ten instructions as to what should be done' with the property in the event of her death. In Vance v. Smith, 124 Cal. 219, 56 Pac. 1031, the gift was not to take effect until some time in the future, and hence it was declared, invalid. In Denigan v. Hibernia, etc., Society, 127 Cal. 138, 59 Pac. 389, it was properly held that "the retention by the wife of the right in herself to withdraw the whole of the money from the bank" is inconsistent with the idea of a gift. This must be so, because it is not a gift unless the donor divests himself of all control and dominion over the property. In Pullen v. Placer County Bank, 138 Cal. 169, 66 Pac. 740. 71 Pac. 83, 94 Am. St. Rep. 19. John W. Clarke, Sr., for the purpose of making a gift of $1,000 to his son, John W. Clarke, Jr., drew his check upon the bank for that sum and delivered it to his son, saying that he could get the money from the bank, but after delivering it to him stated that he wished he would not present it until after his death. The son did not present it till the morning after his father's death. It was held that the gift was not complete, since the son did not present the check and secure possession of the money during the father's lifetime. However, the court said: "The check was not a symbolic delivery of the money, but it was a delivery of the means by which the son could obtain possession of the money." This would seem to meet the requirement of section 1147, Civ. Code, where the property is in possession of a third party; but, at any rate, the case is not controlling here, because the order in the case at bar was presented to the bank and accepted by it before the death of Mr. Ludwig. In Noble v. Garden, 146 Cal. 225, 79 Pac. 883, it was held that the transaction did not amount to a gift, where the deceased in her lifetime maintained dominion and control over the certificates of stock in controversy, and where she gave her agent oral directions to deliver the assigned shares to certain persons after her death, and the agent complied with the directions. Since the pretended gift was not to take effect until after the death of the transferror, it is clear that it could not be held to be a gift. The decision in Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. 415, 27 L. Ed. 500, was based upon an alleged gift of money represented by a certificate of deposit evidenced by the following writing on the back of the certificate: "Pay to Martin Basket of Henderson, Ky.; no one else; then not till my death.

** I may live through this spell. Then I will attend to it myself." It will thus be seen that the foregoing cases are not decisive here. As an illustration of transactions upheld as valid gifts, we may refer to Vandor v. Roach, 73 Cal. 614, 15 Pac. 354; Field v. Shorb, 99 Cal. 661, 34 Pac. 504; Ruiz v. Dow, 113 Cal. 490, 45 Pac. 867; Calkins v. Equitable B. & L. Association, 126 Cal. 531, 59 Pac. 30.

(Court of Appeal. Third District, California. July 30. 1907.)

1. JUDGMENT - CONCLUSIVENESS - ELECTION CONTEST.

A determination in an election contest, against the contestee's objection that the law authorizing "no nomination" to be printed on ballots, where no nomination had been made, was unconstitutional, and that hence no such ballot should be counted, became res judicata, barring the contestee from asserting the unconstitutionality of the statute in quo warranto subsequently brought against him by the contestant, in whose favor the contest had been decided.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, § 1251.] 2. SAME.

The final judgment in an election contest in favor of contestant was admissible on subsequent quo warranto by the people on the relation of the successful contestant against the contestee; the parties being essentially the same in both actions.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, § 1177.]

3. SCHOOLS AND SCHOOL DISTRICTS-SUPERINTENDENT OF SCHOOLS' RESIDENCE.

A successful contestant for the office of county superintendent of schools did not disqualify himself to hold the office because, pending the determination of the contest, he went to an adjoining county to teach a term of school, where he owned a house and personalty in the county of the contest. and left a considerable portion of his household goods there, claiming that county as his residence; his name remaining on the great register as a voter, and he returning when the term of school closed.

4. OFFICERS-FILING OATH-TIME FOR CON

TEST.

Pol. Code, § 907. prescribing the time within which one elected to an office must take and file his oath of office, does not apply where a contest is pending, and where a contest grew out of an election held November 4, 1902, and remittitur on the affirmance of a judgment for contestant was filed April 4, 1906, and he filed his oath and bond April 14th, he acted within a reasonable time in qualifying.

Appeal from Superior Court, El Dorado County: N. D. Arnot. Judge.

Quo warranto by the people of the state of California, on the relation of T. E. McCarty, against S. B. Wilson. From a judgment for relator adjudging him to be entitled to an office, defendant appeals. Affirmed.

W. F. Bray, for appellant. U. S. Webb, Atty. Gen., Chas. A. Swissler, and Abr. Darlington, for respondent.

HART, J. This is an action in the nature of a quo warranto to determine the right or title to the office of superintendent of schools of El Dorado county. The respondent obtained judgment in the court below, adjudging him to be entitled to the office, and appellant takes this appeal from the judgment, upon a bill of exceptions.

The history of the differences between the parties over the title to the office in question is as follows: On the 4th day of November, 1902, at the general state election held in California on that day, the relator and the defendant were rival candidates for the said office of superintendent of schools of El Dorado county. Thereafter a canvass of the returns of said election by the board of supervisors of that county established, at least prima facie, the election of the defendant, and he was by said board so declared elected, and thereupon a certificate of election issued to him by the county clerk. The relator was the then incumbent of the office, having been elected thereto at the general state election held in the year 1898. After the receipt of the certificate of his election, as declared by the board of supervisors, the defendant duly qualified by taking the oath of office and filing the same and recording his official bond, it having been first approved by the judge of the superior court, and upon the expiration of the previous term took charge of and entered upon the discharge of the duties of the office. Thereafter and within the time limited by the law, the relator instituted a proceeding in the superior court, under the authority of section 1111 of the Code of Civil Procedure, contesting the defendant's right to the office. A trial of the contest resulted in a judgment for the defendant, and thereupon the relator took an appeal from said judgment to the Supreme Court, and said judgment was thereafter reversed and the cause remanded "for further proceedings." McCarty v. Wilson, 146 Cal. 324, 82 Pac. 243. The grounds upon which the reversal of that case was founded involved rulings of the trial court overruling appellant's (respondent here) objections to the admission in evidence of a large number of ballots upon which the voters had stamped a cross after or opposite the words "No nomination," printed upon said ballots, and also because of the overruling of the objections to the reception in evidence of seven ballots containing as many votes for respondent in that case (appellant here), on "each of which ballots the voter had written a name in the blank column on the ballot, and had stamped a cross after each written name." Upon a retrial of the case in the court below, the objections to the counting of the said ballots were, in conformity with the ruling of the Supreme Court, sustained, thus eliminating them in the determination of the result of the election. The result of this ruling at the second trial was that the relator here received

the highest number of votes cast for the contested office, and was therefore, on the 12th day of June, 1905, adjudged by the trial court to be entitled to said office. On the 29th day of June, 1905, the county clerk issued, in pursuance of the said judgment, a certificate of election to the relator, who, upon the same day, duly qualified and made a demand upon the defendant to surrender to him the office. The defendant refused to turn over the office to the relator, but served and filed a notice of appeal to this court from the judgment entered in said case. On the 30th day of January, 1906, this court rendered its decision in said cause. affirming the judgment appealed from, and the remittitur certifying the judgment so rendered by this court was transmitted to the county clerk and received by that officer on the 4th day of April, 1906. Thereafter, and on the 14th day of April, 1906, the county clerk again issued to the relator a certificate of election, and, after again duly qualifying for the office, the respondent demanded said office of and from said defendant, who refused to surrender it to the relator, and continued to usurp and unlawfully withhold the same.

Four points are urged in argument by the appellant for a reversal of the judgment: (1) That that portion of section 1197 of the Political Code, as it existed at the time of the general state election held in the year 1902, at which the electors of El Dorado county voted for candidates for the office in dispute, requiring the words "No nomination" to be printed on the ballots, when no nomination had been made by a political party for any office to be filled at the election, etc., was unconstitutional. (2) That the court erred in admitting in evidence the judgment in the case of McCarty v. Wilson, entered in favor of the plaintiff therein upon a second trial of that case. (3) That the relator, at the time of his purported qualification for the office after the remittitur from this court in the case of McCarty v. Wilson, supra, had been sent down and filed in the court below, was ineligible to hold the office because he was not a citizen of El Dorado county. That the relator failed to qualify for the office within the time prescribed by law.

(4)

Counsel complains that, in the variety of forms in which the litigation of the question here has been before the courts of dernier resort, he has in vain vigorously insisted upon the determination of the proposition submitted by him that that portion of section 1197 of the Political Code, referred to here under the head of point No. 1, was violative of certain provisions of the state as well as the federal Constitution. The part of said section toward which hostility is thus directed was repealed by the Legislature of 1903 (St. 1903, p. 147, c. 134), but appellant declares that he is nevertheless entitled to a decision of the question. But, under the record before us, we think we are re

lieved from that duty, as we perceive nothing in the case at bar which is affected by the question; nor do we appreciate the importance of declaring that the criticised part of the section, having long since been repealed by the Legislature, is dead beyond the power or hope of resurrection. The proposition involves a moot question. It originally arose. however, in the first trial of the contested election case. Counsel for the plaintiff in that case objected to the counting of certain ballots, upon the ground that after the words, "No nomination," printed thereon, the voter had stamped a cross, and that thereby said ballots were wholly invalidated. Thereupon, counsel for defendant in that case raised the point and made the objection that the provision of the law authorizing the printing on the ballots the words "No nomination," in a case where a political party had in fact made no nomination, was unqualifiedly unconstitutional and void, and that consequently no ballot containing those words, whether a cross was stamped opposite them or not, should be counted. The trial court overruled the objection made by the plaintiff, as well as that interposed by the defendant in that case. The Supreme Court, as seen, reversed the cause, principally upon the ground that the court below erred in overruling the objection of plaintiff in said contested election case to the counting of the ballots upon which the words "No nomination" appeared with a cross stamped after them. It is at a glance perceivable that the objection challenging the constitutional validity of that part of section 1197, supra. referred to, cannot be raised here. The ob jection thus made simply meant that such ballots constituted testimony irrelevant to the issue in the election contest, for the reason that the act of printing the words "No nomination" upon the ballots was contrary to some provision of the Constitution. It having been one of the questions tried and conclusively determined upon the objection of appellant in the first litigation of the ultimate proposition in that case, and which is practically the same that is sought to be established by this proceeding, it became thereby res adjudicata. It does not matter that the form of the main question in that case was as to which of the rival candidates had been in fact and in law elected to the contested office, and therefore in whom was thereby invested the right and title to that office, while here the question, in form, is as to whether or not the defendant is usurp ing and unlawfully withholding the office from the relator. The fact is that it is undoubtedly correct to say that the ultimate point or final object sought to be achieved by both proceedings was and is to secure the occupation and control of the office. All the material issues tried and facts proven relevantly bearing upon such issues in the former

were necessarily, definitively and con

clusively determined by the judgment in that case. It follows, by consequence, that the question raised by appellant's objection upon constitutional grounds against the counting of the ballots in all cases where the words "No nomination" appear thereon, whether such words so appearing declared the fact and the truth or otherwise, having been passed upon and decided in the former case, is, as is true of all the other material questions therein adjudicated, merged in the judgment in said case, and upon which he is estopped from making an attack in a collateral proceeding, unless, of course, it appeared that the judgment was void upon its face or the record somewhere disclosed that the court did not have jurisdiction of the subject-matter or of the parties or either of them. No question here is raised that the judgment in that case was void for any reason.

As to the objection that the court erred in allowing in evidence here the judgment obtained by the relator at the second trial of the contest, counsel attempts to maintain that, upon the authority of the case of People ex rel. Drew v. Rodgers, 118 Cal. 394, 46 Pac. 740, 50 Pac. 668, the parties to the election contest and the parties to this proceeding are different and distinct from each other. He also claims that different issues were presented in this proceeding from those adjudicated in the former case; that the allegations in the complaint concerning the election contest, and the judgment therein, were not germane to any question here or necessary for a determination of any issues tendered in this cause, and should have been, upon his motion, stricken out. We are unable to agree with the learned counsel in this statement. There are, in the very nature of the proceedings before us, essentially some new issues tendered. For illustration, it is alleged by the relator that the defendant has unlawfully intruded into, usurped, and is unlawfully withholding the office from relator. This is an issue which was not, technically speaking, involved in the former case. It is also true that the defendant himself presents two new questions, numbered 3 and 4 in the order in which we are considering the points. But it does not follow from these considerations that the judgment in the former case was not an issue here. issue here. Indeed, it was an exceedingly important one to the relator-in fact, all-important, for without it he would have utterly failed to make a case against the defendant. In the case of Drew v. Rodgers, supra, the court below admitted in evidence the judg ment roll in the case of Drew v. Rogers (Cal.) 34 Pac. 1081. The plaintiff in the last-mentioned case was Moses M. Drew. The relator in the case subsequently tried was one Warren F. Drew. The object of both actions was to oust the defendant from the office of chief of police of the city of Sacramento. In the case of the People ex rel. Drew v. Rodgers, supra, the Supreme Court says: "The court

erred in admitting in evidence the judgment roll in the case of Drew v. Rogers, supra, and in holding that the defendant was estopped thereby from proving that he had been a citizen of the United States for more than 90 days prior to the election in March, 1892. The judgment was not between the parties to the present action, nor was it between the relator and the defendant." The relator in the case at bar was the contestant in the former case, and merely because in this proceeding the law requires that he must first obtain the consent of the Attorney General before instituting it, and because the people are, eo nomine, made parties to it, renders him none the less the real party in interest. The object of this proceeding is, as is manifest, prac tically to enforce and carry out the judgment in the election contest. The appellant refused to surrender the office to the party adjudged by the courts upon a trial of the question to be entitled to it. He was therefore an usurper of the office, and the relator was compelled to resort to this proceeding for the purpose of securing what had been judicially determined to be his right. In order to establish that right here, it was not only proper but absolutely necessary for him to present to the courts the evidence of his title. In what other way could he have established the allegations that the defendant was unlawfully withholding the office from him, and that he was himself, under the law, entitled to exercise the duties of the office? The defendant had, as his authority for occupying the office, the certificate of election issued to him, as required by law, by the county clerk, upon the declaration by the board of supervisors, after canvassing the election returns, that he had received the highest number of votes cast at the election for that office, and was consequently elected thereto. The election contest prosecuted by the relator resulted in the annulment of the certificate so received by the defendant, and the judgment of the court so annulling it was the only authority of the clerk for issuing to the relator the certificate evidencing his right to exercise the duties of the office. The ruling of the court upon the point under discussion was, as we have said, not only proper, but necessary. We have thus disposed of the constitutional question presented by counsel, and also the second point, in the order presented by us.

county for the purpose of teaching school. He owned a house and personal property in El Dorado county, and left a considerable portion of his household effects in his house. IIe testified that his residence in Placer county was only temporary, and because he was compelled to teach in order to earn a livelihood for himself and family. He never had any intention of abandoning El Dorado county as his home, and his name remained on the great register as a voter in that county; that as soon as the term of school he was teaching terminated he intended to and did return to El Dorado county. The court's finding against the contention of appellant upon this point is fully sustained by the evidence.

The contention that the relator failed to qualify within the time required by law finds no support either in principle or the decisions of the courts. It has been held in this state that, where a contest is pending for an office, section 907 of the Political Code, prescribing the time within which a person elected to an office must take and file his oath of office, has no application. People v. Potter, 63 Cal. 127. According to the agreed statement of facts here, the remittitur from this court certitifying the affirmance of the judgment of the court below was received and filed in the last-mentioned court on the 4th day of April, 1906, and the relator filed his oath and bond on April 14th. The relator acted within a reasonable time in qualifying.

Under all the circumstances of the case, as disclosed by the record, we think the defendant had no conceivable reason for withholding the office from the relator, after the decision of this court affirming the judgment and the order by the Supreme Court denying the petition for a rehearing of the case after judgment here.

There are some other points suggested, but we do not regard them worth noticing. The judgment is aflirmed.

We concur: CHIPMAN, P. J.; BURNETT, J.

(6 Cal. App. 117) DRINKWATER v. HOLLAR et al. (Civ. 354.) (Court of Appeal, Second District, California. July 25, 1907.)

1. QUIETING TITLE-PLEADING-DELIVERY OF DEED.

In an action to quiet title, an allegation in the answer of the delivery of a deed, under which defendants claimed, is deemed controverted under Code Civ. Proc. § 462, providing that the statement of new matter in the answer in avoidance or constituting a defense, must at the trial be deemed controverted by the opposite party.

2. DEEDS-DELIVERY.

Delivery of a deed is as essential to the passing of title as the execution thereof. [Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Deeds, § 116.]

3. EVIDENCE-PAROL-NON DELIVERY OF DEED. While possession of a deed by the grantee