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of signing. "Delivery is the force that vitalizes the instrument." Gould v. Wise, 97 Cal. 532, 32 Pac. 576, 33 Pac. 323. While possession of the deed was prima facie evidence of its delivery, it was not conclusive, but might be controverted by extrinsic evidence showing that it was never delivered. If the deed was not delivered to the grantee, plaintiff was not divested of his title. In a legal sense, there can be no delivery of an instrument without the consent of the grantor. "It may be shown by parol evidence that a deed in the possession of the grantee was not delivered." Devlin on Deeds, §§ 294, 295. "And even if the deed is deposited with the grantee, but for a purpose other than delivery, it would not take effect as a deed; nor can a title be derived from a deed which has not been delivered. While, therefore, it is not competent to control a deed by parol evidence where it has taken effect by delivery, it is always competent by such evidence to show that the deed, though in the grantee's hands, has never been delivered." Washburn on Real Property, 311. "But whether there has been a valid delivery or not must be decided by determining what was the intention of the grantor and by regarding the particular circumstances of the case." Derlin on Deeds, § 269. The intent of the grantor, rather than the mode of executing the intention, is the crucial point. Corker v. Corker, 95 Cal. 308, 30 308, 30 Pac. Pac. 541. It may be deposited with a third person merely as custodian for safekeeping, or, as in the case at bar, "to hold until this deal was completed subject to" respondent's "investigation of this stock." It is settled that delivery is not complete until the grantor has voluntarily surrendered all control over it. The sole issue is whether or not the deed in question was delivered-not that its delivery was procured by fraud, or breach of trust. Respondent contends that it was not delivered at all, and the court so found. Neither fraud nor breach of trust enter into the case.

Hence the very able argument and cases cited bearing upon the subject of the cancellation of deeds and remedies where delivery thereof has been obtained through fraud do not apply to this case. Plaintiff, as said in the opinion of the Supreme Court in Cutler v. Fitzgibbons, 148 Cal. 562, 83 Pac. 1075, decided January 29, 1906, "is not trying to set aside a deed which conveyed the legal title, on the ground that the deed was procured through fraud, mistake, undue influence, conspiracy," etc. Plaintiff had the legal title. It certainly did not pass out of him by a written instrument which was never delivered. Having the legal title to the land, he brings this action to have his title thereto quieted against appellant, who asserts and proclaims an estate in the land based upon a deed which, according to respondent's contention, had never been delivered. The act of Rains & Hunter in turning over the deed to

appellant contrary to the expressed wishes of Drinkwater was as ineffectual in divesting the latter of title as though it had been forged or stolen. Denis v. Velati, 96 Cal. 223, 31 Pac. 1; Black v. Sharkey, 104 Cal. 279. 37 Pac. 939; Gould v. Wise, 97 Cal. 532, 32 Pac. 576, 33 Pac. 323; Hibberd v. Smith, 67 Cal. 547, 4 Pac. 473, 8 Pac. 46, 56 Am. Rep. 726. Rains & Hunter were the agents of both parties. The deposit of the deed with them, under the circumstances of this case, conferred no authority to deliver it to the grantee. Plaintiff does not seek a rescission of the contract, but contends that the deed is void for want of delivery; nor is it an action by one having an equitable interest to establish a trust in one holding the legal title. Delivery of an instrument is a question of fact independent of the writing itself, and extrinsic evidence to prove nondelivery is admissible, notwithstanding the fact that the adverse claim of title constituting the cloud is based upon an apparently good record title. Arrington v. Liscom, 34 Cal. 365, 94 Am. Dec. 722.

The judgment and order appealed from are affirmed.

We concur: ALLEN, P. J.; TAGGART, J.

(6 Cal. App. 116) CONTINENTAL BUILDING & LOAN ASS'N V. BEAVER et al. (Civ. 411.) (Court of Appeal, Second District, California. July 24, 1907.).

1. APPEAL-MOTION FOR DISMISSAL-NECESSITY FOR STATING GROUNDS.

That the notice of motion to dismiss an appeal did not specify appellant's failure to file an undertaking within the required time does not affect respondent's right to a dismissal on that ground.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error. § 3155.]

2. SAME-UNDERTAKING-TIME FOR FILING.

Under Code Civ. Proc. § 940, making an appeal ineffectual for any purpose unless an undertaking be filed within five days after service of the notice of appeal, the Court of Appeal acquires no jurisdiction where the undertaking is not filed within the required time, and the appeal must be dismissed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2. Appeal and Error, § 2065.]

Appeal from Superior Court, Los Angeles County; Charles Monroe, Judge.

Action by the Continental Building & Loan Association against William J. Beaver and another. Defendants appeal from the judgment, and plaintiff moves to dismiss the appeal. Appeal dismissed.

C. W. Pendleton, for appellants. Frank G. Finlayson, for respondent.

SHAW, J. Respondent asks that the appeal from the judgment herein be dismissed. The ground for the motion, as stated in the notice thereof, is that the transcript of the record to be used on the appeal has not been

filed, and the time for filing the same has expired. In support of the motion, a certificate of the clerk of the court rendering said judgment is presented. Among other facts disclosed by this certificate, it appears that the judgment was entered on January 24, 1907; that on the 19th day of February appellant duly served upon respondent his notice of appeal from said judgment; that on February 27, 1907, eight days after the service of said notice, appellant filed in the office of said clerk an undertaking on appeal. Section 940, Code Civ. Proc., provides that "the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal an undertaking be filed."

The notice of motion does not specify the failure to file the required undertaking within five days from service of the notice of appeal as a ground for dismissal of the appeal. This, however, is not necessary. The filing of the undertaking within the time fixed by the provision of said section 940, Code Civ. Proc., is absolutely essential to give this court jurisdiction. Rose v. Mesmer, 134 Cal. 459, 66 Pac. 594: Hoyt v. Stark, 134 Cal. 178, 66 Pac. 223, 86 Am. St. Rep. 246. matter going to the jurisdiction of this court to entertain the appeal, it would seem to be immaterial in what manner comes the suggestion that the steps necessary to confer jurisdiction have not been taken." Bullock v. Taylor, 112 Cal. 147, 44 Pac. 457. When the facts appear showing want of jurisdiction, it is the duty of the court of its own motion to dismiss the attempted appeal. As the undertaking was not filed within five days after service of the notice of appeal, this court has no jurisdiction to entertain the same, and the appeal is therefore dismissed.

This conclusion renders it unnecessary to consider other points made in presenting the motion.

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SHAW. J. Motion to dismiss an appeal from judgment.

(Civ. 411) 91 Pac. 666, the appeal in which was this day dismissed for failure to file the required undertaking within five days after service of notice of appeal.

Upon the authority of that case, the appeal herein is likewise dismissed.

We concur: ALLEN, P. J.; TAGGART, J.

(6 Cal. App. 152) STEWART et al. v. SMITH et al. (Civ. 345.) (Court of Appeal. Third District, California. July 30, 1907. Rehearing Denied by Supreme Court Sept. 26, 1907.)

1. SPECIFIC PERFORMANCE-CONTRACT TO WILL -REQUISITES.

Under the express provisions of Civ. Code, $ 3391, in order to entitle a party to specific performance of a contract to dispose of property by will, the contract must be based on an adequate consideration, must be just and reasonable as to the party against whom it is sought to be enforced, and certain and definite, not within the statute of frauds, free from fraud or undue influence committed by the enforcing party, and its enforcement must not invoke an invasion of the rights of an innocent third party. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 223.]

2. SAME PARTIES COMPLAINANT — MISJOINDER.

Where complainants were all interested in a suit to compel specific performance of a contract to dispose of real and personal property by will, there was no misjoinder of parties complainant, because they were not all interested to the same extent.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 345.]

3. SAME-PARTIES DEFENDANT-EXECUTOR.

Where an executor had no interest in the distribution of an estate, he was not a necessary party to a suit between all the persons claiming an interest in the estate to enforce specific performance of a contract with testatrix for the disposition of her property by will.

'[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 347.] 4. WILLS-CONTRACT TO DEVISE-VALIDITY. A contract by which testatrix agreed to convey property in a particular manner by will was not invalid as a contract providing for the sale of property, some of which had neither actual nor potential existence at the time, within Civ. Code, § 1722, providing that the subject of a sale must be property, the title to which can be immediately transferred.

5. FRAUDS, STATUTE OF CONTRACT TO WILLPERFORMANCE WITHIN YEAR.

A contract by which testatrix, in consideration of a transfer of certain property to her by her children, agreed to make a will, leaving at her death the whole of the property or residue thereof and all increase and accumulations to her children, share and share alike, and to execute a will so providing was not within the statute of frauds as an agreement not to be performed within a year.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23. Frauds, Statute of, § 81.]

6. SAME AGREEMENT FOR THE SALE OF REAL PROPERTY-DEMURRER.

A bill for specific performance of an alleged contract to make a will devising and bequeathing all testatrix's property, of which she should die seised, alleging that at the time of her death she left an estate of the value of $32,547.23, was not demurrable, in that the agreement oralLoan Association v. William J. Beaver et al.ly provided for the sale of real property within

The facts in this case are identical with those involved in Continental Building &

the statute of frauds (Code Civ. Proc. § 1973; Civ. Code, § 1624); it not appearing that such estate consisted of realty.

7. SPECIFIC PERFORMANCE EXECUTED CONTRACT-RIGHT TO PLEAD STATUTE.

Testatrix's husband died seised of real and personal property of the value of $17,000, with debts not exceeding $1,000, all of which estate consisted of community property. Testatrix was appointed administratrix, and contracted with complainants, her children, that, if they would convey their interests as heirs at law in their father's estate to her, testatrix would enjoy the property for her support for life, and would invest the surplus income, and bequeath the residue and all increase and accumulations to her children at her death, in equal shares by will. Held that, complainants having executed a conveyance of their interests pursuant to such agreement, testatrix's contract to will became executed so far as complainants were concerned, so that the statute of frauds was no defense to a suit by them for specific performance.

Appeal from Superior Court, Sutter County; K. S. Mahon, Judge.

Suit by John H. Stewart and others against Mary S. Smith and others, to compel specific performance of a contract to make a testamentary disposition of property. From a decree in favor of complainants, defendants appeal. Affirmed.

W. H. Carlin and M. E. Sanborn, for appellants. S. J. Stabler and A. C. McLaughlin, for respondents.

BURNETT, J. The action is in equity to compel specific performance of a contract to make a certain testamentary disposition of property. Two of the plaintiffs are children, and the other two are daughters, of a deceased child of James S. Stewart and Annie Stewart, decedents. All the other heirs, legatees, and devisees of said Annie Stewart, deceased, are made defendants. It appears from the complaint that said James S. Stewart, at the time of his death in 1870, left property, real and personal, of the value of $17,000. All claims against the estate did not exceed the sum of $1,000. In the same year Annie Stewart, widow of said James S. Stewart, was appointed administratrix of his estate, and remained such until the administration of the estate was closed, April 8, 1893. All the estate of said James S. Stewart was community property. Some time in the year 1873 the said Annie Stewart "for her better maintenance and support during her life orally solicited and requested her said sons, John H. Stewart and Charles E. Stewart and her said daughter Elizabeth Reilay (née Stewart), deceased, mother of said plaintiffs, Luella M. Reilay and Mabel S. Kellogg (née Reilay), to deed, sell, assign, and deliver to her all their and each of their shares and interests as heirs at law of their said father of, in, and to their said father's estate, upon the oral promise. contract, and agreement, in consideration therefor, that she, the said Annie Stewart, would use and enjoy the said property for her support and maintenance during her life, and would manage said property and

invest the income, rents, issues, and profits thereof, and at her death she would leave the whole of said property, or the residue thereof, and all increase and accumulations thereof, to her said 10 children, share and share alike, and would make, execute, and leave in existence at her death a last will and testament, wherein and by the terms of which she would give, demise, and bequeath to her said 10 children, share and share alike, or to the heirs of any deceased child by right of representation all the property of which she might die seised or possessed." The said John H. Stewart and Charles E. Stewart and Elizabeth Reilay accepted said proposition and agreed to do as requested by their mother upon the terms proposed by her. Thereafter, on or about November 22, 1873, in compliance with their part of the agreement, they transferred to their said mother all their interest in the personal estate of their father, and in conjunction with the other children, and in pursuance of said agreement, they executed and delivered to their said mother a conveyance of their interest in the real property of their father, situated in Sutter county, Cal., and on or about June 5, 1883, in further compliance with said contract, and in full consummation thereof, and in conjunction with their mother, and with all of the other heirs of the said James S. Stewart, they made, executed, and delivered for a valuable consideration to one Charles P. Winzlau all their and each of their interests in and to all the real property of the estate of said James S. Stewart, situate in the state of Ohio, and all the corresponding proceeds of said sale were given to and accepted by said Annie Stewart in pursuance of said contract and agreement. The said Annie Stewart received the income and profits of said estate and applied a portion of the same and the proceeds of the sales of personal property to her support, and invested the residue in real property in the said county of Sutter. April 8, 1893, the entire residue of the estate of the said James Stewart was distributed to the said Annie Stewart and was of the value of about $30,000. Said Annie Stewart died testate August 6, 1904, and left estate in said Sutter county of the value of about $32,000. Her will was admitted to probate, and letters of administration were issued to defendant William W. Stewart. Said last will and testament provides that neither of the plaintiffs should receive anything by virtue of said will, and the complaint alleges "that said Annie Stewart, deceased, thereby ignored, repudiated, and violated said contract and agreement so entered into as aforesaid and so as aforesaid fully performed on the part of said John II. Stewart, Charles E. Stewart, and Elizabeth Reilay." A demurrer was interposed and overruled, and, defendants declining to answer, judgment was entered as prayed for, establishing the agreement and decreeing distribution to plaintiff's of the proportion of the residue of the estate to which

each is entitled under the terms of the said | 252; Shakespeare v. Markham, 10 Hun (N. contract. From this judgment the appeal is taken.

That contracts providing for disposition of property by will are enforceable is clearly established by the authorities. There are, however, certain important conditions and limitations, hereafter to be noticed, under which a court of equity will decree a specific performance of such contracts. In the case of Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 776, it is said by the Court of Chancery of New Jersey that: "The law permits a man to dispose of his own property at his pleasure, and no good reason can be assigned why he may not make a legal agreement to dispose of his property to a particular individual, or for a particular purpose as well by will as by a conveyance to be made at some specific future period, or upon the happening of some future event. It may be unwise for a man in this way to embarrass himself as to the final disposition of his property, but he is the disposer by law. of his own fortune, and the sole and best judge as to the time and manner of disposing of it. A court of equity will decree the specific performance of such an agreement upon the recognized principles by which it is governed in the exercise of this branch of its jurisdiction." The reports contain many cases abounding in in teresting and instructive observations upon this subject, but we content ourselves with merely a citation of some of them: Kofka v Rosicky, 41 Neb. 328, 59 N W. 788, 25 L. R. A. 207, 43 Am. St. Rep 685; Lothrop v. Marble, 12 S. D. 511, 81 N. W. 885, 76 Am. St. Rep. 626; Svanburg v. Fosseen, 75 Minn 350, 78 N. W. 4, 43 L. R. A. 427, 74 Am. St. Rep. 490; Nowack v. Berger, 133 Mo. 24, 34 S. W. 489, 31 L. R. A. 810, 54 Am. St. Rep. 663; Korminsky v. Korminsky, 21 N. Y. Supp. 611, 2 Misc. Rep. 138; Townsend v. Vanderwerker, 160 U. S. 171, 16 Sup. Ct. 258, 40 L. Ed. 383; Whiton v. Whiton, 53 N. E. 722, 179 Ill. 32; Bush v. Whitaker, 91 N. Y. Supp. 616, 45 Misc. Rep. 74; Owens v. McNally, 113 Cal. 444, 45 Pac. 710, 33 L. R. A. 369; McCabe v. Healy, 138 Cal. 81, 70 Pac. 1008; Schaadt v. Mutual Life Ins. Co., 2 Cal. App. 715, 84 Pac. 249. The same general principles of equity jurisdiction apply to these cases, as stated in Johnson v. Hubbell, supra, that must be present in the enforcement of contracts to convey during the lifetime of the parties. In other words: There must be an adequate consideration; the contract must be just and reasonable as to the party against whom it is sought to be enforced; the other party must not have practiced fraud nor undue influence in securing the contract; it must be certain and definite, not within the statute of frauds; and its enforcement must not involve an invasion of the legal or equitable rights of an innocent third party. tion 3391, Civ. Code; Pomeroy's Equity Juris. 1405; Davison v. Davison, 13 N. J. Eq.

Sec

Y.) 322; Rivers v. Rivers, 3 Desaus. (S. C.) 190, 4 Am. Dec. 609; Stanton v. Miller, 58 N. Y. 192; McClure v. McClure, 1 Pa. 378; Wright v. Wright, 31 Mich. 380.

It is contended by appellants that the contract before us does not satisfy the requirement of these principles of equity, and, besides, that the complaint is objectionable in other respects, and to the consideration of the specific objections made by appellants and raised by their demurrer we direct our attention.

1. There is no misjoinder of parties plaintiff. The contention of appellants in this respect can be answered no better than by a quotation from the case of Whitehead v. Sweet, 126 Cal. 70, 58 Pac. 376, where the Supreme Court, speaking through Commissioner Cooper, says: "A court of equity abhors a multiplicity of suits. No fixed rule can be laid down by which to determine whether a given bill in equity is or is not subject to the objection of multifariousness. A bill in equity is said to be multifarious when distinct and independent matters are joined therein. If the subject-matter in the main relates to one transaction around which the others cluster, and each party has an interest in some matters in the suit, and they are connected, even though all the parties do not have an interest in all the matters in the suit, the bill is not multifarious"-citing Story's Eq. Pleading. §§ 271, 272a, Wilson v Castro 31 Cal. 429 See, also Lanigan v Neely (Cal. Apr 89 Pac. 441 The purpose or the suit here is to enforce a contract made with decedent in which all the plaintiffs are directly interested. The subject-matter relates to that one transaction, and it is of no consequence that the plaintiffs are not all interested therein to the same extent. It would be a singular rule that would require these plaintiffs to bring separate actions to establish the same contract. If they had done so, defendants would undoubtedly have a right to complain of the inconvenience and unnecessary expense occa sioned thereby. The cases cited by appellants, as we view the matter are not in point, and we deem it unnecessary to review them.

2. The executor is not a necessary party to the action. All the devisees, legatees, and persons claiming an interest in the estate are made parties plaintiff and defendant, and, as the executor has no interest as such in the distribution of the estate, he is properly excluded from a contest over the right to a distribution of the whole or a part of it. Estate of Wright, 49 Cal. 550; Jones v. Lamont, 118 Cal. 499, 50 Pac. 766, 62 Am. St. Rep. 251; Estate of Healy, 137 Cal. 474, 70 Pac. 455.

? Attention is directed by appellants to several particulars wherein they claim the complaint is open to the objection that it does not state sufficient facts to constitute a cause of action. It is contended that, if

670

It

the contract of Annie Stewart is to be treated as a sale of her property to plaintiffs, it must be held to be void for the reason that it included property having neither an actual Civ. nor potential existence at the time. Code, § 1722. But it is too plain for argument that the contract does not purport to constitute a sale by her, but an agreement to convey at a future period. It is manifest that said section has no application. Again, it is urged that the contract is void for two reasons: "(1) By its terms the agreement was not to be performed within a year from the making thereof; and (2) it was an agreement for the sale of real property. Code Civ. Proc. 1973; Civ. Code. § 1624; Story's Eq. Juris. § 752." In response to the former specification, it is sufficient to say that the contract in question is not "an agreement that by its terms is not to be performed within a year from the making thereof." is said in McKeany v. Black, 117 Cal. 592, 49 Pac. 710: "If the contract by its terms is not to be performed within a year, it is void; but, if it may by its terms be performed within a year, it is not, even though it may not be performed within that time." To the same effect are Dougherty v. Rosenberg, 62 Cal. 37, and Blanding v. Sargent, 33 N. H. 239, 66 Am. Dec. 721. Again, the agreement on the part of said Annie Stewart was not to give, devise, and bequeath all the real property, but "all the property of which she might die seised or possessed." The complaint does not show the character of the property left by her, but the allegation is she "was at the time of her death a resident of said Sutter county and left estate therein of the value of $32,547.23." It does not appear, therefore, affirmatively, that the second specification of appellant to which we have above referred is in point. Appellants did not demur to the complaint on the ground of uncertainty as to the character of the property of the said Annie Stewart, and we cannot assume that it was not personal property. But the complete answer to the whole proposition is that the contract was entirely executed on the part of the three children. Relying, as they were justified in doing, upon the solemn promise of their mother to make the said testamentary disposition, they transferred to her all their interest in the father's estate, both personal and real, and the said mother used, enjoyed, and treated as her own said property, and upon wellknown principles of equity defendants are estopped from assailing the contract upon the grounds we have been considering. But it is said in this connection that plaintiffs' remedy is at law, and not in equity. Certain cases are cited in support of this position which we shall consider briefly. doing so the suggestion naturally arises that it is not surprising that there is some apparent conflict in the authorities in view of the fact that the rules of equity are somewhat flexible and in this class of cases con

siderable latitude is allowed to the discretion of the individual chancellor.

In Windsor v. Miner, 124 Cal. 492, 57 Pac. 386, specific performance was denied because the complaint did not state facts from which the court could determine whether the consideration was adequate, and the contract as to the defendant just and reasonable. scope of Newman v. Freitas, 129 Cal. 283, 61 Pac. 907, 50 L. R. A. 548, is seen in the following quotation from the syllabus: "Under the settled rule of equity, specific performance cannot be decreed unless it affirmatively appears that the contract is fair, just, and equal in all its parts, and reasonable and equal in its operation; and if it is in any respect unfair or oppressive, the plaintiff will be left to his remedy at law." It was justly held in that case that the contract was unreasonable and unjust. Stiles v. Cain, 134 Cal. 170, 66 Pac. 231, is to the same effect. Specific performance was denied in Russell v. Agar, 121 Cal. 396, 53 Pac. 926, 66 Am. St. Rep. 35, for the reason stated by the court that plaintiff was suing "to enforce a contract whereby he was to be paid some undetermined and undeterminable sum of money." The contract was held to be too uncertain to be enforced in equity or even to be the basis for an action at law for damages. In Re Hayden's Estate, 81 Pac. 668, 1 Cal. App. 75, decided by this court, the contract was sought to be enforced against an incompetent. In the opinion written by Mr. Justice McLaughlin, it is very properly said that: "Courts will be more strict in examining into the nature and circumstances of such agreements than any others and would require very satisfactory proofs of the fairness and justness of the transaction." It is pointed out in the course of the opinion that the contract was so lacking in the elements of certainty and fairness as not to commend itself to a court of equity. The same contract was under review in the case of Hayden v. Collins, 81 Pac. 1120, 1 Cal. App. 259, and a sufficient reason for a denial of specific performance is found in the following language: "A thorough analysis and study of the evidence convinces us that nothing was said or done to indicate an agreement. There was no meeting of minds on any definite proposition made by any of the parties. Nothing is indicated more than that Mrs. Hayden at one time probably intended to remember appellant in her will or 'do something for him.'" The decision in Henning v. Miller, 21 N. Y. Supp. 831, 66 Hun, 588, a case at law, really rests upon the doctrine that parol evidence is not admissible to vary the terms of a written instrument. Some unnecessary language was used apparently in line with appellant's contention here, but it must be limited to the facts of that particular case.

But appellants admit that part performance may take a case out of the statute of frauds, but claim that the facts here are in

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