of fraud or the rights of creditors is involved, the delivery of a check for a part or the whole of the deposit is sufficient, though not presented for payment until after the death of the donor. The courts so holding proceed upon the theory that the passing of a present legal title is not essential to a valid gift, that an equitable title is sufficient, and that such a title becomes vested in the donee at the time the check is delivered and becomes absolute on the death of the donor. That an equitable title is sufficient in such cases is supported by a long list of authorities: Druke v. Heiken, 61 Cal. 346, 44 Am. Rep. 553; Stephenson's Admr. v. King, 81 Ky. 425, 50 Am. Rep. 173; Ellis v. Secor, 31 Mich. 185, 18 Am. Rep. 178; Ridden v. Thrall, 125 N. Y. 572, 21 Am. St. Rep. 758, 26 N. E. 627, 11 L. R. A. 684; Meach v. Meach, 24 Vt. 591; Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. Rep. 415, 27 L. ed. 500.

An examination of some of the reported decisions where gifts of money on deposit in banks have been made by delivery of a passbook or unindorsed certificate of deposit, discloses a disposition on the part of the courts generally to sustain them, where the intention of the donor is clear, there is no fraud, and the rights of creditors are not involved. In the case of Sheedy v. Roach, 124 Mass. 472, 26 Am. Rep. 680, the court held that a deposit in a savings bank might be the subject matter of a gift causa mortis, and the gift established by proof of the delivery of the passbook, accompanied by an assignment to the donee, though the bank was not informed of the gift until after the death of the donor. In Conner v. Root, 11 Colo. 183, 17 Pac. 773, the court held that a certificate of deposit might be the subject of a gift causa mortis, and, if delivered to a third person for the use of the donee, the title passed upon the occurrence of death, though the certificate was payable to the donor's order and was not indorsed by her. In McGuire v. Murphy, 94 N. Y. Supp. 1005, 107 App. Div. 104, the court held that there was a sufficient delivery of a bank deposit where the passbook and an order on the bank for the payment of the amount to the donee is delivered to him, though the donor die before. presentation 339 to the bank. In the case of Polley v. Hicks, 58 Ohio St. 218, 50 N. E. 809, 41 L. R. A. 858, the court held that the delivery of a deposit book issued by a savings bank, accompanied by words of gift, is sufficient to constitute

a gift causa mortis. Other cases along this same line might be cited without number, but it is unnecessary.

The courts holding that the delivery of a passbook or certificate of deposit is sufficient distinguish that class of cases from those where a mere check is delivered to the donee for a part of the fund: McGuire v. Murphy, 107 App. Div. 104, 94 N. Y. Supp. 1005. The substantial element of distinction, as we gather from reading the cases, is that in the case of a check there is no legal or equitable transfer or assignment of the bank funds to the donee. Whether the distinction has any logical foundation is, we think, an open question. Of course, as already suggested, to render a gift of this sort valid, title to the thing given must pass to the donee. Whether any title passed to plaintiff by the check in question depends upon the further inquiry whether the check operated, unaccepted by the bank, as an assignment. Upon the general proposition whether such is the legal effect of a check, considered generally and not with reference to gifts, the authorities are in hopeless conflict. The great majority of courts maintain the doctrine that such a check, unaccepted by the bank, does not operate either as a legal or an equitable assignment, because there is no privity of contract between the holder or payee and the bank: 4 Cyc. 49, and cases cited. Other courts insist, and upon broad grounds, that a check is in equity an assignment, and operates, as between the drawer and payee, as a transfer pro tanto. This view of the law is sustained by the courts of Illinois, Iowa, Kentucky, Nebraska, Pennsylvania, South Carolina, and Wisconsin. The privity of relation between the payee and the bank is found in the implied obligation of the latter to pay the funds deposited to whomsoever and whenever the depositor may direct. The authorities, as well as the merits of the question, are thoroughly discussed in a valuable note to Loan v. Farmers, 63 Cent. L. J. 451, 74 S. C. 210, 114 Am. St. Rep. 991, 54 S. E. 364, and referred to in a general way in Northern Trust Co. v. Rogers, 60 Minn. 208, 51 Am. St. Rep. 526, 62 N. W. 273. The precise question has never been determined by this court, and its solution is not necessary in this case. It is probable that the reasoning of those courts holding to the position that a check operates, between the parties, as an assignment, pro tanto, is the better law and should be adopted, yet the question is not free from doubt, and, not being involved, we pass it without discussion.

340

In the case at bar, the check relied upon by plaintiff was for the entire amount of the deposit, and in such cases the authorities are nearly uniform that an assignment of the whole fund results therefrom: Brady v. Chadbourne, 68 Minn. 117, 70 N. W. 981; Hill v. Escort (Tex. Civ. App.), 86 S. W. 367; May v. Jones, 87 Iowa, 188, 54 N. W. 231; Kimball v. Leland, 110 Mass. 325; Hawes v. Blackwell, 107 N. C. 196, 22 Am. St. Rep. 870, 12 S. E. 245; Pease v. Landauer, 63 Wis. 20, 53 Am. Rep. 247, 22 N. W. 847; Mandeville v. Welch, 5 Wheat. 277, 5 L. ed. 87; Walker v. Mauro, 18 Mo. 564.

This principle is conceded by counsel for appellant, but he contended on the argument with much earnestness that it has no application to a check made the basis of a gift causa mortis; that the rule that an ordinary check for the whole of a fund operates as an assignment from the drawer to the payee applies only to checks given for a valuable consideration. There is authority for this contention: Pullen v. Placer Co. Bank, 138 Cal. 169, 94 Am. St. Rep. 19, 66 Pac. 740, 71 Pac. 83. But the reasoning upon which the decisions so holding are founded is not sound. Gifts in anticipation of death require no consideration to support them. They are sustained by the courts upon the same principle that all intentional gratuities are upheld. The law supplies a consideration by intendment, and gives force to the intention of the donor, and a gift stands upon an equality with a contract founded upon a valuable consideration. The same legal principle surrounds and upholds the check designed as a gift and that given for value received. Recent authorities sustain this view of the law: Phinney v. State, 36 Wash. 236, 78 Pac. 927, 63 L. R. A. 119; In re Taylor's Estate, 154 Pa. 183, 25 Atl. 1061, 18 L. R. A. 855. See, also, a valuable discussion of the general question in 60 Cent. L. J. 244, and Murphy v. Bordwell, 83 Minn. 54, 85 Am. St. Rep. 454, 85 N. W. 915, 52 L. R. A. 849. It is unnecessary that the check in such cases distinctly state on its face that it covers the entire fund. The fact that it does may be shown by proof on the trial: 4 Cyc. 53, and cases cited; 2 Daniel on Negotiable Instruments, 1643.

341 It follows from what has been said that the conclusion reached by the learned trial court was in harmony with the legal rights of the parties, and the judgment appealed from is affirmed.

Whether a Gift Causa Mortis can be effected by the donor drawing and delivering his check is discussed in the note to Johnson v. Colley, 99 Am. St. Rep. 911. It has been held that the mere delivery of an unindorsed certificate of deposit payable to the donor's order does not vest title so as to constitute a gift: Shugart v. Shugart, 111 Tenn. 179, 102 Am. St. Rep. 777. See, too, Winslow v. McHenry, 93 Minn. 507, 106 Am. St. Rep. 448.

ROBERTS v. WALLACE.

[100 Minn. 359, 111 N. W. 289.]

PARTITION-Waiver of Right of.-The right of partition may be waived or suspended for a limited period by the parties in interest. (p. 702.)

W. G. Bonham, for the appellant.

Davis & Hollister, for the respondents.

359 JAGGARD, J. The respondents and defendants, owning certain lands in St. Louis county, signed a contract which recited that the defendants sold and conveyed to the plaintiff and appellant an undivided one-third interest therein for ten thousand dollars. The contract set forth, for the further consideration of one dollar, the agreement "That said sum of ten thousand dollars, with interest thereon at the rate of five per cent per annum from this date till paid, is and shall be a charge and lien upon the whole of said land and premises in favor of said party [said plaintiff] for the term of five years from date hereof and not longer, and the same shall be paid to her . . . . as hereinafter set forth.'

The means of payment enumerated were a sale of said land of premises, or any part thereof, the sale of iron ore therein. or of timber thereon, rents and profits accruing under any lease of the land, bonuses bargained for in exploration contracts or leases, and all royalties accruing under leases for the mining and removal of ore therein 360 or thereon. The ten thousand dollars and interest did not become a personal claim against any of the parties, but only a charge and encumbrance on the land for the period of five years for the said sum of ten thousand dollars and interest, if not sooner paid. The contract was dated on the tenth day of February,

An action was brought by the plaintiff afterward, alleging the parties were owners of undivided one-third interests in the land, she had a lien or encumbrance by virtue of the contract, the cash valuation was forty thousand dollars and the land could not be partitioned without great prejudice to the owners. The prayer was that the property be sold and a receiver appointed to apply the proceeds of sale to the payment of the encumbrance and afterward equally between the owners. On March 14, 1906, defendants interposed a demurrer, which was sustained, with leave to the plaintiff to amend. From that order this appeal was taken.

The determination of whether or not the plaintiff is entitled to a partition depends, in the first place, on the construction of the contract which was attached to the complaint. The trial court held, in sustaining the demurrer, that the parties expressed an intention that no statutory action for partition should be brought within five years. Enough of the contract has been quoted to indicate such an intention. Construed as a whole, it leaves no reasonable doubt that such was the agreement. It is true, as the appellant contends, that such interpretation involves distress and leaves this cotenant in a most unfortunate position (Freeman on Cotenancy and Partition, 400), and that the more reasonable and probable of two constructions, of which an ambiguous contract is susceptible, will be adopted. We are of the opinion, however, that this was the agreement which the parties made. They are bound by it.

The only other question in the case is whether or not a contract that the statutory action of partition should not be brought within a specified time is legal. It is clear on authority that the right of partition may be waived or suspended for a limited period by the parties in interest: Avery v. Payne, 12 Mich. 540; Coleman v. Coleman, 19 Pa. 100, 57 Am. Dec. 641; Brown v. Coddington, 72 Hun, 147, 25 N. Y. Supp. 649; Eberts v. Fisher, 54 Mich. 294, 20 N. W. 80; Hunt v. Wright, 47 N. H. 396, 93 Am. Dec. 451; 21 Am. & Eng. Ency. of Law, 361 2d ed., 1158, note 3. This does not mean that the plaintiff is remediless. Her remedy is not, however, in law by an action for partition. It is in equity for a foreclosure of the lien.

Order affirmed.