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of land in possession thereof under a con therefore, unable to perform his contract as tract of sale, by the terms of which the to the remainder, to proceed to have the convendor is to give a warranty deed of the tract specifically enforced to the extent of the property, conveying a good and perfect title vendor's interest in the property, and to thereto, cannot, upon the vendor's failure and have abatement out of the purchase money inability to convey a good and perfect title, for the deficiency, without restoring or offerretain both the land and the purchase money ing to restore possession of the property, is until a perfect title shall be offered him, but undoubtedly the law, but it does not assist he must pay the purchase price according to appellant. The only defect in the vendor's the contract, and receive such title as the title alleged is the outstanding title of the vendor is able to give, if he chooses to retain Michael Garvey estate to an undivided interthe possession of the land, or he may rescind est in the property. This defect was rethe contract, restore the possession to the moved by the appellant itself by the purvendor, and recover the purchase money chase by it, while in possession under the paid, together with the value of his iniprove contract, and more than two months before ments, after deducting therefrom the fair the date for the payment of the purchase rental value of the premises; and, if he fails price, of the alleged outstanding title, for and refuses to adopt either course, he is the sum of $300. The generally accepted liable to an action of ejectment by the ven rule is to the effect that, if the purchaser in dor.” See, also, Bruschi v. Quail M. & M. possession perfects the title of the vendor Co., 147 Cal. 120, 81 Pac. 101; Haile v. Smith, pending the executory contract by buying in 12S Cal. 415, 60 Pac. 1032; Hannan 7. Me an outstanding claim, the perfected title inNickle, 82 Cal. 122. 23 Pac. 271; Gates v. ures to the benefit of the vendor for all the McLean, 70 Cal. 42, 11 Pac. 489; Haynes v. purposes of the agreement, and the utmost White, 55 Cal. 38; McLeod v. Barnum, 131

that the vendee can ask is to be reimbursed Cal. 605, 608, 63 Pac. 924. The claim of the for his outlay in obtaining such title, with appellant, in this regard, is devoid of every interest thereon. See 1 Warville on Venequitable feature, in view of the fact that dors, $ 186; 29 Am. & Eng. Ency. of Law the damage from the alleged outstanding title (2d Ed.) p. 618; Stephens v. Black, 77 Pa. had been definitely ascertained and such 138; Fuson v. Lambdin, 66 S. W. 1001, 23 claim of title had been acquired more than Ky. Law Rep. 2245: Austin v. McKinney, 5 two months before the date fixed for the Lea (Tenn.) 488; Wilkinson v. Green, 31 payment of the purchase money, and the Mich. 221; Frink v. Thomas, 25 Pac. 717, 20 least the appellant could have done, in order Or. 265, 12 L. R. A. 239. This rule is in full to show a disposition to do equity. was to accord with the well-recognized doctrine that tender the amount due on the contract, less no one who goes into possession of land the amount paid in acquiring such alleged under another will be heard to dispute the outstanding title, with interest thereon. See title of that other during the continuance of Gates v. McLean, 70 Cal. 51, 11 Pac. 489. the relation. Acquiring such outstanding Juch is said by appellant as to the placing of claim during such continuance, in the lanvaluable improvements by it on said land, but guage of the Supreme Court of Pennsylvania both answer and cross-complaint show that in Stephens v. Black, supra, "he becomes the all this was done with full knowledge of trustee of his vendor." Under this rule, asthe facts as to the alleged outstanding title, suming the outstanding title to have been and after appellant had purchased the same. good, the title of the vendors was, for all

As to the second claim of appellant, viz., the purposes of the agreement, perfected on that it is the owner of an undivided interest April 30, 1904, and the deed then in escrow, of the property, by reason of the purchase ready to be delivered on payment of the purof the alleged outstanding title, appellant,

chase price, and which so remained until having entered into possession under the ven after appellant's default, offered a perfect dors' title and in subordination to it, is here title. Assuming that appellant would have estopped from denying such title in defense been entitled to a conveyance of the whole to plaintiff's action for possession. See property upon tendering, within the time Coates v. Cleaves, 92 Cal. 427, 430, 28 Pac. fixed by the contract, the amounts specified 580; Hicks v. Lovell, 61 Cal. 14, 20, 27 Pac. therein, less the amount paid for the out:5+2, 19 Am. St. Rep. 679; Holden v. Andrews, standing title, with legal interest thereon, it 38 Cal. 113. See, also, 29 Am. & Eng. Ency. | appears that no tender or offer of any kind of Law (2d Ed.) pp. 706, 707. There is no has ever been made, and there is nothing in circumstance in this case excluding the same the case excusing such lack of tender. Unfrom the operation of the general rule on

der these circumstances, appellant was not this subject.

entitled to specific performance as to the Appellant was not entitled to any relief whole property, and certainly was not enunder its cross-complaint. The rule declared titled, as it sought by its cross-complaint, to in Marshall v. Caldwell, 41 Cal. 611, as to the specific performance of a portion only upon right of the vendee in possession, who dis- payment of a proportionate amount of the covers that his vendor owns only a portion purchase price, upon the theory that it was of the land agreed to be conveyed, and is, the owner of the remaining portion agreed to

be conveyed, by reason of its purchase of primary election would be precluded from voting an adverse title thereto, while it was in pos

with his new party. session under the contract of sale. Appel

4. SAME.

It was no objection to the validity of the lant did not seek in this action any allow

act that one political party entitled to particiance on account of the money expended in pate in the primary election had determined not acquiring the alleged outstanding title, and

to hold a convention or nominate candidates, so no question is here involved as to the right | prived of the right to vote at the ensuing pri

that the members of that party would be deof appellant to relief on account thereof.

mary. Under these circumstances, and in view of 5. CONSTITUTIONAL LAW-UNIFORMITY-VESTwhat we have heretofore said, it is not neces ED RIGIITS. sary to determine whether the finding re

Pol. Code, s 1360a, requires each elector

at the time of registering to declare his party garding the forfeiture of the interest of affiliation in order to entitle him to vote at the Michael Garvey to the other owners is sus- i succeeding primary election, but declares that tained by the evidence. It is immaterial

the section shall not apply to electors who reg

istered before the act took effect, and permits here whether the alleged outstanding title them to vote at the succeeding primary, though of Michael Garvey was good or bad.

their registration affidavits contained no decComplaint is made that the court failed to laration of affiliation. Held, that such excepted make findings as to certain issues, but, in electors had a vested right to vote, and that make findings as to certain issues, but, in the section was therefore not unconstitutional our judgment, the findings are sufficient as because of such exception for nonuniformity. to all material issues, and a judgment will

In Bank. Petition for a writ of mandate not be reversed or a new trial granted for

by Edward Gustave Schostag against Thomas failure to find as to immaterial matters.

V. Cator and others as constituting a board It is further urged that the court should have tried the issues arising on the cross

of election commissioners of the city and complaint and the answer thereto before try

county of San Francisco. Writ denied. ing the issues made by the complaint and

Samuel M. Shortridge, for petitioner. answer. As to this, it is sufficient to say

Thomas V. Cator, for respondents. that, so far as the record shows, all the issues were tried together by consent of the BEATTY, C. J. This is a petition for a parties.

writ of mandate to compel the defendants to There is no other point requiring notice. issue instructions to the officers appointed to The judgment and order are affirmed. conduct the approaching primary election in

the precinct where petitioner is registered We concur: SHAW, J.; SLOSS, J.

to permit him to vote the ballot of any political party lawfully participating therein,

notwithstanding his refusal to comply with (151 Cal. 600)

the requirements of a new section of the SCHOSTAG v. CATOR et al. (S. F. 4,852.)

Political Code, known as "section 1360a,"

which provides, among other things, that in (Supreme Court of California. Aug. 8. 1907.)

all places where the primary election law is 1. ELECTIONS-PRIMARIES-QUALIFICATIONS OF in force each elector at the time of registerELECTORS.

ing, or of transferring registration, shall dePol. Code, $ 1366a, provides that in all places where the primary election law is in clare the name of the political party with force each elector, at the time of registering or which he intends to affiliate at the ensuing time of transferring registration, shall declare

primary election or elections, that such name his party affiliation, and, if he refuses to do so, he shall not vote at the ensuing primary, and

shall then be stated in his affidavit of regissection 1361a empowers the several political tration, and that he shall not be allowed to parties to prescribe additional tests if they de

vote on behalf of any other party, or for sire so to do for those who offer to vote for

delegates to the convention of any other delegates to their respective conventions. Held, that such sections were not in conflict nor ob

party, by virtue of that registration, unless jectionable, as violating Const. art. 2. $ 242, em before the close of registration he announces powering the Legislature to provide for and regu and has recorded a change of his party allate primary elections as constituting a partial exercise and a partial delegation of such power.

legiance. If he refuses at the time of regis

tering to give the name of his party, that 2. SAME. Pol. Code, $ 136tia, requiring each elector fac

fact is to be stated in the record, and in in precincts where the primary election law is such case he is not permitted to vote at all in force to declare at the time of registering or

at the ensuing primary, unless before the transferring registration his party affiliation as a condition to his right to participate in the

close of registration he declares his party primary, is not void as a violation of Const. allegiance by affidavit stating the name of the art. 2, 81, in that it in effect provides an ad party with which he is affiiliated. ditional qualification to those prescribed there

The petitioner contends that this section is in for electors.

unconstitutional, and the defendants are in 3. SAME-REASONABLENESS. Pol. Code. & 1360a, requiring electors at reg

doubt as to its validity, not only for the reaistration desiring to vote at primaries, where sons urged by the petitioner, but for the the primary election law is in force, to declare additional reason that on the same day their party affiliation in order to be entitled to

(March 19, 1907) that the act adding section vote at the primary, is not void for unreasona

1366a to the Political Code was approved anbleness, in that an elector changing his party affiliation after his registration and before the other act was approved adding a new section

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to be Inown as section 1361a, which, it is The question which remains to be consuggested by counsel for defendant, brings sidered is whether section 1366a is unconboth enactments in conflict with section 212 stitutional for any of the reasons assigned by of article 2 of the Constitution, or, if either the petitioner. It is claimed in the first place, enactment can be held to be prior to the that, under the guise of providing a test upon other, at least invalidates that act. The which an elector may participate in a pripoint of this objection is that section 215 of mary election, it, in fact, imposes an additionarticle 2, which empowers the Legislature to al qualification to those prescribed for elector's provide for, and regulate, primary elections, by section 1 of article of the Constitution. while it authorizes the Legislature to pre

We do not think so. What we call "the scribe tests of the right of electors to vote at primary election" is really a number of priprimary elections by direct enactment, or to mary elections equal to the number of parties delegate to the governing bodies of the re participating, but conducted at the same time spective parties the power to prescribe such and at the same polling places by one set of tests, does not permit the Legislature to partly public officers, acting in behalf of all the parexercise and partly delegate such power, but, ties desiring to elect delegates to their reon the contrary, by clear implication forbids spective conventions. Therefore, when an any division of this function. We think this elector desires to register in a manner which objection is overrefined. The Legislature, by will entitle him to vote at the primary elecsection 1366a (St. 1907, p. 677, c. 352), has tion, he must be understood as desiring to act prescribed a test or condition to be complied

with some party, and not with any other with by all electors of every party who de

party. The registrar is for this purpose the sire to participate in the primary elections,

agent of the several parties, and is making and by section 1361a (St. 1907, p. 611, c. 3+0)

up a list of voters for each one of them. It has empowered the several political parties

is therefore just as reasonable to require the to prescribe additional tests, if they desire

elector to range himself with some particular to do so, for those who offer to vote for party for the purpose of the primary election, delegates to their respective conventions. as it is to require registration of all electors There is no conflict between the two acts, and

who desire to vote at the general election. nothing in the Constitution which forbids By one registration is secured the right to even by implication provisions so reasonable

vote at an election open to all registered elecand so just. The Legislature having the

tors, by the other is secured the right to vote right to reserve the exercise of the power of

at an election open to those only who belong prescribing tests to itself exclusively, or to to a particular party. In either case regisdelegate the power to the several parties, is

tration is merely a condition, and an entirely invested with plenary control of the whole

reasonable condition, prerequisite to the castsubject, and, if it deems some general test,

ing of a vote by a qualified elector. applicable to all parties, necessary as a mat

These view's, if correct, dispose of several ter of wise state policy, it does not, by pre

other objections urged by petitioner, and rescribing such a test, preclude the delegation

lieve us of the necessity of taking them up of a right to prescribe more specific tests for

seriatim. We shall, however, notice some of the electors claiming to be members of a the arguments that have been most strongly particular party. The state has a general urged upon our attention. It is contended interest in guarding the purity of primary that the test prescribed by section 1366a is elections, especially since party conventions

unreasonable, because with the close of regishave become an essential feature of our tration the elector loses his right to change system of choosing public officers, and every his party allegiance in consequence of a party has a special interest, in reserving to change in his political convictions, and is preits own members the control of its own cluded from taking part in the election of affairs. It would be a deplorable construc delegates to the convention of the party with tion of the Constitution which would forbid which on the day of the election his more the enactment of general laws in furtherance matured opinions would impel him to cast in of the general interest of the state, except his lot.

his lot. This inconvenience certainly does upon condition of denying to the governing result from the provisions of the act, but the bodies of the respective parties the right to Legislature, which must be presumed to have exclude from participation in their primaries foreseen it, probably regarded such sudden electors who, according to their own stand conversions during the short interval between ards of party fealty, are not entitled to act the close of registration and the date of the with them. This is a right which parties have primary election as likely to be of such rare always exercised heretofore without question, occurrence as not to justify the omission of a and is essential to their preservation. Brit- provision evidently designed to prevent unton v. Board of Com'rs, 129 Cal. 337, 61 Pac. scrupulous and mercenary electors from hold1115, 51 L. R. A. 115. Our conclusion is that, ing themselves free down to the day of elecsince sections 1361a and 136ta are entirely tion to vote with any party, upon any corharmonious in themselves, neither is uncon rupt motive, for the purpose of influencing stitutional by reason of the enactment of the the nomination of its candidates for public other.

office, while without any interest in their

1- treat the rights secured by registration as

success, and perhaps with an interest in their fatal to its validity. As a permanent law of defeat. If it shall sometimes happen that a the state it creates no classes, and will be conscientious voter is converted from one entirely uniform in its operations upon all political faith to another between the close electors. It is no ground for holding such a of registration and the primary election, he law unconstitutional that it saves the rights may console himself for the loss of his vote of some electors, who by complying with the by the reflection that his loss is trifling in law as it existed at the date of their regiscomparison to his share of the advantage to tration secured the privilege of voting at all the state of which he is a citizen, flowing

primary elections to be held during the time from a measure which tends to prevent a

such registration holds good. We are not grave abuse, especially in those centers of aware of any case in which a saving clause population where the primary election law is protecting vested rights has ever been held to made obligatory.

invalidate a law general and uniform in other Another inconvenience suggested by the

respects, and we think it not unreasonable to fact that in the city and county of San Francisco one political party entitled to partici-meriting the same consideration in this conpate in the primary election has determined

nection as rights more strictly entitled to be

ranked as vested rights. not to hold a convention or nominate candi

Writ denied. dates is that the members of that party in this instance, and the members of all parties in similar cases hereafter, will be deprived

We concur; SHAW, J.; HENSHAW, J.; of the right to vote at the ensuing primary. SLOSS, J.; LORIGAN, J. This inconvenience does not seem to afford valid ground of complaint, since it amounts

(151 Cal. 616) only to this: That the members of a party

SAVINGS & LOAN SOCIETY V. BURKE, which holds no primary election are merely

Tax Collector. (L. A. 1,643.) prevented from interfering in the manage

(Supreme Court of California. Aug. 9, 1907. ment of a party to which they do not profess

Rehearing Denied Sept. 5, 1907.) to belong.

TAXATION-IMPERFECT ASSESSMENT-EQUITAAs to the meaning of section 212 of article

BLE RELIEF. 2 of the Constitution, we agree that it must Even if the provisions of Pol. Code, $$ 3628, be construed in the light of the evil to be

3650, as to assessing land by sections, applies remedied, and the course of legislation and

to the assessment of a mortgage interest in

lands, and such an interest was not so assessed, judicial decision prior to its adoption. The execution of a tax deed of such an interest will evils to be remedied were the corrupt prac

not be enjoined on this account, the owner of

such interest not having tendered the amount tices by which, in the absence of proper pub

of tax justly due from him, or at any time oflic control, primary elections were made to fered to pay to the tax collector the tax on such defeat the will of the bona fide members of

interest in any section, the amount of which is

deducible from the deductions made on account political parties, and the course of legislation

thereof in the assessment of the mortgagor's has been to enact one primary election law interest after another, which have as often been found unconstitutional by reason of various

In Bank. Appeal from Superior Court, restrictions upon the legislative power con

Santa Barbara County; James W. Taggart, tained in our fundamental law. The object

Judge. of the people in adopting the amendment con

Action by the Savings & Loan Society tained in section 242 of article 2 was to re

against Edmund M. Burke, tax collector of move these restrictions, and to give the Legis

the county of Santa Barbara Judgment for

defendant. lature a practically free hand in dealing with

Plaintiff appeals. Affirmed. the evils which their previous legislation had Canfield & Starbuck, for appellant. U. S. vainly attempted to cure. In view of these Webb, Atty. Gen., Geo. A.. Sturtevant, Depuconsiderations, we do not feel justified in ty Atty. Gen., and E. W. Squires, Dist. Atty., narrowing by construction the power con

for respondent. ferred upon the Legislature by that section to prescribe tests of the right to vote at pri SLOSS, J. This is an action brought to remary elections.

strain the execution of a tax deed to the The last and most serious objection to the state, following a sale for nonpayment of validity of the law is that it is not uniform taxes. A demurrer to the second amended in its operation, that it creates classes and

complaint was sustained, and, plaintiff declinimposes more onerous conditions upon one ing to amend, judgment went for the defendclass than another. The point of this ob ant. The plaintiff appeals. jection is that the act contains a saving clause The complaint in question sets forth these in favor of all electors who were registered facts: The plaintiff in 1897 was, and ever before its enactment, permitting them to vote since has been, the owner and holder of a at this primary election notwithstanding their mortgage interest in certain lands in Santa affidavits of registration contain no declara Barbara county. The mortgaged lands, contion of affiliation with any particular party. sisting of some 8.800 acres, were included in We do not regard this feature of the law as territory which had prior to 1897 been die

vided into townships and sections pursuant to the laws of the United States. The owner of the fee was J. W. Calkins, and the land was assessed to him for the year 1897 by sections, as required by sections 3628 and 3650 of the Political Code. The mortgage interest of the plaintiff was, however, assessed in a lump sum, without apportionment or division among the subdivisions or sections composing the mortgaged property. The amount of the tax was likewise computed in the assessment book in a lump sum, and appears therein as amounting to $1,316.86. No part of the tax having been paid, the property was sold to the state (Pol. Code, & 3771), and the plaintiff, claiming that the failure to assess his mortgage interest by sections is fatal to the validity of the assessment and tax, seeks to enjoin the execution of a deed. For the purposes of this decision, we assume, but do not decide, that the provisions of the Political Code as to assessing land by sections are applicable to mortgage interests.

It is the law of this state, as declared in two decisions rendered since this appeal was taken, that the execution of a tax deed based on an imperfect assessment will not be restrained at the suit of one who does not offer to do equity by paying such tax as is, in morals and justice, chargeable against him. Couts v. Cornell, 147 Cal. 560, 82 Pac. 191, 109 Am. St. Rep. 168; Grant v. Cornell, 147 Cal. 505, 82 Par. 19? 109 Am. St. Rep. 173. The appellant does not dispute the correctness of this rule, but seeks to distinguish the case at bar from those cited. It is said that in Couts v. Cornell the defect in the assessment was that the property was not sufficiently described for purposes of identification, and that such defect in the description did not affect the moral obligation of the landowner to pay the tax. Here, however, it is claimed that the failure to assess the mortgage interest in parcels, according to the governmental subdivisions of the land, directly affected the obligation to pay a tax at all; that it is the privilege of the taxpayer, where the land is required to be assessed in sections, to pay (or redeem) as to some sections, allowing the taxes on the remaining sections to become delinquent; and that if the state does not, by separately assessing and taxing the sections, put the owner of the property in a position to exercise his right to make such partial payment, he is under no moral obligation to pay any part of the tax. Whatever apparent force this argument might have is destroyed by an inspection of the complaint and an examination of the provisions of the Political Code regarding assessment for taxation. The complaint contains a copy of a portion of the assessment roll. This includes the assessment to Calkins, the owner of the fee, showing a valuation of the property by legal subdivisions, and a deduction, on account of the mortgage, from the valuation of each parcel. On the same page follows the assessment of

the mortgage interest to plaintiff. The sum of the deductions from the assessment to Calkins equals tue amount at which the appellant's mortgage interest is assessed. This assessment to the owner of the fee was in accordance with tue requirements of the Code. Under our system of taxation, the mortgage is treated as an interest in the land, and assessed at its full cash value. Pol. Code, § 3628. The land is entered in the assessment book by sections, with its cash value, and, where it is subject to a mortgage security, the assessor must enter "in the proper column, the value of such security, and deduct the same.” Pol. Code, $ 3650. The value of the mortgage security which is to be so deducted is the same as the "full cash value" at which the mortgage security is to be assessed. Since such deduction was made as to each section of the mortgaged land, the plaintiff could have readily ascertained, from the data necessarily appearing on the face of the assessment book, the amount of the tax justly chargeable against its interest in any one of the sections covered by its mortgage.

It is suggested that a payment as to a part of the mortgage interest which had been assessed as a whole would not have been accepted by the tax collector. If plaintiff in fact desired to free any specific sections of the land from the lien of the tax, there was nothing to prevent its offering to pay the tax properly chargeable to those sections. Such offer, even if refused, would have put it in a position to ask and receive the aid of a court of equity. If it never had the intention or desire to pay the tax as to any part of the land less than the whole, the failure to assess by subdivisions did not affect its obligation to pay the entire tax.

In either view, the appellant's failure to make any payment or tender leaves its case as devoid of equity as that of the plaintiff in Couts v. Cornell.

The judgment is affirined.

We concur: BEATTY, C. J.: ANGELLOTTI, J.; SHAW, J.; LORIGAN, J.; McFARLAND, J.; HENSHAW, J.

(151 Cal. 589) JONES V. SUPERIOR COURT OF KERN

COUNTY et al. (L, A. 2,071.) (Supreme Court of California. Aug. 6, 1907.) JUSTICES OF THE PEACE - APPEAL - BOND SUFFICIENCY.

Code Civ. Proc. $ 978, provides that an appeal from a justice court is ineffectual, unless an undertaking is filed in the sum of $100 for the payment of costs "on appeal," or if a stay of proceedings be claimed, in a sum equal to twice the amount of the judgment including costs, when the judgment is for the payment of money. Held, that where a plaintiff before a justice's court, desiring to appeal, filed a bond reciting such appeal, claiming a stay of proceedings and providing a sufficient penalty for the payment of the judgment appealed from and all costs,” if the appeal was withdrawn or dis

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