(193 P.) The foregoing indicates the theory of McGinn upon which he claimed his exemption from taxation. The lower court however, BURNETT, J. The action was brought to, part thereof, and has never been, personal compel the defendant to refund taxes assess- property." ed and collected on a wharf and two warehouses constructed by plaintiff on certain lands at San Pedro, owned by the state of California, and leased to the plaintiff. The case, in some general respects, is similar to that by the same plaintiff against the city of Los Angeles (No. 2076), the opinion in which is filed herewith (Outer Harbor Dock & Wharf Co. v. City of Los Angeles, 193 Pac. 1371), and we shall not repeat the facts therein set forth. The only contention of appellant herein is that said improvements are exempt from taxation by reason of the fact that, being attached to the land, they are in contemplation of law a part of the land, and therefore in the same category as the land itself, which is not taxable, since it belongs to the state. In San Francisco v. McGinn, 67 Cal. 110, 7 Pac. 187, the question, though, is directly met and unequivocally decided contrary to appellant's claim. Therein a certain school lot in the city of San Francisco, which had been dedicated for school purposes forever (and therefore incapable of private ownership) was, pursuant to a special statute, leased to McGinn for a period of 50 years. The lease contained no provision relating to the construction of improvements by the lessee, or entitling the lessee to remove any improvements. McGinn constructed a four-story frame building, with basement, with a brick foundation, per mantly imbedded in and attached to the soil. rejected his contention, and the Supreme Court affirmed an order denying the motion for a new trial. Appellant suggests that the opinion in said cause is extremely short, and that probably the question involved was not thoroughly considered. There is also an intimation that the case is distinguishable by reason of the fact that therein the fee was capable of private ownership. But, in answer, it may be said that the decision has not been overruled; on the contrary, has been recognized since as sound by the Supreme Court, and that on appeal substantially the same points were made by counsel for McIt should be sufficient, therefore, to quote Ginn as appear in appellant's brief herein. from said decision the following: "It is not necessary to follow and answer in detail the various reasons given by defendant why he should not be held liable; it is sufficient to say that, for the purposes of revenue, the Legislature of this state has observed a distinction between real estate and improvements, and that distinction has been recognized by this court. We are of opinion that, for the purpose of revenue, the defendant was the owner of the property assessed, and that he is liable for the taxes." * California that, though the land may be exIndeed, the rule is thoroughly settled in The improvements were assessed for taxation to McGinn for the year 1881-1882, and empt from taxation because it belongs to the the suit was brought to collect said taxes. city, to the state, or to the United States, In McGinn's answer to the complaint he al-vidual for his own use and benefit are subyet improvements made thereon by an indileged that * "Said property mentioned in the complaint, and the whole thereof, at the time of the making of said supposed assessments and the levying of said supposed taxes, was, and the whole thereof, and still is, the property of the city and county of San Francisco, and lawfully dedicated to public school purposes forever, for the public school educational purposes of said city and county, and of the state of California. "That the improvements mentioned in the complaint are and always have been permanently attached to and are part of said real estate and lot of land described in the complaint, and themselves real estate. "That the property mentioned in the complaint as having been assessed is not, nor any 1 The opinion in the case cited was originally filed April 21, 1920. A rehearing was granted May 21, 1920, and on August 30, 1920, a new opinion was filed, which reads as set forth at the reference above given. ject to assessment and taxation. In support of the proposition, we may cite these additional decisions of our Supreme Court: Fall v. City of Marysville, 19 Cal. 391; People v. Shearer, 30 Cal. 645; Los Angeles v. The Los Angeles Water Works Co., 49 Cal. 638; San Pedro, Los Angeles & Salt Lake R. R. Co. v. City of Los Angeles, 179 Pac. 393. The doctrine of the law as thus expounded relieves us of the necessity for a consideration of other cases cited by the parties herein or any independent investigation of the subject. It is due appellant's counsel to say that they have filed no reply brief, having concluded, no doubt, that respondent's position is impregnable. The judgment is affirmed. (49 Cal. App. 206) HUGHES v. HUGHES. (Civ. 3501.) (District Court of Appeal, First District, Division 1, California. Sept. 7, 1920.) I. Frauds, statute of convey property in riage invalid. 4-Oral agreement to consideration of mar Under Civ. Code, § 178, all contracts for marriage settlements must be in writing, and executed, acknowledged, or proved in like manner as a grant of land, and an antenuptial agreement, made orally by defendant husband to convey plaintiff wife valuable lands in consideration of marriage, etc., was invalid, not only under the statute specified, but also under the statute of frauds (Civ. Code, § 1624, subds. 3, 7). 2. Frauds, statute of 129(1) - Subsequent marriage does not lift bar of statutes from oral antenuptial agreement. The fact that the parties were afterwards married does not operate to lift the bar of Civ. Code, §§ 178, 1624, subds. 3, 7, from defendant husband's oral antenuptial agreement to convey valuable land to plaintiff wife in consideration of the marriage. Husband's Thos. K. Case, of Los Angeles, for appellant. G. P. Adams, of Los Angeles, for respondent. WASTE, P. J. Plaintiff brought this action against her husband, seeking specific performance of an alleged oral antenuptial agreement to convey real and personal propA demurrer to the erty after marriage. amended complaint was sustained, and, plaintiff declining to further amend, judgment was entered for the defendant, from which plaintiff appeals. It is alleged in the amended complaint that the defendant is 72 years of age, and possesses property of the value of more than $5.000,000. Between April 30, and December 24, 1918, the defendant importuned plaintiff to marry him, and offered, if she would do so, to convey to her property worth $600,000. To all these proposals the plaintiff turned a deaf ear. While the plaintiff was absent from the state of California, the defendant, pursuant to a design and intention to compel the plaintiff to marry him, moved himself and his personal belongings into the residence of plaintiff in Los Angeles, and there 3. Frauds, statute of 129(1) making of will not part performance of invalid took up his abode. He caused to be inserted and published in various newspapers, stateoral antenuptial agreement. ments to the effect that the plaintiff and himself were to be married about Christmas time, and caused copies of a photograph of plaintiff, which he took without her knowledge, or consent, from her residence, to be published in connection with these notices. Subsequent making of defendant husband's will in favor of plaintiff wife following their marriage held not such part performance of the oral antenuptial agreement between them to make such will as to take the alleged contract out of Civ. Code, §§ 178, 1624, subds. 3, 7. 4. Frauds, statute of 129(1)-Act done by husband does not estop husband to invoke statute against wife seeking to enforce invalid antenuptial agreement. An alleged act of performance by the husband, lifting the bar of the statute from the invalid oral antenuptial agreement sought to be enforced, not having been done by plaintiff wife, does not estop defendant husband from invoking the bar of the statute. 5. Frauds, statute of 119(1)-Husband not guilty of fraud entitling wife to enforcement of invalid antenuptial agreement. Defendant husband, sued by plaintiff wife for specific performance of his invalid oral antenuptial agreement to convey valuable property to her in consideration of marriage, held not guilty of such actual fraud as to entitle plaintiff wife to equitable relief against him, despite the unenforceable character of the oral agreement under Civ. Code, §§ 178, 1624, subds. 3, 7. Finally, so it is alleged, the defendant, by pretending he was seriously ill, induced the plaintiff to go to him at Santa Barbara, where he then was. On her arrival there she found that the defendant was not ill, but had so represented himself, in order to cause her to come to him. She then learned for the first time of the stories the defendant had published in the newspapers concerning the approaching nuptials. She discovered that he had also invited guests to be present at a certain time, had provided a wedding dinner, secured a marriage license, and had arranged for a minister to be present to perform the wedding ceremony. Plaintiff still persisted in her refusal to marry defendant. He thereupon stated that he would be ruined politically, that his social standing would be impaired, he would be disgraced and humiliated, and his opportunity to represent the state of California in the United States Senate, which he asserted had Appeal from Superior Court, Los Angeles been entirely arranged and determined upon County; Dana R. Weller, Judge. Action by Gertrude O. Hughes against Thomas Hughes. From judgment for de fendant, plaintiff appeals. Affirmed. See, also, 193 Pac. 148. He between himself and the Governor of the state, would thereby be lost to him. promised that if plaintiff would marry him he would give her, as her own, a valuable diamond ring, a diamond stickpin, an ermine coat, and an automobile. At the same time (193 P.) defendant orally reiterated his promises ed, in like manner as a grant of land is that, if plaintiff would marry him, he would, immediately after the marriage, convey to her the real property formerly agreed to be given to her, and would erect an imposing residence on land owned by plaintiff. He promised, also, to purchase other land for her, and erect thereon an apartment house, at a cost of $100,000. He further agreed to pay off, and discharge, a $60,000 mortgage upon property belonging to the plaintiff. Believing and being deceived by all of these representations, so plaintiff alleges, she relied upon the oral promises of the defendant to transfer and convey the property to her, and married him upon the day set. As a part of said oral antenuptial agreement, it is further alleged, defendant promised to execute and deliver to plaintiff his last will and testament, devising and bequeathing certain real and personal property to her. In apparent keeping with this promise defendant did, on the second day of January, 1919, execute and deliver to the plaintiff a will, which is set out in the complaint, whereby he devised and bequeathed to her real and personal property, and wherein he nominated plaintiff sole executrix without bonds. In no other respects have the antenuptial promises been carried out. On the contrary, so it is alleged, the defendant has refused to perform his agreement. Plaintiff seeks a decree requiring the defendant to transfer, convey, and assign to her the real and personal property which she alleges he agreed to give to her, and asks for the appointment of a receiver to carry out its provisions. She further asks that, in case specific performance cannot be decreed as to any of said property, she be awarded damages to the extent of its value. The demurrer was both general and special, but the principal question to be considered on this appeal is the sufficiency of the allegations of the amended complaint, in view of the lower court's determination that it does not contain facts sufficient to state a cause of action. The conclusion we have reached upon that point is determinative of the entire case. * required to be executed, acknowledged or proved. Civ. Code, § 178. It is equally clear that the agreement alleged by the plaintiff to have been made by the defendant, and pleaded as an antenuptial contract, is not only one required to be in writing, but also falls within the inhibition of the statute of frauds, and is therefore invalid. Agreements made upon consideration of marriage, other than mutual promises to marry, and agreements to devise or bequeath any property, or make any provision for any person by will, are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged, or his agent. Civ. Code, § 1624, subds. 3, 7; Peek v. Peek, 77 Cal. 106, 108, 19 Pac. 227, 1 L. R. A. 185, 11 Am. St. Rep. 244; Monsen v. Monsen, 174 Cal. 97, 98, 162 Pac. 90. [2] The fact that the parties were afterwards married does not operate to lift the bar of the statute. "A promise made in anticipation of a marriage, followed by a marriage, is the exact case contemplated by the statute. It is plain that the marriage adds nothing to the very circumstances described by the statutory provision which makes a writing essential; in fact, until a marriage takes place, there is no binding agreement independent of the statute, so that the marriage itself is a necessary part of every agreement made upon consideration of it, which the Legislature has said must be in writing." Hunt v. Hunt, 171 N. Y. 396, 400, 64 N. E. 159, 160 (59 L. R. A. 306); Pomeroy's Equitable Remedies, par. 829; Welch V. Whelpley, 62 Mich. 15, 22, 28 N. W. 744, 4 Am. St. Rep. 810; Adams v. Adams, 17 Or. 247, 254, 20 Pac. 633. The allegations of the amended complaint bring the promises of the defendant in the instant case squarely within this rule. Again and again it alleged that the defendant promised plaintiff "that if she would marry him he would transfer and convey (the property) to her immediately after said marriage." In fact, every single promise is predicated upon the proposition, that, "if she [plaintiff] would marry him [defendant] he would" do thus and so, "soon after," or "immediately after," marriage. The only consideration, therefore, for the defendant's promises was the marriage of the parties, which was not of itself sufficient to take the contract out of the statute of frauds. Peek v. Peek, supra; Trout v. Ogilvie, 182 Pac. 333. [1] According to the allegations of the amended complaint, the plaintiff and defendant "by and through said oral antenuptial agreement, and pursuant to the defined terms thereof, as stated by said defendant to said plaintiff, ** * were to effect a disposition of defendant's properties in plaintiff's favor, so that upon the assump- [3, 4] The subsequent making of defendtion of the marital relation said property ant's will, in favor of the plaintiff, following rights of said plaintiff should become fixed the marriage, was not such part performance and determined." Plaintiff has thereby of the oral agreement to make such will as pleaded an agreement required by the stat- to take the alleged contract out of the statute to be in writing. All contracts for ute of frauds. Gould v. Mansfield, 103 Mass. marriage settlements must be in writing, 408, 409, 4 Am. Rep. 573; Swash v. Sharpand executed and acknowledged, or prov- | stein, 14 Wash. 426, 44 Pac. 862, 32 L. R. A. 193 P.-10 make a difference, and it held that, as the fraud had brought about an irretrievable change of the position of the wife, to wit, the marriage, equity should enforce the agreement. 796; In re Edwall's Estate, 75 Wash. 391, 134 | no intention of so doing, and was conveying Pac. 1041, 1046; McClanahan v. McClanahan, it to some one else, seemed to the court to 77 Wash. 138, 137 Pac. 479, Ann. Cas. 1915A, 461. Furthermore, the alleged act of performance in that regard was not done by the plaintiff, who is the party seeking to enforce the contract, and does not estop the defendant from invoking the bar of the statute. Foster v. Maginnis, 89 Cal. 264, 267, 26 Pac. 828; Fritz v. Mills, 12 Cal. App. 113, 118, 106 Pac. 725; Rathbun v. Rathbun, 6 Barb. (N. Y.) 98, 106. Conceding that the marriage of the parties was not, of itself, sufficient part performance of the parol contract to convey the property in consideration of the marriage, the appellant yet seeks to avoid the interposition of the bar of the statute, upon the ground of equitable fraud. Her marriage, she contends, was brought about by the actual fraud of the defendant, and she takes the position that the acts, representations, and promises of the defendant induced her to so irretrievably change her condition as to afford her ground for relief in equity. Her allegation is that her marriage with the defendant was procured by artifice and fraud, and upon the faith that the settlement of the property rights would be made. Her contention, therefore, is that the defendant should be required to make good his agreement, and not permitted to defeat it by pleading the bar of the statute. Peek v. Peek, 77 Cal. 106, 19 Pac. 227, 1 L. R. A. 185, 11 Am. St. Rep. 244, a case claimed by her to be almost exactly similar to the one at bar, is relied upon by appellant as conclusively establishing the doctrine contended for by her. In that case Peek orally promised his intended wife that if she would marry him he would, on or before the marriage, convey to her certain property. She relied upon this promise, and married him "for no other reason, or consideration." The conveyance was not made. Peek put it off by excuses and protestations, and on the morning of the marriage, without the knowledge of the intended wife, conveyed the property to his minor son by a former marriage. After the wedding, the parties went to live upon the property. A year later Peek deserted his wife, and the minor, by his guardian, brought suit against her to recover possession of the property, and obtained a judgment in his favor. The Supreme Court, in its opinion reversing the case, held that the foundation of the wife's claim, set up by way of cross-complaint, being the promise of Peek, was within the statute of frauds, and that the subsequent marriage of the parties was not such part performance as would induce a court of equity to give relief. But the fact that the marriage was brought about by the actual fraud of Peek, in inducing his wife to marry him, by promising to convey the prop The particular language of the opinion of interest in this discussion is found in the following quotation: "We do not say that the mere fraudulent omission to have an agreement reduced to writing would of itself be ground for specifically enforcing the agreement. But where the fraudulent contrivance induces an irretrievable change of position, equity will enforce the agreement. And the marriage brought about by the fraudulent contrivance is a change of position In Glass V. within the meaning of the rule. Hulbert, 102 Mass. 24, 3 Am. Rep. 418, in reasoning upon somewhat different facts, to the enforcement of the oral contract, the fraudulent conclusion that, in order to be ground for the contrivance must have induced some irretrievable change of position, the court said: "The cases most frequently referred to are those arising out of agreements for marriage settlements. In such cases the marriage, although not regarded as a part performance of the agreement for a marriage settlement, is such an irretrievable change of situation that, if procured by artifice, upon the faith that the settlement had been made, or the assurance that it would be executed, the other party is held to make good the agreement, and not permitted to defeat it by pleading the statute.' This, we think, is a correct statement of the law." Peek v. Peek, supra. in the Peek Case, was one relating to an The case of Glass v. Hulbert, quoted from oral contract for the sale of real property, and the language so strongly approved by our Supreme Court was pure dictum. The Massachusetts court, however, cites the early English case of Maxwell v. Mountacute, Prec. in Ch. 526, another and better report of the same case being found in Mountacute v. Maxwell, 1 Eq. Cases Abr. 19. The full report of these cases will be found in 24 English Reports (full reprint) Precedents in Chancery, at pages 235 and 541, respectively. In that case the plaintiff, the wife, brought a bill against the defendant, her husband, "setting forth that the defendant before her intermarriage with him did promise that she should enjoy all her own estate to her separate use; that he agreed to execute writings to that purpose, and had instructed counsel to draw such writings, and that when they were to be married, the writings not being perfected, the defendant desired this might not delay the match, in regard his friends being there it might shame him, but engaged that upon his honor she should have the same advantages of the agreement, as if it were in writing drawn in form by counsel (193 P.) effect, and afterwards the plaintiff wrote, appellant is not warranted by the principle, a letter to the defendant, her husband, put- or sustained by the authorities. ting him in mind of his promise, to which the defendant, her husband, wrote her an answer under his hand, expressing that he was always willing she should enjoy her own fortune as if sole, and that it should be at her command." To this bill the defendant pleaded the statute of frauds and perjuries which Lord Chancellor Parker allowed, saying: "In cases of fraud, equity should relieve, even against the words of the statute; as if one agreement in writing should be proposed and drawn, and another fraudulently and secretly brought in and executed in lieu of the former; in this or like cases of fraud, equity would relieve; but where there is no fraud, only relying upon the honor, word, or promise of the defendant, the statute making those promises void, equity will not interfere." Mountacute v. Maxwell, supra. The other cases, relied upon by the appellant, are either based upon facts, as was the Peek Case, bringing the decisions within the application of the doctrine announced by the English Chancellor, or they may be otherwise distinguished from the case at bar. In each there has been something more than mere failure, or refusal upon the part of the promisor, to execute an oral antenuptial agreement for a property settlement. In Petty v. Petty, 43 Ky. (4 B. Mon.) 215, 39 Am. Dec. 501, the wife charged that her husband promised that immediately after marriage he would settle on her at his death certain property, on which promise she closed the contract of marriage. A few days after the marriage, her husband disclosed to her that he had been induced to, and had, by an irrevocable deed of gift executed just before the marriage, made over all of his property to his children by a former marriage. On ap In the earlier citation of the case the peal the court held that it had no power to Chancellor said: "That where, on a treaty for a marriage, or any other treaty, the parties come to an agreement, but the same is never reduced into writing, nor any proposal made for that purpose, so that they rely wholly on their parol agreement, that unless this be executed in part, neither party can compel the other to a specific performance, for that the statute of frauds is directly in their way; but if there were any agreement for reducing the same into writing, enforce the marriage settlement, but upon the theory that the transfer was a fraud upon the dower right of the wife, allowed by the laws of that state, it directed the entry of a decree annulling the deed for the lands, so far as the same affected or incumbered the complainant's right to dower thereon. In Offutt v. Offutt, 106 Md. 236, 67 Atl. 138, 12 L. R. A. (N. S.) 232, 124 Am. St. Rep. 491, it was held that a definite and specific proposition in writing, made by the husband before the marriage, and accepted by the intended wife, followed by the consummation of the contract, entitled the wife to specific performance. Moore v. Allen, 26 Colo. 197, 57 Pac. 698, 77 Am. St. Rep. 255, was an action and that is prevented by the fraud and practice of the other party, that this court will in such case give relief; as where instructions are given, and preparations made for the drawing of a marriage settlement, and before the completing of it the woman is drawn, by the assurances and promises of the man, to perform it, and after to marry him." Maxwell v. Mount-in ejectment by one claiming under the hus acute, supra. band. The wife, by way of cross-complaint, alleged a parol antenuptial agreement be See, also, Browne on Statute of Frauds, tween herself and husband, who at the time par. 444. When read in the light of what we be lieve to be the only reasonable and true rule, as announced by the Chancellor, and having in mind the actual facts upon which the decision was based, the case of Peek v. Peek, supra, loses the weight of authority appellant would impart to it. It ceases to have compelling force in the instant case, in which, as we shall presently show, the circumstances relied upon by the appellant did not amount to such fraud as to bring the situation of the parties within the purview of a court of equity. To give that case, disassociated from its facts, the full construction sought by the appellant would have the practical effect of making it an authority for holding that marriage is such part performance of oral antenuptial agreements as to remove them from the operation of the statute of frauds, which is not the law. We think the broad application of the doctrine contended for by was the owner of the property, whereby he |