in making the payment to the survivor the bank had merely carried out its contract, and could not be required to pay the same again.

The respondent's claim that Francis became vested with Ellen's title to the deposit by virtue of his survivorship is equally 149 untenable. Title by survivorship exists only when the estate is held in joint ownership, and, unless the deposit was owned by Francis in the lifetime of Ellen jointly with her, there was no joint interest therein to which the incident of survivorship could attach. We have seen that she did not part with her title to the deposit by reason of the form in which it was made, and, as the title of Francis depends entirely thereon, it is evident that he had no joint interest with her in the moneys so deposited. Joint interests or estates are such as are acquired at the same time and by the same title. Section 683 of the Civil Code declares: "A joint interest is one owned by several persons in equal shares by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants." The proposition of the respondent that this section applies only to real estate is without support. There is no limitation of this character in the section, and, as it is found in the title headed "Ownership" and the chapter thereof which treats of "Interests in Property," irrespective of its character, it must be held applicable to all kinds of property. The money deposited by Ellen was up to that time her separate property, and it cannot be said that she then acquired any interest therein; and, if it could be assumed that by reason of the form in which the deposit was made Francis acquired any interest therein, it was acquired at a different time and by a different title from that of Ellen. There was no declaration that the money should be held in joint tenancy, and the words "payable to either" placed in the account take away the claim of a joint interest. In Gorman v. Gorman, 87 Md. 338, the entry of the deposit made in the book was "Theresa McConnell and her niece, Maggie S. Gorman, joint owners; payable to the order of either or the survivor." The money was the individual property of Theresa, and the account was changed upon the books of the bank into this form at her request, and the entry was signed by her and Miss Gorman. The court held that, although the words "joint owners" were employed, the deposit did not become the joint property of both. In Taylor v. Henry, 48 Md. 550, 30 Am. Rep. 486, the court refused to

sustain the claim of the sister by virtue of her survivorship upon the ground that the 150 gift was not perfect and irrevocable during the life of the donor. The same rule was observed in Whalen v. Milholland, 89 Md. 199.

The respondent further urges that upon the deposit in the bank the money became the property of the bank, and that by virtue of the transaction then effected a chose in action resulted wherein a joint liability was created on the part of the bank in favor of Ellen and her husband, which, upon the death of Ellen, survived to the husband, and in support of this proposition cites section 1431 of the Civil Code, which provides that a right created in favor of several persons is presumed to be joint and not several, and that this presumption can be overcome only by express words to the contrary. This provision has reference, however, merely to the relation between the parties in whose favor the right is created, and the party against whom it is created. It is correlative to the obligation incurred by the party against whom the right exists, but does not purport to determine the interest of the parties in whose favor the right exists as between themselves. As Ellen did not devest herself of her property in the money by the form in which she made the deposit, she retained the same interest in this property represented by the chose in action or right resulting from the obligation thereby assumed by the bank. Her husband acquired no right to the money which he might obtain upon this chose in action as against her. While the bank would have been authorized to pay all or any portion of it to him in her lifetime, he could have been compelled to account to her for what he might thus receive; and in an action against the bank wherein the claim of each is presented for adjudication the court is authorized to render a judgment according to their respective rights. The right of action on a bond held by two joint obligees, or on a promise for the payment of money to two joint promisees, vests on the death of one in the survivor: 1 Parsons on Contracts, 31; but the right of the deceased obligee or promisee is not extinguished by his death. The survivor will hold the security and the proceeds as trustee to the extent of the interest of the deceased joint obligee or promisee in the debt or fund, and, if the survivor had no interest in the fund, he will hold the whole thereof for the benefit of the 151 estate of the deceased: Mulcahey v. Emigrant etc. Sav. Bank, 89 N. Y. 435. Mr. Freeman, in his treatise on Cotenancy and Partition, says in section 16: "The loan of money, for which a

mortgage is given, is not regarded as a transaction which would ordinarily raise the presumption that the parties thereby intended to create a joint ownership in the thing lent with the benefit of survivorship." In Blake v. Sanborn, 8 Gray, 154, an action to foreclose a mortgage given to four persons to secure a note payable to them was held to be properly maintained by the survivors, but the court said: "If the conditional judgment is discharged by payment, they will, of course, be answerable over to the administrator of the deceased mortgagee for onefourth of the note; if the mortgage is foreclosed, they will hold the land in trust for all concerned in the mortgage": See, also, Burnett v. Pratt, 22 Pick. 556; Story's Equity Jurisprudence, sec. 1206; Bliss on Code Pleading, 3d ed., sec. 62. Counsel for respondent cites in support of his claim Sanford v. Sanford, 45 N. Y. 723, where the husband loaned certain money and received therefor a promissory note payable to himself and his wife, and in which it is said in the opinion: "Taking this note in the name of himself and wife shows that the husband intended thereby to give it to her in case she survived him, and a delivery to her was unnecessary to perfect the gift." But we are compelled to coincide with Judge Redfield, who, in commenting upon this in Matter of Ward, 2 Redf. 251, said that this language "seems to run directly counter to all settled notions of the law in respect to such gifts, and seems not to have been fortified by the learned judge who delivered that opinion by any authority." The language above quoted is to be regarded rather as dictum than as authority, since, after stating that the note belonged to the wife as the survivor, it held for other reasons that the maker owed it to the estate of the husband, and not to the wife, and reversed a judgment in her favor, upon the ground that she was not the real party in interest.

We hold, therefore, that Francis Denigan had no interest in the deposit during the lifetime of his wife and did not upon her death become vested with any interest therein as against the claim of her administrator, and that, as the evidence incorporated in the bill of exceptions would not have authorized a judgment in favor of the plaintiff, the court erred in setting aside its decision.

152

The order granting a new trial is reversed.

Garoutte, J., and Van Dyke, J., concurred.

IN THE CASE of Denigan v. Hibernia Sav. etc. Soc., 127 Cal. 137, the facts involved in a deposit of money by a wife in a savings bank were in all respects similar to those in the principal case, and in the former case the court said, in deciding the ownership of the fund after the death of the wife, that: "The form in which the deposit was made is entirely consistent with a desire on the part of the wife to give to her husband authority to withdraw money from the bank from time to time as she might need it, and it should not be held that she intended to part with her title thereto by reason of an ambiguous phrase, which is quite consistent with a contrary purpose: Matter of Ward, 2 Redf. 251; Orr v. McGregor, 43 Hun, 528; Shuttleworth v. Winter, 55 N. Y. 624; Marshal v. Crutwell, L. R. 20 Eq. 328; Beaver v. Beaver, 117 N. Y. 421, 15 Am. St. Rep. 531; Matter of Bolin, 136 N. Y. 177; Flanagan v. Nash, 185 Pa. St. 41. When the claim of a gift is not asserted until after the death of the alleged donor, it should be sustained by clear and satisfactory evidence of every element which is requisite to constitute a gift: De Puy v. Stevens, 37 N. Y. App. Div. 293; Whalen v. Milholland, 89 Md. 199."

A BANK ACCOUNT PAYABLE TO THE ORDER OF A HUS BAND OR WIFE, the balance at the death of either to belong to the survivor, constitutes an agreement between the bank and the husband which remains in force after his death, and justifies payment to her, as survivor, of the moneys remaining op deposit at his death: Metropolitan Sav. Bank v. Murphy, 82 Md. 314, 51 Am. St. Rep. 473.

BANK OF ORLAND v. DODSON.

[127 California, 208.]

JURISDICTION-SERVICE OF SUMMONS-JUDGMENT. The fact of service of summons, rather than proof of its service, gives the court jurisdiction of the person of the defendant, and, if he is in fact served with summons, a return showing upon its face that it was made by one having authority, even though not in fact so made, confers upon the court jurisdiction to hear and determine the case, and, until set aside by some valid proceeding, a judgment by default based thereon is valid.

JURISDICTION-WAIVER OF RIGHT TO ASSAIL.-If defendant is in fact served with summons, and does not appear nor in any way call in question the regularity of the service, takes no steps to have the judgment set aside, and permits his property to be sold without objection, pursuant to the judgment entered in the action, and pays a deficiency judgment, he cannot, after the time for appeal has expired, attack such judgment by questioning the regularity of the service of the summons.

JURISDICTION-LOSS OF.-After a court has entered its Judgment upon a service of summons, appearing from the record to have been regular, it has no jurisdiction to again try the case until that judgment is set aside; and after the time for an appeal therefrom has elapsed and the judgment has been satisfied, its judgment at the second trial of the case under an alias summons is void.

C. L. Donohoe and S. Millington, for the appellants.

B. F. Geis, for the respondent.

209 CHIPMAN, C. Foreclosure. Plaintiff remarks in its brief: "The case is indeed a peculiar one, and none just like it is found in the books." The statement is probably correct. The undisputed facts are that plaintiff brought the action in due time to foreclose a mortgage given by defendants. Summons duly issued April 17, 1896, and was served and returned on April 18, 1896, the return being signed "H. C. Stanton, Sheriff, by C. H. Merrill, Deputy Sheriff." An indorsement made 210 thereon by the clerk shows the service to have been regularly made upon the defendants, and that, the time for answer having expired, their default was duly entered. On May 13, 1896, the court entered its decree containing the usual recitals and showing, among other facts, that summons was served upon defendants, and that "the time to appear and demur or answer the complaint having expired, and no appearance having been made by either of the said defendants, . . . . the default of said defendants. . . . was duly given and made and regularly entered." The decree then recites that the cause came on to be heard, and evidence, both oral and documentary, was introduced, from which it appeared that all the allegations of the complaint are true, etc. Wherefore the court found the amount due on the promissory note mentioned in the complaint, to wit, two thousand seven hundred and forty-three dollars and fifty-five cents, and decreed the same to be a lien upon the described premises; ordered the sale thereof and appointed a commissioner to conduct the sale, and also made the usual directions as to a deficiency judgment. The commissioner was duly appointed; he qualified, and on June 10, 1896, he made the sale in due form and upon due notice, and made return thereof, from which it appears that plaintiff became the purchaser for the sum of two thousand seven hundred dollars, and received a certificate of sale. In his return the commissioner shows that he deducted certain expenses from said amount, leaving two thousand six hundred and eighty dollars, and paid the same to plaintiff and took its receipt therefor, which was credited upon the judgment, leaving a deficiency of sixty-three dollars and fifty-five cents, for which judgment was entered July 9, 1896, and was by defendants fully paid August 10, 1896. The period for redemption having expired, the commissioner, on January 14, 1897, made and delivered his deed of the prem