of the district in the event of such dissolution.

In 1925 (Stats. 1925, p. 671) the original act was amended, by which it was provided that the board of supervisors be retained as the “governing body” of a fire protection district, also that the said board might appoint five commissioners as its agents to manage the affairs of the district and to exercise any or all of the powers therein specified.

However, by a further amendment to the act noted in statutes of 1931, page 1599, the provision which related to the appointment by the board of supervisors of “five commissioners as its agents to manage the affairs” of the district was deleted from the act,—which alteration had the probable effect of restoring the pertinent original provisions of the act with respect to the management of the district by the said board.

Pursuant to such statute and the 1925 amendment herein-before referred to, on April 16, 1928, the board of supervisors of San Bernardino County adopted a resolution by which it was declared that the respondent Fontana County Fire Protection District had been duly established; and thereafter, on April 20 of the same year, the said board of supervisors appointed a board of fire commissioners for that district,—the members of which board assumed office and thereafter continued to serve in their appointive capacity as such board of fire commissioners for the district, at least up to and including the date of the commencement of the action against Calkins and the district which resulted in the rendition of the judgment here sought to be enforced.

With regard to the last-mentioned judgment, it appears that on or about October 3, 1935, appellant herein, as plaintiff, commenced an action in the Superior Court of San Bernardino County against George Calkins, the Fontana County Fire Protection District, the county of San Bernardino, and others (as to whom the action was later dismissed), to recover a judgment for damages asserted to have arisen from personal injuries alleged to have been sustained by plaintiff through the negligence of defendant Calkins in the operation of a certain “Willys Knight” automobile. The complaint filed therein contained allegations to the effect that “the defendant, The Fontana County Fire Protection District, . . . was, and now is, a body politic and a district organized and existing pursuant to a statute of the State of California, approved May 23rd, 1923; Statutes of 1923, Page 431 thereof, as amended”; also that the defendant, George Calkins, was the owner of the aforementioned automobile “and that at all times herein mentioned, . . . the Defendant George Calkins was an officer, agent and employee of the said District, . . . and was driving and operating the said ‘ Willy s Knight’ [automobile] within the scope of his office, agency and employment as such officer, agent and employee . . . and on behalf of said District . . . and with the knowledge and consent of [the latter]”. By its answer to said complaint the defendant Fontana County Fire Protection District specifically admitted the truth of each and all of said allegations.

On the trial of the mandamus action, the following facts were stipulated: That before the former action came to trial it was dismissed as against the county of San Bernardino; that the defendants George Calkins and the fire protection district appeared at the trial, pursuant to which a judgment for $3,500 and costs was entered in favor of plaintiff and against George Calkins and the said district; that the judgment had become final as no appeal therefrom had been taken; and that “said George Calkins was, at the time of said collision, acting as a volunteer fireman for said Fontana County Fire Protection District, by appointment of one Earl Reeves, who was then and there acting in the capacity of Fire Chief of the Fontana Volunteer Fire Department; that said Earl Reeves was acting as such Fire Chief under appointment by the aforementioned Fire Commissioners”.

The answer of the several respondents herein to the petition for the writ of mandamus discloses the fact that their principal defense and objection to its issuance consisted in the alleged invalidity of the judgment which theretofore had been rendered in favor of plaintiff against the Fontana County Fire Protection District,—for the reason, as asserted by them, that the district is not “an entity against which such a judgment can be rendered, and that there is no provision in law for the rendition of such a judgment against said Fontana County Fire Protection District predicated upon the negligence of said George Calkins, and that the records and proceedings in [the] action show upon their face that the said judgment is void”; also for the asserted reason that “there is no provision in law for collecting any such judgment against said Fontana County Fire Protection District”, it not being “a body politic or a district which can be sued ... ”. By amended answer to the petition for the writ, certain of the respondents further alleged, in addition to the foregoing, that “the said 1 Fontana County Fire Protection District’ is not . . .- a public corporation, a body politic or a district established by law, or a subdivision of the State of California, . . . also “that the said George Calkins was not . . . appointed by the Board of Supervisors as an agent, officer or employee of said Fontana County Fire Protection District, and upon information and belief these respondents allege that at no time mentioned in said complaint was said George Calkins an officer, agent or employee of said Fontana County Fire Protection District, nor was he at any of the times mentioned in said complaint acting within the scope of any agency or employment under said Fontana County Fire Protection District, and that if he were then assuming to so act, he was doing so without authority and without being appointed, employed or authorized so to do”. (Emphasis added.)

The trial court made its findings of fact and conclusions of. law strictly in accordance with the said defense of the respondents to the writ, in that its findings of fact recited “that the said Fontana County Fire Protection District is not a body politic, nor is it a county or a city; nor is it a district against which any suit or action can be maintained or prosecuted; that said Fontana County Fire Protection District has no legal entity, nor legal status as an entity, and had no authority to employ agents or servants, nor to contract any liability, either directly or indirectly, for which such district would be liable; that no provision has been made in law or otherwise for the payment of any judgment rendered or entered against such district”; furthermore, “that, there is no statute or law which authorized the bringing or prosecution of the action by petitioner against Fontana County Fire Protection District, in which action the aforesaid judgment was rendered, and that such judgment is without force or effect insofar as said district is concerned”. In other words, the respondents to the petition alleged, and the trial court found and declared as its conclusions of law, that Fontana County Fire Protection District was not a body politic nor a legal entity; that it had no authority to employ agents or servants; and that, as such, no suit or action might be maintained or prosecuted against it. In accordance therewith the trial court rendered the judgment which is the subject of the instant appeal, to wit, that the petitioner was “not entitled to the relief prayed for and that the application for a writ of mandamus be denied, . . . ”.

We here quote from the first decision of the District Court of Appeal hereinbefore referred to (reported in (Cal. App.) 87 Pac. (2d) 426), which includes further consideration of the points raised on this appeal by the respective parties:

“ The . . . [respondents contend] that nothing in the act, pursuant to which this district was formed, authorized the supervisors to levy a tax for the purpose of paying such a judgment as the one here in question. That act, however, makes the board of supervisors the governing body of such a district with the right to appoint agents and employees to carry out the purposes of the district, to acquire real and personal property needful for such purposes, and to perform all other acts necessary or proper to accomplish the purposes of the act. The board of supervisors are also authorized to levy a tax sufficient to defray the cost of maintenance of the district. One of the costs of maintenance would be a judgment of this nature, arising from the manner in which the operations of the district are carried on, if liability therefor is imposed upon the district by statute. Section 1714% of the Civil Code, now section 400 of the Vehicle Code, imposed liability on a ‘district established by law’ for negligence in the operation of any motor vehicle owned by the district and for any injury occurring as the result of the negligent operation of any other motor vehicle by any officer, agent or employee of the district when acting within the scope of his office, agency or employment, and further provides that any such injured person may sue any ‘ district established by law’. If the district here in question is a district established by law, within the meaning of this statute, it is liable for the negligence of its agents and employees, the amount for which the district is thus liable is a part of the cost of maintenance of the district, and the authority and duty of the supervisors to levy a tax sufficient to cover the same sufficiently appears from the act under which the district was created and the statute imposing liability.
“The next question presented is whether this district is one established by law within the meaning of the statute. The . . . [respondents contend] that such a district is not an entity which can be sued because it has no autonomy, performs no functions in its own name, owns no property, has no money, and as a district pays no part of the cost or expenses incurred for fire protection. It is argued that the formation of such a district is simply a means of designating the exterior boundaries of property that requires fire protection and which will be assessed for that purpose, that the board of supervisors has complete control, the owners of property within the district have no voice as to how the district shall be managed or how fire protection shall be provided, and that such a district is analogous to a street improvement district created only to bear the burden of the cost of street improvements but which has no separate entity and which cannot be sued.
“The act under which the district was organized provides that such a district can be established and dissolved only upon the vote of the people of the district. While the supervisors are the governing board of the district and hold title to its property, they act in a representative capacity and hold this property for the use and benefit of the district. While they handle the money of the district they collect and pay out this money for the benefit of the district and in carrying out its purposes. There is not much similarity between such a district and an assessment district which carries on no continuous function and exists solely for the purpose of paying for a public improvement. In a very real sense the district is not only performing functions but performing a well-recognized governmental function in furnishing protection against fire. The very purposes for which the district is organized call for a continuing exercise of this governmental function which involves the use of property, including automobiles to be operated upon the public highways. The district is not only established pursuant to law but the purposes of its establishment necessarily contemplate the use of necessary equipment and the carrying out of these operations requires, under present conditions, the use of automobiles. Negligence in the use of automobiles by various governmental agencies led to the adoption of section 1714% of the Civil Code, the terms of which are now found in section 400 of the Vehicle Code. There is no essential difference between the operation of an automobile by the agent or employee of a fire protection district and the operation of such a vehicle by an agent or employee of one of the other governmental agencies named in the statute. The statute was aimed at a condition existing, and which might exist, on the highways, and the language used, ‘district established by law’, is broad enough to include the district here in question. The legislature must have intended to impose liability for the negligence of its agents in the use of automobiles on such a district as this which is created pursuant to a statute, and which uses agents and automobiles in the continuous performance of a governmental function.
“In an amended answer the respondent supervisors alleged that George Calkins was not an agent or employee of the district and the court so found. The appellant contends that the court’s finding and conclusion in that regard are erroneous since the fact Calkins was an agent and employee of the district was judicially determined in the damage action, to which the district was a party, and that such previous determination of that fact is res adjudicata in this proceeding. It is . . . [respondents’] position that the implied finding of the jury in the former action, that Calkins was an employee of the district, is overcome by the court’s finding in this proceeding and that the question of whether or not Calkins was an agent or employee of the district was open for consideration in this proceeding because of the above mentioned stipulation to the effect that Calkins was at the time acting as a volunteer fireman under appointment by one Earl Reeves, who was acting as fire chief under appointment by the five commissioners. If the question was an open one it may be conceded that the stipulated facts with respect to the appointment of Calkins support the court’s finding. This is especially true since the "power of the supervisors to delegate certain of their duties to appointed fire commissioners was probably ended in 1931, when the provision authorizing the appointment of commissioners and the delegation of duties to them was stricken from the statute. The question, however, was not an open one merely because of the stipulation above referred to. The parties simply stipulated as to certain facts relied upon by them respectively, and it was in no way stipulated that any particular fact should be controlling in the face of other facts' which were also stipulated. Whether or not the previous judgment, with its implied finding of agency, was controlling here must depend upon general rules of law applicable to that question.
“A former adjudication between the same parties may be either a final determination of the rights of the parties or may be an adjudication of certain questions of fact which have been put in issue and decided. (People v. Bailey, 30 Cal. App. 581 [158 Pac. 1036].) A judgment operates as an estoppel to prevent the parties thereto or their privies from contending to the contrary as to a matter of fact which was found against them in arriving at the judgment. (Koehler v. Holt Mfg. Co., 146 Cal. 335 [80 Pac. 73]; Baker v. Eilers Music Co., 175 Cal. 657 [166 Pac. 1008]; Gage Canal Co. v. East Riverside Water Co., 180 Cal. 204 [180 Pac. 332].)
“In the matter now before us it appears that the district was made a defendant in the previous damage action, in which it was alleged that Calkins was an agent and employee of the district. The district admitted this fact in its answer and the judgment against the district, which followed, could only have been based upon that fact. While the supervisors, as the governing board of the district, were not made parties to the former action, the district appeared and defended the action, specifically admitting that Calkins was at the time an agent of the district and acting within the scope of his employment. We think it may not be successfully contended that the real parties in interest were not the same in that action and in the present proceeding. While the supervisors are made parties to this proceeding it is fully apparent that they are parties thereto only in their representative capacity, as the governing board of the district. In Price v. Sixth District Agricultural Assn., 201 Cal. 502 [258 Pac. 387], the court said:
“ ‘Appellants make the point that inasmuch as the former suits were in reality County of Los Angeles v. Chairman of the Board of Supervisors and City of Los Angeles v. Mayor (51 Cal. App. 492 [197 Pac. 403]), the rule should not apply. If, however, fraud and collusion be absent, the public interest may be as well represented by the mayor or chairman of the board of supervisors as by any set of taxpayers. For example, the fact that a man has been elected mayor of the city is no reason to suspect that he will not properly represent the public interest, and when such officer defends an action relating to a public contract, no reason can be found why he may not be a suitable, if not the most suitable, representative of the public interest in the matter. This very question was raised in State ex rel. Davis v. Willis, 19 N. D. 209 [124 N. W. 706], There the estoppel by judgment was made to rest upon the case of State ex rel. McCue v. Blaisdell, 18 N. D. 31 [119 N. W. 360], which was a suit by the attorney-general applying for a writ of certiorari against the Secretary of State, and in this connection the court, in disposing of the contention that the taxpayer was not a party to the suit, said: “Appellant urges, however, that he is not bound by any of the facts adjudged in that proceeding, for the reason that he was not a party thereto, and that the record of that proceeding nowhere discloses any connection of his with that case. It is apparent, however, that plaintiff, acting as he does in a representative capacity, is, constructively at least, a party to any action or proceeding in which the same interest was plaintiff. . . . Standing as he does as representative in a matter of general interest to all of the citizens of Ward county, he is concluded with reference to any state of fact which was or might have been adjudged against that interest in a former action in which the same interest was plaintiff or defendant.” ’
“In Servente v. Murray, 10 Cal. App. (2d) 355 [52 Pac. (2d) 270], it is said: ‘The identity of the issue and the determination thereof is of more importance than the identity of the parties named. If they hold the same rights of interest as principals, agents or representatives and are in fact adverse parties, or their interests are adverse in the two proceedings, the identity of the parties is sufficient. In the present case the identity of the petitioner is identical with the petitioner in the prior proceedings. . In the first action there was an adjudication against the members of the pension board of the city of Alameda, consisting of the city manager, mayor and treasurer ex officio. The present action was instituted against the mayor, city manager, treasurer, auditor and chief of police of the same city. The respondent officers in each case were the agents of the municipality and equally bound by the original judgment. ... In each proceeding the respondents were merely the representatives of the real adverse party, the municipality. Special circumstances may arise making this rule inapplicable, but generally a political subdivision and the officers, boards, commissions, agents and representatives thereof form but a single entity. (Price v. Sixth District Agricultural Assn., supra, at p. 513; Davidson v. Baldwin, 2 Cal. App. 733 [84 Pac. 238] ; Bernhard v. Wall, 184 Cal. 612 [194 Pac. 1040]; People v. Holladay, 93 Cal. 241 [29 Pac. 54, 27 Am. St. Rep. 186].)’
“We think these principles apply here and that the previous judgment was controlling on the question of whether or not Calkins was an agent of the district, and that such a question was not open to consideration in the mandamus proceeding.’’ (Emphasis added.)

Additionally, as hereinbefore has been stated, as no appeal was taken from the original judgment it long since had become final and, in accordance with the above rulings, it is not now open to what amounts to no more than a collateral attack by the respondents herein.

From the foregoing, therefore, it becomes apparent that, notwithstanding the question with respect to the existence or nonexistence of the board of fire commissioners at the time the action was originally instituted, the board of supervisors nevertheless was the governing body of the respondent district and, as such, had full authority to pay plaintiff’s judgment if there was money properly available therefor,—or, if funds were not available, to levy a tax for that purpose upon the taxable real property within the district. The obvious purpose of the mandamus proceeding was to enforce the payment of petitioner’s judgment, and as he had a substantial right to protect we should not deny him relief for the reason that either by the terms of his prayer, or by those of the alternative writ, it was assumed that the board of fire commissioners was or might be then in existence and possessed of the authority to act for or on behalf of the district in the matter of the payment of said judgment. In that regard it appears that petitioner also asked relief against the duly constituted board, to wit, the board of supervisors. Furthermore, it appears that the prayer of the petitioner contained a request for general relief. In a proper ease this court may pursue the exception to the general rule that a peremptory writ will not issue where it legally cannot follow the directions set forth in the alternative writ. (Larkin v. Superior Court, 171 Cal. 719 [154 Pac. 841, Ann. Cas. 1917D, 670].) Where principles of justice and fairness may require its issuance, the writ may issue in an appropriate case despite the provisions of the alternative writ.

Accordingly, it follows that the judgment is reversed, with instructions to the trial court to issue a peremptory writ of mandamus directed to the board of supervisors of San Bernardino County as the governing board of the Fontana County Fire Protection District, requisitioning the county auditor of San Barnardino County to draw a warrant upon funds of the said Fontana County Fire Protection District for payment of the judgment herein mentioned together with interest for the period and in the amount set forth in the alternative writ; directing the county treasurer to pay such warrant if there be sufficient money in the county treasury to the credit of the said fire protection district not otherwise appropriated; or, if there be insufficient funds to pay the said warrant, directing the board of supervisors to include the amount of such unpaid judgment, with interest and costs, in the next tax levy made or to be made by the said board on the taxable real property within the limits of the said fire district, and that the said county treasurer be ordered to pay the said warrant when such tax so levied is collected.

Respondents herein also have filed a motion for diminution of the record to have included as a part of the present record (1) the original alternative writ issued in the present action, together with (2) the judgment roll in the former action entitled Johnson v. Calkins, No. 38967. In view of the conclusions arrived at hereinbefore respecting appellant’s right to have issued a peremptory writ in accordance with the terms and in the manner heretofore indicated, and since the court in the present action has considered the effect of the said former judgment (No. 38967) the same as though the judgment roll therein had been included in the present record, the said motion for diminution is denied.

Curtis, J., Waste, C. J., Edmonds, J., Gibson, J., Carter, J., and Shenk, J., concurred.


author: CARTER, J.

text:
    [Crim. No. 4265.
    In Bank.
    April 15, 1940.]
    THE PEOPLE, Respondent, v. VINCENT DAWA, Appellant.
    John L. Brannely for Appellant.
    Earl Warren, Attorney-General, and William P. Cleary, Deputy Attorney-General, for Respondent.
   CARTER, J.

This appeal from a judgment imposing the extreme penalty comes before us pursuant to the provisions of section 1239 of the Penal Code, which section authorizes an “automatic” appeal in all death penalty cases. No brief has been filed on behalf of the defendant, though a “memorandum” has been filed by the attorney-general stating the general nature of the case. An examination of the entire transcript has failed to reveal anything of a prejudicial or reversible character.

It appears that the district attorney of Sacramento County filed an information charging the defendant with the murder of one Lim Ding, a Chinese, on April 19, 1939. Upon his arraignment the defendant entered the dual plea of not guilty and not guilty by reason of insanity. The trial on the general issue was exceedingly brief. The defendant, following an unsuccessful attempt of his counsel to withdraw the “not guilty” plea, offered no evidence by way of explanation of or defense to the homicide charge. The evidence of the prosecution showed, in substance, that on the night of the homicide the defendant, a Filipino laborer of the age of 28 years, attended a Chinese social club or gambling establishment in the city of Sacramento, which he had frequented on prior occasions. At one of the tables he lost approximately $1.65, whereupon he left the establishment. He returned within a few minutes and walked to within a few feet of the deceased, who was the dealer or keeper of the table where defendant had lost his money, and fired a shot from an automatic pistol through the head of the deceased. Defendant immediately ran from the place and was taken into custody by the police a short distance away while he held a pursuing crowd at bay with the pistol. He readily admitted the shooting to the arresting officer, giving as his reasons that he did not like the deceased’s manner of dealing and that the deceased had laughed at him. The autopsy surgeon testified that the gunshot wound had caused the death of the deceased.

As stated, the defendant offered no evidence upon the general issue, and the jury, under the circumstances, returned a verdict of murder of the first degree without recommendation. The trial upon the defendant’s insanity plea then proceeded, as authorized by statute, before the same jury. In view of the ultimate inability of the jury to reach a verdict upon the issue raised by said plea, it was discharged and a new jury sworn to try the sanity issue. At the conclusion of a lengthy trial, wherein evidence making up a transcript of several hundred pages was introduced, the jury returned a verdict finding the defendant sane at the time of the commission of the homicide. Under the verdicts and the law, the trial court had no alternative but to enter judgment imposing the extreme penalty.

The evidence, lay and expert, addressed to the insanity issue, is in sharp conflict and leaves no room for an appellate court to interfere with the finding of the jury thereon. Therefore, it will serve no useful purpose to narrate the evidence in great detail. Suffice it to say that the defendant produced as witnesses his brother, a cousin, a fellow laborer and several inmates of the county jail who occupied the same “tank” with him during his confinement awaiting trial. These persons testified as to the defendant’s apparent desire not to associate with others because of his expressed belief that they were “against him”. They testified that he was given over to mumbling to himself, to publicly practicing self-abuse, to tearing up papers and scattering them about, to pasting magazine pictures on the walls of his cell and talking to them, and to hollering. Bach of these lay witnesses expressed the opinion that defendant was insane. All but one of the county jail associates _ of the defendant were impeached on cross-examination by reason of prior felony convictions. Under the circumstances, the jury apparently attached but little weight to their testimony concluding, unquestionably, that their sole desire was to assist a fellow prisoner. The relationship to and friendship for the defendant of the other lay witnesses was undoubtedly considered by the jury in its resolving of the conflicts in the evidence. Defendant also produced two medical experts who testified that they had examined him while in jail and found that he was suffering from paranoia, i. e., from delusions of persecution. In answer to a hypothetical question propounded by defense counsel each expert gave it as his opinion that the defendant could not distinguish between right and wrong—the accepted test of sanity in criminal cases in this state. (People v. Walter, 7 Cal. (2d) 438, 440 [60 Pac. (2d) 990].) However, one of said experts in response to a hypothetical question propounded on cross-examination, and containing many of the facts surrounding the commission of the homicide, readily answered that the enumerated circumstances “would certainly be evidence of sanity”.

As against this showing of the defendant, the prosecution produced as a witness the deputy sheriff who had charge of the county jail and who over a period of months had opportunity to observe the defendant. He testified that he had never seen anything unusual in the defendant’s conduct and that none of his fellow inmates ever had complained of the defendant’s actions. Without narrating his testimony, another witness, who had been employed by the district attorney to “serve” a term in the county jail in order to observe the defendant, contradicted much of the testimony of the other inmates. The prosecution called as witnesses three medical experts, two of whom had been appointed by the trial court to examine the defendant. The first expert, Dr. Wilder, an expert in diagnosing and treating mental diseases and who had served on the staff of the Napa State Hospital and since 1905 had been an examiner in insanity in Sacramento County, testified that he examined the defendant pursuant to appointment by the court and was of the opinion that the defendant did know the difference between right and wrong. In the course of his testimony, the witness stated that the defendant had told him he smoked marijuana and knew that it was wrong and that the government put users thereof in the “big house”—showing on the part of the defendant an appreciation of the difference between right and wrong.

Another expert, a psychiatrist, who had been employed by the district attorney.to examine the defendant, testified that during his examination the defendant stated he had shot the deceased “because he tried to cheat him”. The witness related that the defendant gave no evidence of having any delusions or hallucinations. It was the opinion of the doctor that the defendant knew the difference between right and wrong.

Finally, the prosecution called Dr. Smythe, superintendent of the Stockton State Hospital, who likewise had been appointed by the court to examine the defendant. The witness testified that defendant said he nearly always lost at the gambling house where deceased worked and was shot, and that the defendant appeared to be resentful toward the deceased because he (the defendant) had been called “a cheap gambler” and told “not to come back any more”. As a result of this, the defendant told the witness that “he was angry, very angry”. To this witness the defendant likewise mentioned his use of marijuana and his knowledge of the fact that users of the drug were put in “this here jail”. The doctor expressed the opinion that the defendant “belongs to that class of people who have a constitutional anti-social understanding, and that he did know the difference between right and wrong”.

The foregoing adequately discloses that there is in the record ample evidence of a substantial nature to support the verdict of the jury that the defendant was sane at the time of the commission of the homicide. In view of such verdict and the prior verdict on the general issue finding the defendant guilty of murder of the first degree without recommendation, the trial court, as already stated, had no alternative but to enter judgment imposing the extreme penalty. We have found nothing in the rulings of that court or in its instructions, which were full and fair, that in any way tended to prejudice the defendant. Under the circumstances, we can do nothing but affirm the judgment.

The judgment and order denying a new trial are, and each is, affirmed.

Shenk, J., Edmonds, J., Houser, J., Curtis, J., and Waste, C. J., concurred.


author: CURTIS, J. EDMONDS, J., Dissenting.

text:
    [L. A. No. 17248.
    In Bank.
    April 16, 1940.]
    PEOPLES STATE BANK (a Corporation), Appellant, v. IMPERIAL IRRIGATION DISTRICT et al., Respondents.

      W. Coburn Cook for Appellant.
    Peter tura Suden, Richard turn Suden, Call, Murphey & Davis, Herman Phleger, Brobeck, Phleger & Harrison, Pillsbury, Madison & Sutro, Hugh K. MeKevitt, Clark, Nichols & Eltse, George Clark, David Freidenrich and Ralph Alfred Wood, Jr., Amici Curiae, on Behalf of Appellant.
    Harry W. Horton and George R. Kirk for Respondents.
    Stephen W. Downey, Amicus Curiae, on behalf of Respondent.
   CURTIS, J.

This action was instituted by the plaintiff the owner and holder of five one-thousand dollar bonds of the defendant irrigation district, together with attached coupons, for declaratory relief and for an injunction restraining and prohibiting the defendant district from instituting proceedings under chapter X (now chap. IX) of the United States Bankruptcy Act. Chapter X (now chap. IX) of said act comprises sections 81 to 84 of said Bankruptcy Act. Said chapter was enacted as an amendment to the bankruptcy statute on August 16, 1937. (50 U. S. Stats., p. 653.)

Count one of the complaint purports to set forth a cause of action entitling the plaintiff to declaratory relief in an alleged actual controversy between the plaintiff and defendants “as to the right of the defendants to file a petition under the bankruptcy act”, and count two of the complaint is for an injunction directed to the defendants restraining them from filing any proceedings under the bankruptcy laws of the United States. The defendants appeared and filed both a general and special demurrer to said complaint. On the hearing of said demurrer, the trial court sustained the same and dismissed the action. From the judgment following said order of dismissal the plaintiff appealed to this court.

The contentions of the appellant are (1) that an irrigation district organized under the laws of this state is a governmental agency and as such is not subject to said chapter X (now chap. IX) of the United States Bankruptcy Act, and (2) that the state has not given its consent to the filing of a petition for composition of its debts by an irrigation. district under the Bankruptcy Act of the United States, as amended by the enactment of said chapter X (now chap IX) thereof.

Bach of these two contentions has been, in our opinion, completely answered adversely to the appellant by the opinion of the Supreme Court of the United States in the case of United States v. Bekins, 304 U. S. 27 [58 Sup. Ct. 811, 82 L. Ed. 1137], The facts in that case show that the Lindsay - Strathmore Irrigation District, organized under the laws of this state, sought to take advantage of the amendment to the United States Bankruptcy Act, being chapter X (now chap. IX) of said Bankruptcy Act (which purports to provide a method of relief for certain taxing agencies by permitting them to file a proceeding for the composition of their debts) and chapter 4 of the 1934, Extra Session Statutes of this state. Chapter 4 of the 1934, Extra Session Statutes, purports to grant permission to “taxing districts as described in Chapter IX” of the United States Bankruptcy Act to file proceedings for the composition of their debts under said act, “or as the same may be modified from time to time”. In other words, the proceeding instituted by the LindsayStrathmore Irrigation District which was considered by the court in the last named case is precisely like that which the appellant alleges the respondents are proposing to institute unless prohibited by order of court. Upon the filing of such a petition in the United States District Court by the LindsayStrathmore Irrigation District, Milo Bekins, and others, holding unpaid bonds of the district, appeared in said action and filed objections to the granting of the district’s petition. The district court sustained the objection of Bekins and associates, and an appeal was taken from the judgment of the district court to the United States Supreme Court. On appeal the appellees laid special stress upon the case of Ashton v. Cameron County etc. District, 298 U. S. 513 [56 Sup. Ct. 892, 80 L. Ed. 1309], wherein the court had declared unconstitutional the original chapter IX of the United States Bankruptcy Act on the ground that said act might materially restrict the state's control over its fiscal affairs. In commenting on that objection to chapter IX of said act, and referring to the amendment as contained in chapter X thereof, the court, in the Bekins case, page 50, explained, “In enacting Chapter X the Congress was especially solicitous to afford no ground for this objection. In the report of the Committee on the Judiciary of the House of Representatives, which was adopted by the Senate Committee on the Judiciary, in dealing with the bill proposing to enact Chapter X, the subject was carefully considered”.

The court then quotes portions of the report of the House Judiciary Committee in which it refers “to the sweeping character” of the Ashton case, and expresses its belief that the proposed amendment to the United States Bankruptcy Act “is not invalid or contrary to the reasoning of the majority opinion”.

After its quotation from the report of the House Judiciary Committee, the court in the Bekins case continues (page 51): “We are of the opinion that the Committee’s points are well taken and that Chapter X is a valid enactment. The statute is carefully drawn so as not to impinge upon the sovereignty of the State. The State retains control of its fiscal affairs. The bankruptcy power is exercised in relation to a matter normally within its province and only in a case where the action of the taxing agency in carrying out a plan of composition approved by the bankruptcy court is authorized by state law.”

Prior to the foregoing statement the court had given consideration to the effect and validity of chapter 4 of the stat: utes of this state enacted at the 1934 special session. In respect to said statute the court (page 47) stated: “It is unnecessary to consider whether Chapter X would be valid as applied to the irrigation district in the absence of the consent of the State which created it, for the State has given its consent. We think that this sufficiently appears from the statute of California enacted in 1934. (Laws of 1934, Ex. Sess., chap. 4.) This statute (section 1) adopts the definition of ‘taxing districts’ as described in an amendment of the Bankruptcy Act, to-wit, Chapter IX approved May 24, 1934, and further provides that the Bankruptcy Act and ‘acts amendatory and supplementary thereto, as the same may be amended from time to time, are herein referred to as the “Federal Bankruptcy ■ Statute” ’. Chapter .X of the Bankruptcy Act is an amendment and appears to be embraced within the state’s definition. We have not been referred to any decision to the contrary. Section 3 of the state act then provides that any taxing district in the State is authorized to file the petition mentioned in the ‘Federal Bankruptcy Statute’. Subsequent sections empower the taxing district upon the conditions stated to consummate a plan of readjustment in the event of its confirmation by the federal court. The statute concludes with a statement of the reasons for its passage. ’ ’

The statement of the reason for the enactment of the statute is contained in section 13 of said chapter 4, and is found on page 10 of the statutes of 1935. This volume of the statutes includes those statutes enacted at the special session of 1934, as well as those of the 1935 regular session. It is not necessary for the purpose of this opinion to set out said statement here.

The opinion concludes (page 53) with the following comprehensive statement, “In the instant case, we have cooperation to provide a remedy for a serious condition in which the States alone were unable to afford relief. Improvement districts, such as the petitioner, were in distress. Economic disaster had made it impossible .for them to meet their obligations. As the owners of property within the boundaries of the district could not pay adequate assessments, the power of taxation was useless. The creditors of the district were helpless. The natural and reasonable remedy through composition of the debts of the district was not available under state law by reason of the restriction imposed by the Federal Constitution upon the impairment of contracts by state legislation. The bankruptcy power is competent to give relief to debtors in such a plight and if there is any obstacle to its exercise in, the case of the districts organized under state law it lies in the right of the State to oppose federal interference. The State steps in to remove that obstacle. The State acts in aid, and not in derogation, of its sovereign powers. It invites the intervention of the bankruptcy power to save its agency which the State itself is powerless to rescue. Through its cooperation with the national government the needed relief is given. We see no ground for the conclusion that the Federal Constitution, in the interest of state sovereignty, has reduced both sovereigns to helplessness in such a case.’’

The Bekins case, in our opinion, effectually establishes the validity and constitutionality of both chapter 4 of the 1934 Extra Session Statutes, and chapter X (now chap. IX) of the United States Bankruptcy Act. We are in thorough accord with the views therein expressed, and particularly in respect to its conclusion as to the constitutionality of the statute of our own state. (Chap. 4 of the 1934 Extra Sess. Stats.)

Appellants have advanced a number of grounds upon which it contends that chapter 4 of the 1934 Extra Session Statutes is unconstitutional and void, such as, that it is an unlawful attempt to impair the obligations of contracts; that it is an attempt to surrender the power of taxation; that it is an attempt to take private property for the payment of a public debt; and some others of like nature. This same argument was made before the Supreme Court of the United States in the Bekins case, and we understand by the same counsel now representing the appellants in the instant case. Some of them were answered by that court and others were evidently not thought of sufficient importance to require an answer. Undoubtedly the court considered each and every one of them, and found that none of them was meritorious.

It is further contended that in recent decisions rendered by this court we made important rulings with respect to the status of irrigation districts which, had they been rendered prior to the decision in the Bekins case, would have had a material bearing upon that decision, and would probably have resulted in an affirmance of the trial court’s judgment instead of a reversal thereof. The cases referred to are: Provident Land Corp. v. Zumwalt, 12 Cal. (2d) 365 [85 Pac. (2d) 116] ; El Camino Irr. Dist. v. El Camino Land Corp., 12 Cal. (2d) 378 [85 Pac. (2d) 123] ; Moody v. Provident Irr. Dist., 12 Cal. (2d) 389 [85 Pac. (2d) 128]. No new principle of law was announced in any of these decisions. We held, for example, in the case of El Camino Irr. Dist. v. El Camino Land Corp., supra, p. 383, that irrigation districts “are agencies of the state whose functions are considered exclusively governmental; their property is state owned, held only for governmental purposes; they own no land in the proprietary sense, within the rule of defendant’s eases”. This statement is the most favorable statement from appellant’s view to be found in any of the three cases relied upon by appellant. In support of this statement the court in the El Camino ease cited the following authorities: Whiteman v. Anderson-Cottonwood Irr. Dist., 60 Cal. App. 234 [212 Pac. 706] ; Turlock Irr. Dist. v. White, 186 Cal. 183 [198 Pac. 1060, 17 A. L. R. 72] ; Wood v. Imperial Irr. Dist., 216 Cal. 748, 752 [17 Pac. (2d) 128]. While the exact language of the El Camino case is not to be found in the cases just cited, the principle enunciated therein was firmly established in this state by the three cases cited in the opinion in the El Camino case and many others of this and other appellate courts of this state, many of which are to be found cited in the Whiteman v. Anderson-Cottonwood Irr. Dist. case, supra. All of these cases had been decided long prior to the time when the Bekins case was before the Supreme Court of the United States. The same argument was made there as is being made here, and that is, that an irrigation district is an agency of the state and its powers are exclusively governmental, and, therefore, it is not subject to the bankruptcy laws of the United States. We do not have the briefs of counsel in the Bekins case before us, but as the same counsel who appears here for the appellant appeared in the Bekins case, we must assume that the decisions of the courts of this state bearing upon the legal status of irrigation districts were called to the attention of the United States Supreme Court on the hearing of the Bekins case. We think it reasonable to assume that counsel would cite to the court all California cases bearing upon the powers of an irrigation district when the question before that court was the exact status of such a district created under the laws of California. We accordingly find no reason to conclude that the later decisions of this court rendered since the Bekins case, and relied upon by appellant have had any effect upon the authoritative value of the Bekins ease.

It might be well to say a word of explanation respecting chapter 4 of the 1934 Extra Sessions Statutes. It was in effect at the time this action was filed. It was repealed in 1939 (Stats. 1939, p. 1009), but with the express proviso that its repeal should not impair or affect any action or proceeding commenced under sections 81 to 84 of the United States Bankruptcy Act while said chapter 4 was in effect. In the same act, repealing said statute, it was provided that, “The state of California hereby . . . consents to the application” of sections 81 to 84 of the United States Bankruptcy Act “to the taxing agencies and instrumentalities of this State”. It would seem, therefore, that whichever of the two statutes may be held to be applicable to the present proceeding, the state has given its consent to the filing of the petition which the appellant alleges the respondents propose to file.

The judgment is affirmed.

Shenk, J., Carter, J., Gibson, J., and Waste, C. J., concurred.

EDMONDS, J., Dissenting.

The briefs now before the court in this case clearly show that the controversy between the parties has become moot. However, counsel contend that the court should nevertheless decide the issues originally before the superior court for decision because the question whether an irrigation district may avail itself of the laws relating to bankruptcy of “taxing districts” is of great public importance.

After the entry of judgment denying the appellant an injunction, the irrigation district filed a petition in bankruptcy, and proceedings thereon are now pending in the United States District Court. Although the complaint asks for declaratory relief as well as an injunction to prohibit the filing of any petition in bankruptcy, it alleges that the actual controversy between the parties entitling it to that relief relates to “the rights of the defendants to file a petition under said bankruptcy act”. It is axiomatic that a court may not enjoin an act which has already been performed, and certainly no order made upon this appeal can affect the bankruptcy ■proceedings.

As all of the issues in this case became moot when the irrigation district took the action which the appellant has been attempting to prevent, it is the duty of this court to dismiss the appeal (Weiss v. City of Los Angeles, 190 Cal. 576 [213 Pac. 979]; Atkins v. Hughes, 208 Cal. 508, 509 [282 Pac. 787]) and, in my judgment, an order should be made accordingly.

Houser, J., concurred.

Rehearing denied.


text:
    [L. A. No. 16714.
    In Bank.
    April 17, 1940.]
    STEPHEN B. DEXETR, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.
    P. E. Keeler and Jas. W. Bell for Petitioner.
    J. H. O’Connor, County Counsel, and S. V. 0. Prichard, Assistant County Counsel, for Respondents.
    Philbrick McCoy and Morrison, Hohfeld, Foerster, Shuman & Clark, as Amici Curiae, on Behalf of Respondents.
   THE COURT.

It appearing to the court by the certified copy of death certificate filed here that petitioner Stephen B. Dexter since the commencement of this action has died, and it further appearing that the sentences of the Superior Court of the County of Los Angeles that said petitioner pay certain fines imposed upon him by said court in the contempt proceedings to review which this proceeding was instituted have abated by reason of the death of said petitioner (17 C. J. S. 85, sec. 68, Blackwell v. State, 185 Ind. 227 [113 N. E. 723] , State v. Fletcher Trust Co., 211 Ind. 27 [5 N. E. (2d) 538] , Pino v. United States, 278 Fed. 479, and McGovern v. United States, 280 Fed. 73, 74), it is hereby ordered that this proceeding be and the same is hereby dismissed on the ground that the questions involved therein have become moot.


author: SHENK, J.

text:
    [S. F. No. 16366.
    In Bank.
    April 22, 1940.]
    STERLING REALTY COMPANY (a Corporation), Appellant, v. EMILY RELFE et al., Respondents.
    Phil F. Garvey for Appellant.
    John J. O’Toole, City Attorney, Norman Sanford Wolff, Deputy City Attorney, and Ralph Alfred Wood, Jr., for Respondents.
   SHENK, J.

The petitioner, Sterling Realty Company, applied to this court to prove the reporter’s transcript of the record on appeal in the case of Sterling Realty Co., Plaintiff, v. Emily Relfe et al., Defendants (No. 279945 in the Superior Court in and for the City and County of San Francisco), and to have the chief justice certify such record, pursuant to the provisions of section 652 of the Code of Civil Procedure. An order to show cause was issued.

The plaintiff commenced the pending action to quiet title to numerous lots in the city and county of San Francisco. The petition herein discloses that the plaintiff had been the owner of the lots, but that they had been sold to Emily Relfe, defendant in said action, pursuant to street improvement assessment bond foreclosures. The plaintiff in said action applied for a temporary restraining order and a temporary injunction. The court issued an order restraining the execution and delivery of any deed or deeds to the property pending the hearing on an order to show cause why a temporary injunction should not be granted. The defendants answered and the issues framed by the pleadings came on for trial without any furthe^' action or hearing in the injunction proceeding. The court made and filed its findings of fact and conclusions of law in favor of the defendant and rendered judgment accordingly.

The plaintiff appealed from the judgment and gave notice for the preparation of a transcript pursuant to section 953a of the Code of Civil Procedure. Upon the hearing for the settlement of said transcript, the defendant, city and county of San Francisco, moved to strike therefrom the application for the restraining order, the affidavit in support thereof and the order to show cause issued thereon. The court granted the motion on the ground that the same were not a part of the trial proceedings and refused to certify the transcript as “in accordance with the facts”, unless such matter was deleted. The plaintiff thereupon applied to this court to have the transcript certified with the inclusion therein of the matters ordered stricken by the trial judge.

The petitioner asserts that the refusal of the trial judge “to certify the transcript in accordance with the facts” will deprive it “of its substantive legal rights in the prosecution and presentation of its appeal”. But nowhere is it shown that the exclusion or inclusion of said matter would affect any question arising upon the appeal from the judgment, which is on the merits of the case. The petitioner appears to rest upon the contention that certain language of section 953a of the Code of Civil Procedure authorizes the granting of its request. The pertinent provision of that section is: “If the judgment, order or decree appealed from, be not included in the judgment roll, the party desiring to appeal shall, on the filing of said notice, specify therein such of the pleadings, papers, records and files in said cause as he desires to have incorporated in said [reporter’s] transcript in addition to the matters hereinbefore required and the same shall be included.”

The foregoing provision limits the transcript prepared thereunder to the pleadings, papers, records and files “in said cause”. It refers to the “cause” tried before the court which pronounced the judgment appealed from. The injunction proceeding-here in question was not a part of the cause tried. It related to a provisional remedy sought in advance of the trial. The return to the order to show cause herein shows that the proceeding on the application for a temporary restraining order and a temporary injunction was had in another department of the Superior court and before another judge; and that the application and affidavit in support thereof were not introduced in evidence on the trial of the cause on the merits and were not before the trial court in arriving at its decision.

The petitioner makes no contention that the transcript is not otherwise in compliance with the statute. As the additional matters sought now to be included had no part in the determination of the case, we conclude that the trial judge properly refused to include them in the transcript. The petitioner is, therefore, not entitled to the relief sought. (Gallardo v. Atlantic Pac. Tel., etc., 49 Cal. 510.)

The order to show cause is discharged and the petition is denied.

Curtis, J., Carter, J., Gibson, J., Waste, C. J., Houser, J., and Edmonds, J., concurred.


author: EDMONDS, J.

text:
    [L. A. No. 16773.
    In Bank.
    April 23, 1940.]
    JAMES C. McDonald, Appellant, V. HELEN KATHERINE MORLEY, Executrix, etc., Respondent. HELEN K. MORLEY, Respondent, v. JAMES C. McDONALD, Appellant.

      Arthur E. Schifferman for Appellant. .
    Dana Ong and Le Boy Anderson for Bespondents.
   EDMONDS, J.

Under a contract made by the appellant and Evelyn McDonald, his wife, before their divorce, they agreed to a disposition of the real property which is here in controversy. She subsequently died and the judgment appealed from upholds the contentions of the respondent, who is their daughter, that she succeeds to an undivided one-half interest in it under her mother’s will. The rights of the parties depend upon a provision of the property settlement agreement concerning joint tenancy.

The agreement recites that the property shall “be and remain in Joint Tenancy, as it now stands, until such property can be sold for a sum of not less than ten thousand dollars . . . [that amount] or such other sales price as the parties may agree upon ... to be equally divided between the parties hereto. It is further understood and agreed that . . . [Mrs. McDonald] shall pay for all repair work on said property that may be found necessary by . . . [her], and further that . . . [she] shall receive all income from this property until such time as same can be sold”. Other provisions of the contract are that Mrs. McDonald shall have the right to reside on the property until it is sold or she desires to reside elsewhere; that she may operate a school thereon and receive all income therefrom as her separate property; and that each of the parties shall pay one-half of the “interest on present loan”, taxes, insurance, and other carrying charges.

The parties also agreed that in the event of the death of either of them, then “his or her share and interest therein shall become the property of their daughter, Helen K. Morley”. A further provision is that for the protection of Mrs. Morley, “a suitable legal instrument shall be made by each of the parties”. This requirement was not complied with, nor was the property sold.

The appellant's action is against his daughter in her capacity as executrix of her mother’s will, of which she is the sole beneficiary, and as an individual, to quiet title to the property. She filed an answer denying the allegations of the complaint and claiming title' in herself. By a cross-complaint, she alleged that the contract made by him and her mother entitled her to declaratory relief, specific performance of the provisions of the agreement by a conveyance of appellant’s interest in the property to her, and a determination by the court that he is now holding his interest in trust for her. A demurrer to the cross-complaint was sustained without leave to amend, but no appeal has been taken from that ruling.

Mrs. Morley later filed a separate suit against her father, claiming that she is entitled to the undivided one-half interest in the property which belonged to her mother. She also asked the court to require the appellant to convey his interest in the property, subject to a life estate in his favor, to her. He demurred generally and specially, and moved to strike the complaint. The motion was denied and the demurrers overruled. He then filed an answer which included nine affirmative defenses and two counts by way of cross-complaint. In the cross-complaint he demanded damages for malicious prosecution upon the ground that the same cause of action was asserted by his daughter in her cross-complaint to the action to quiet title. He also sought to recover rent of the property.

The two actions were consolidated and upon trial the court rendered judgment that the estate of Evelyn McDonald and James C. McDonald are each entitled to an undivided one-half interest in the real property and also to one-half of its income after Mrs. McDonald’s death, with carrying charges to be apportioned accordingly. A further provision is that, in accordance with the terms of Mrs. McDonald’s will, the respondent is entitled to her mother’s share of the property, subject to administration. The appeal is from this judgment.

The appellant’s main contention is that the trial court erred in construing the property settlement agreement. He takes the position that as the property was to “be and remain in joint tenancy” until sale, there could be no severance of the joint tenancy until that event occurred, hence, he is now entitled to his former wife’s interest in it by virtue of his right of survivorship. He also insists that the provision concerning his daughter’s right to the property in the event of his or Mrs. McDonald’s death was ineffective for any purpose because the “legal instruments” contemplated by the parties were never executed. Another point relied upon by him is that the complaint filed by his daughter does not state a cause of action in equity, and the court erred in refusing to hear evidence upon his cross-complaint for malicious prosecution.

The trial court found “that the right of survivorship of the joint tenancy was severed between the parties by agreement” and, more particularly, that it was their intention to do so. It also found that Mrs. McDonald carried out the terms of this agreement by making a will, and that so far as its provisions concern the disposition of the property after the death of either of the parties, it was made for the benefit of the respondent.

At the time when Mr. and Mrs. McDonald made their agreement, they held title to the property “as joint tenants”. Such an estate requires unity of interest, unity of title, unity of time, and unity of possession. (DeWitt v. San Francisco, 2 Cal. 289; Siberell v. Siberell, 214 Cal. 767 [7 Pac. (2d) 1003]; Swartzbaugh v. Sampson, 11 Cal. App. (2d) 451 [54 Pac. (2d) 73]; Tiffany, “Real Property”, 3d ed., vol. 2, sec. 418.) A distinguishing incident of it is the right of survivorship. (Siberell v. Siberell, supra.) But by their contract the parties specifically provided that if either one of them died, the interest of that one should not go to the survivor but to the daughter. This is entirely inconsistent with an estate in joint tenancy, which was thereby terminated. (Delanoy v. Delanoy, 216 Cal. 23 [13 Pac. (2d) 513].) Thereafter, Mr. and Mrs. McDonald were tenants in common with separate descendible interests.

It is immaterial whether the respondent’s complaint stated a cause of action, because the evidence fully supports the findings which compelled the judgment rendered. This judgment is upon the issues presented by the appellant’s complaint to quiet title and the respondent’s answer thereto. She was given no relief upon the cause of action alleged in her complaint. Also, the appellant is in no position to complain that he was not allowed to offer evidence upon his cross-complaint charging malicious prosecution. When the allegations of this pleading were called to the attention of the trial judge, after some discussion counsel for appellant said, “All right, we won’t urge that.” This statement was, in effect, a renunciation of any right the appellant may have had to a trial of his alleged cause of action for damages. The judgment is affirmed.

Gibson, J., Carter, J., Houser, J., Curtis, J., Shenk, J., and Waste, C. J., concurred.