of land in possession thereof under a contract of sale, by the terms of which the vendor is to give a warranty deed of the property, conveying a good and perfect title thereto, cannot, upon the vendor's failure and inability to convey a good and perfect title, retain both the land and the purchase money until a perfect title shall be offered him, but he must pay the purchase price according to the contract, and receive such title as the vendor is able to give, if he chooses to retain the possession of the land, or he may rescind the contract, restore the possession to the vendor, and recover the purchase money paid, together with the value of his improvements, after deducting therefrom the fair rental value of the premises; and, if he fails and refuses to adopt either course, he is liable to an action of ejectment by the vendor." See, also, Bruschi v. Quail M. & M. Co., 147 Cal. 120, 81 Pac. 404; Haile v. Smith, 128 Cal. 415, 60 Pac. 1032; Hannan v. MeNickle, 82 Cal. 122, 23 Pac. 271; Gates v. McLean, 70 Cal. 42, 11 Pac. 489; Haynes v. White, 55 Cal. 38; McLeod v. Barnum, 131 Cal. 605, 608, 63 Pac. 924. The claim of the appellant, in this regard, is devoid of every equitable feature, in view of the fact that the damage from the alleged outstanding title had been definitely ascertained and such claim of title had been acquired more than two months before the date fixed for the payment of the purchase money, and the least the appellant could have done, in order to show a disposition to do equity, was to tender the amount due on the contract, less the amount paid in acquiring such alleged outstanding title, with interest thereon. See Gates v. McLean, 70 Cal. 51, 11 Pac. 489. Much is said by appellant as to the placing of valuable improvements by it on said land, but both answer and cross-complaint show that all this was done with full knowledge of the facts as to the alleged outstanding title, and after appellant had purchased the same.

See

As to the second claim of appellant, viz., that it is the owner of an undivided interest of the property, by reason of the purchase of the alleged outstanding title, appellant, having entered into possession under the vendors' title and in subordination to it, is here estopped from denying such title in defense to plaintiff's action for possession. Coates v. Cleaves, 92 Cal. 427, 430, 28 Pac. 580; Hicks v. Lovell, 64 Cal. 14, 20, 27 Pac. 942, 49 Am. St. Rep. 679; Holden v. Andrews, 38 Cal. 119. See, also, 29 Am. & Eng. Ency. of Law (2d Ed.) pp. 706, 707. There is no circumstance in this case excluding the same from the operation of the general rule on this subject.

Appellant was not entitled to any relief under its cross-complaint. The rule declared in Marshall v. Caldwell, 41 Cal. 611, as to the right of the vendee in possession, who discovers that his vendor owns only a portion of the land agreed to be conveyed, and is,

therefore, unable to perform his contract as to the remainder, to proceed to have the contract specifically enforced to the extent of the vendor's interest in the property, and to have abatement out of the purchase money for the deficiency, without restoring or offering to restore possession of the property, is undoubtedly the law, but it does not assist appellant. The only defect in the vendor's title alleged is the outstanding title of the Michael Garvey estate to an undivided interest in the property. This defect was removed by the appellant itself by the purchase by it, while in possession under the contract, and more than two months before the date for the payment of the purchase price, of the alleged outstanding title, for the sum of $300. The generally accepted rule is to the effect that, if the purchaser in possession perfects the title of the vendor pending the executory contract by buying in an outstanding claim, the perfected title inures to the benefit of the vendor for all the purposes of the agreement, and the utmost that the vendee can ask is to be reimbursed for his outlay in obtaining such title, with interest thereon. See 1 Warville on Vendors, 186; 29 Am. & Eng. Ency. of Law (2d Ed.) p. 618; Stephens v. Black, 77 Pa. 138; Fuson v. Lambdin, 66 S. W. 1004, 23 Ky. Law Rep. 2245: Austin v. McKinney, 5 Lea (Tenn.) 488; Wilkinson v. Green, 34 Mich. 221; Frink v. Thomas, 25 Pac. 717, 20 Or. 265, 12 L. R. A. 239. This rule is in full accord with the well-recognized doctrine that no one who goes into possession of land under another will be heard to dispute the title of that other during the continuance of the relation. Acquiring such outstanding claim during such continuance, in the language of the Supreme Court of Pennsylvania in Stephens v. Black, supra, "he becomes the trustee of his vendor." Under this rule, assuming the outstanding title to have been good, the title of the vendors was, for all the purposes of the agreement, perfected on April 30, 1904, and the deed then in escrow, ready to be delivered on payment of the purchase price, and which so remained until after appellant's default, offered a perfect title. Assuming that appellant would have been entitled to a conveyance of the whole property upon tendering, within the time fixed by the contract, the amounts specified therein, less the amount paid for the outstanding title, with legal interest thereon, it appears that no tender or offer of any kind. has ever been made, and there is nothing in the case excusing such lack of tender. Under these circumstances, appellant was not entitled to specific performance as to the whole property, and certainly was not entitled, as it sought by its cross-complaint, to specific performance of a portion only upon payment of a proportionate amount of the purchase price, upon the theory that it was the owner of the remaining portion agreed to

be conveyed, by reason of its purchase of an adverse title thereto, while it was in possession under the contract of sale. Appellant did not seek in this action any allowance on account of the money expended in acquiring the alleged outstanding title, and no question is here involved as to the right of appellant to relief on account thereof. Under these circumstances, and in view of what we have heretofore said, it is not necessary to determine whether the finding regarding the forfeiture of the interest of Michael Garvey to the other owners is sustained by the evidence. It is immaterial here whether the alleged outstanding title of Michael Garvey was good or bad.

Complaint is made that the court failed to make findings as to certain issues, but. in our judgment, the findings are sufficient as to all material issues, and a judgment will not be reversed or a new trial granted for failure to find as to immaterial matters.

It is further urged that the court should have tried the issues arising on the crosscomplaint and the answer thereto before trying the issues made by the complaint and answer. As to this, it is sufficient to say that, so far as the record shows, all the issues were tried together by consent of the parties.

There is no other point requiring notice. The judgment and order are affirmed.

We concur: SHAW, J.; SLOSS, J.

(151 Cal. 600)

SCHOSTAG v. CATOR et al. (S. F. 4.852.) (Supreme Court of California. Aug. 8. 1907.) 1. ELECTIONS-PRIMARIES-QUALIFICATIONS OF

ELECTORS.

Pol. Code. § 1366a, provides that in all places where the primary election law is in force each elector, at the time of registering or time of transferring registration, shall declare his party affiliation, and, if he refuses to do so, he shall not vote at the ensuing primary, and section 1361a empowers the several political parties to prescribe additional tests if they desire so to do for those who offer to vote for delegates to their respective conventions. Held, that such sections were not in conflict nor objectionable, as violating Const. art. 2. § 22. empowering the Legislature to provide for and regulate primary elections as constituting a partial exercise and a partial delegation of such power. 2. SAME.

Pol. Code, § 1366a, requiring each elector in precincts where the primary election law is in force to declare at the time of registering or transferring registration his party affiliation as a condition to his right to participate in the primary, is not void as a violation of Const. art. 2, § 1. in that it in effect provides an additional qualification to those prescribed therein for electors.

3. SAME REASONABLENESS.

Pol. Code, § 1366a, requiring electors at registration desiring to vote at primaries, where the primary election law is in force, to declare their party affiliation in order to be entitled to vote at the primary, is not void for unreasonableness, in that an elector changing his party affiliation after his registration and before the

5. CONSTITUTIONAL LAW-UNIFORMITY-VESTED RIGHTS.

Pol. Code, § 1366a, requires each elector at the time of registering to declare his party affiliation in order to entitle him to vote at the succeeding primary election, but declares that the section shall not apply to electors who registered before the act took effect, and permits them to vote at the succeeding primary, though their registration affidavits contained no declaration of affiliation. Held, that such excepted the section was therefore not unconstitutional electors had a vested right to vote, and that because of such exception for nonuniformity.

In Bank. Petition for a writ of mandate by Edward Gustave Schostag against Thomas V. Cator and others as constituting a board of election commissioners of the city and county of San Francisco. Writ denied.

Samuel M. Shortridge, for petitioner. Thomas V. Cator, for respondents.

BEATTY, C. J. This is a petition for a writ of mandate to compel the defendants to issue instructions to the officers appointed to conduct the approaching primary election in the precinct where petitioner is registered to permit him to vote the ballot of any political party lawfully participating therein, notwithstanding his refusal to comply with the requirements of a new section of the Political Code, known as "section 1366a,” which provides, among other things, that in all places where the primary election law is in force each elector at the time of registering, or of transferring registration, shall declare the name of the political party with which he intends to affiliate at the ensuing primary election or elections, that such name shall then be stated in his affidavit of registration, and that he shall not be allowed to vote on behalf of any other party, or for delegates to the convention of any other party, by virtue of that registration, unless before the close of registration he announces and has recorded a change of his party allegiance. If he refuses at the time of registering to give the name of his party, that fact is to be stated in the record, and in such case he is not permitted to vote at all at the ensuing primary, unless before the close of registration he declares his party allegiance by affidavit stating the name of the party with which he is affiliated.

The petitioner contends that this section is unconstitutional, and the defendants are in doubt as to its validity, not only for the reasons urged by the petitioner, but for the additional reason that on the same day (March 19, 1907) that the act adding section 1366a to the Political Code was approved another act was approved adding a new section

to be known as section 1361a, which, it is | suggested by counsel for defendant, brings both enactments in conflict with section 21% of article 2 of the Constitution, or, if either enactment can be held to be prior to the other, at least invalidates that act. The point of this objection is that section 2% of article 2, which empowers the Legislature to provide for, and regulate, primary elections, while it authorizes the Legislature to prescribe tests of the right of electors to vote at primary elections by direct enactment, or to delegate to the governing bodies of the respective parties the power to prescribe such tests, does not permit the Legislature to partly exercise and partly delegate such power, but, on the contrary, by clear implication forbids any division of this function. We think this objection is overrefined. The Legislature, by section 1366a (St. 1907, p. 677, c. 352), has prescribed a test or condition to be complied with by all electors of every party who desire to participate in the primary elections, and by section 1361a (St. 1907, p. 641, c. 340) has empowered the several political parties to prescribe additional tests, if they desire to do so, for those who offer to vote for delegates to their respective conventions. There is no conflict between the two acts, and nothing in the Constitution which forbids even by implication provisions so reasonable and so just. The Legislature having the right to reserve the exercise of the power of prescribing tests to itself exclusively, or to delegate the power to the several parties, is invested with plenary control of the whole subject, and, if it deems some general test, applicable to all parties, necessary as a matter of wise state policy, it does not, by prescribing such a test, preclude the delegation of a right to prescribe more specific tests for the electors claiming to be members of a particular party. The state has a general interest in guarding the purity of primary elections, especially since party conventions have become an essential feature of our system of choosing public officers, and every party has a special interest, in reserving to its own members the control of its own affairs. It would be a deplorable construction of the Constitution which would forbid the enactment of general laws in furtherance of the general interest of the state, except upon condition of denying to the governing bodies of the respective parties the right to exclude from participation in their primaries electors who, according to their own standards of party fealty, are not entitled to act with them. This is a right which parties have always exercised heretofore without question, and is essential to their preservation. Britton v. Board of Com'rs, 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115. Our conclusion is that, since sections 1361a and 1366a are entirely harmonious in themselves, neither is unconstitutional by reason of the enactment of the other.

The question which remains to be considered is whether section 1366a is unconstitutional for any of the reasons assigned by the petitioner. It is claimed in the first place, that, under the guise of providing a test upon which an elector may participate in a primary election, it, in fact, imposes an additional qualification to those prescribed for electors by section 1 of article 2 of the Constitution. We do not think so. What we call "the primary election" is really a number of primary elections equal to the number of parties participating, but conducted at the same time and at the same polling places by one set of public officers, acting in behalf of all the parties desiring to elect delegates to their respective conventions. Therefore, when an elector desires to register in a manner which will entitle him to vote at the primary election, he must be understood as desiring to act with some party, and not with any other party. The registrar is for this purpose the agent of the several parties, and is making up a list of voters for each one of them. It is therefore just as reasonable to require the elector to range himself with some particular party for the purpose of the primary election, as it is to require registration of all electors who desire to vote at the general election. By one registration is secured the right to vote at an election open to all registered electors, by the other is secured the right to vote at an election open to those only who belong to a particular party. In either case registration is merely a condition, and an entirely reasonable condition, prerequisite to the casting of a vote by a qualified elector.

These views, if correct, dispose of several other objections urged by petitioner, and relieve us of the necessity of taking them up seriatim. We shall, however, notice some of the arguments that have been most strongly urged upon our attention. It is contended that the test prescribed by section 1366a is unreasonable, because with the close of registration the elector loses his right to change his party allegiance in consequence of a change in his political convictions, and is precluded from taking part in the election of delegates to the convention of the party with which on the day of the election his more matured opinions would impel him to cast in his lot. This inconvenience certainly does result from the provisions of the act, but the Legislature, which must be presumed to have foreseen it, probably regarded such sudden conversions during the short interval between the close of registration and the date of the primary election as likely to be of such rare occurrence as not to justify the omission of a provision evidently designed to prevent unscrupulous and mercenary electors from holding themselves free down to the day of eléction to vote with any party, upon any corrupt motive. for the purpose of influencing the nomination of its candidates for public office, while without any interest in their

success, and perhaps with an interest in their defeat. If it shall sometimes happen that a conscientious voter is converted from one political faith to another between the close of registration and the primary election, he may console himself for the loss of his vote by the reflection that his loss is trifling in comparison to his share of the advantage to the state of which he is a citizen, flowing from a measure which tends to prevent a grave abuse, especially in those centers of population where the primary election law is made obligatory.

Another inconvenience suggested by the fact that in the city and county of San Francisco one political party entitled to participate in the primary election has determined not to hold a convention or nominate candidates is that the members of that party in this instance, and the members of all parties in similar cases hereafter, will be deprived of the right to vote at the ensuing primary. This inconvenience does not seem to afford valid ground of complaint, since it amounts only to this: That the members of a party which holds no primary election are merely prevented from interfering in the management of a party to which they do not profess to belong.

As to the meaning of section 21% of article 2 of the Constitution, we agree that it must be construed in the light of the evil to be remedied, and the course of legislation and judicial decision prior to its adoption. The evils to be remedied were the corrupt practices by which, in the absence of proper public control, primary elections were made to defeat the will of the bona fide members of political parties, and the course of legislation has been to enact one primary election law after another, which have as often been found unconstitutional by reason of various restrictions upon the legislative power contained in our fundamental law. The object of the people in adopting the amendment contained in section 21⁄2 of article 2 was to remove these restrictions, and to give the Legislature a practically free hand in dealing with the evils which their previous legislation had vainly attempted to cure. In view of these considerations, we do not feel justified in narrowing by construction the power conferred upon the Legislature by that section to prescribe tests of the right to vote at primary elections.

The last and most serious objection to the validity of the law is that it is not uniform in its operation, that it creates classes and imposes more onerous conditions upon one class than another. The point of this objection is that the act contains a saving clause in' favor of all electors who were registered before its enactment, permitting them to vote at this primary election notwithstanding their affidavits of registration contain no declaration of affiliation with any particular party. We do not regard this feature of the law as

fatal to its validity. As a permanent law of the state it creates no classes, and will be entirely uniform in its operations upon all electors. It is no ground for holding such a law unconstitutional that it saves the rights of some electors, who by complying with the law as it existed at the date of their registration secured the privilege of voting at all primary elections to be held during the time such registration holds good. We are not aware of any case in which a saving clause protecting vested rights has ever been held to invalidate a law general and uniform in other respects, and we think it not unreasonable to treat the rights secured by registration as meriting the same consideration in this connection as rights more strictly entitled to be ranked as vested rights. Writ denied.

We concur: SHAW, J.; HENSHAW, J.; SLOSS, J.; LORIGAN, J.

(151 Cal. 616) SAVINGS & LOAN SOCIETY v. BURKE, Tax Collector. (L. A. 1,643.)

(Supreme Court of California. Aug. 9, 1907. Rehearing Denied Sept. 5, 1907.) TAXATION-IMPERFECT ASSESSMENT EQUITABLE RELIEF.

Even if the provisions of Pol. Code, §§ 3628, 3650, as to assessing land by sections, applies to the assessment of a mortgage interest in lands, and such an interest was not so assessed. execution of a tax deed of such an interest will not be enjoined on this account, the owner of such interest not having tendered the amount of tax justly due from him, or at any time offered to pay to the tax collector the tax on such interest in any section, the amount of which is deducible from the deductions made on account thereof in the assessment of the mortgagor's interest

In Bank. Appeal from Superior Court, Santa Barbara County; James W. Taggart, Judge.

Action by the Savings & Loan Society against Edmund M. Burke, tax collector of the county of Santa Barbara. Judgment for defendant. Plaintiff appeals. Affirmed.

Canfield & Starbuck, for appellant. U. S. Webb, Atty. Gen., Geo. A.. Sturtevant, Deputy Atty. Gen., and E. W. Squires, Dist. Atty., for respondent.

SLOSS, J. This is an action brought to restrain the execution of a tax deed to the state, following a sale for nonpayment of taxes. A demurrer to the second amended complaint was sustained, and, plaintiff declining to amend, judgment went for the defendant. The plaintiff appeals.

The complaint in question sets forth thesefacts: The plaintiff in 1897 was, and ever since has been, the owner and holder of a mortgage interest in certain lands in Santa Barbara county. The mortgaged lands, consisting of some 8.800 acres, were included in territory which had prior to 1897 been di

vided into townships and sections pursuant to the laws of the United States. The owner of the fee was J. W. Calkins, and the land was assessed to him for the year 1897 by sections, as required by sections 3628 and 3650 of the Political Code. The mortgage interest of the plaintiff was, however, assessed in a lump sum, without apportionment or division among the subdivisions or sections composing the mortgaged property. The amount of the tax was likewise computed in the assessment book in a lump sum, and appears therein as amounting to $1,316.86. No part of the tax having been paid, the property was sold to the state (Pol. Code, § 3771), and the plaintiff, claiming that the failure to assess his mortgage interest by sections is fatal to the validity of the assessment and tax, seeks to enjoin the execution of a deed. For the purposes of this decision, we assume, but do not decide, that the provisions of the Political Code as to assessing land by sections are applicable to mortgage interests.

It is the law of this state, as declared in two decisions rendered since this appeal was taken, that the execution of a tax deed based on an imperfect assessment will not be restrained at the suit of one who does not offer to do equity by paying such tax as is, in morals and justice, chargeable against him. Couts v. Cornell, 147 Cal. 560, 82 Pac. 194, 109 Am. St. Rep. 168; Grant v. Cornell, 147 Cal. 565, 82 Pac. 192 109 Am. St. Rep. 173. The appellant does not dispute the correctness of this rule, but seeks to distinguish the case at bar from those cited. It is said that in Couts v. Cornell the defect in the assessment was that the property was not sufficiently described for purposes of identification, and that such defect in the description did not affect the moral obligation of the landowner to pay the tax. Here, however, it is claimed that the failure to assess the mortgage interest in parcels, according to the governmental subdivisions of the land, directly affected the obligation to pay a tax at all; that it is the privilege of the taxpayer, where the land is required to be assessed in sections, to pay (or redeem) as to some sections, allowing the taxes on the remaining sections to become delinquent; and that if the state does not, by separately assessing and taxing the sections, put the owner of the property in a position to exercise his right to make such partial payment, he is under no moral obligation to pay any part of the tax. Whatever apparent force this argument might have is destroyed by an inspection of the complaint and an examination of the provisions of the Political Code regarding assessment for taxation. The complaint contains a copy of a portion of the assessment roll. This includes the assessment to Calkins, the owner of the fee, showing a valuation of the property by legal subdivisions, and a deduction, on account of the mortgage, from the valuation of each parcel. On the same page follows the assessment of

the mortgage interest to plaintiff. The sum of the deductions from the assessment to Calkins equals the amount at which the appellant's mortgage interest is assessed. This assessment to the owner of the fee was in accordance with tue requirements of the Code. Under our system of taxation, the mortgage is treated as an interest in the land, and assessed at its full cash value. Pol. Code, § 3628. The land is entered in the assessment book by sections, with its cash value, and, where it is subject to a mortgage security, the assessor must enter "in the proper column, the value of such security, and deduct the same." Pol. Code, § 3650. The value of the mortgage security which is to be so deducted is the same as the "full cash value" at which the mortgage security is to be assessed. Since such deduction was made as to each section of the mortgaged land, the plaintiff could have readily ascertained, from the data necessarily appearing on the face of the assessment book, the amount of the tax justly chargeable against its interest in any one of the sections covered by its mortgage.

It is suggested that a payment as to a part of the mortgage interest which had been assessed as a whole would not have been accepted by the tax collector. If plaintiff in fact desired to free any specific sections of the land from the lien of the tax, there was nothing to prevent its offering to pay the tax properly chargeable to those sections. Such offer, even if refused, would have put it in a position to ask and receive the aid of a court of equity. If it never had the intention or desire to pay the tax as to any part of the land less than the whole, the failure to assess by subdivisions did not affect its obligation to pay the entire tax.

In either view, the appellant's failure to make any payment or tender leaves its case as devoid of equity as that of the plaintiff in Couts v. Cornell.

The judgment is affirmed.

We concur: BEATTY, C. J.; ANGELLOTTI, J.; SHAW, J.; LORIGAN, J.; McFARLAND, J.; HENSHAW, J.

(151 Cal. 589) JONES v. SUPERIOR COURT OF KERN COUNTY et al. (L. A. 2.071.) (Supreme Court of California. Aug. 6, 1907.) JUSTICES OF THE PEACE-APPEAL BONDSUFFICIENCY.

Code Civ. Proc. § 978, provides that an appeal from a justice court is ineffectual, unless an undertaking is filed in the sum of $100 for the payment of costs "on appeal," or if a stay of proceedings be claimed, in a sum equal to twice the amount of the judgment including costs, when the judgment is for the payment of money. Held, that where a plaintiff before a justice's court, desiring to appeal, filed a bond reciting such appeal, claiming a stay of proceedings and providing a sufficient penalty for the payment of the judgment appealed from "and all costs," if the appeal was withdrawn or dis