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ten instructions as to what should be done The only other point worthy of notice rewith the property in the event of her death.lates to alleged erroneous rulings of the court In Vance v. Smith, 124 Cal. 219, 56 Pac. 1031, · upon objections to certain evidence. We do the gift was not to take effect until some not deem it necessary to refer to them spetime in the future, and hence it was declared cifically. We have examined them all, and invalid. In Denigan v. Hibernia, etc., So- : we find no prejudicial error. ciety, 127 Cal. 138, 59 Pac. 389, it was prop- The cause appears to have been justly deerly held that "the retention by the wife of cided, and the order denying the motion for the right in herself to withdraw the whole a new trial is affirmed. of the money from the bank" is inconsistent with the idea of a gift. This must be so, be- We concur: CHIPMAN, P. J.; HART, J.

, cause it is not a gift unless the donor divests himself of all control and dominion

(6 Cal. App. 122) over the property. In Pullen v. Placer Coun

PEOPLE ex rel. MCCARTY v. WILSON. ty Bank, 138 Cal. 169, 66 Pac. 710, 71 Pac.

(Civ. 321.) 83, 94 Am. St. Rep. 19, John W. Clarke, Sr.,

(Court of Appeal, Third District, California. for the purpose of making a gift of $1,000 to

July 30, 1907.) his son, John W. Clarke, Jr., drew his check

1. JUDGMENT - CONCLUSIVENESS ELECTION upon the bank for that sum and delivered it

CONTEST. to his son, saying that he could get the A determination in an election contest, money from the bank, but after delivering it

against the contestee's objection that the law to him stated that he wished he would not

authorizing "no nomination" to be printed on

ballots, where no nomination bad been made, present it until after his death. The son

was unconstitutional, and that hence no such did not present it till the morning after his baliot should be counted, became res judicata, father's death. It was held that the gift was

barring the contestee from asserting the un

constitutionality of the statute in quo warranto not compiete, since the son did not present

subsequently brought against him by the conthe check and secure possession of the money testant, in whose favor the contest had been during the father's lifetime. However, the decided. court said: “The check was not a symbolic

[Ed. Note.-For cases in point, see Cent. Dig.

, .

vol. 30, Judgment, $ 1231.] delivery of the money, but it was a delivery of the means by which the son could obtain

2. SAME.

The final judgment in an election contest in possession of the money.” This would seem

favor of contestant was admissible on subsequent to meet the requirement of section 1147, Civ. ' quo warranto by the people on the relation of

. Code, where the property is in possession of

the successful contestant against the contestee; a third party; but, at any rate, the case is

the parties being essentially the same in both

actions. not controlling here, because the order in the

[Ed. Note.-For cases in point, see Cent. Dig. case at bar was presented to the bank and vol. 30, Judgment, $ 1177.] accepted by it before the death of Mr. Lud

3. SCHOOLS AND SCHOOL DISTRICTS-SUPERINwig. In Noble v. Garden, 146 Cal. 225, 79 TENDENT OF SCHOOLS' RESIDENCE. Pac, 883, it was held that the transaction did A successful contestant for the office of

county superintendent of schools did not disnot amount to a gift, where the deceased in

qualify himself to hold the office because, pendher lifetime maintained dominion and con- ing the determination of the contest, he went to trol over the certificates of stock in contro- an adjoining county to teach a term of school, versy, and where she gave her agent oral

where he owned a house and personalty in the

county of the contest, and left a considerable directions to deliver the assigned shares to

portion of his household goods there, claiming certain persons after lier death, and the that county as his residence; his name remainagent complied with the directions. Since ing on the great register as a voter, and he rethe pretended gift was not to take effect

turning when the term of school closed.

4. OFFICERS-FILING OATII–TIME FOR CONuntil after the death of the transferror, it is

TEST. clear that it could not be held to be a gift. Pol. Code, $ 907. prescribing the time The decision in Basket v. Hassell, 107 U. S.

within which one elected to an office must take 602, 2 Sup. Ct. 415, 27 L. Ed. 500, was based

and file his oath of office, does not apply where

a contest is pending, and where a contest grew upon an alleged gift of money represented

out of an election held November 4, 1902, and by a certificate of deposit evidenced by the remittitur on the affirmance of a judgment for following writing ou the back of the certifi

contestant was filed April 4, 1906, and he filed cate: “Pay to Martin Basket of Henderson, a reasonable time in qualifying.

! his oath and bond April 14th, he acted within Ky.; no one else; then not till my death. I may live through this spell. Then

Appeal from Superior Court, El Dorado I will attend to it myself." It will thus be

County : N. D. Arnot, Judge. seen that the foregoing cases are not decisive

Quo warranto by tbe people of the state of here. As an illustration of transactions up

California, on the relation of T. E. McCarty, hell as valid gifts, we may refer to Vandor against S. B. Wilson. From a judgment for v. Roach, 73 Cal. 614, 15 Pac. 351; Field v.

relator adjudging him to be entitled to an Shorb, 99 Cal. 661, 31 Pac. 504; Ruiz v. Dow, office, defendant appeals. Affirmed. 113 Cal. 190, 45 Pac. 867; Calkins v. Equi- W. F. Bray, for appellant. U. S. Webb, table B. & L. Association, 126 Cal. 531, 59 Atty. Gen., Chas. A. Swissler, and Abr. DarlPac. 30.

ington, for respondent.

HART, J. This is an action in the nature of a quo warranto to determine the right

or title

to the office of superintendent of 12

schools of El Dorado county. The respondent obtained judgment in the court below, adjudging him to be entitled to the office, and appellant takes this appeal from the judgment, upon a bill of exceptions.

The history of the differences between the parties over the title to the office in question is as follows: On the 4th day of November, 1902, at the general state election held in California on that day, the relator and the defendant were rival candidates for

the highest number of votes cast for the contested office, and was therefore, on the 12th day of June, 1905, adjudged by the trial court to be entitled to said office. On the 29th day of June, 190.5, the county clerk issued, in pursuance of the said judgment, a certificate of election to the relator, who, upon the same day, duly qualified and made a demand upon the defendant to surrender to him the office. The defendant refused to turn

. over the office to the relator, but served and filed a notice of appeal to this court from the judgment entered in said case. On the 30th day of January, 1906, this court

the said office of superintendent of schools rendered its decision in said cause. affirm

of El Dorado county. Thereafter a canvass ing the judgment appealed from, and the reof the returns of said election by the board mittitur certifying the judgment so rendered of supervisors of that county established, at by this court was transmitted to the county least prima facie, the election of the defend- clerk and received by that officer on the 4th ant, and he was by said board so declared day of April, 1906. Thereafter, and on the elected, and thereupon a certificate of election 11th day of April, 1906, the county clerk again issued to him by the county clerk. The re

issued to the relator a certificate of election, lator was the then incumbent of the office,

and, after again duly qualifying for the having been elected thereto at the general office, the respondent demanded said office state election held in the year 1898. After

of and from said defendant, who refused to the receipt of the certificate of his election,

surrender it to the relator, and continued to as declared by the board of supervisors, the usurp and unlawfully withhold the same. defendant duly qualified by taking the oath Four points are urged in argument by the of office and filing the same and recording appellant for a reversal of the judgment: his official bond, it having been first approved ,

(1) That that portion of section 1197 of the by the judge of the superior court, and upon Political Code, as it existed at the time of the expiration of the previous term took the general state election held in the year charge of and entered upon the discharge of

1902, at which the electors of El Dorado the duties of the office. Thereafter and with- county voted for candidates for the office in in the time limited by the law, the relator dispute, requiring the words "No nomination" instituted a proceeding in the superior court, to be printed on the ballots, when no nominaunder the authority of section 1111 of the

tion had been made by a political party for Code of Civil Procedure, contesting the de- any office to be filled at the election, etc., fendant's right to the office. A trial of the

was unconstitutional. (2) That the court contest resulted in a judgment for the de- erred in admitting in evidence the judgment fendant, and thereupon the relator took an in the case of McCarty v. Wilson, entered in appeal from said judgment to the Supreme

favor of the plaintiff therein upon a second Court, and said judgment was thereafter re

trial of that case. (3) That the relator, at the versed and the cause remanded "for further time of his purported qualification for the proceedings.” McCarty v. Wilson, 146 Cal.

office after the remittitur from this court in 324, 82 Pac. 243. The grounds upon which the

the case of McCarty v. Wilson, supra, had reversal of that case was founded involved

been sent down and filed in the court below, rulings of the trial court overruling appel

was ineligible to hold the office because he lant's (respondent here) objections to the

was not a citizen of El Dorado county. (4) admission in evidence of a large number of

That the relator failed to qualify for the ballots upon which the voters had stamped a

office within the time prescribed by law. cross after or opposite the words "No nomina- Counsel complains that, in the variety of tion," printed upon said ballots, and also be

forms in which the litigation of the quescause of the overruling of the objections to

tion here has been before the courts of derthe reception in evidence of seven ballots con

nier resort, he has in vain vigorously insisted taining as many votes for respondent in upon the determination of the proposition that case (appellant here), on "each of which submitted by him that that portion of secballots the voter had written a name in the tion 1197 of the Political Code, referred to blank column on the ballot, and had stamped

here under the head of point No. 1, was a cross after each written name." Upon a violative of certain provisions of the state as retrial of the case in the court below, well as the federal Constitution. The part objections to the counting of the said ballots of said section toward which hostility is were, in conformity with the ruling of the thus directed was repealed by the Legislature Supreme Court, sustained, thus eliminating of 1903 (St. 1903, p. 147, c. 131), but appelthem in the determination of the result of the lant declares that he is nevertheless entitled election. The result of this ruling at the to a decision of the question. But, under second trial was that the relator here received the record before us, we think we are re. lieved from that duty, as we perceive nothing clusively determined by the judgment in that in the case at bar which is affected by the case. It follows, by consequence, that the question; nor do we appreciate the im- question raised by appellant's objection upon portance of declaring that the criticised part constitutional grounds against the counting of the section, having long since been re. of the ballots in all cases where the words pealed by the Legislature, is dead beyond the "Yo nomination" appear thereon, whether power or hope of resurrection. The proposi- such words so appearing declared the fact tion involves a moot question. It originally and the truth or otherwise, having been passarose, however, in the first trial of the con- ed upon and decided in the foriner case, is, tested election case. Counsel for the plaintiff as is true of all the other material questions in that case objected to the counting of cer- therein adjudicated, merged in the judgment tain ballots, upon the ground that after the in said case, and upon which he is estopped words. "Yo nomination," printed thereon, from making an attack in a collateral prothe voter had stamped a cross, and that there. ceeding, unless, of course, it appeared that hy said ballots were wholly invalidated. the judgment was void upon its face or the Thereupon, counsel for defendant in that record somewhere disclosed that the court case raised the point and made the objection did not have jurisdiction of the subject-matthat the provision of the law authorizing the ter or of the parties or either of them. No printing on the ballots the words "Yo nom- question here is raised that the judgment in ination," in a case where a political party

that case was void for any reason. had in fact made no nomination, was un- As to the objection that the court erred in qualifiedly unconstitutional and void, and

and void, and allowing in evidence here the judgment obthat consequently no ballot containing those tained by the relator at the second trial of words, whether a cross was stamped opposite the contest, counsel attempts to maintain them or not, should be counted. The trial that, upon the authority of the case of People court overruled the objection made by the ex rel. Drew v. Rodgers, 118 Cal. 394, 46 Pac. plaintiff, as well as that interposed by the 710, 50 Pac. 668, the parties to the election defendant in that case. The Supreme Court, contest and the parties to this proceeding as seen, reversed the cause, principally upon are different and distinct from each other. the ground that the court below erred in He also claims that different issues were preoverruling the objection of plaintiff in said sented in this proceeding from those adjudicontested election case to the counting of the cated in the former case; that the allegations ballots upon which the words "No nomina- in the complaint concerning the election contion" appeared with a cross stamped after test, and the judgment therein, were not gerthem. It is at a glance perceivable that the mane to any question here or necessary for a objection challenging the constitutional valid- determination of any issues tendered in this ity of that part of section 1197, supra. re- cause, and should have been, upon his motion, ferred to), cannot be raised here. The ob- stricken out. We are unable to agree with jection thus maile simply meant that such the learned counsel in this statement. There ballots constituted testimony irrelevant to are, in the very nature of the proceedings bethe issue in the election contest, for the rea- fore us, essentially some new issues tendered. son that the act of printing the words "Xo For illustration, it is alleged by the relator nomination" upon the ballots was contrary to that the defendant has unlawfully intruded some provision of the Constitution. It have into, usurped, and is unlawfully withholding ing been one of the questions tried and con- the office from relator. This is an issue clusively determined upon the objection of which was not, technically speaking, involved appellant in the first litigation of the ulti- in the former case. It is also true that the mate proposition in that case, and which is defendant himself presents two new quespractically the same that is sought to be es- tions, numbered 3 and 1 in the order in which tablished by this proceeding, it became there- we are considering the points. But it does by res adjudicata. It does not matter that not follow from these considerations that the form of the main question in that case the judgment in the former case was not an was as to which of the rival candidates had issue here. Indeed, it was an exceedingly been in fact and in law elected to the con- important one to the relator-in fact, all-imtested office, and therefore in whom was portant, for without it he would have utterly thereby invested the right and title to that failed to make a case against the defendant. office, while here the question, in form, is In the case of Drew v. Rodgers, supra, the as to whether or not the defendant is usurp- court below admitted in evidence the judging and unlawfully withholding the office ment roll in the case of Drew v. Rogers (Cal.) from the relator. The fact is that it is un- 34 Pac. 1081. The plaintiff in the last-mendoubtedly correct to say that the ultimate tioned case was Moses M. Drew. The relator point or final object sought to be achieved by in the case subsequently tried was one Warboth proceedings was and is to secure the ren F. Drew. The object of both actions was occupation and control of the office. All the to oust the defendant from the office of chief material issues tried and facts proven rele- of police of the city of Sacramento. In the vantly bearing upon such issues in the former case of the People ex rel. Drew v. Rodgers, case were necessarily. definitively and con- supra, the Supreme Court says: “The court erred in admitting in evidence the judgment, county for the purpose of teaching school. roll in the case of Drew v. Rogers, supra, and He owned a house and personal property in in holding that the defendant was estopped El Dorado county, and left a considerable thereby from proving that he had been a citi. portion of his household effects in his house, zen of the United States for more than 90 IIe testified that his residence in Placer coundays prior to the election in March, 1892. ty was only temporary, and because he was The judgment was not between the parties to compelled to teach in order to earn a livelithe present action, nor was it between the re- hood for himself and family. He never had lator and the defendant.” The relator in the any intention of abandoning El Dorado councase at bar was the contestant in the former ty as his home, and his name remained on case, and merely because in this proceeding the great register as a voter in that county; the law requires that he must first obtain that as soon as the term of school he was the consent of the Attorney General before teaching terminated he intended to and did instituting it, and because the people are, eo return to El Dorado county. The court's findnomine, made parties to it, renders him none ing against the contention of appellant upon the less the real party in interest. The ob- this point is fully sustained by the evidence. ject of this proceeding is, as is manifest, prac.

The contention that the relator failed to tically to enforce and carry out the judgment qualify within the time required by law finds in the election contest. The appellant refus- no support either in principle or the decisions ed to surrender the office to the party adjudg- of the courts. It has been held in this state ed by the courts upon a trial of the question

that, where a contest is pending for an office, to be entitled to it. He was therefore an

section 907 of the Political Code, prescribing usurper of the office, and the relator was the time within which a person elected to an compelled to resort to this proceeding for the

office must take and file his oath of office, , purpose of securing what had been judicially

has no application. People v. Potter, 63 Cal. determined to be his right. In order to es

127. According to the agreed statement of tablish that right here, it was not only proper

facts here, the remittitur from this court certibut absolutely necessary for him to present tifying the affirmance of the judgment of the to the courts the evidence of his title. In court below was received and filed in the what other way could he have established last-mentioned court on the 4th day of April, the allegations that the defendant was unlaw

1906, and the relator filed his oath and bond fully withholding the office from him, and

on April 14th. The relator acted within a that he was himself, under the law, entitled

reasonable time in qualifying. to exercise the duties of the office? The de

Under all the circumstances of the case, as fendant had, as his authority for occupying

disclosed by the record, we think the defendthe office, the certificate of election issued to

ant had no conceivable reason for withholdhim, as required by law, by the county clerk,

ing the office from the relator, after the deupon the declaration by the board of super

cision of this court affirming the judgment visors, after canvassing the election returns,

and the order by the Supreme Court denying that he had received the highest number of

the petition for a rehearing of the case after votes cast at the election for that office, and

judgment here. was consequently elected thereto. The elec

.

There are some other points suggested, tion contest prosecuted by the relator result

but we do not regard them worth noticing. ed in the annulment of the certificate so re

The judgment is aflirmed. ceived by the defendant, and the judgment of the court so annulling it was the only au

We concur: CHIPMAN, P. J.; BURthority of the clerk for issuing to the relator

NETT, J. the certificate evidencing his right to exercise the duties of the office. The ruling of the court

(6 Cal. App. 117) upon the point under discussion was, as we

DRINKWATER v. HOLLAR et al. (Civ. 354.) bave said, not only proper, but necessary.

,

(Court of Appeal, Second District, California. We have thus disposed of the constitutional

July 23, 1907.) question presented by counsel, and also the

1. QUIETING TITLE-PLEADING-DELIVERY OF second point, in the order presented by us. DEED.

There is no merit in the point that the In an action to quiet title, an allegation in relator was not qualified to hold the office

the answer of the delivery of a deed, under

which defendants claimed, is deemed controvertbecause of nonresidence in the county at the ed under Code Civ. Proc. $ 462, providing that time he took the oath of office and filed his the statement of new matter in the answer in bond after the remittitur from this court cer

avoidance or constituting a defense, must at

the trial be deemed controverted by the opposite tifying its decision on the appeal from the

party. judgment entered upon the second trial of

2. DEEDS-DELIVERY. the contested election case was received and Delivery of a deed is as essential to the filed in the court below. The evidence upon

passing of title as the execution thereof. this point, consisting alone of the testimony

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 16, Deeds, $ 116.) of the relator, was to the effect that, pending

3. EVIDENCE-PAROL-NONDELIVERY OF DEED. the final determination by the courts of the

While possession of a deed by the grantee election contest, the relator went to Placer | is prima facie evidence of its delivery, parol ex.

trinsic evidence is aduissible to show that no delivery was ever made by the grantor with intent to pass title.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 20, Evidence, $ 1978.] 4. DEEDS DELIVERY BY BROKER-AUTHORITY.

Certain brokers, acting for plaintiff and defendant in effecting an exchange of land for certain stock, received a deed from plaintiff, with instructions not to deliver the same until the transaction was completed, and plaintiff should have had time to investigate the value of the stock. Thereafter plaintiff told the brokers he was not satisfied, and was still investigating the stock: but the brokers. contrary to his instructions, delivered the deed to defendant. Held, that neither plaintiff's delivery of the deed to the brokers, nor their delivery thereof to defendant, was effectual to pass title.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 16, Deeds, $ 124.]

Appeal from Superior Court, Riverside County ; J. S. Noyes, Judge.

Action by T. P. Drinkwater against X. H. Hollar and others. From a judgment for plaintiff, and from an order denying defendants' motion for a new trial, they appeal. Affirmed.

X. II. Hollar, Flint & Barker and Barker & Bowen, for appellants. G. R. Freeman and E. W. Freeman, for respondent.

SILAW, J. Action to quiet title. The verified complaint is in the usual form, ascribing possession and ownership of the property to plaintiff, and alleging an unfounded adverse claim of defendant thereto. The answer controverts the ownership of plaintiff, and alleges that by deed duly executed on December 28, 1901, and delivered to defendant on January 11, 1905, plaintiff conveyed the land in question to defendant. The deed was recorded on January 12, 1905, and this action instituted on the following day. Judgment went for plaintiff, from which, and an order denying defendant's motion for a new trial made upon a bill of exceptions, he appeals.

On December 28, 1904, the respondent, Drinkwater, executed an "agreement for exchange," which recited that he had placed with Rains & Hunter, who were real estate brokers acting as agents for both parties, the land in question (particularly describing it), which he desired to exchange for property consisting of $6,500 per value of the stock of the Toledo, Columbus & Cincinnati Railway Company, then owned by appellant, and authorized said Rains & Hunter to act as his agents in negotiating such exchange, and agreed if they should secure an acceptance of the proposition for such exchange to furnish a certificate of title and a deed of bargain and sale conveying a good and sufficient title to the property, and, upon securing the acceptance of the proposition to exchange the real estate for the stock, agreed to pay Rains & Hunter the sum of $275 as commission for their services. On the same day the appellant Hollar accepted the prop

osition by a written agreement to that effect, as follows: “This agreement witnesseth: That I, X. H. Hollar, of Lima, Ohio, owner of the second piece of property described within, hereby accept the proposition of exchange made therein, and upon the terms therein stated, and agree to furnish said stock mentioned in within agreement to T. P. Drinkwater or his assigns or representatives. And I further agree to pay Rains & Hunter commission for said exchange.

* [Signed] X. H. Hollar.” A deed of conveyance, whereby Drinkwater and his wife conveyed to appellant the real estate in question, was duly executed, and on January 4, 1903, said Drinkwater placed the deed, together with his note for the sum of $275, covering the agreed commission, with Rains & Hunter, who gave him a receipt therefor. as follows: "January 4, 1901. Received from T. P. Drinkwater deed to X. H. Hollar of lot 5 in block 17 of the lands of South Riverside Land & Water Co. in Corona, Calif. Agreement for certificate of title that land is to be free and clear except incumbrances mentioned in deed, and note of $275 as commission for the exchange of said property. Rains & Hunter. On the above we have $6,500.00 stock per value of the T. C. & C. Ry. Co., which we agree to deliver to said T. P. Drinkwater on demand. Rains & Hunter." Appellant's claim is based upon the deed executed by Drinkwater, which, it is alleged, was delivered to defendant Hollar on the 11th day of January, 1905.

Under Section 462 of the Code of Civil Procedure this allegation of delivery of the deed is deemed to be controverted. Upon the issue thus tendered by the answer, the court found there had been no delivery of any deed conveying the property to the defendant. Assuming the evidence upon which the court based its conclusion to have been admissible, it was sufficient to justify the finding. The evidence tended to prove there was no delivery of the deed; that representations as to the value of the stock had been made to plaintiff; that, while he left the deed with Rains & Hunter, it was so deposited upon an understanding that they should retain possession thereof and hold until the deal was completed, and until he should have time to investigate the value of the stock; that thereafter he told them that he was not satisfied and was still investigating its value, but that, contrary to his instructions, they delivered the deed to appellant-to all of which, and other testimony of similar character, defendant objected, upon the ground that there was no issue under which such testimony was admissible. The action was prosecuted under the provisions of section 738. Code Civ. Proc. The deed upon which defendant bases his claim of title was duly signed, acknowledged, and recorded, and constituted an apparently good record title. But delivery of a deed is equally essential in transferring title as the act

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