TRUST (Continued). of the ownership and possession of the stock which stands on the books in the name of a deceased person, who indorsed the same in his lifetime, and which is alleged to have been assigned and delivered to plaintiffs, evidence may be given to establish such alleged ownership and possession, without further allegation, by showing that plaintiffs' ownership originated in a trust created by the decedent in his lifetime in said stock for the benefit of the plaintiffs, and that, in pursuance of said trust, the stock was delivered to plaintiffs by his executors. (Cahlan v. Bank of Lassen County, 533.) 21. PROOF OF OWNERSHIP-TRUST A NECESSARY PART OF PROOF.-The proof of the ownership and possession of the shares of stock alleged made necessary a disclosure of all of the facts out of which was to appear the ultimate fact of ownership, which showed that the shares were held in trust by the original owner thereof for the plaintiffs, and that their title and possession came to them in execution of that trust, shown by his indorsement thereof, and written statement of their ownership, and delivery of the shares to them by his executors. (Id.) 22. ULTIMATE FACTS ONLY REQUIRED TO BE ALLEGED.-The ultimate facts only which entitled the plaintiffs, as owners and possessors of the shares of stock, to the relief demanded, were required to be alleged. Probative facts are not required to be alleged, but are matter of proof. The averments of original ownership by the decedent in his lifetime, the transfer by him and possession in the plaintiffs, was sufficient to admit the evidence in support thereof, though it showed a trust in such owner. (Id.) 23. OWNER OF STOCK COMPETENT TO CREATE A TRUST.-It was competent for the owner of the stock to become the trustee of the trust created by himself therein for the benefit of the plaintiffs. One who owns property may so deal with it, while retaining the legal title, as to make himself a trustee for the benefit of another. (Id.) 24. TRUST PROPERTY RETAINED UNTIL DEATH-DIVIDENDS ON TRUST SHARES DURING LIFE.-The circumstance that the shares of stock held in trust for the plaintiffs were retained in the trustee's possession until his death, with power to receive the dividends thereon during his life, did not affect the validity of the trust in equity. In such cases, equity will look to the substance of the act alone, and will carry out the intentions of the trustee in the absence of fraud. (Id.) 25. TRUST IN PERSONAL PROPERTY HOW CREATED-NO SET FORM OF WORDS ESSENTIAL. A trust in personal property need not be in writing, and no set form of words is necessary to create it. Any words which indicate with sufficient certainty an intention or pur TRUST (Continued). pose to create such a trust will be effective, without the use of the words "trust" or "trustee." (Id.) 26. ACCEPTANCE-CONSENT OF BENEFICIARIES.-It was not necessary to the creation of the trust in the shares of stock by the owner that the beneficiaries should be informed of the trust, and should express an acceptance thereof to the trustee. The trust not having been rescinded, the consent of the plaintiffs to receive the stock held in trust by the owner from his executors in execution of the trust was sufficient to enable the beneficiaries to take advantage of it under section 2251 of the Civil Code. (Id.) 27. SUPPORT OF FINDING-INDORSEMENT OF SHARES TO PLAINTIFFS.A finding that the shares were indorsed to the plaintiffs by the former owner is sufficiently sustained by evidence that he indorsed them in blank, and that his intention in so indorsing them was to effect a transfer of them to the plaintiffs, as beneficiaries, and that his act had that effect. (Id.) 28. SUPPORT OF FINDING AS TO TRUST.-Though the evidence does not show that the word "trust" was used, yet it was sufficient to support a finding as to the existence of the trust alleged, where it showed by his declarations and acts beyond doubt that he did in fact hold the shares of stock in trust for the plaintiffs, and so intended. (Id.) 29. INEFFECTUAL GIFT EVIDENCE CONSISTENT WITH TRUST FOUND.— Though an ineffectual attempt to make a gift does not create a trust, and equity will not perfect an imperfect gift by establishing a trust, if none was contemplated, yet where the evidence is in every way consistent with the view taken by the trial court that a trust was contemplated, its findings establishing the trust must stand. (Id.) 30. DIRECTIONS ON ENVELOPE CONTAINING INDORSED SHARES-DELIVERY UPON DEATH-CONSTRUCTION-PROVED INTENTION.-Where the indorsed shares, witnessed by the bank cashier, were placed in an envelope containing the words, "In case of my death to go to Neva and Lena Cahlan," and were placed in a locked tin box deposited in the bank vault, and after receipt of dividends thereon during the life of the indorser they were delivered upon his death by his executors to plaintiffs, the language so used on the envelope is not to be construed as testamentary or as expressing a gift causa mortis, but the directions thereon are to be given effect in accordance with the purpose of the donor otherwise shown to have been his intention in making the indorsement. (Id.) See Deed, 10, 11; Estates of Deceased Persons, 1-4; Homestead, 14-16; Wills. UNLAWFUL ENTRY AND DETAINER. 1. UNLAWFUL ENTRY AND FORCIBLE DETAINER - PLEADING INSUFFICIENT ANSWER.-Where the complaint in an action for unlawful entry and forcible detainer alleges plaintiff's possession and right of possession of an eighty acre tract of land on a date stated, and for a long time prior thereto, the entry without right thereon by defendant and his subsequent withholding of possession from plaintiff, after service of notice to vacate and surrender the same, an answer denying that plaintiff was in the lawful possession of the entire tract at the date stated, and denying the entry and withholding of possession without right, is insufficient to raise an issue. (Blodgett v. Scott, 310.) 2. TRIAL UPON ORIGINAL ANSWER-FAILURE OF DEFENDANT TO JUSTIFY ACTS-NEW INSUFFICIENT ANSWER-MOTION FOR NEW TRIAL -ADMISSION CONSIDERED.-Where a trial was had upon the original answer without objection thereto, but defendant failed to justify his acts, and was allowed to file a new answer, which also raised no issues, the court, in passing upon his motion for a new trial, properly considered the admission made by his other failure to deny the material allegations of the complaint. (Id.) 3. RIGHT OF PLAINTIFF TO Judgment upON PLEADINGS-INSUFFICIENCY OF EVIDENCE IMMATERIAL.-The averments of the complaint not being denied, plaintiff was entitled to judgment upon the pleadings, and a judgment so sustainable cannot be reversed for insufficiency of the evidence for plaintiff adduced upon the trial. (Id.) 4. DOCTRINE OF EQUITABLE ESTOPPEL INAPPLICABLE.-Upon the facts appearing, the defendant is in no condition to claim the doctrine of equitable estoppel against the plaintiff, he having failed to introduce any evidence to contradict the allegations of the complaint or to justify his acts, or to raise any issue upon the complaint, when allowed to do so at the trial, and there being nothing to indicate that he was misled by the failure of the plaintiff to object to his first answer upon the trial. (Id.) VENDOR AND VENDEE. 1. OPTION TO PURCHASE LAND-CONSIDERATION-WANT OF MUTUALITY -COMMUNICATION OF ACCEPTANCE WITHIN DURATION ESSENTIAL.— Whether an option to purchase land is or is not based upon a consideration, there is a want of mutuality of obligation between the grantor and holder of the option, unless it is properly accepted; and the communication of acceptance of its terms must, in either case, be made within the duration of the option. If there is no consideration for the option, it may be revoked at any time before acceptance, which must be communicated prior to any revocation, to make it binding. If the option is based upon a consideration, the acceptance must be communicated within the time expressly limited VENDOR AND VENDEE (Continued). therefor, else the option expires by limitation, and no deed can be enforced under the contract conferring it. (Canty v. Brown, 487.) 2. ABSENCE OF GRANTOR OF OPTION-EFFORTS TO COMMUNICATE BY TELEPHONE-TELEGRAM SENT AFTER TIME LIMITED.-Notwithstanding the absence of the grantor of the option from his residence, and ineffectual efforts of the grantee to communicate with him by telephone within the time limited for the option, and the sending and receiving of a telegram one day after the expiration thereof, communicating the acceptance of the option, neither such ineffectual efforts nor such telegram changed the relations of the parties, or gave to the holder of the option any rights not conferred by the contract. (Id.) 3. CODE PROVISIONS-MODE OF COMMUNICATING ACCEPTANCE-LOSS OF RIGHT. The plaintiff, as holder of the option, could, under section 1582 of the Civil Code, have adopted "any reasonable and usual mode" for the "communication of its acceptance"; and under section 1583 of the same code, "consent is deemed to be fully communicated between the parties as soon as the party accepting the proposal has put his acceptance in the course of transmission to the proposer." The plaintiff, not having communicated his acceptance, nor put it in the course of transmission within the time limited by the contract, lost his right to demand a deed. (Id.) 4. ACTION BY GRANTEE OF OPTION FOR SPECIFIC PERFORMANCE-NONSUIT PROPERLY GRANTED.-In an action by the grantee of the option to enforce a specific performance of the contract under which it was conferred, a motion for a nonsuit was properly granted for want of any mutual contract of purchase between the parties. (Id.) 5. OPTION TO PURCHASE LAND-ACTION FOR MONEY PAID AND FOR BREACH-MARKETABLE TITLE-ABSENCE OF PROBABLE LITIGATION.— An action will not lie to recover money paid under an option to purchase land and to recover damages for its breach, where the abstract of the record furnished to the proposed purchaser shows a marketable title free from probable litigation to a moral certainty. (Reed v. Sefton, 88.) 6. OPINION OF ATTORNEY INADMISSIBLE.-The opinion of an attorney is not admissible in determining the question whether or not a title is marketable. (Id.) 7. RECORD OF OLD BOND FOR DEED-DEFAULT IN PAYMENTS FOR TWENTY-EIGHT YEARS-CONSTRUCTIVE ABANDONMENT-TITLE FROM OWNER.-Where the abstract of title showed the record of an old bond for a deed, under which there has been a default in payments for twenty-eight years, and a constructive abandonment of which is declared by a deed from the owner, from whom a marketable title appears of record for twenty-six years, during which the property has greatly enhanced in value, such title appears to be VENDOR AND VENDEE (Continued). free from probable litigation, at law or in equity, to a moral certainty. (Id.) 8. SPECIFIC PERFORMANCE-LAPSE OF TIME-CHANGED CIRCUMSTANCES. Time is material to the specific performance of a contract for a deed, whenever, from the change of circumstances, a specific performance such as would answer the ends of justice between the parties has become impossible. (Id.) (Id.) 9. CAUSE OF ACTION FOR RETURN OF MONEY BARRED BY LIMITATION.— 13. ABANDONMENT OF CONTRACT BY VENDOR-END OF CONTRACT-RE- |