siding in Los Angeles, testified that he did not sign the deed and knew no other of that name in Los Angeles county; all of which constituted some evidence tending to controvert the truth of the certificate, and, taken in connection with the "preponderance of probabilities" (Murphy v. Waterhouse, 113 Cal. 473, [54 Am. St. Rep. 365, 45 Pac. 866]; Hutson v. Southern Cal. Ry. Co., 150 Cal. 705, [89 Pac. 1093]), fairly deducible from other circumstances connected with the transaction, satisfied the trial court of the fact found. As to whether or not the name of the impostor who forged the deed was in truth George A. Peterson and known to the notary were facts peculiarly within his knowledge. Under these circumstances, plaintiffs should not be required, in order to shift the burden of proof, to produce other than slight evidence. (Barnard v. Schuler, 100 Minn. 289, [110 N. W. 966]; Joost v. Craig, 131 Cal. 504, [82 Am. St. Rep. 374, 63 Pac. 840]; People v. Lundin, 120 Cal. 308, [52 Pac. 807].)

There is no merit in the suggestion that plaintiffs' remedy for the loss sustained is against the bank which paid the check. The money was paid pursuant to plaintiffs' direction to the person who received it. They were, by reason of the false certificate, deceived as to his identity, which fact was the proximate cause of the loss. No intervening negligence of anyone contributed to it. The facts in Hatton v. Holmes, 97 Cal. 208, [31 Pac. 1131], cited in support of this contention, bear no analogy to the case at bar. The check there was payable to the order of Maria J. Keifer and delivered to one Jenkins, who forged her indorsement thereon and presented it to the bank, which, without inquiry, negligently paid it. The court held that, assuming the check was given upon a forged mortgage, the certificate of acknowledgment to which was false, nevertheless the direct cause of the loss was the forged indorsement of the name of the party to whom it was made payable.

The judgment is affirmed.

Allen, P. J., and Taggart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 16, 1909.

[Civ. No. 677. Second Appellate District.-July 21, 1909.]

D. C. REED, Appellant, v. J. W. SEFTON, Respondent. OPTION TO PURCHASE LAND-ACTION FOR MONEY PAID AND FOR BREACHMARKETABLE TITLE-ABSENCE OF PROBABLE LITIGATION.-An action will not lie to recover money paid under an option to purchase land and to recover damages for its breach, where the abstract of the record furnished to the proposed purchaser shows a marketable title free from probable litigation to a moral certainty.

ID. OPINION OF ATTORNEY INADMISSIBLE.-The opinion of an attorney is not admissible in determining the question whether or not a title is marketable.

ID. RECORD OF OLD BOND FOR DEED-DEFAULT IN PAYMENTS FOR TWENTY-EIGHT YEARS-CONSTRUCTIVE ABANDONMENT-TITLE FROM OWNER.-Where the abstract of title showed the record of an old bond for a deed, under which there has been a default in payments for twenty-eight years, and a constructive abandonment of which is declared by a deed from the owner, from whom a marketable title appears of record for twenty-six years, during which the property has greatly enhanced in value, such title appears to be free from probable litigation, at law or in equity, to a moral certainty.

ID.-SPECIFIC PERFORMANCE-LAPSE OF TIME-CHANGED CIRCUMSTANCES. Time is material to the specific performance of a contract for a deed, whenever, from the change of circumstances, a specific performance such as would answer the ends of justice between the parties has become impossible.

ID.-CAUSE OF ACTION FOR RETURN OF MONEY BARRED BY LIMITATION.When defendant tendered to plaintiff a good and sufficient deed, and plaintiff refused to accept it, the cause of action for a return of the money paid for the option, if any, accrued, and the statute of limitations then began to run, and barred an action not begun until more than two years thereafter.

APPEAL from an order of the Superior Court of San Diego County, denying a new trial. E. S. Torrance, Judge.

The facts are stated in the opinion of the court.

Luce, Sloane & Long, for Appellant.

Stearns & Sweet, for Respondent.

TAGGART, J.-Action to recover money paid for option to purchase real estate, and for damages for failure of vendor to perfect title and make conveyance. Judgment was for defendant, and plaintiff appeals from an order denying his motion for a new trial.

On January 8, 1904, in consideration of the sum of $500, defendant gave plaintiff an option to purchase within twenty days from that date a block of land in the city of San Diego. The sum paid ($500) was to be applied upon purchase price of $15,000, if the purchase was completed, otherwise to become forfeit, "for liquidated damages for such failure to complete said purchase." Time was made of the essence of the option. On January 28, 1904, the plaintiff paid defendant the further sum of $1,000 for an extension of said option for fifteen days upon the same terms; and again on February 12, 1904, in consideration of the payment of an additional sum of $1,000 by plaintiff to defendant, a further extension of thirty days upon the same terms was granted. The same form of forfeiture for failure to complete the purchase is provided as in the original option and time is made of the essence of both these extensions of the option.

The court finds that prior to the expiration of the time given by the last-named extension of option to purchase defendant furnished to plaintiff an abstract of title to the block of land in question, which contained a bond for a deed to said premises, whereby A. E. Horton, then owner thereof, on the thirty-first day of March, 1874, bound himself to convey the block in controversy to one O. S. Fowler of Boston, state of Massachusetts, for a consideration of $1,400, $27 whereof was paid, and the residue to be paid, $1,000 on or before July 1, 1874, and the balance fifteen months from the date of the writing. Horton agreed to convey by good and sufficient deed upon the full performance of all and every condition to be performed by Fowler. No further time limitation appeared in the instrument, which was recorded April 1, 1874. No conveyance under this bond was ever made, and no relinquishment of the rights of Fowler thereunder shown, and on November 5, 1877, Horton conveyed the land to one Babe, who thereafter, on June 10, 1883, reconveyed to Horton, and on August 5, 1884, Horton conveyed to one Hoitt, through whom defendant deraigns title.

As found by the court, there was attached to the abstract mentioned an opinion of title given by N. H. Conklin, then practicing law in San Diego, to defendant under date of December 7, 1898, wherein it is said: "I consider the title a little questionable until the facts of the Fowler heirship are ascertained and his rights determined, either by an instrument of writing or a decree of court." Also, an opinion given by McDonald & McDonald, a firm practicing law in San Diego at that time, under date of January 8, 1899, certifying the title to be good, and as to the bond in question saying that "although not released or canceled of record, is nevertheless upon the face of the record no longer a lien or encumbrance upon the property by reason of being barred by the statute of limitations."

Plaintiff, prior to March 12, 1904, notified defendant that his title to the property was not a good and marketable one, owing to the cloud thereon created by said bond, and stated that he was ready, willing and able to carry out the option upon the removal by defendant of said cloud, and demanded that defendant either perfect the title to said premises by removing said cloud or repay the plaintiff the amounts paid on the option. Defendant refused to either remove the alleged cloud or repay said amounts; hence this action, begun November 12, 1906. In addition to sustaining defendant's contention that the bond mentioned did not prevent him from conveying a good and marketable title to the lands described in the contract, the court found plaintiff's first cause of action to be barred by the statute of limitations.

The contention of appellant that the opinion of the attorney expressing doubt as to the sufficiency of the title to the premises, which was attached to the abstract, may be considered in determining whether or not he was justified in refusing to accept the title displayed by the abstract, is disposed of by the holding of the supreme court in Winter v. Stock, 29 Cal. 408, 413, [89 Am. Dec. 57], that the correctness of the advice of counsel is a risk assumed by the party who procures it, and that such an opinion is not evidence admissible upon the issue, Is the title tendered by the vendor marketable? (See, also, Montgomery v. Pac. C. L. Bureau, 94 Cal. 290, [28 Am. St. Rep. 122, 29 Pac. 640].)

The difference between the opinions of the two attorneys hereinabove referred to suggests the views of the respective parties here as to whether or not the title of defendant was so encumbered as to justify a court of equity in refusing to compel specific performance of the contract. While the early cases draw some distinction between the rule to be applied in an action at law to recover back the portion of the purchase price paid and that applied in a suit in equity for specific performance, we take it that the equitable rule is now applicable whether the action be one to recover the money or enforce the contract. (Moore v. Williams, 115 N. Y. 586, [12 Am. St. Rep. 844, 22 N. E. 233]; Maupin on Marketable Titles, sec. 286].)

A covenant or contract for a perfect title requires the tender of a title "free from litigation, palpable defects, and grave doubts, and should consist of both legal and equitable titles and be fairly deducible from the record." (Turner v. McDonald, 76 Cal. 177, [9 Am. St. Rep. 189, 18 Pac. 262]; Sheehy v. Miles, 93 Cal. 288, [28 Pac. 1046]; Gwin v. Calegaris, 139 Cal. 384, 387, [73 Pac. 851].) While the option given by defendant to plaintiff contains no covenant for a perfect title, or for record title at all, both parties present the case upon the theory that the rule declared in Turner v. McDonald is applicable, and that plaintiff is entitled to recover unless the title tendered by defendant measures up to the standard fixed by that case.

The cloud here urged is not based upon any question of doubt as to the legal title of defendant. The bond to Fowler must be considered in the light of an encumbrance on the title and as a cause of action vested in Fowler, or his successors in interest, and a right in him or them to call in the aid of a court of equity to enforce any right he or they may have under the bond. While such a defect may be distinguished from those presented by cases in which a link in the chain of title is missing, or there is an entire absence of record evidence connecting the vendor with the paramount source of title, yet, even when tested by the rule applied in such cases, in so far as they furnish any aid in determining the question before us, we are of opinion that the finding of the trial court that defendant's title was a marketable one should be sustained.