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but that he never saw or heard of the memorandum found, and never knew or assented to the conditions therein specified. There is nothing in any of his letters to Phelps to indicate the contrary. A different question would be presented were the evidence such as to warrant the conclusion that Wadleigh knew of the memorandum and its contents, and might be held to have assented thereto, and the cases cited by counsel for defendant would then be in point. It does not appear that any delivery in escrow was ever made. It should be noted in this connection that Mrs. Smith was never in the state of California, and that Phelps never had any personal dealings with her, all the business being transacted through Wadleigh, who, apparently, was authorized by Mrs. Smith to use her property for his own purposes as he saw fit.

4. There is nothing in the point that, under section 1880, Code Civ. Proc., Wadleigh was incompetent to testify as to any matter of fact occurring before the death of Phelps. It is settled that this provision of our law applies only to actions upon such claims or demands against the decedent as might have been enforced against him in his lifetime by personal action for the recovery of money, and upon which a money judgment could have been rendered. Myers

v. Reinstein, 67 Cal. 89, 7 Pac. 192; Booth v. Pendola, 88 Cal. 36, 23 Pac. 200, 25 Pac. 1101; Fallon v. Butler, 21 Cal. 24, 81 Am. Dec. 140. The case of Bernardis v. Allen, 136 Cal. 7, 68 Pac. 110, cited by defendant, was a suit brought to declare a partnership in mining property, against the successors of a deceased person, and it was there recognized that, where an action is not technically founded upon a claim against the estate, the plaintiff is not within the prohibition of section 1880, Code Civ. Proc. While the reasons for the rule declared in that section may be as applicable in a case of the character before us as in the case of a money claim against a deceased, the Legislature has not seen fit to make the rule cover such cases.

5. No foundation for the defense of laches was laid by any averment in the answer of defendant. Cook v. Ceas, 147 Cal. 614, 619, 82 Pac. 370. As we have already held, the complaint on its face did not show laches. If we assume that, under such circumstances, a trial court in the exercise of its own inherent powers, may ever, in the absence of such a plea in the answer, refuse relief upon the ground that the evidence shows laches, it is clear that the evidence was not such as to warrant any such unusual action by the court in this case.

6. It is strenuously urged that plaintiff's action is barred by the statute of limitations, but the finding of the court against this contention cannot be disturbed. Under section 346, Code Civ. Proc., an action to

redeem a mortgage of real property may be brought against the mortgagee in possession at any time, unless the mortgagee has maintained an adverse possession of the mortgaged premises for five years after breach of some condition of the mortgage. As long as the mortgagee in possession by the consent of the mortgagor is apparently holding as such mortgagee and by virtue of his agreement with the mortgagor, and has not made manifest any other claim, his holding is not adverse. See Murdock v. Clarke, 90 Cal. 429, 27 Pac. 275; Peshine v. Ord, 119 Cal. 311, 51 Pac. 536, 63 Am. St. Rep. 131; Warder v. Enslen, 73 Cal. 291, 14 Pac. 874; Husheon v. Husheon, 71 Cal. 407, 12 Pac. 410; Raynor v. Drew, 72 Cal. 307, 13 Pac. 866. There was sufficient evidence to support the conclusion of the trial court to the effect that Phelps entered into possession of the mining property under the agreement alleged, the effect of which was to make him a mortgagee in possession, and that there was no adverse holding at any time prior to his death. The strongest evidence to the contrary is that contained in the letter of October 6, 1896, from Phelps to Wadleigh, which, taken in connection with all the rest of the correspondence and the evidence as to the dealings between the parties, is not sufficient to warrant us in holding that the finding is not sufficiently supported.

7. There was no trust shown by either complaint or evidence, except in so far as there is always a trust relation between a mortgagor and a mortgagee in possession. The duties imposed upon Phelps by the agreement alleged and found were only such as are incumbent upon a mortgagee in possession. It was left optional with him to work the mine or not, and to make leases of portions thereof or not, as he saw fit, and, under the law, independent of agreement, he was bound to pay from the rents and profits the expenses of such operations, and apply any net profits in the manner specified.

8. Defendant's contention that the amount adjudged to be paid to her by Wadleigh is too small, is principally based upon the fact that interest was allowed in such indebtedness only to April 18, 1901, although this action was not commenced until February 8, 1902, and judgment was not given until June 30, 1903. The trial court found, and there was sufficient evidence to support the finding, that on April 18, 1901, Wadleigh, having with him two sacks of coin containing $13,500, and being able, ready, and willing to pay his indebtedness, offered in writing to pay to defendant in the presence of her attorneys, the full amount due from him, upon condition that she make and deliver good and sufficient deeds of reconveyance of the mortgaged property, but that defendant refused to receive any payment

except as an unconditional payment, and expressly declared that she would make no reconveyance of any of said property. Although the precise amount named in the writing was $11,150, the offer was also to pay "any further sum of money due," and the evidence shows that the refusal to accept the terms of the offer was solely because of the condition annexed for a reconveyance of the mortgaged property and that the giving of any reconveyance was absolutely refused. On April 23, 1901, defendant commenced an action against Wadleigh in the superior court of San Mateo county upon the $7,120 note. On May 24, 1901, Wadleigh filed his answer in said action, setting up the facts stated in his original complaint in this action, and also alleging that, by reason of the fact that such note was secured by mortgage upon property none of which was in San Mateo county, the court had no jurisdiction of the action. The court, on December 30, 1901, finding the last plea stated to be sustained by the evidence, gave judgment for Wadleigh. Thereupon, on February 8, 1902, this action was commenced. As already stated, in her original answer to the complaint in this action, defendant denied that any of the deeds were given as mortOur Civil Code is clear and explicit as to the effect of a tender upon the running of interest. Section 1504 provides: "An offer of payment or other performance, duly made, though the title to the thing offered be not transferred to the creditor, stops the running of interest on the obligation and has the same effect upon all its incidents as a performance thereof." Such was held to be the effect of a tender in Ferrea v. Tubbs, 125 Cal. 687, 58 Pac. 308, where it was also held that no subsequent deposit of the money was necessary in order to keep the tender good. We presume that there can be no question as to this under our existing code provisions, nor do we think that there can be any question as to there having been a tender "duly made." Section 1498, Civ. Code, provides: "When a debtor is entitled to the performance of a condition precedent to, or concurrent with, performance on his part, he may make his offer to depend upon the due performance of such conditions." Undoubtedly, Wadleigh was entitled to have the reconveyance of the mortgaged property delivered upon payment of the mortgage debt, and was, therefore, entitled to make his offer depend upon the execution by defendant of such reconveyances. See Kofoed v. Gordon, 122 Cal. 314, 54 Pac. 1115; Ferrea v. Tubbs, supra.

According to the findings of the court, the amount named in the tender was more than sufficient to pay the indebtedness due on April 18, 1901, and the evidence appears to be sufficient to sustain this conclusion. There was evidence which, if believed by the trial court, was sufficient to warrant it

in concluding that Wm. Maguire, who actually superintended and managed the business of the mine, had an agreement with Phelps in regard thereto, under the terms of which he could not look personally to Phelps either for salary or money expended, but must look solely to the mining property therefor, and could continue in possession of such property until the proceeds thereof paid his claim. Maguire himself testified positively to this, and while he presented a claim against the estate of Phelps, such claim stated this agreement and stated no case of personal liability on the part of the deceased. Assuming all this to be true, as we must in view of the finding, the amount due Maguire from the mine was no part of the indebtedness due Phelps from the plaintiffs. If they recover the mining property, they will take it subject to any claim Maguire may have against it. are unable to see any inconsistency in the findings as to the amount due. A tender free from conditions which the creditor was not bound to perform having been duly made on April 18, 1901, the action of the court in refusing to allow interest thereafter accruing was correct.

9. The contention that the real motive of Wadleigh and Smith for the conveyances to Phelps was the defrauding of their creditors is fully answered by the findings as to the purpose of such conveyances, which findings, as we have already held, are sufficiently supported by the evidence.

10. It is claimed that the court should have dismissed the action for the reason that, under section 1597 of the Code of Civil Procedure, the controversy between these parties could be settled only in the court having jurisdiction of the probate proceedings in the matter of the estate of deceased, and that the sole remedy of plaintiffs was by petition to that court. It is sufficient to say, in reply to this claim, that section 1597 of the Code of Civil Procedure as construed by this court, is applicable only where the deceased was bound by written contract to convey. Cory v. Hyde, 49 Cal. 469, 471; Estate of Healy, 137 Cal. 474, 478, 70 Pac. 455.

11. It is claimed that many errors were committed by the trial court in admitting in evidence letters from Wadleigh to Phelps and from Phelps to Wadleigh. There is no claim that these letters were not received in due course of mail by the respective parties. An examination of those letters discloses no reason why they were not relevant and competent evidence. They constituted what were, in effect, conversations between the parties relative to their respective rights in the property that was subsequently in controversy, and were admissible, just as a conversation between the parties relative to such matters would have been admissible for the purpose of showing how each of

these parties, to the knowledge of the other, regarded this property, with reference to their respective rights therein. and their admissions in regard thereto, thus throwing light upon the ultimate questions to be determined as to whether the deeds were in fact originally given solely as security for an indebtedness, and whether there was any adverse holding by Phelps. It is suggested that the letters written prior to November 13, 1894, the date of the giving of the mining property deed, which was finally the sole matter in controversy, were incompetent and irrelevant so far as said property was concerned. If we assume this contention to be good, there was no error in admitting them, for, at the time of their admission, they were competent and relevant upon the then issues as to the other deeds. The motion to strike out, made subsequent to the amendments to the answer eliminating the issues as to such other deeds, was too broad, being a motion to strike out all letters, including those written subsequent to Nov. 13, 1894, and was properly denied, regardless of the question as to whether the earlier letters were proper evidence upon the issue as to the mining property.

12. It is claimed that Phelps should have been allowed compensation for personal services in the care and management of the mining property, and that the court erred in excluding certain evidence offered to show the value of such services. Upon the case made by the findings, Phelps was, as to such mining property, simply a mortgagee in possession, and was, therefore, not entitled to compensation for personal services on account of the mortgaged property. See 3 Pomeroy. Equity Jurisprudence (2d Ed.) §§ 1216, 1217: Moss v. Odell, 141 Cal. 335, 337, 74 Pac. 999.

13. It is claimed that the judgment for costs in favor of plaintiff is erroneous, for the reason that in its written opinion in the case filed May 18, 1903, the court said: "Let each party herein pay his, her. or their own costs." In the findings and decision in writing, filed June 30, 1903, the court "further finds and decides, that the said plaintiffs are entitled to recover against the said defendant, judgment for the plaintiffs' costs in this action," and the judgment, following the findings and decision, ordered that "plaintiffs recover their costs incurred in this action."

The claim is that the court having announced its view as to the costs in the written opinion, could not in the findings and judgment make different provision from that indicated in the opinion. This written opinion was, however, no part of the decision in the case, cannot be treated as such, and was entirely without legal effect. It was, as has been said by this court in a similar case. "no more than its name imports-the informal views of the court, subject to future modification, the legal expression

of those views being found, as only properly they could be found, in the formal findings of fact and conclusions of law." Montecito, etc., Co. v. City of Santa Barbara, 144 Cal. 578, 595, 77 Pac. 1113, 1119.

We have now discussed what may fairly be said to the main contentions of defendant. 14. Several hundred errors are assigned by counsel for defendant on this appeal, many of which assignments of error are based upon claims already discussed and disposed of. As to the others, we have examined each one, and find none that merits discussion here. There was no error that could be held to have prejudicially affected the substantial rights of the defendantindeed, for a case which was apparently so strenuously contested and required so many rulings on the part of the trial court, the record is unusually free of even technical

error.

In one respect, not referred to in the briefs, we think the judgment should be modified. Defendant is undoubtedly entitled to legal interest upon the amount adjudged due her, less the costs awarded plaintiffs, from the time the judgment becomes final, to such time as the plaintiffs, under the judgment, tender her such amount, or in the event that they fail to make such tender, until the foreclosure sale ordered had in that event, has been had. We are of the opinion that the judgment as it now stands does not give her this, but limits her to the recovery of $11,112.03 less $1,185.05 costs, regardless of how long such payment may be deferred, and regardless of the fact that the plaintiffs can have no legal right to the use of defendant's money, without interest, for a single day after the determination as to the relative rights of the parties has become final. The judgment should therefore be modified by inserting in the paragraph adjudging that Wadleigh have 30 days in which to pay the sum of $11,112.03 in gold coin, after the words "in gold coin," the following: "less the sum of $1,185.05 hereinafter awarded plaintiff as costs, together with interest at the rate of 7 per cent. per annum on $9,926.98 from the date on which this judgment shall become final to the date on which payment or lawful tender of payment be made"; and also in the paragraph providing for a commissioner's sale of the

property in the event of nonpayment, by inserting after the words "said indebtedness" in each of the three places wherein said words occur, "less the sum of $1,185.05 hereinafter awarded plaintiffs as costs, together with interest at the rate of 7 per cent. per annum on $9,926.98 from the date on which this judgment shall become final."

The judgment appealed from is modified as above indicated, and, as so modified, is affirmed. Appellant shall not recover her costs of appeal.

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. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 27-30.1.

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 assessed and taxed is not sufficient to show that Pol. Code, $$ 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 embraced 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, § 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. Held, that since, under such provisions, all the elements of value contained in corporate stock were subject to taxation to the corporation, Pol. Code, $$ 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. 3502.1

[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, §§ 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 produced.

[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 favor 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. SAME-INTERMEDIATE PROCEEDINGS-PUK

POSE.

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. Where property is illegally sold for taxes, the owner has full and complete protection against the creation of any cloud on his title by a suit to enjoin the execution of the deed. [Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 1241.]

McFarland, J., dissenting.

In Bank. Appeal from Superior Court, City and County of San Francisco; Carroll Cook, Judge.

Suit by Ethel W. Crocker against Joseph H. Scott, as tax collector, etc. From an order denying a motion to dissolve an injunction, defendant appeals. Reversed.

Franklin K. Lane, City Atty., Percy V. Long, City Atty., W. I. Brobeck, Asst. City Atty., William G. Burke, City Atty., and A. S. Newburgh, Asst. City Atty., for appellant. Lloyd & Wood (W. S. Wood, of counsel), for respondent.

ANGELLOTTI, J. Plaintiff, who is the owner of 5,096 shares of the capital stock of the Crocker-Woolworth National Bank, sought by this action to have it adjudged that the assessment and taxation of said shares for the fiscal year ending June 30, 1901, were illegal and void, and to obtain an injunction restraining defendant tax collector from selling or declaring sold to the state, on account of said taxes, certain real property of plaintiff also assessed to her, and upon which said taxes on the shares of stock constituted a lien (Pol. Code, § 3717), or making any certificate of such sale, and for such other relief as might be proper. By the allegations of her complaint, filed June 12, 1901, it appeared that the defendant had advertised said real property for sale on account of said taxes, and would on June 24, 1901, unless restrained, sell, said property to the state of California, and enter the words "sold to the state" on the delinquent assessment list opposite the tax levied on the property of plaintiff, and execute a certificate of delinquent tax sale for said real property, dated June 24, 1901, to the state, and that five years thereafter he, or his successor in office, would execute a deed of said real property conveying to the state the absolute title to said property. An injunction pendente lite was asked for, and upon the filing of the complaint such an injunction was issued, restraining defendant from selling or declaring sold said real property to the state of California, from making the entry "sold to the state" on the delinquent assessment book opposite the tax levied on plaintiff's property, from making out or executing a certificate of delinquent tax sale to said property, and from in any manner interfering with said property. Upon the filing of the answer, in which the allegations as to the invalidity of the tax were denied, defendant moved that this injunction pendente lite be dissolved. This motion was denied. This

is an appeal by defendant from the order refusing to dissolve such injunction.

The principal question involved on this appeal, and the one principally discussed by counsel, is as to the proper construction of our revenue laws relative to the assessment and taxation of the property of California corporations, which question is of considerable practical importance, in view of the decision of the United States Supreme Court in the recent case of San Francisco National Bank v. Dodge, Assessor, 197 U. S. 70, 25 Sup. Ct. 384, 49 L. Ed. 669. The assessment and taxation of plaintiff's shares of stock were made under the supposed authority of the act of 1899 (St. 1899, p. 96, c. 80) amending section 3608 of the Political Code, and adding two new sections to said Code, known as "Sections 3609 and 3610." By these sections, it is required that the stockholders in every national banking association doing business in this state and having its principal place of business herein, "shall be assessed and taxed on the value of their shares of stock therein," the same to be "valued and assessed as is other property for taxation." It is provided that in making such assessment to each stockholder, "there shall be deducted from the value of his shares of stock such sum as is in the same proportion to such value as the total value of its real estate" (the real estate being assessed directly to the banking corporation), "and property exempt by law from taxation bears to the whole value of all the shares of capital stock in said tional bank." The statute further provides that in the assessment of said shares "each stockholder shall be allowed all the deductions permitted by law to the holders of moneyed capital in the form of solvent credits," and also declares that the assessment and taxation shall not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individual citizens of this state. These sections were enacted in an effort of this state to avail itself of the permission of Congress, evidenced by section 5219 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3502], to tax shares of national banking associations to the holders thereof. It is now so well settled as to no longer require the citation of authorities that, under this section, the holders of shares of national banking associations located within a state may be assessed and taxed therefor in such manner as the Legislature of such state may provide, subject only to two restrictions, viz: "That the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state, and that the shares of any national banking association owned by nonresidents of any state shall be taxed in the city or town where the bank is located, and not elsewhere." While there are general allegations in the complaint to the effect that the assessment of plaintiff's shares

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