senger train within the meaning of the statute by reason of the fact that he was riding on such passenger train for the purpose of discharging a duty that he owed to train 21 and the crew thereof, of which he was clearly a member. He was a member of the crew of train 21, and the duty that he failed to perform was a duty that was imposed upon him because he was a brakeman upon such train and a member of its crew. The duty he failed to perform had no relation to the operation of the passenger train, upon which he was riding simply as a matter of convenience, but did have a most important relation to the operation of train 21 and the safety of its crew. [1] Before the amendment to section 1970 of the Civil Code of 1907 it would not be contended that the brakeman of a given train was not a fellow employee with the locomotive engineer of the same train. While Manning was riding upon the passenger train, he was not employed thereon within the meaning of the statute. He was still employed on the train of which he was the brakeman and flagman. He was then acting under the directions of the conductor of train 21. His mission, while riding on the passenger train, was because of his employment on and in the operation of train 21. He was just as much employed on train 21 as though he had been sent off on foot to flag against an expected approaching train. The cases cited from Texas, decided under the Texas statute, are not in point. Under the undisputed facts of this case the brakeman whose negligence caused the death of Mr. Forrest was not employed upon a train other than the one upon which decedent was employed. For this reason the verdict is not supported by the evidence, and the judgment and order must be reversed, and it is so ordered. HALL, J. We concur: COOPER, P. J. Civil No. 696. First Appellate District. December 20, 1909. BELINDA J. PAYNE, Plaintiff and Respondent, v. ANNA B. PAYNE, Defendant and Appellant. [1] ACTION TO SET ASIDE DEED EXTREME OLD AGE AND ENFEEBLED CONDITION OF GRANTOR-CLANDESTINE EXECUTION TO DAUGHTER-INLAW-DEED PROPERLY SET ASIDE.-A deed executed by a person over seventy-nine years of age, who was at times delirious, weak and very nervous, and most of the time confined to her bed and under the influence of medicines, is properly set aside, where it appears that the instrument was prepared by the attorney for the grantee, and executed, acknowledged and delivered in the home of the daughter of the grantor, while she was absent, and no mention made thereof to her or any other person until after the recordation of the deed, notwithstanding that the grantee was the daughter-in-law of the grantor, for whom the latter had great affection, and had at the latter's request left her own home to nurse the grantor. [2] ID.-TRANSACTIONS BETWEEN PARTIES IN CONFIDENTIAL RELATIONSHIP EQUITY.-Courts of equity not only view gifts and contracts which are made or take place between parties occupying confidential relations with a jealous eye, but they go further and forbid any persons, standing in a fiduciary nature, from making any profit in any way at the expense of the party whose interest he is bound to protect without the fullest and most complete disclosure. [3] ID.-ID.-ID.-EVIDENCE-BURDEN OF PROOF.-In such case the law does not presume consent, but casts the burden upon the person receiving such deed or benefiting by such transaction to prove that the same was fair, free from fraud or undue influence, and made by a person in full possession of his faculties. Appeal from the Superior Court of Santa Clara County-J. R. Welch, Judge. For Appellant-H. E. Wilcox, D. M. Burnett. For Respondent-Beasley & Fry. It is claimed that the finding of the trial court to the effect that the deed made by plaintiff was procured by undue influence, and executed while plaintiff was weak, feeble and mentally incompetent. is not supported by the evidence. We have carefully examined the evidence in the record, and in our opinion it is sufficient to support the finding. The plaintiff was over 79 years of age at the time she made the deed to the defendant, and very feeble, being confined to her bed most of the time. The defendant was the daughter-in-law, of whom she was very fond, being the widow of her deceased son and the mother of two grandchildren. Defendant had, at the request of plaintiff, left her home, and devoted her time and attention to the plaintiff as companion and nurse for some weeks prior to the time the deed was made. The evidence does not show any intentional fraud or deceit on the part of defendant, but on the other hand she appears to have been kind, patient and attentive during the days and nights she nursed and cared for plaintiff. Plaintiff was very feeble and under the influence of medicines most of the time. She talked a great deal, and at times incoherently, and seemed to fear that she would lose all her property. She told defendant that there were evil spirits in the house and that the spirits kept her from sleeping. She said that a web was being woven against her, and that the pills the doctor gave her had legs; she could feel them crawling in her stomach. She said her feet were Pandora's feet, and made other similar remarks. While the evidence is not sufficient to show that she was mentally incompetent, yet it does show that she was delirious at times, weak and very nervous. In such condition it is a matter of common knowledge that one will exaggerate the virtues of a friend who is kind and attentive, and even conceive a totally unfounded dislike, or even hatred, to one who has apparently been negligent or remiss. A hint or even a suggestion by one who has gained the confidence of such weakened and feeble person is often very potent in its results. We cannot say in this case that during the many days and nights in which the defendant had been faithfully and apparently lovingly attending to and nursing the plaintiff, such hints or suggestions were not made. The defendant had the deed prepared by her own attorney. Although in the home of plaintiff's daughter, Mrs. McGraw, the matter was not even mentioned to her, or to her husband, Dr. McGraw. The plaintiff did not advise with any third party, nor was it suggested to her that she do so. The notary who took the acknowledgment was brought to the house while Mrs. McGraw and her husband were absent. The deed was executed, acknowledged, delivered and recorded before anyone was informed of it other than the notary. In such case, even if we had doubts as to whether or not the deed was the free, voluntary act of the plaintiff, and if we were inclined to the belief that it was, we would not interfere with the finding of the trial judge. He saw the defendant upon the witness stand, and had the advantage of seeing and observing her and of hearing her voice while she was testifying. In such case, if error is committed it is better to err in favor of restoring the property of a feeble old woman to her dominion and control than to err in upholding a deed given under such circumstances as to cast suspicion upon it. [1[ Courts of equity not only view gifts and contracts which are made or take place between parties occupying confidential relations with a jealous eye, but they go further, and forbid any persons, standing in a fiducary position, from making any profit in any way at the expense of the party whose interest he is bound to protect without the fullest and most complete disclosure. This rule applies to all the variety of relations in which dominion may be exercised by one person over another. It applies as between parent and child, guardian and ward, husband and wife, attorney and client. [2] In such case the law does not presume consent, but casts the burden upon the person receiving such deed or benefiting by such transaction to prove that the transaction was fair, free from fraud or undue influence, and made by a person in full possession of his faculties. Honest transactions need not be concealed. They are usually done openly, in the daylight, in the face of the world. It is of the utmost importance that this class of cases should be carefully scrutinized, and in all cases set aside if attended with fraud, or if the instrument or deed is procured by undue influence. The elderly person who has become feeble, and whose physical and mental powers are waning, should not be allowed to become the victim of a designing person, whether such person be a relative, a child, a member of the same church or society or even a minister of the gospel. It is to the credit of courts of equity that in such cases they reach out their protecting hands and restore to the weak and feeble that which has been obtained from them by such improper influence or advice. We have examined the various errors assigned by appellants as to rulings on the admissibility of testimony during the trial, and find no error of sufficient importance to justify a reversal of the case. [3] In cases like this much latitude is allowed, and the courts necessarily are liberal in admitting evidence as to acts, conduct and expressions by the person who is claimed to have been mentally incompetent. Te judgment and order are affirmed. We concur: KERRIGAN, J. HALL, J. COOPER, P. J. Civil No. 724. Second Appellate District. December 21, 1909. CHARLES ALBERT, Plaintiff and Appellant, v. CHARLES C. ALBERT, Defendant and Respondent. [1] CERTIFICATE OF PURCHASE ASSIGNMENT-CONDITIONAL DELIVERY -APPLICABILITY OF RULE AS TO GRANTS.-The provisions of section 1056 of the Civil Code, that a grant cannot be delivered to the grantee conditionally, is applicable to assignments of certificates of purchase. [2] ID. DEED DELIVERY TO GRANTEE CONDITIONS NOT APPEARING ON FACE--ABSOLUTE DELIVERY.-If the delivery of a deed be to the party to whom it is made, though upon the express condition, not appearing upon the face of the deed, that it is to take effect only upon certain conditions, whatever may be the form of the words, the delivery is absolute, and the deed takes effect immediately. [3] ID. ASSIGNMENT OF CERTIFICATE OF PURCHASE-EVIDENCEPROOF OF CONDITIONAL CHARACTER WHEN INADMISSIBLE.-Oral evidence is not admissible to prove the conditional character of an assignment of a certificate of purchase in real property, where the assignment is absolute on its face, and delivered to the assignee. [4] ID.-ID.-ACTION INVOLVING ASSIGNMENT-PLEADING ANSWER -ADMISSION OF ASSIGNMENT-EFFECT OF.-Where an answer in an action relating to an assignment of a certificate of purchase admits the assignment, the terms and conditions of the same must be determined from the language of the instrument itself, and its operation cannot be abridged by conditions vesting in "arol. 151 ID.-ID.-ID.--ID.-ID.--FINDING OF AGREEMENT TO REASSIGN -WANT OF RESCISSION.-An averment, proof and finding of an agreement for a reassignment, is insufficient to constitute a rescission by mutual consent, and revesting of the property. [6] ID.-ASSIGNMENT-CONSIDERATION-PROMISE TO PAY INDEBTEDNESS BREACH-REMEDY DAMAGES.-Where a certificate of purchase is assigned upon a promise to pay off an indebtedness on the property, a breach warrants a cause of action for damages only. Appeal from the Superior Court of Kern County-J. W. Mahon, Judge. For Appellant-Rowen Irwin. For Respondent-Chas. W. Sears. This action involves a contest over the right to purchase certain school lands of the state. Judgment went for defendant, from which, and an order denying his motion for a new trial, plaintiff appeals. On May 7, 1896, a certificate of purchase of the lands involved was duly issued to defendant, Charles C. Albert. On November 25, 1904, pursuant to the provisions of section 3518, Political Code, he made application to the register of the state land office for the issuance to him of a duplicate certificate of purchase. On December 20, 1904, plaintiff duly filed in the office of said register his protest against the issuance of said duplicate certificate, claiming that he was the owner of said original certificate of purchase under an assignment thereof theretofore made to him by defendant. Whereupon, the surveyor, in accordance with the provisions of section 3414, Political Code, made his order whereby such contest was referred to the superior court of Kern county for adjudication. The complaint alleges that in August, 1896, the certificate of purchase was, for a valuable consideration, duly and regularly as signed to plaintiff by defendant, and that ever since said date he has been the owner and holder thereof. Not only does the answer admit the making of the assignment, but the court found that the defendant "assigned the said certificate to plaintiff Charles Albert and the same was delivered by defendant to plaintiff, which assignment purports to assign all the right, title and interest in and to" the lands described in the certificate. In paragraph 4 of the answer, "defendant alleges that at the time of the execution of said assignment of said certificate of purchase, to-wit: on or about the 4th day of August, 1896, that the said certificate of purchase was assigned and delivered by the said defendant to the said plaintiff under and by virtue of an agreement between the said parties that the said plaintiff would, on or before the said note and mortgage hereinbefore referred to (a certain note made by defendant to one Hannah and secured by mortgage upon the real estate described in the certificate of purchase) became due and payable, pay and satisfy the same and thereby relieve the said defendant from the payment thereof, and that the said execution of said certificate by the said defendant and the delivery thereof to the said plaintiff was made absolutely upon the agreement of the said plaintiff to pay the said note and mortgage as aforesaid, and for no other reason or consideration whatever; and it was then and there agreed by and between the plaintiff and defendant that said assignment should not take effect and should not be of any force or pass any interest whatsoever to said plaintiff until said plaintiff paid and satisfied and fully discharged the note and mortgage hereinbefore referred to, and in the event that said plaintiff failed to pay said note and mortgage as aforesaid, then the said plaintiff was to re-assign at ace and redeliver to said defendant the said certificate". The court in substance found this allegation to be true, and also found "that the said assignee, plaintiff herein, wholly failed to comply with his agreement so made, and failed and has ever failed to pay the amount payable on said note", or any part thereof. The facts thus alleged and found by the court to be true are supported solely and alone by oral evidence received over plaintiff's objection. This ruling of the court is assigned as error. Since the certificate of purchase is a contract evidencing an interest in real property and was "subject to sale, by deed or assignment, executed and acknowledged before any officer authorized by law to take acknowledgments of conveyances of real property", (Sec. 3515, Pol. Code), and since the due execution and delivery of the assignment is admitted in the pleadings, and also found by the court (though it does not appear to have been acknowledged. Query, whether acknowledgment requisite as between the parties), [1] it would seem that the rule established by section 1056, Civil Code, with reference to the delivery of grants, is equally applicable to transfers by deed or assignment of certificate of purchase. That section provides that a grant cannot be delivered to the grantee conditionally. Mr. Jones in his Law of Real Property, section 1303, says: [2] "If the delivery be to the party to whom it is made, though upon the express condition, not appearing upon the face of the deed, that it is to take effect only upon certain conditions, whatever may be the |