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5. They are entitled, however, to only one-half the rents and profits accruing during the detention; defendant being liable for the remaining half to the owner of the other undivided one half of the estate.

Department 2. Appeal from superior court, Solano county.

Ejectment by Annie McGuire and others against P. C. Lynch. From a judgment for plaintiffs, defendant appeals. Modified.

H. H. McPike, for appellant. Frank R. Devlin, for respondents.

TEMPLE, J. Annie McGuire and four of her children sue in ejectment to recover the demanded premises, with damages for withholding the same. A demurrer was sustained to the complaint of Annie McGuire, and she failed to amend, but the suit was continued by the other plaintiffs. Defendant denied all the material allegations of the complaint, and pleads the statute of limitations.

The court finds, in substance, that in 1880 the property belonged to one Patrick McGuire, who was the father of the plaintiffs and the husband of the said Annie McGuire. He died in that year intestate, and the probate court duly set aside and assigned all the property of the estate to the widow and minor children for their support, under section 1469, Code Civ. Proc. That section then provided that if the value of the estate be found to be less than $1,500 the court shall assign, for the use and support of the minor children, the whole estate, after certain pay'ments, and there shall be no further proceedings in the administration unless further estate be found. It was further found that, on the 16th day of April, Annie McGuire executed and delivered to defendant an instrument in writing, purporting to be a deed, but in fact a mortgage, which has never been foreclosed. On the 28th day of September, 1890, defendant ousted plaintiffs, and has since unlawfully withheld said premises from plaintiffs. The value of the use and occupation is found to be $780, for which amount judgment was rendered, after deducting $249 for the care and preservation of the property and for taxes. Whether there was error in making the deductions is not a question here, for the plaintiffs have not appealed.

In effect, although not expressly, the court finds that the defendant is a naked trespasser, without right or title to any extent in the demanded premises. The evidence was ample to support the finding that the deed to Lynch was mortgage. It is contended that the court had no jurisdiction to determine that the deed from Mrs. McGuire was a mortgage, rather than a conveyance, because Mrs. McGuire had ceased to be party to the action. If the question was material to the issues made between plaintiffs and defendant, so far the court was bound to determine the matter. As to the statute of limitations, the court did not find that issue in favor of defendant, nor did the court find that the

right of Annie McGuire pas barred by defendant's adverse possession. Nor, indeed, does the evidence show that her right was barred by the statute. She testified that when defendant demanded possession of the premises she told him she would give him possession, that he might pay the debt due him from the rents. That being so, his possession was not adverse, and the statute did not begin to run.

The bill of exceptions is a mere skeletonstatement. Many documents are referred to as introduced, and it is said, "Here insert plaintiffs' exhibit,” etc., but the documents do not appear in the bill of exceptions. We can only conclude, therefore, that they are exactly as stated in the findings. It is found that the whole of the estate of Patrick McGuire was by the probate court "assigned to said widow and minor children for their use and support, and declared to be the property of said widow and minor children under and by virtue of the provisions of section 1469 of the Code of Civil Procedure of California." That section, as it then read, does not expressly state to whom the estate shall be assigned, but simply that it shall be assigned for the use and support of the widow and minor children. The preceding section, however, which is in the same chapter, provides that “when property is set apart to the use of the family under the provisions of this chapter,

if the decedent also left a minor child, or children, the one-half of such property shall belong to the widow or surviving husband, and the remainder to the child, or in equal shares to the children if there be more than one." In the absence of special provision in section 1469, this must control.

The children, therefore, were properly held to be entitled to an undivided one-half of the demanded property. The deed to defendant, being a mortgage, conveyed to defendant no interest in the property and no right of possession. Annie McGuire testified, in substance, that defendant was in possession as her tenant, but defendant denied this, and claimed to hold adversely. If he had admitted the tenancy, plaintiffs could only have recovered an undivided one-half. But the court found, according to his own testimony, that he was a mere trespasser. Plaintiffs, therefore, properly recovered possession of the entire property.

I see no plausibility, however, in the theory adopted by the court as to the rents. The widow was the owner of an undivided onehalf, and was entitled to the use of one-half for her support. Indeed, there is much more force in the contention that, being bound for the support of her minor children, she can claim all of it, than that the children can do SO. The defendant is still liable to a suit by her for her portion. The cause is there. fore remanded, with directions to the superior court to modify the judgment by deducting one-half of the sum recovered for rents

concur:

and profits, and as modified the judgment is established public highway. The court finds affirmed.

that the said strip (giving the same descrip

tion as in the complaint) is and has been a We MCFARLAND, J.; HEN

public highway, and has been used as such SHAW, J.

without interruption for about 15 years, and has been practically the principal road in a

northerly and southerly direction in the local(126 Cal. 579)

ity in which said road is situated, during all COMPTON, Road Com'r, v. CARR et al.

of said time; "that said strip of land was (L. A. 557.)

dedicated to the public as a public highway (Supreme Court of California. Nov. 7, 1899.)

by one Arthur Parks, Sr., many years ago, CONTRADICTORY FINDINGS.

who at the time of said dedication was the In an action under Pol. Code, $$ 2731, 2734,

owner of the tract of land through which said for the obstruction of a highway, the court found that a strip of land 66 feet in width, and of a

road passes; that said highway is of the unicertain length, as described in the complaint, form width of forty feet.” The court further was a public highway, that said strip was dedi

finds that the defendants obstructed said road cated to the public as a public highway by a certain person, that said highway was of the uni

as charged, and, as a conclusion of law, that form width of 40 feet, and that defendants ob- the plaintiff is entitled to a judgment to have structed said road as charged. The court failed the obstruction removed, and for costs. The to locate the 40-foot strip within the 66-foot

judgment entered upon the findings, after the strip. Held, that the findings were too contradictory to support a judgment.

preliminary recitals, reads: "Wherefore, by

reason of the law and the findings aforesaid, Department 1. Appeal from superior court,

it is ordered, adjudged, and decreed that the Riverside county.

plaintiff, Ambrose Compton, as road commisAction by Ambrose Compton, road commis

sioner of the First supervisorial road district sioner, against W. W. Carr and others, for the

of the county of Riverside, do have and reobstruction of a highway. From a judgment

cover judgment as follows: First. That that for plaintiff, and an order denying a new

certain highway in the county of Riverside trial, defendants appeal. Reversed.

described as follows is, and for many years Rolfe & Rolfe, for appellants. L. Gill, for has been, a public highway. [Then follows respondent.

the same description, by courses and dis

tances, contained in the amended complaint VAN DYKE, J. The plaintiff, as one of the and in the findings; being the strip 1 chain, supervisors of Riverside county, and road or 66 feet, in width.) Second. That said highcommissioner of his supervisorial district, way is of the uniform width of forty (40) brought this action against the defendants for feet,” and that the obstructions were placed the obstruction of an alleged public highway across the same as charged, and that the within his road district. The action is same be removed, together with plaintiff's brought under the provisions of the Political costs. Defendants moved for a new trial, Code: "If any highway duly laid out or erect- which was denied, and this appeal is from the ed is encroached upon by fences, buildings or judgment, and from an order denying a new otherwise, the road overseer of the district trial. may, orally or in writing, require the en- It is contended on behalf of the appellants: croachment to be removed from the high- | First, that the findings are contradictory and way." Section 2731. "If the encroachment inconsistent with each other in material matis denied, and the owner, occupant, or person ters; second, that the evidence does not supcontrolling the matter or thing charged with port the finding that there was or is a public being an encroachment refuses to remove or highway. permit the removal thereof, the road overseer The court found, as shown, that there was must commence, in the proper court, an ac- a public highway 1 chain, or 66 feet, in width; tion to abate the same as a nuisance; and if describing the same by metes and bounds. he recovers judgment he may, in addition to Owing to the nature of the testimony, or for having the same abated, recover ten dollars some other reason, the court also finds that for every day such nuisance remained after the dedicated road is only 40 feet wide; being notice, also costs in said action." Section the minimum width, fixed by law, of all pub2734. Defendants in their answer did not lic highways. Pol. Code, & 2620. The court, deny the encroachment,—that is, erecting the however, failed to locate the dedicated strip fence alleged to be on the highway,—but de- limited to 40 feet, and that remains, as it nied that the alleged highway was a public were, afloat. It may be located in the center highway, or ever dedicated as such. The of the wider strip (that is, 20 feet on each complaint, as amended, described by courses side of the line dividing the lots of the deand distances a strip 33 feet wide on each fendants), or all on one side of said exterior side of the common line dividing lots 2 and 3 strip, to wit, 33 feet on one side of the dividin the Arthur Parks tract in West Riverside ing line and 7 feet on the other. It is quite (the said strip being, in all, 1 chain, or 66 impossible to reconcile these contradictory feet, in width, by 22.68 chains in length), and and conflicting findings so as to support the alleges that this strip is, and for many years judgment, and for that reason, without conhas been, a duly laid out, constructed, and sidering the other point raised by the appel628). 1

lants, the cause will bave to be remanded. plaintiffs; that said Daniel Calkins did inThe judgment and order denying a new trial tend to transfer and deliver the same to are reversed.

plaintiffs upon the 30th day of December, 1896;

that thereupon, upon said We concur: BEATTY, C. J.; HARRISON, date, said Daniel Calkins delivered said cerJ.

tificates of stock to plaintiff F. G. Calkins; that said certificates have been in the pos

session of plaintiffs ever since said date in (126 Cal. 531)

their own right, and not as custodians of CALKINS et ux. v. EQUITABLE BUILD- the papers of said Daniel Calkins."

ING & LOAN ASS'N OF THE UNITED It is contended by appellants that the eviSTATES (YEOMANS, Intervener. L. A.

dence does not support the findings, and that

the findings do not sustain the judgment of (Supreme Court of California. Nov. 2, 1899.) the court. The only question presented in GIFTS INTER VIVOS-CORPORATE STOCK-IN. the briefs of counsel relates to the validity DORSEMENT OF CERTIFICATES.

of the assignment of the said certificates of An indorsement transferring stock was made on the certificates, reserving dividends

stock. The testimony of the plaintiff F. G. during the life of the donor. The certificates Calkins, as it appears in the transcript, is as were placed in an envelope, and delivered to follows: "I am one of the plaintiffs in the the donee, with instruction not to open it until

case, and a nephew of Daniel Calkins, dethe death of the donor, the intention being to make a gift. Held, that there was an executed

ceased. On the 30th day of December, 1896, gift, in the lifetime of the donor, of the stock, said Daniel Calkins called at my office, in the except the dividends reserved, within Civ. Code, city of Los Angeles, and, stating to me that $ 324, making stock personalty, and providing

he thought a great deal of my wife and myfor its transfer, by indorsement and delivery of the certificates, between the parties thereto.

self, and desired in some way to remember

us, produced the two certificates of stock Commissioners' decision. Department 2.

mentioned and described in the complaint of Appeal from superior court, Los Angeles plaintiffs herein. He said that he desired to county.

have the stock transferred to us in such a Suit by F. G. Calkins and wife against

way as to enable him to retain the dividends the Equitable Building & Loan Association

thereon while he lived. As this condition in of the United States. Robert Yeomans, as

the transfer of stock was unusual, he sugexecutor of the will of Daniel Calkins, de

gested that I have the assignment drawn up ceased, intervened. There was a decree for plaintiffs, and defendant and intervener ap

by an attorney. Accordingly I took the cer

tificates of stock which he handed me to the peal. Affirmed.

office of Mr. F. M. Porter, an attorney, and Flint & Barker, for appellants. F. M. Por- explained the matter to him, whereupon the ter and J. W. Swanwick, for respondents. following indorsement was written upon the

certificates, and each of them, to wit: 'For GRAY, C. This action was brought for value received, I hereby sell, assign, transfer, the purpose of obtaining the mandatory de- and set over to F. G. Calkins and Rosamond cree of the superior court directing the de- A. Calkins the shares of stock within menfendant corporation to transfer certain cer- tioned, reserving to myself the dividends detificates of stock on its books, and issue new clared upon the same during my life, and certificates to plaintiffs in place of those authorize the secretary of said association which the complaint alleges had been hereto- to enter such transfer on the books of said fore issued to one Daniel Calkins, and by association. Witness my hand and seal this him assigned to these plaintiffs. Daniel 30th day of December, 1896.' I returned Calkins having died subsequently to the said with the certificates of stock to my office, the assignment, Robert Yeomans intervened as assignment as indorsed on the certificates the executor of the last will of said Daniel was read over to Daniel Calkins, and was Calkins, and claimed that the said assign- satisfactory to him. (He had not accomment was void, and that the said shares of panied me to the office of the attorney.) He stock were a part of the estate of said de- thereupon signed his name to the said in, ceased. The plaintiffs had judgment in ac- dorsement, and his signature was witnessed cordance with the prayer of their complaint, by the two witnesses whose names are inand from this judgment and an order deny- dorsed on the certificates as witnesses. He ing a new trial the defendant and the inter- then placed the certificates of stock in an vener appealed. The cause was tried with- envelope, and handed the same to me. I out a jury, and the court found on the ques- suggested it,—that we put it in an envelope. tion of the transfer as follows: "That the After handing the stock to me, he suggested transfer of said stock fror Daniel Calkins that, if it was agreeable to us, he would like to plaintiffs was voluntarily made by said part of the money to go to give my son Fred Daniel Calkins, upon the consideration of an education, or something to that effect. love and affection which said Daniel Calkins He also said that he did not want his people bore to them, and not otherwise; that said to know that he made the gift. Thereupon, Daniel Calkins did not intend to make a partly at his dictation, I wrote upon the entestamentary disposition of said stock to velope containing the stock the following

* Rehearing denied December 2, 1899.

was

indorsement: 'Los Angeles, Cal., Dec. 30, have been done by them in the lifetime of 1896. Dear Fred and Rose: In handing you Daniel Calkins, and it is also found that this envelope I wish to make the following these things were done with the intent to requests: That the envelope shall not be make a present transfer, and not with the opened for one month after my death, and intent to make a testamentary disposition. that you give to your son Fred one-third of We think these findings are fully warranted the value therein, for his exclusive use. It by the evidence, and that the conclusion of is my desire that nobody but myself shall the trial court that a valid transfer of the know the contents hereof. He then signed stock

effected is fully supported. his name to said writing. This envelope Whether an actual gift and transfer of the containing the stock was then left in my pos- stock was accomplished depended principally session, and was by me placed in the safe upon the intention of the alleged donor. The in my office. Daniel Calkins had previously case of Ruiz v. Dow, 113 Cal. 490, 45 Pac. intrusted to me for safe-keeping certain valu- 867, is similar, in the principles involved, as able papers, which I kept in the same safe, well as in the facts considered, to the case but in a different compartment from that in now under consideration. The decision in which I placed the envelope containing the that case we regard as sound, and an examstock." On cross-examination the witness ination of it we think will show that it distestified, in substance: “At the time the en- poses effectually of every point of importance velope was handed to me, and the indorse contained in appellant's brief in this case, ment written thereon, I did not notice that and that no judgment other than the one enthe envelope was unsealed. The day after tered in this case could have been rendered the death of Daniel Calkins I noticed that herein consistently with that decision. The fact, and thereupon sealed the envelope. fact that the donor reserved to himself the This I did because Daniel Calkins really in- right to the dividends during his life did not tended that it should be sealed, and I in- affect the validity of the gift. The gift and tended that it should. It was simply an transfer of the stock were accomplished by oversight oi mine that it was not sealed. It the written assignment and delivery of the was agreed between us that it should be stock with the intention to make a gift theresealed. Within a week after the death of of to plaintiffs. The donor thereby gave up Daniel Calkins I opened the envelope, took to plaintiffs the title and control of the stock, the stock to the office of the Equitable Build- and he could not thereafter revoke the gift. ing and Loan Association, and asked to have The donees became the owners of the stock, it transferred on the books of the association and might have conveyed it away to a third to my name, and new certificates issued, party in the lifetime of the donor, subject to which was refused. I never presented the the reservation contained in the written asstock for transfer during the lifetime of signment. Of course, the donor did not give Daniel Calkins. There was no consideration away or pass title to the dividends which paid for the stock. It was not a sale; it he had expressly reserved, but every other was a gift."

interest and right in the certificates and in This testimony of plaintiff Calkins was the stock represented thereby passed to the corroborated in several particulars, and was donees. The cases of Zeller v. Jordan, 105 not contradicted at all, and the court finds Cal. 143, 38 Pac. 640, and Hart v. Ketchum, the several facts to which it relates in exact

121 Cal. 426, 53 Pac. 931, and the other Callaccord with said testimony. The question is, fornia cases relied on by appellant, differ do the evidence and findings show a com

materially as to their facts from the case plete and executed gift of the stock in ques

now under consideration, and furnish no tion by deceased, in his lifetime, to the plain-guide for this decision. We advise that the tiffs? “A gift is a transfer of personal prop- judgment and order be affirmed. erty, made voluntarily and without consid

We concur: COOPER, C.; BRITT, C. eration." Civ. Code, & 1146. “Whenever the capital stock of any corporation is divided

PER CURIAM. For the reasons given in into shares, and certificates therefor are is

the foregoing opinion, the judgment and or. sued, such shares of stock, except as here

der are affirmed. inafter provided, are personal property, and may be transferred by indorsement by the

(126 Cal. 509) signature of the proprietor, bis agent, attor

PEOPLE v. PIGGOTT. (Cr. 556.)1 ney or legal representative, and the delivery of the certificate; but such transfer is not (Supreme Court of California. Oct. 30, 1899.) valid, except as to the parties thereto, until

CRIMINAL LAW-LARCENY -- EVIDENCE

GESTÆ-INSTRUCTIONS-REFUSthe same is so entered upon the books of the

AL OF REQUESTS. corporation as to show the names of the par- 1. Under a statute declaring that an indictties by wbom and to whom transferred, the

ment must be so framed that a person of com

mon understanding may know what is intended, number of the certificate, the number or des

an indictment charging that accused stole money ignation of the shares, and the date of the from H., being the money and property of H., transfer.” Id. & 324. Everything necessary

sufficiently charges the ownership of the money to a complete transfer of the stock, as be

to have been in him at the time of the larceny.

2. An allegation of ownership by recital intween the parties, was found by the court to stead of by positive declaration in an indictment

1 Rebearing denied November 29. 1899.

RES

for larceny is sufficient to support a judgment | peals from the judgment and order denying of conviction.

his motion for a new trial. 3. Prosecuting witness was standing on the rear platform of a crowded ear, when it was

He insists the indictment is fatally declaimed that his pocket was picked of two fective. It alleges: “The said John Piggott purses, containing $30 and five $20 gold pieces, and Cal Childs, on the 11th day of February, respectively. Such witness testified that he

A. D. 1899, at the said city and county of San saw defendant's hand withdrawn from witness' pocket, and he thereupon grabbed him, and that

Francisco, did • • steal, take, and carhe saw defendant pass some article_to a co ry away from the person and immediate posdefendant, whom he also grabbed. There was session of Gregoire Henrioulle one hundred evidence that the co-defendant dropped the article passed to him on the car platform, where

and thirty dollars, gold coin of the United it was picked up, and found to be witness' $30

States, lawful money of the United States, purse intact. On being searched, five $20 gold

• the same being the money and pieces were found concealed on defendant. Held,

property of said Gregoire Henrioulle; and that the facts warranted a verdict of guilty. 4. Where prosecuting witness in a trial for

two money purses, of the value of fifty cents larceny testified that, when defendant pulled each in lawful money of the United States, his band out of witness' pocket, he grabbed him, said purses being the personal property of and, on seeing him pass something to a co-defendant, grabbed bim also, and shouted to a

said Gregoire Henrioulle." It is now insistfriend, "They are tobbing me," such statement

ed that there is no allegation in the pleading was a part of the res gestæ, and hence admissi- alleging the money stolen to have been the ble.

property of Henrioulle at the time it was 5. Where prosecuting witness, on being robbed, grabbed defendants, the testimony of a

stolen. It will be observed that the indictbystander to statements made by such prosecut. ment says, “being the money and property ing witness, while defendants were still in his of said Gregoire Henrioulle." It is now grasp, was admissible, as spoken in the pres

claimed that the word "being” refers to the ence of defendants.

6. Where a purse claimed to have been stolen time of the filing of the indictment, and not on a car was found on the car platform, it was to the time of the commission of the larceny, admissible as part of the res gestæ in a prosecu- and therefore the allegation is that the montion for larceny. 7. Where it was shown that five $20 gold

ey and property was the money and properpieces were found in defendant's stockings a ty of Henrioulle at the time of the filing of short time after the larceny, such coins were the indictment, and this would be the allegaproperly admitted in evidence, it appearing that coins of similar denomination and number had

tion of a fact of no materiality to the legal been stolen from prosecuting witness.

sufficiency of the pleading. Some ancient 8. Where defendant testified that he had English authority is cited to support the conplaced $100 in his stockings the morning of the

tention here disclosed, but, even conceding larceny, and on cross-examination stated that he always carried his money there, it was not

the soundness of the reasoning upon which error for the prosecution in rebuttal to show the conclusion is rested in those cases, still in that defendant was not in the habit of carrying this day, under the code procedure, we are money in his stockings, since defendant's evidence as to his habit of carrying money was ma

satisfied such a holding would be sticking in terial to the issue.

the bark. Our statute says that the indict9. Where defendant testified that he had ment must be so framed that a person of placed $100 in his stockings the morning of the

common understanding may know what is Tarceny, and on cross-examination stated that he always carried •his money there, testimony of

intended. While this pleading would have police detectives that they had searched defend- been better if the words "then and there" ant many times, and had found money on his had been inserted before the word "being," person but none in his stockings, though they had examined them, was proper in rebuttal,

still we are satisfied that their absence does though by such evidence it incidentally appeared

not render it void. Any person, even of the that defendant had been previously arrested. commonest understanding, would know from

10. Where defendant brought out, on cross-ex- the allegations here stated that he was charamination of witnesses, the fact that he had been previously arrested, the admission of other

ged with stealing the money and property testimony, tending to show such arrests, was

of Henrioulle, and that it was Henrioulle's not prejudicial.

money and property at the time it was stolen. 11. Where, in a prosecution for larceny, the

If he is charged with stealing Henrioulle's state presented suflicient evidence to warrant the jury in rendering a verdict of guilty, it was

money and property, it certainly must have not error to refuse defendant's request for an in- been his at the time it was stolen. This is struction that there was no evidence that de

the only reasonable and fair construction of fendant, and not another, either took or carried away money or other property from the person

the pleading. It is not possible that the de of the prosecuting witness, and without that fendant could have been misled by these al. evidence they could not find defendant guilty. legations. He understood them perfectly

well, and must have understood that it was Department 1. Appeal from superior court, city and county of San Francisco.

Henrioulle's money and property that he was John Piggott was convicted of grand lar

charged with having stolen. In the reports

of this state we find many indictments and ceny, and he appeals. Affirmed.

informations for larceny framed in this reGeorge D. Collins, for appellant. Atty.

spect as the one at bar, and, while their legal Gen. Ford, for the People.

sufficiency has been attacked upon many

grounds, they have been upheld. The par. GAROUTTE, J. Defendant has been con- ticular objection here presented possibly has victed of the crime of grand larceny, and ap- never been raised, presumably, we think, be

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