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but that he never saw or heard of the memo redeem a mortgage of real property may randum found, and never knew or assented be brought against the mortgagee in posto the conditions therein specified. There is session at any time, unless the mortgagee nothing in any of his letters to Phelps to has maintained an adverse possession of indicate the contrary. A different question the mortgaged premises for five years after would be presented were the evidence such breach of some condition of the mortgage. as to warrant the conclusion that Wadleigh As long as the mortgagee in possession by knew of the memorandum and its con the consent of the mortgagor is apparently tents, and might be held to have assented holding as such mortgagee and by virtue of thereto, and the cases cited by counsel for his agreement with the mortgagor, and has defendant would then be in point. It does not made manifest any other claim, his holdnot appear that any delivery in escrow was ing is not adverse. See Murdock v. Clarke, ever made. It should be noted in this con 90 Cal. 429, 27 Pac. 275; Peshine v. Ord, nection that Mrs. Smith was never in the 119 Cal. 311, 51 Pac. 536, 63 Am. St. Rep. state of California, and that Phelps never 131; Warder v. Enslen, 73 Cal. 291, 14 Pac. had any personal dealings with her, all the 874; Husheon v. Husheon, 71 Cal. 407, 12 business being transacted through Wadleigh, Pac. 410; Raynor v. Drew, 72 Cal. 307, 13 who, apparently, was authorized by Mrs. Pac. 866. There was sufficient evidence to Smith to use her property for his own pur support the conclusion of the trial court to poses as he saw fit.

the effect that Phelps entered into posses4. There is nothing in the point that, sion of the mining property under the agreeunder section 1880, Code Civ. Proc., Wad ment alleged, the effect of which was to leigh was incompetent to testify as tu any make him a mortgagee in possession, and matter of fact occurring before the death of that there was no adverse holding at any Phelps. It is settled that this provision of

time prior to his death. The strongest eviour law applies only to actions upon such

dence to the contrary is that contained in claims or demands against the decedent as the letter of October 6, 1896, from Phelps might have been enforced against him in

to Wadleigh, which, taken in connection his lifetime by personal action for the re with all the rest of the correspondence and covery of money, and upon which a money

the evidence as to the dealings between the judgment could have been rendered. Myers parties, is not sufficient to warrant us in v. Reinstein, 67 Cal. 89, 7 Pac. 192; Booth

holding that the finding is not sufficiently v. Pendola, 88 Cal. 36, 23 Pac. 200, 25 Pac.

supported. 1101; Fallon y. Butler, 21 Cal. 24, 81 Am.

7. There was no trust shown by either Dec. 140. The case of Bernardis v. Allen,

complaint or evidence, except in so far as 136 Cal. 7, 68 Pac. 110, cited by defendant, there is always a trust relation between a was a suit brought to declare a partnership

mortgagor and a mortgagee in possession. in mining property, against the successors of The duties imposed upon Phelps by the a deceased person, and it was there recog agreement alleged and found were only such nized that, where an action is not technically as are incumbent upon a mortgagee in posfounded upon a claim against the estate, the session. It was left optional with him to plaintiff is not within the prohibition of

work the mine or not, and to make leases section 1880, Code Civ. Proc. While the

of portions thereof or not, as he saw fit, reasons for the rule declared in that section

and, under the law, independent of agreemay be as applicable in a case of the

ment, he was bound to pay from the rents character before us as in the case of a mon and profits the expenses of such operations, ey claim against a deceased, the Legislature

and apply any net profits in the manner has not seen fit to make the rule cover such

specified. cases.

8. Defendant's contention that the amount 5. No foundation for the defense of laches

adjudged to be paid to her by Wadleigh is was laid by any averment in the answer of

too small, is principally based upon the fact defendant. Cook v. Ceas, 147 Cal. 614, 619, that interest was allowed in such indebted82 Pac. 370. As we have already held, the ness only to April 18, 1901, although this complaint on its face did not show laches.

action was not commenced until February If we assume that, under such circum

8, 1902, and judgment was not given until stances, a trial court in the exercise of its June 30, 1903. The trial court found, and own inherent powers, may ever, in the ab there was sufficient evidence to support the sence of such a plea in the answer, refuse finding, that on April 18, 1901, Wadleigh, relief upon the ground that the evidence

having with him two sacks of coin containshows laches, it is clear that the evidence ing $13,500, and being able, ready, and willwas not such as to warrant any such un

ing to pay his indebtedness, offered in writusual action by the court in this case.

ing to pay to defendant in the presence of 6. It is strenuously urged that plaintiff's her attorneys, the full amount due from action is barred by the statute of limita- | him, upon condition that she make and detions, but the finding of the court against | liver good and sufficient deeds of reconvey. this contention cannot be disturbed. Under ance of the mortgaged property, but that section 346, Code Civ. Proc., an action to defendant refused to receive any payment

except as an unconditional payment, and in concluding that Wm. Maguire, who expressly declared that she would make no actually superintended and managed the reconveyance of any of said property. business of the mine, had an agreement with Although the precise amount named in the Phelps in regard thereto, under the terms writing was $11,150, the offer was also to pay of which he could not look personally to “any further sum of money due," and the evi Phelps either for salary or money expended, dence shows that the refusal to accept the but must look solely to the mining property terms of the offer was solely because of the therefor, and could continue in possession condition annexed for a reconveyance of the of such property until the proceeds thereof mortgaged property and that the giving of paid his claim. Maguire himself testified any reconveyance was absolutely refused. positively to this, and while he presented On April 23, 1901, defendant commenced an a claim against the estate of Phelps, such action against Wadleigh in the superior claim stated this agreement and stated no court of San Mateo county upon the $7,120 case of personal liability on the part of the note. On May 24, 1901, Wadleigh filed his deceased. Assuming all this to be true, answer in said action, setting up the facts we must in view of the finding, the stated in his original complaint in this amount due Maguire from the nine was no action, and also alleging that, by reason of part of the indebtedness due Phelps from the fact that such note was secured by the plaintiffs. If they recover the mining mortgage upon property none of which was property, they will take it subject to any in San Mateo county, the court had no juris claim Maguire may have against it. We diction of the action. The court, on Decem are unable to see any inconsistency in the ber 30, 1901, finding the last plea stated to findings as to the amount due. A tender be sustained by the evidence, gave judgment free from conditions which the creditor was for Wadleigh. Thereupon, on February 8, not bound to perform having been duly 1902, this action was commenced. As al made on April 18, 1901, the action of the ready stated, in her original answer to the court in refusing to allow interest therecomplaint in this action, defendant denied after accruing was correct. that any of the deeds were given as mort 9. The contention that the real motive of yages. Our Civil Code is clear and ex Wadleigh and Smith for the conveyances to plicit as to the effect of a tender upon the Phelps was the defrauding of their creditors running of interest. Section 1504 provides: is fully answered by the findings as to the “An offer of payment or other performance, purpose of such conveyances, which findings, duly made, though the title to the thing of

as we have already held, are sufficiently supfered be not transferred to the creditor, ported by the evidence. stops the running of interest on the obli 10. It is claimed that the court should gation and has the same effect upon all its have dismissed the action for the reason incidents as a performance thereof." Such that, under section 1597 of the Code of Civil was held to be the effect of a tender in

Procedure, the controversy between these Ferrea v. Tubbs, 125 Cal. 687, 58 Pac. 308, parties could be settled only in the court where it was also held that no subsequent having jurisdiction of the probate proceeddeposit of the money was necessary in order ings in the matter of the estate of deceased, to keep the tender good. We presume that and that the sole remedy of plaintiffs was there can be no question as to this under our by petition to that court. It is sufficient to existing code provisions, nor do we think say, in reply to this claim, that section 1597 that there can be any question as to there of the Code of Civil Procedure as construed having been a tender "duly made." Section by this court, is applicable only where the 1498, Civ. Code, provides: “When a debtor deceased was bound by written contract is entitled to the performance of a condition to convey. Cory v. Hyde, 49 Cal. 469, 471; precedent to, or concurrent with, perform Estate of Healy, 137 Cal. 474, 478, 70 Pac. ance on his part, he may make his offer to 453. depend upon the due performance of such 11. It is claimed that many errors were conditions.” Undoubtedly, Wadleigh was en committed by the trial court in admitting titled to have the reconveyance of the in evidence letters from Wadleigh to Phelps mortgaged property delivered upon payment and from Phelps to Wadleigh. There is no of the mortgage debt, and was, therefore, claim that these letters were not received entitled to make his offer depend upon the in due course of mail by the respective parexecution by defendant of such reconvey ties. An examination of those letters disances. See Kofoed v. Gordon, 122 Cal. 314, closes no reason why they were not relevant 54 Pac. 1115; Ferrea v. Tubbs, supra.

and competent evidence. They constituted According to the findings of the court, what were, in effect, conversations between the amount named in the tender was more the parties relative to their respective rights than sufficient to pay the indebtedness due in the property that was subsequently in conon April 18, 1901, and the evidence appears troversy, and were admissible, just as a conto be sufficient to sustain this conclusion. versation between the parties relative to There was evidence which, if believed by such matters would have been admissible the trial court, was sufficient to warrant it for the purpose of showing how each of

these parties, to the knowledge of the other, of those views being found, as only propregarded this property, with reference to erly they could be found, in the formal findtheir respective rights therein, and their ad ings of fact and conclusions of law.” Montemissions in regard thereto, thus throwing cito, etc., Co. v. City of Santa Barbara, 144 light upon the ultimate questions to be de Cal. 578, 595, 77 Pac. 1113, 1119. termined as to whether the deeds were in

We have now discussed what may fairly fact originally given solely as security for

be said to the main contentions of defendant. an indebtedness, and whether there was any

14. Several hundred errors are assigned adverse holding by Phelps. It is suggested

by counsel for defendant on this appeal, that the letters written prior to November many of which assignments of error are 13, 1891, the date of the giving of the mining based upon claims already discussed and property deed, which was finally the sole

disposed of. As to the others, we have exmatter in controversy, were incompetent and amined each one, and find none that merits irrelevant so far as said property was con

discussion here. There was no error that cerned. If we assume this contention to be

could be held to have prejudicially affected good, there was no error in admitting them,

the substantial rights of the defendant, for, at the time of their admission, they

indeed, for a case which was apparently so were competent and relevant upon the then

strenuously contested and required so many issues as to the other deeds. The motion rulings on the part of the trial court, the to strike out, made subsequent to the amend record is unusually free of even technical ments to the answer eliminating the issues error. as to such other deeds, was too broad, being

In one respect, not referred to in the a motion to strike out all letters, including

briefs, we think the judgment should be those written subsequent to Nor. 13, 18991,

modified. Defendant is undoubtedly entitled and was properly denied, regardless of the

to legal interest upon the amount adjudged question as to whether the earlier letters

due her, less the costs awarded piaintiffs, were proper evidence upon the issue as to

from the time the judgment becomes final, the mining property.

to such time as the plaintiffs, under the 12. It is claimed that Phelps should have

judgment, tender her such amount, or in been allowed compensation for personal ser

the event that they fail to make such tender,

until the foreclosure sale ordered had in vices in the care and management of the mining property, and that the court erred

that event, has been had. We are of the in excluding certain evidence offered to show

opinion that the judgment as it now stands the value of such services. Upon the case

does not give her this, but limits her to the made by the findings, Phelps was, as to such

recovery of $11,112.03 less $1,185.05 costs,

regardless of how long such payment may be mining property, simply a mortgagee in possession, and was, therefore, not entitled to

deferred, and regardless of the fact that

the plaintiffs can have no legal right to the compensation for personal services on account of the mortgaged property. See 3

use of defendant's money, without interest,

for a single day after the determination as Pomeroy. Equity Jurisprudence (2d Ed.) $ 1216, 1217; Moss v. Odell, 141 Cal. 335, 337,

to the relative rights of the parties has be

come final. The judgment should therefore 74 Pac. 999.

be modified by inserting in the paragraph 13. It is claimed that the judgment for

adjudging that Wadleigh have 30 days in costs in favor of plaintiff is erroneous, for

which to pay the sum of $11,112.03 in gold the reason that in its written opinion in the coin, after the words "in gold coin,” the case filed May 18, 1903, the court said: “Let

following: "less the sum of $1,185.05 hereeach party herein pay his, her, or their own

inafter awarded plaintiff as costs, together costs." In the findings and decision in writ

with interest at the rate of 7 per cent. per ing. filed June 30, 1903, the court "further

annum on $9,926.98 from the date on which finds and decides, that the said plaintiffs are

this judgment shall become final to the date entitled to recover against the said defend

on which payment or lawful tender of payant, judgment for the plaintiffs' costs in

ment be made"; and also in the paragraph this action,” and the judgment, following

providing for a commissioner's sale of the the findings and decision, ordered that "plain

property in the event of nonpayment, by tiffs recover their costs incurred in this ac

inserting after the words "said indebtedness" tion." The claim is that the court having

in each of the three places wherein said announced its view as to the costs in the

Words occur, "less the sum of $1,185.05 herewritten opinion, could not in the findings and

inafter awarded plaintiffs as costs, together judgment make different provision from that

with interest at the rate of 7 per cent. per indicated in the opinion. This written opin

annum on $9,926.98 from the date on which ion was, however, no part of the decision in

this judgment shall become final." the case, cannot be treated as such, and

The judgment appealed from is modified was entirely without legal effect. It was,

as above indicated, and, as so modified, is as has been said by this court in a similar

affirmed. Appellant shall not recover her case, "no more than its name imports--the

costs of appeal. informal views of the court, subject to future modification,

the legal expression We concur: SHAW, J.; SLOSS, J.

(149 Cal. 575) CROCKER V. SCOTT, Tax Collector. (S. F.

3,089.) (Supreme Court of California. Aug. 17, 1906.) 1. TAXATION NATIONAL BANK SHARES STATUTES-CONSTRUCTION.

Rev. St. U. S. $ 5219 (U. S. Comp. St. 1901, p. 3502] providing that nothing therein contained shall prevent all shares of any national bank from being included in the valuation of the personal property of the owner or holder of such shares in assessing taxes imposed by authority of the state within which the association is located, etc., authorizes the assessment of shares of national banking associations located within a state, in such manner as the Legislature of the state may provide, subject only to the restrictions that the taxation should not be at a greater rate than is assessed on other moneyed capital in the hands of individual citizens of the state, and that the shares owned by nonresidents shall be taxed in the city or town where the bank is located and not elseWhere.

[Ed. Yote.--For cases in point, see vol. 45, (ent. Dig. Taxation, SS 27-30.]. 2. SAME-DISCRIMINATION.

The fact that under the laws of California shares of stock in state banks and other state moneyed corporations are not permitted to be itssessed and taxed is not sufficient to show that Pol. Corle. $S 3609, 3610, providing for the taxation of shares in national banks constitutes an invalid discrimination against national banks, where a different method has been adopted by the state for the assessment and taxation of all the property of such state corporations embrared in the assessment of shares of stock in national banks.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, $ 30.] 3. COURTS-RULES OF DECISION-CONSTRUCTION OF STATE STATUTES.

The Supreme Court of the state is the court of last resort for the determination of questions of construction of provisions of the state Constitution and statutes, and is therefore not bound by the decision of such questions by the federal Supreme Court.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Courts, $$ 329, 333.] 4. TAXATION-EXEMPTIONS - CONSTITUTIONAL PROVISIONS_STATUTES.

Const. 1879, art. 13, § 1, providing that all property in the state not exempt under the laws of the United States shall be taxed in proportion to its value, and defining the word “property" to include moneys, credits, bonds, stocks, dues, franchises, and all other matters and things. real, personal, and mixed, capable of private ownership, requires the taxing of everything capable of private ownership, and deprives the Legislature of power to exempt from taxation any such property not exempted by the Constitution itself.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, $$ 312, 313.) 5. SAME-TAXATION OF MONEYED CORPORATIONS–STOCK.

Const. 1879, art. 13, § 1, required taxation of all nonexempt property in proportion to value and defined "property to include moneys, credits, bonds stocks, dues, franchises, and all other matters or things, capable of private ownership. Pol. Code, 8 3607, provided that all property not exempt must be taxed, except that nothing therein contained should be construed to authorize double taxation, and section 3608 declared that shares of stock in corporations possessed no intrinsic value over the actual value of the property of the corporation, and that all

such property should be assessed and taxed, but that no assessment should be made of shares of stock, nor should any holder thereof be taxed thereon. The section was subsequently amended to exclude national bank shares. I eld, that since, under such provisions, all the elements of value contained in corporate stock_were subject to taxation to the corporation, Pol. Code, $S 3609, 3610, providing for the taxation of stock in national banks, did not constitute a discrimination against the latter, prohibited by Rev. St. U. S. § 5219 [U. S. Comp. St. 1901, p. 3502.

[Ed. Note. -For cases in point, see vol. 45, Cent. Dig. Taxation, $ 30.] 6. SAME FRANCHISE

DETERMINATION OF VALUE.

The value of the franchise of a corporation for the purpose of taxation is the difference between the market value of its shares, and the value of its tangible property.

[Ed. Note.--For cases in point, see vol. 45, Cent. Dig. Taxation, § 625.] 7. SAME — ENFORCEMENT OF TAX — PROCEEDINGS-INJUNCTION.

An injunction will not lie to restrain proceedings for the enforcement of a tax merely because the tax is illegal, unless it appears that the injunction is necessary to protect the rights of the property owner, and that he has no adequate remedy at law.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, $8 1230-1234.] 8. SAME-CLOUD ON TITLE.

In a suit to restrain proceedings for the enforcement of a tax, a general allegation that the acts of the officers will cast a cloud on complainant's title, and will be to her great and irreparable injury, is insufficient to justify such relief where the laws of the state clearly show that no such effect can be produceä.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, $ 1241.] 9. SAME-LIEN.

The only cloud on the title of a taxpayer created prior to the execution of a tax deed, as authorized by Pol. Code, $$ 3786, 3787, which cannot be executed by the tax collector until five years from the date of sale, is such cloud as arises from the fact that the tax is a lien on the taxpayer's property in faror of the state, attaching as of the date of the assessment, and continuing until the taxes are paid or the property is sold, which lien is not increased by anything required to be done by the tax collector prior to the execution of the deed.

Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, $ 1241.] 10. SAJE-INTERMEDIATE PROCEEDINGS-PUKPOSE.

Pol. Code, $$ 3764-3778, provides that on nonpayment of a tax, the tax collector shall make publication of the entire delinquent list within a certain period with a notice that, at a stated time, the property on which the lien exists will be sold to the state, etc., and requires an entry on the delinquent list and the filing of record of a certificate of the sale. Held, that the only purpose of such provisions was to preserve the rights of the state, and to start running the period of five years within which redemption can be effected, and at the expiration of which a deed may be issued to the state. 11. SAME_VALIDITY OF ASSESSMENT-PRIMA FACIE EVIDENCE.

Where property is sold for delinquent taxes, neither the certificate of sale nor any of the acts of the tax collector antecedent to the deed constitute even prima facie evidence as to the validity of the assessment or levy.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, $ 1377.]

12. SAME-EXECUTION OF DEED-INJUNCTION. is an appeal by defendant from the order Where property is illegally sold for taxes,

refusing to dissolve such injunction, the owner has full and complete protection against the creation of any cloud on his title

The principal question involved on this by a suit to enjoin the execution of the deed. appeal, and the one principally discussed by

TEd. Note.-For cases in point, see vol. 45, counsel, is as to the proper construction of Cent. Dig. Taxation, $ 1241.]

our revenue laws relative to the assessment McFarland, J., dissenting.

and taxation of the property of California

corporations, which question is of considerIn Bank. Appeal from Superior Court,

able practical importance, in view of the deCity and County of San Francisco; Carroll

cision of the United States Supreme Court in Cook, Judge.

the recent case of San Francisco National Suit by Ethel W. Crocker against Joseph H.

Bank v. Dodge, Assessor, 197 U. S. 70, 25 Scott, as tax collector, etc. From an order

Sup. Ct. 384, 49 L. Ed. 669. The assessment denying a motion to dissolve an injunction,

and taxation of plaintiff's shares of stock defendant appeals. Reversed.

were made under the supposed authority of Franklin K. Lane, City Atty., Percy V.

the act of 1899 (St. 1899, p. 96, c. 80) amendLong, City Atty., W. I. Brobeck, Asst. City

ing section 3608 of the Political Code, and Atty., William G. Burke, City Atty., and A.

adding two new sections to said Code, known S. Newburgh, Asst. City Atty., for appellant.

as "Sections 3609 and 3610." By these secLloyd & Wood (W. S. Wood, of counsel), for

tions, it is required that the stockholders in respondent.

every national banking association doing busi

ness in this state and having its principal ANGELLOTTI, J. Plaintiff, who is the

place of business herein, "shall be assessed

and taxed on the value of their shares of owner of 5,096 shares of the capital stock of the Crocker-Woolworth National Bank, sought

stock therein,” the same to be "valued and

assessed as is other property for taxation.” by this action to have it adjudged that the

It is provided that in making such assessment assessment and taxation of said shares for

to each stockholder, "there shall be deducted the fiscal year ending June 30, 1901, were il

from the value of his shares of stock such legal and void, and to obtain an injunction

sum as is in the same proportion to such restraining defendant tax collector from sell

value as the total value of its real estate" ing or declaring sold to the state, on account

(the real estate being assessed directly to the of said taxes, certain real property of plain

banking corporation), "and property exempt tiff also assessed to her, and upon which said

by law from taxation bears to the whole value taxes on the shares of stock constituted a

of all the shares of capital stock in said lien (Pol. Code, Š 3717), or making any cer

tional bank.” The statute further provides tificate of such sale, and for such other re

that in the assessment of said shares "each lief as might be proper. By the allegations

stockholder shall be allowed all the deducof her complaint, filed June 12, 1901, it ap

tions permitted by law to the holders of peared that the defendant had advertised said

moneyed capital in the form of solvent credreal property for sale on account of said

its." and also declares that the assessment taxes, and would on June 24, 1901, unless re

and taxation shall not be at a greater rate strained, sell said property to the state of

than is made or assessed upon other moneyed California, and enter the words "sold to the

capital in the hands of individual citizens of state" on the delinquent assessment list op

this state. These sections were enacted in an posite the tax levied on the property of plain

effort of this state to avail itself of the pertiff, and execute a certificate of delinquent

mission of Congress, evidenced by section 5219 tax sale for said real property, dated June

of the Revised Statutes of the United States 24, 1901, to the state, and that five years

[U. S. Comp. St. 1901, p. 3502], to tax shares thereafter he, or his successor in office, would

of national banking associations to the holdexecute a deed of said real property conveying

ers thereof. It is now so well settled as to to the state the absolute title to said property.

no longer require the citation of authorities An injunction pendente lite was asked for,

that, under this section, the holders of shares and upon the filing of the complaint such an

of national banking associations located withinjunction was issued, restraining defendant

in a state may be assessed and taxed therefor from selling or declaring sold said real prop in such manner as the Legislature of such erty to the state of California, from making state may provide, subject only to two rethe entry "sold to the state” on the delinquent strictions, viz: "That the taxation shall not assessment book opposite the tax levied on be at a greater rate than is assessed upon plaintiff's property, from making out or exe other moneyed capital in the hands of incuting a certificate of delinquent tax sale to dividual citizens of such state, and that the said property, and from in any manner inter shares of any national banking association fering with said property. Upon the filing of owned by nonresidents of any state shall be the answer, in which the allegations as to taxed in the city or town where the bank is the invalidity of the tax were denied, defend located, and not elsewhere.” While there are ant moved that this injunction pendente lite general allegations in the complaint to the be dissolved. This motion was denied. This effect that the assessment of plaintiff's shares

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