The facts necessary for an understanding | plaintiff is entitled to a further credit of of the case may be stated as follows: James $1,200; he having succeeded to the claim of Bean, being nearly 90 years of age and sick his brother James Edwin Bean against the and infirm, was desirous of dividing certain trust fund, payment of which was provided lands owned by him among his three sons. for. These lands were situated in different counties of this state and were all subject to mortgage. Bean was also the owner of a certain note secured by a deed of trust, upon which there was due the sum of $15,000. To carry out his plan for the division of his estate he proceeded to convey to each son the particular piece of property he desired him to have. He then transferred to his eldest son, James Edwin Bean, the note owned by him. The transfer was made in trust for various purposes, but particularly to pay off the incumbrances on the various parcels of land conveyed by him to his sons, so that as far as possible, each son might have his property clear of indebtedness. The father retained the income from all of the property for his support as long as he lived. The terms of the trust in relation to the property provided for the following payments: At the time of the conveyance of the different parcels of land allotted to plaintiff, one of those parcels, alluded to as the San Martin ranch, was subject to a contract of sale, and was thereafter sold by plaintiff thereunder for the sum of $8,350. The property when sold was still subject to the mortgage as above described. No part of the indebtedness had been released as provided for under the trust agreement, for the reason that the note assigned to the trustees for collection had not as yet been paid. The price paid by the purchaser of this property was made up by him assuming the $3,500 mortgage, the execution of a second mortgage of $2,850 and the payment of $2,000 in cash. With permission of the father, plaintiff retained the second mortgage of $2,850 and the sum of $1,500 in cash, making a total of $4,350, and the balance of $500 was devoted to the purposes of the trust. Thereafter the (1) The income to the father during his trustee received a partial payment of $8,250 life. (2) To the Bank of San Jose an indebtedness due from the trustor in the sum of $6,500. (3) A mortgage of $2,000 upon property situated in Alameda county conveyed to the appellant. on the note assigned to him. A part of this was applied to the liquidation of the first mortgage he was directed to pay under the terms of the trust, and he turned over the balance of $1,701.25 to the trustor to distribute as he had directed in his declaration of trust. Some time thereafter the balance of the (4) An indebtedness of $1,200 due to James trust note was collected, and the $2,000 inEdwin Bean. debtedness against the property situated in (5) A note indorsed by James Bean and Oakland, deeded to appellant, was paid, as James Edwin Bean in the principal sum of was also the sum of $700 on account of the $1,200; an indebtedness of $1,500 on prop-indebtedness of plaintiff to the Bank of Santa erty located in San Francisco; and also the payment of a certain mortgage indebtedness then owing by James Bean upon particular property conveyed to plaintiff as far as the fund would permit. The property alluded to in the last clause was situated in Santa Clara county, and was known as the San Martin ranch, upon which there was a mortgage of $3,500. At the time the trust in the $15,000 note was created the total debts, the payment of which was provided for, amounted to the sum of $16,400. As the payment of the debt of $3,500 on the San Martin property was subordinate to the payment of the other incumbrances and debts, the amount available for this purpose was but the sum of $2,100, which left it subject to a debt of $1,400, which was to be assumed by plaintiff. The various credits provided for plaintiff out of the trust fund were the following: The sum of $2,100 above mentioned; a sum of $1,200 due the Bank of Santa Clara; the sum of $1,500 to liquidate the indebtedness on a lot in San Francisco; and the further sum of $500 to be paid for the release of a mortgage on a lot sit Clara. The payment of both of these items was provided for. At this time there were due credits to plaintiff with which the trust fund was chargeable a $500 balance due the Bank of Santa Clara; the sum of $1,200 due the trustee, to which plaintiff succeeded; $1,500 indebtedness on the San Francisco lot; a $500 indebtedness on the Gilroy lot; and the credit of $2,100 on account of the San Martin ranch, together with the sum of $500 paid by plaintiff into the trust fund at the time of its sale. Upon these amounts the plaintiff had been paid the sum of $4,300, leaving a balance to his credit in the sum of $6,300. According to the terms of the trust, these debts should have been paid, but, notwithstanding this fact, a portion of the funds on hand were invested in certain corporate securities, and the father having shortly thereafter died, these securities came into the possession of the appellant, who lived with his father at the time of his death, and he claimed them under a gift, contrary to the trust provisions. At the trial the amount of the trust fund traced into the hands of the defendant rep ed to the sum of $4,625, together with the sum of $330, dividends paid thereon. Plaintiff further proved that the sum of $600 was diverted from the fund for the payment of street improvements or the benefit of the appellant not contemplated or authorized by the trust agreement. The amount of the trust funds so traced was less than plaintiff was entitled to receive under the terms of the trust. By its judgment the trial court awarded plaintiff the corporate stock, which it found to be of the value of $4,625. It also gave a personal judgment for the sum of $930, being the $600 paid for street work and the dividends accruing upon the stock. Plaintiff having proved, and the court having found, the existence of the trust, plaintiff was entitled to this judgment; he having traced these amounts as being part of the trust funds to which he was entitled. In conclusion it may be stated that it appears from the record that the appellant received the major portion of the father's estate under the division thereof. From this fact it is argued by respondent that appellant is in no position to question the validity of the settlement. As the trial court found upon sufficient evidence that a trust existed, the discussion of this question becomes unimportant. The judgment is affirmed. "I. I. Bennett having deed to Mrs. Elizabeth Woods the above mentioned property representing the same to be free and clear except a certain trust deed for $1,000.00. It appears upon examination of said title that there appears a judgment of $424.80 and $7.10 costs against G. W. Reilly in favor of G. B. Lohman docketed Sept. 18th, 1911, and recorded in Book 231, We concur: WASTE, P. J.; RICHARDS, J. page 192, of Judgments. Which the above nam WOODS v. BENNETT et al. (Civ. 2395.) (District Court of Appeal, Second District, Division 1, California. Feb. 21, 1919. Rehearing Denied March 22, 1919; Denied by Supreme Court April 21, 1919.) 1. COVENANTS ed Bennett agrees to settle with accrued inter- On the 16th day of May, 1912, respondent deeded to appellant the land described in the foregoing contract, "free and clear, except a certain trust deed of one thousand dollars 127(2, 4) - BREACH-IN-(except 1912 and 1913 taxes)." On May 24, CUMBRANCES-LIABILITY. Where there is an existing judgment against the land, the grantor is liable upon a covenant against incumbrances, at least for nominal damages, and is contingently liable to pay the amount of a judgment against the land upon its payment by the grantee. 2. CONTRACTS 67-CONSIDERATION-PRE EXISTING LIABILITY. 1912, appellant deeded the same property to Ellen B. Crowder, including in said deed like covenants against incumbrances as above noted. On June 5, 1912, the Los Angeles Abstract & Title Company issued a certificate to Crowder showing a judgment lien against said property, being the same judgment lien referred to in the contract above set forth. That certificate was introduced in evidence at the trial of this action, together with admissions sufficient to show that the judgment lien actually existed as recited in said contract. In December, 1912, the plaintiff paid Crowder the amount of said judgment, or perhaps it would be more accurate to say, paid to her by reason of said judgment an amount equal to the amount of the judgA grantor's liability on a subsequent agreement. It does not appear that Crowder ever ment with his grantee to pay a judgment against paid the judgment, but it does appear that the land is absolute, not contingent upon prior Bennett never paid it, and, so far as apsatisfaction of the judgment by such grantee. pears from the evidence, the judgment re The liability upon a covenant against incumbrances is extinguished by the intermediate grantee's acceptance of a subsequent agreement by her grantor to pay the incumbrance, and such extinguishing of liability is sufficient consideration for the agreement. 3. CONTRACTS 221 (3)-CONDITIONS-PAY MENT OF JUDGMENT. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes mained in force until the lien thereof expired by lapse of time. At the time of commencement of this action the lien of the judgment had not yet expired. The principal defenses urged against the action are that there was no consideration for the agreement, and that the plaintiff has not suffered any damage by reason of any breach thereof. The author of Devlin on Deeds (3d Ed.) § 918, says: "It is, I think, well settled that where the incumbrance has not been paid off by the purchaser of the land, and he has remained in quiet and peaceable possession of the premises, he cannot have relief against his contract to pay the purchase money, or any part of it, on the ground of defect of title. The reason is that the incumbrance may not, if let alone, ever be asserted against the purchaser, as it may be paid off or satisfied in some other way; and then it would be inequitable that any part of the pur chase money should be retained." But, at the end of section 920, he says: "If the covenant, however, is in the form of an agreement to pay and discharge the incumbrances, the covenantee, although he has not extinguished them, is entitled to recover the amount of the incumbrances." of the judgment as damages for breach of his agreement. The judgment is reversed. We concur: SHAW, J.; JAMES, J. PATTEN & DAVIS LUMBER CO. v. INMAN. (Civ. 2551.) (District Court of Appeal, Second District, Division 1, California. Feb. 27, 1919.) 1. APPEAL AND ERROR 766-BRIEFS. Where defendant and appellant alleges error in the granting of a codefendant's motion for nonsuit, and the record is presented in accordance with the method provided in Code Civ. to print in his brief any portion of the record Proc. § 953a, the fact alone that appellant omits showing, as required by section 953c, that the court erred in granting the motion, justified affirmance. 2. APPEAL AND ERROR 151(6)-DENIAL OF RELIEF TO ANOTHER-"AGGRIEVED." In a case where appellant's defense was that he acted for another, but he demanded no affirmative relief, but contented himself by ask These rules, as stated in the text-book, are ing that such other be brought in by plaintiff, supported by various cases there cited. [1] Concerning the rule first stated, it is said in Fraser v. Bentel, 161 Cal. 390, 394, 119 Pac. 509, 511 (Ann. Cas. 1913B, 1062): "Inasmuch, however, as the covenant against incumbrances is merely one of indemnity (Rawle's Covenants for Title, § 188), no more than nominal damages can be recovered on account on an incumbrance which has inflicted no actual injury upon the grantee." It thus appears that at the time when defendant made the agreement of June 6, 1912, the plaintiff was not in a position to have recovered substantial damages growing out of breach of the covenant contained in defendant's deed to the plaintiff, but she was in a position to have recovered at least nominal damages, and there existed a contingent liability to pay the full amount of the judgment upon its satisfaction, by payment by the plaintiff. [2] This direct liability upon the covenant contained in the deed was extinguished by plaintiff's acceptance of the subsequent agreement made by Bennett, and, in our opinion, this constituted a sufficient consideration for the agreement as made. [3] Upon the execution of this agreement the right of the plaintiff to have the judgment satisfied by the defendant became absolute, and was no longer contingent upon prior satisfaction of the judgment by the plaintiff. The defendant having failed to perform that agreement, he thereupon became liable to the plaintiff for the amount as a party to the action, he is not "aggrieved," and cannot complain of an order granting his alleged principal's motion for nonsuit, since it was plaintiff, not appellant, who was denied re lief. ed default. Richman filed an answer putting in issue the question of Inman's alleged agency in acting for him, and the result of the trial was that, at the close thereof, the court made an order granting Richman's motion for a nonsuit and gave judgment in favor of plaintiff as against Inman, from which he has appealed. While appellant states that he is "unable to find an error which would justify the reversal of the judgment in so far as the plaintiff is concerned," he nevertheless insists that the court erred in granting Richman's motion for a nonsuit.' Appeal from Superior Court, San Bernardino County; J. W. Curtis, Judge. tional Council of the Knights and Ladies of H. M. Willis and William Guthrie, both of SHAW, J. Plaintiff, as beneficiary therein, sought to recover upon an insurance policy [1] The record is presented in accordance issued by defendant to Norma Grace Mickwith the method provided in section 953a, schl. The answer alleged a breach of warCode of Civil Procedure, but, conceding ranty on the part of the insured in that she appellant's right to have the alleged error falsely represented that the death of her reviewed, he omits to print in his brief any mother, Mrs. Gould, was due to an attack of portion of the record showing, as required pneumonia, whereas, in fact, her death was by section 953c, Code of Civil Procedure, that due to pulmonary tuberculosis. Judgment the court erred in granting the motion. This went for plaintiff, from which defendant apalone, upon the authority of Jones v. Ameri-pealed. can Potash Co., 35 Cal. App. 128, 169 Pac. 397, and Anderson v. Recorder's Court, 171 Pac. 812, is sufficient ground to justify an affirmance of the judgment. [2] It appears, however, that while defendant in his answer alleged that in accepting the draft he acted as agent for Richman, he demanded no affirmative relief, but contented himself by asking that Richman be brought in by plaintiff as a party to the action; hence it is apparent that Inman is not aggrieved by the ruling. He, conceding the ruling erroneous, is in no position to complain because the court denied plaintiff the relief which it asked against Richman. The judgment is affirmed. [1] Appellant's sole contention, in which there is no merit, is that the finding of the court to the effect that the death of Mrs. Gould, the mother of the insured, was caused by an attack of pneumonia, as represented by her, and not from pulmonary tuberculosis, as alleged by the defendant, is not supported by the evidence. [2] The burden of affirmatively proving the falsity of the representation made by the insured, and upon which the policy was issued, devolved upon defendant (section 1981, Code Civ. Proc.; Penn Mutual L. I. Co. v. Mechanics' Savings Bank, 38 L. R. A. 69), which called Dr. Strong as the only witness who testified touching the cause of Mrs. Gould's death. Referring to the certificate of death We concur: CONREY, P. J.; JAMES, J. prepared by the witness, and wherein the cause of death was given as pulmonary tuberculosis, he stated that he first saw Mrs. Gould on her deathbed, at which time, after breathing not more than half a dozen times after he entered the room, she died as the MICKSCHL v. NATIONAL COUNCIL OF result of a hemorrhage which he presumed (District Court of Appeal, Second District, Division 1, California. Feb. 27, 1919.) 1. INSURANCE 665(3)-EVIDENCE-FALSITY OF REPRESENTATION. Evidence held insufficient to prove that insured's representation that her mother had died from pneumonia was untrue. 2. INSURANCE 646(3)-BURDEN OF PROOF FALSITY OF REPRESENTATION. In view of Code Civ. Proc. § 1981, insurer, seeking to avoid policy upon ground that insured misrepresented cause of her mother's death, has burden of proving the falsity of such representation; the truth thereof being presumed. was caused by tuberculosis, from which disease, in his opinion, she was suffering at the time of her death. On cross-examination, however, the witness stated that he was not positive that the deceased had pulmonary tuberculosis, since, in the absence of an autopsy, the only positive test in the determination of such fact would be a miscroscopic examination of the sputum, which was not made, and, when asked the direct question if at the time of her death she had pneumonia, replied: "That I could not say, but the immediate cause of her death was the hemor rhage, and not the tuberculosis." He further stated that he was not willing to swear positively that the woman did not die from the effects of pneumonia. "She may," said the witness, "have had pneumonia, but the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tiff, by failing to file affidavit denying its genuineness and due execution, as required by Code Civ. Proc. § 448, admitted genuineness and due execution of the deed, but could otherwise dispute its validity. immediate cause of the death was the hemor-deed in his answer and cross-complaint, plainrhage," and again repeated that he was not prepared to swear that she did not have pneumonia. He further stated the hemorrhage might have been due to other causes than tuberculosis, and that it was not impossible that the hemorrhage was caused from pneumonia. In view of the fact that Mrs. Gould died almost immediately upon the arrival of this physician, who then saw her for the first time, the testimony given by him was, as determined by the court, insufficient to prove the affirmative allegation contained in defendant's answer, that the warranty made as to the cause of Mrs. Gould's death was untrue, and in the absence of such proof the truth thereof is presumed. Piedmont & A. Life Ins. Co. v. Ewing, 92 U. S. 378, 23 L. Ed. 610; Yore v. Booth, 110 Cal. 238, 42 Pac. 808, 52 Am. St. Rep. 81. The judgment is affirmed. We concur: CONREY, P. J.; JAMES, J. BUBLITZ v. REEVES et al. (Civ. 2875.) (District Court of Appeal, Second District, Division 2, California. Feb. 26, 1919.) 1. QUIETING TITLE 47(1)—NONSUIT. In action to quiet title where there was evidence establishing plaintiff's title to a twothirds interest in the property, defendant was not entitled to a nonsuit. 2. APPEAL AND ERROR 1061(3)-REVIEWHARMLESS ERROR-DENIAL OF NONSUIT. If upon conclusion of whole case there is evidence on the material issues warranting submission of case to jury, denial of nonsuit, if error, was harmless. 3. TRIAL 377(2)-RECEPTION OF EVIDENCE -REOPENING HEARING OF EVIDENCE. Court may reopen hearing of evidence at any time before trial is finally concluded. 4. TRIAL 377(2)-RECEPTION OF EVIDENCE -REOPENING HEARING-DISCRETION. It is within court's discretion to reopen hearing of evidence and permit introduction of further evidence. 5. TRIAL 377(2)—RECEPTION OF EVIDENCE -REOPENING HEARING OF EVIDENCE-"END OF TRIAL." In action to quiet title, court was justified in reopening case before its decision and findings were made and filed and permitting plaintiff to introduce further evidence of his title, as trial is not ended until decision of court by its written findings has been made and filed. 6. PLEADING 291(4)-TAX DEED-VERIFIED DENIAL OF EXECUTION-ADMISSION. Where defendant in action to quiet title claimed property under tax deed and set out 7. TAXATION 789(3)-TAX DEED-PROOF OF TITLE-PRODUCTION OF DEED TO STATE. Production of tax deed from state to purchaser is insufficient proof of purchaser's title without production of deed to the state vesting delinquent taxpayer's title in state, though deed from state to purchaser recites that the property was duly sold and conveyed to the state for levied and were a lien upon the property. nonpayment of taxes which had been legally 8. TAXATION 810(3)-TAX DEED-RIGHTS OF PURCHASER. In action to quiet title in which defendant claimed land under tax deed, but failed to prove good title thereunder, evidence held too indefinite and obscure to justify court in reimbursing defendant for payments made in connection with his purported tax title. 9. APPEAL AND ERROR 757(1)-RECORDBRIEFS EVIDENCE. Where appeal is taken by reporter's transcript, appellant must comply with Code Civ. Proc. 953c, requiring parties appealing on the typewritten record to print in their brief or in appendix thereto such portions of the record as they desire to call to the attention of the court. Appeal from Superior Court, Los Angeles County; Clarence A. Raker, Judge. Action by G. HL. Bublitz against W. H. Reeves and others. Judgment for plaintiff, and defendant named appeals. Affirmed. J. Irving McKenna and Catherine A. McKenna, both of Los Angeles, for appellant. Carter, Kirby & Henderson, of Los Ange les, for respondent. SLOANE, J. This was an action by plaintiff to quiet title to a parcel of land in the city of Pasadena, county of Los Angeles. The defendant Reeves was the only defendant answering the complaint. By his answer he denied plaintiff's title, and claimed title in himself under a state tax deed from the tax collector of Los Angeles county, set out in full in a pleading filed as a cross-complaint. On the trial plaintiff introduced record evidence purporting to show chain of title from United States patent, through mesne conveyances, to himself, and rested. The defendant Reeves moved for nonsuit on the ground that the evidence was insufficient to show title in the plaintiff. The motion was denied, and, no further evidence being offered, the court directed judgment for the plaintiff. Thereafter, and before the deci |