63

For Respondent-Mannon & Mannon.

Action to quiet title. Plaintiff had judgment from which defendants appeal on bill of exceptions. The following diagram will make plain the issue and reference to it will shorten the statement of facts sufficiently to justify its insertion here:

Plaintiff claims title to the land indicated on the diagram as the "Land in Controversy", by virtue of a bargain and sale deed executed by defendants in the usual form. Immediately after the description of the land is the following provision: "It is hereby mutually agreed between the parties of the first part (defendants) and the party of the second part (plaintiff) that the above described land is to be used as a public street, and not as a lot for building purposes." Defendants in their answer allege "that the right to travel and use the said lands in controversy is necessary and convenient for the use and occupation of said defendant (Louisa M. Brown, admittedly the owner of adjoining lands) of the lands she owns that adjoins the lands in controversy" and that said defendant Louisa "now owns an easement for a right of way or right of ingress and egress on, over and upon said land and every part thereof, which said easement is appurtenant to the land of said defendant and adjoins the land in controversy." It is furthermore averred by defendants that "the public at large and all persons have the right to travel and use the said land in controversy and every part and parcel thereof, as and for a public street and highway." Defendants pray that they be decreed an easement over the whole of said land.

Over plaintiff's objection the court admitted testimony given by defendants as to what was said by the parties relative to the transaction prior to and at the time the deed was executed.

The court, upon sufficient evidence, found that the plaintiff paid the full value for said land; that in making the purchase "plaintiff did not claim to be acting for, by or on behalf of the public or anyone except himself." That "at the time of the execution and delivery of said deed, and concurrently therewith, the plaintiff verbally agreed' with the defendants that he would pay to them the full value of said land and hold possession of the same. That, if the city of Fort Bragg could be induced to buy

said land and dedicate it to street purposes, the plaintiff would deed said land to said City upon receipt by him of the amount he paid defendants therefor, and that then, and not till then, the same might become a public street. That plaintiff never had any agreement or understanding with the defendants or either of them or with any person, firm or corporation that the lands in controversy should be or become a public street or highway for public use or travel, nor did plaintiff ever have any agreement or understanding with the defendants or either of them, that the lands in controversy should be or become an easement appurtenant to the remaining lands owned by the defendant Louisa M. Brown for the purposes of ingress thereto or egress therefrom or for any purpose. That no further or other ageement was ever had or entered into between the plaintiff and either of the defendants respecting the lands in controversy or the use thereof. That the right to travel and use the lands in controversy is not necessary, but is convenient for the use and occupation by the defendant Louisa M. Brown of the lands she owns that adjoin the land in controversy. That defendant Louisa M. Brown does not now and never, since the 7th day of July, 1906 (date of deed to plaintiff), did own an easement for a right of way or right of ingress and egress on, over and upon said land or any part thereof, nor does she now own nor since the 7th day of July, 1906, has she owned an easement upon said land which is appurtenant to the adjoining lands of said defendant or otherwise."

As conclusion of law the court found that plaintiff is entitled to a decree to "quiet his title to said land, against said defendants, and each of them, and all persons claiming or to claim the same, or any part thereof, under or through the said defendants or either of them."

Judgment passed accordingly.

The testimony of plaintiff was that he bought the land because defendants were proposing to build on it fronting Main street. He testified, without objection: "I simply bought their land to prevent building thereon, so that it might thereafter be used as a street. It is my intention to use it for street purposes and not to build upon it. I had no idea of buying the property for the town. I bought it to hold until the town got ready for it.. At the time I purchased the land in controversy I owned no land that had to be approached through this property as a street. I had no interest in having a street there at all except as a citizen of and resident of Fort Bragg. had no financial interest in wanting it made a street. Mr. Brown did not want to hold it for the town and I said I would buy it and hold it. . . I never had any idea of giving this property to the town. I had no understanding with the trustees that they should take it. I asked him (Brown) why he did not sell it to the town and he said they would not buy it of him. I told him I would take it and hold it until they would buy it, as it looked as if it was necessary to buy a street through."

The evidence as to the purpose of plaintiff in purchasing the property and what was meant by him in accepting the deed with

the clause in it which has given rise to the controversy, was invited by defendants. If it was admissible at all it was because of some ambiguity in the controverted clause which might, within the rules of law, be explained. Of the result of the explanation thus elicited by defendants they cannot now complain.

Simply stated, the case stands thus: Defendants were about to build upon lots which some day should be used for a street; they were unwilling to hold the property until the city would buy it; plaintiff stepped in and paid full value of the land and agreed that he would hold it "until the town got ready to buy it." There is no pretense that plaintiff proposes to do otherwise. Defendants, however, in effect claim that plaintiff dedicated the land as a public street and as such they have a right to use it; that if not so dedicated, still they have a private right of way or easement over all the land in controversy.

[1] It is very clear that the clause in question does not effect a dedication of the land to the public use and it is equally clear that it does not convey or reserve a private right of way to the use of the grantors. [2] The doctrine that "every lot fronting a street has, as appurtenances thereto, certain private easements in the street, in front of and adjacent to the lot, which easements are a part of the lot" (Cushing-Wetmore Co. v. Gray, 152 Cal. 118, 123) presupposes the existence of the street. To apply the principle here is to beg the question-Is the land involved a street? Defendants' remaining land has a frontage on Main street and an outlet thereby. As to that street the doctrine applies but not to the land conveyed by them because it is not a street, is not reserved or dedicated as a street and was not so intended to be until the town purchased it from plaintiff. It would do obvious violence to the language and to the intention of the parties, as shown by the evidence, to hold that defendants have an easement in terms, or by just implication over all the land conveyed by them. Defendants have received full value for their land and now claim that they may practically destroy that value by insisting upon their right to use the entire land as a street. The proposition lacks the elements of common honesty. Of course, it was competent for plaintiff to pay defendants for the land and open it to their and the public's unrestricted use without compensation. But the evidence is that he did not intend to do anything of the kind. He agreed that whenever in the future the town desired the property for a street he would sell it to the town for what it cost him. The contention of appellants cannot be reconciled with the granting clause which conveys the absolute fee. The convenant at most is but personal. In Los Angeles Terminal Land Co. v. J. A. Muir and S. P. R. Co., 136 Cal. 36, a syllabus reads: "A covenant in a deed, made for the benefit of the land conveyed, will run with the land, and inure to a grantee thereof. [3] But a covenant between the grantor and grantee of a deed in fee, which merely imposes a burden of restrictions upon the grantee, and does not reserve or create any interest in the grantor, or establish a condition subsequent to the grant, and does not purport to inure to the protection of an assignee of the grantor, or to bind

the assignees of the grantee, is personal in its nature and does not run with the land or charge an assignee of the grantee with such burden." [4] It was further held in that case that while equity will, in proper cases, enforce personal covenants imposing restrictions upon the use of lands contained in grants thereof, it will not enforce all such covenants that may be desired, and will not enforce them, unless the facts of the case justify equitable relief. It would be unconscionable to hold, in view of the facts in this case, that defendants, after having received full value for their land, should be given the right to use it as a public street, thus depriving plaintiff of all benefit to be derived from his purchase. The clause of the deed in question is not a covenant running with the land because it was not for the benefit of the land conveyed by the deed and because neither the assigns of the covenantor or covenantee are mentioned in the covenant. (Civ. Code, secs. 1462 et seq.) The fee is not affected by the covenant in question for it does not extend to or bind the heirs or assigns of the covenantor.

[5] Appellants contend that treating the clause in the deed as a personal covenant, plaintiff cannot have an absolute decree, for the decree must define the rights of the parties. (Citing Peterson v. Gibbs, 147 Cal. 1.) The decree quiets the title of plaintiff against the claims of defendants and all others claiming under them. It binds no person not parties and in no wise interferes with the use of the land by defendants when it becomes a street, until which time they have no right to or interest in the land, and, at which time they in common with the public may use the street. The decree deprives them of no right to which they are now or may hereafter be entitled.

The judgment is affirmed.

We concur:

HART, J.

BURNETT, J.

CHIPMAN, P. J.

Civil No. 771. Second Appellate District. April 28, 1910. ROBERT DOLLAR, Plaintiff and Respondent, v. THE INTERNATIONAL BANKING CORPORATION (a Corporation), Defendant and Appellant, and EDWIN H. LAMME, Defendant.

[1] ACTION ON CONTRACT-BANK DEPOSIT RECEIPT-CORPORATION DEPOSITOR DEPOSIT BY ACTING MANAGING DIRECTOR-PROOF OF AUTHORITY AS CONDITION PRECEDENT TO WITHDRAWAL-PAROL AGREEMENT ASSIGNMENT OF RECEIPT-DEMAND BY ASSIGNEE-COMPLIANCE WITH PAROL CONTRACT AS CONDITION OF PAYMENT UNJUSTIFIED.-— Where money is deposited with a bank in the name of a corporation by a person acting as managing director of the latter, and a written deposit receipt is issued therefor, the bank cannot insist upon compliance with an oral contract made at the time of the deposit that the money could only be withdrawn upon proof of the authority of such director, as a condition to its withdrawal, where a demand is made upon it by the assignee of such receipt, who be came the holder thereof by the assignment of such director in consideration of a satisfaction of a judgment against the corporation. [2] ID.-ID.-ID.-ID.-ID.—ID.-ID.—ID.-STATUS OF BANK.-The bank in such a case is concerned only in knowing that the assignnent of the certificate is of such a character as to bind the assignor.

[3] ID.-WRITTEN CONTRACTS FOR PAYMENT OF MONEY-MANNER OF NEGOTIATION--CONTEMPORANEOUS ORAL AGREEMENTS-EFFECT OF.Contemporaneous parol agreements made between the parties to a written obligation to pay money, as to the manner of its negotiation, cannot be set up as a defense against payment of the money under the contract in an action by the payee or his assignee, irrespective of whether the same be negotiable or non-negotiable in char

acter.

[4] ID. CORPORATION LAW--MANAGEMENT OF CORPORATION--AUTHORITY OF MANAGING AGENT-ASSIGNMENT OF CHOSES IN ACTION TO CREDITORS RESOLUTION OF BOARD OF DIRECTORS UNNECESSARY.— Where the management of the affairs of a corporation is intrusted to a general managing agent he has power to assign the choses in action of the corporation to its creditors, either in payment of or as security for the payment of, a precedent debt of the corporation without express authority from the board of directors.

[5] ID.-AGENCY-OSTENSIBLE AGENCY-WHEN CREATED.-An ostensible agency is created when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him and his authority is such as the principal allows such persons to believe he possesses.

[6] ID. NEGOTIABLE INSTRUMENTS-LOSS-BOND OF INDEMNITY-UNNECESSARY WHERE NON-NEGOTIABLE.-No indemnity bond is necessary where a lost instrument is non-negotiable.

[7] ID.-DEPOSIT OF MONEY-DEMAND —UNWARRANTED REFUSAL— DAMAGES.The damages for failure to pay money due under a deposit receipt is its highest market value at the place of deposit when payment is refused and interest at the rate stated in the receipt from the date of the deposit.

Appeal from the Superior Court of San Diego County-W. R. Guy, Judge.

For Appellant-Lloyd M. Robbins, George J. Leovy, Platt & Bayne.

For Respondent--J. Wade McDonald.

For Defendant Lamme-Puterbaugh & Puterbaugh.

This is an action by the assignee of the endorsee of a deposit receipt to recover the value in United States money of two thousand Mexican dollars deposited with the banking house of the defendant corporation, located in Hongkong, China. Judgment was for plaintiff against the banking corporation, and the latter appeals from the judgment and the order denying its motion for a new trial.

The depositor, the American Commercial Company, was incorporated in the District of Columbia for the purpose of doing a general brokerage business wherever such business could be lawfully conducted. Its certificate of incorporation, dated August 13, 1904, provides that "the concerns of the company for the first year shall be managed by not less than three nor more than fifteen directors, namely" (naming five persons as to whom it is important here to say only that one is "E. Edwards"). The main office is fixed in the city of Washington. So far as the record in this case discloses, it has never done any business except in China. On November 26, 1904, Mr. E. Edwards, accompanied by two of the other directors of the American Commercial Company, their names not being disclosed, deposited with the branch bank of the defendant corporation located at Hongkong, China, two thousand Mexican dollars, receiving therefor a receipt as follows: