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delivered to the grantee by the depositary 81056. after the death of the grantor, and that the

1. title is to vest only upon such delivery after

Delivery to grantee Construction.his death, then the deed is entirely inop

There can be no conditional delivery of a

deed to the grantee himself.Cox v. Schnerr, erative as constituting an attempt by the

172 Cal. 371, 156 Pac. 509. grantor to make a testamentary disposition

2. This section has no application to the of his property.-Williams v. Kidd, 170 Cal. 631, Ann. Cas. 1916E 703, 151 Pac. 1.

case where the grantee is alleged to have

procured the deed fraudulently and without 8. Intent to deliver. It is essential to

consideration.-Koch v. Wilcoxon, 30 Cal. the validity of a transfer of real property

App. 517, 158 Pac. 1048. that there be a delivery of the conveyance with intent to transfer the title, and the true $ 1057. test under which delivery is to be deter

1. Delivery in escrow.—Where a deed is mined is in ascertaining whether in parting

given to a third person to be delivered to with the possession of the conveyance the

the grantees in the deed on the payment of grantor intended thereby to divest himself

a certain sum of money, the grantor has a of title; if he did, there is an effective deliv

right to recall the deed any time prior to ery of the deed, and, if not, there is no

payment by the grantees, and the death of delivery; the solution of this question is

the grantor revokes the right to deliver the grounded entirely on the intention of the

deed.—Holland v. McCarthy, 173 Cal. 597, grantor, and this essential matter of inten

160 Pac. 1069. tion is a question of fact to be determined

2. The deposit of a deed with a third perby the trial court from a consideration of all

son to be delivered to the grantee only upon the evidence in a given case bearing on the

payment of the price fixed by the grantor question.-Williams v. Kidd, 170 Cal. 631,

can not be sustained as an escrow, where Ann. Cas. 1916E 703, 151 Pac. 1.

there has been no prior or contemporaneous 9. Delivery or nondelivery is always a

contract of sale of which the delivery of question of fact to be found from the sur

the deed was to be the consummation.—Holrounding circumstances of each transaction.

land v. McCarthy, 173 Cal. 597, 160 Pac. 1069. -Donahue v. Sweeney, 171 Cal. 388, 153 Pac.

3. Where the very question is whether or 708.

not the alleged grantor has parted with his 10. Whatever method of delivery is

title by making an efficient delivery of his adopted, there must be a plain showing that

deed, his acts and statements material to the grantor by acts or words or both in

the question of delivery during the entire tended to divest himself of title.-Donahue period of escrow may be proven.-Smith v. v. Sweeney, 171 Cal. 388, 153 Pac. 708.

Smith, 173 Cal. 724, 161 Pac. 495. 11. Where a grantee deals with property 4. The attorney of the grantor is not disas her own, after having delivered the deed qualified from holding such a deed for deto a third person, this negatives the theory livery.-Smith v. Smith, 173 Cal. 724, 161 Pac. that she intended the deed to pass title.- 495. Tweedale v. Barnett, 172 Cal. 271, 156 Pac. 5. The deposit by sureties on a bail of 483.

notes and mortgages with a bank under an 12. To constitute delivery of a deed, it is

agreement for their delivery to the owner in not sufficient that there be a mere delivery

case the sureties are discharged in liability of its possession, but this act must be ac

on the bond constitutes an escrow.-Phenecompanied with the intent that the deed gar v. Paolini, 27 Cal. App. 381, 149 Pac.

1008. shall become operative as such.—Cox v. Schnerr, 172 Cal. 371, 156 Pac. 509.

6. -Rights of grantee.—Where a grantor

gives a deed to a third person with instruc13. The solution of the question of deliv

tions to deliver it to the grantee on payment ery or nondelivery in each case is based

of a certain sum and authorizes the third upon the intention of the grantor at the

person to keep the proceeds, the deed is not time of passing the deed to a third per

converted into a valid escrow by the conson.-Smith v. Smith, 173 Cal. 724, 161 Pac.

sent of the grantees that she may keep the 495.

deed until the payment of the consideration. 14. Presumption of delivery. — A deed

-Holland v. McCarthy, 173 Cal. 597, 160 Pac. found in the possession of the grantor sup

1069. ports a presumption that it was never deliv

7. Where a grantor gives a deed to a ered.-Donahue v. Sweeney, 171 Cal. 388, 153

third person with instructions to deliver it Pac. 708.

to the grantee on the payment of a certain 15. The production of a deed by the sum, and authorizes the third person to keep grantee named therein is prima facie evi- the proceeds, such third person acquires no dence of delivery, but may be overcome by interest in the proceeds prior to their payevidence.-Cox v. Schnerr, 172 Cal. 371, 156 ment by the grantee and her rights are Pac. 509.

terminated on the death of the grantor be16. Proof of the execution of a deed and fore the payment of the consideration by that it was not subsequently given to the the grantee.-Holland v. McCarthy, 173 Cal. grantees, or to any one for them, gives rise 597, 160 Pac. 1069. to the presumption of nondelivery.-Twee- 8. It is essential to the validity and efdale v. Barnett, 172 Cal. 271, 156 Pac. 483. fectiveness of a deed in escrow that it be

delivered to a third person for the grantee beyond any power in the grantor to recall or revoke it.-Ragan v. Ragan, 29 Cal. App. 63, 154 Pac. 479.

9. Where an escrow agreement provides that if either of the deeds involved is not delivered at a time specified, it is to be returned to the grantor, a grantee of one parcel of the land is not released on the theory that title to the other has not been cleared.-Sage Land & Impr. Co. v. McCowen, 30 Cal. App. 126, 157 Pac. 244.

§ 1068.

1. Recitals-Effect of. Where a deed contains a clear description of the property, its effect is not to be cut down or modified by a recital of the quantity conveyed.-Cecil v. Gray, 17 Cal. 137, 148 Pac. 935.

$ 1083

1. What title passes.-A deed made by the successor in estate of the grantor, conveying a large tract of land within which such land used as a right of way was included, conveys to the grantee the reversionary interest of the grantor therein, notwithstanding the same is reserved and excepted in the granting clause, where the exception is immediately followed by an explanatory clause showing an intention to convey such interest.—East San Mateo Land Co. v. Southern Pac. R. Co., 30 Cal. App. 223, 157 Pac. 634.

ascer.

§ 1066.

1. Interpretation of grants.-In taining the intention of a grantor all parts of the deed are to be considered.—East San Mateo Land Co. v. Southern Pac. R. Co., 22 Cal. App. 668, 157 Pac. 634.

2. While it is the well-established rule, irrespective of the provisions of the Civil Code, that where in construing the terms of a conveyance of real property there may appear doubt as to whether a stipulation in the nature of a statement of a condition subsequent, the observance of which would work to defeat the title of the grantee, was intended as a covenant or strictly as a condition, th effo of the court will be to prevent a forfeiture, and in such a case the agreement will be held to amount to a covenant merely; it is also true that where words have been used which show a clear and unmistakable intention on the part of the grantor to create an estate on such condition, the condition will be upheld.-Firth v. Los Angeles Pac, Land Co., 28 Cal. App. 399, 152 Pac. 935.

3. A deed of conveyance is only a contract, subject to the usual rules of construction applicable to contracts, one of which is that the whole of the instrument must be examined in order to ascertain the intent of the parties.--Firth v. Los Angeles Pac. Land Co., 28 Cal. App. 399, 152 Pac. 935.

4. A deed is to be so construed, if possible, as to give effect to all of its provisions.-Firth v. Los Angeles Pac. Land Co., 28 Cal. App. 399, 152 Pac. 935.

5. While the use of the word "grant" in a conveyance implies a covenant against encumbrances made or suffered by the grantor, and while taxes for the fiscal year, which were at the date of the grant a lien upon the property, are embraced therein, nevertheless the covenant implied from the use of the term "grant" must be deemed limited by the subject-matter of the conveyance.-National Bank of Bakersfield v. Williams, 31 Cal. App. 704, 161 Pac. 504.

1104. 1. Easement Acquisition and loss of.In the case of an easement acquired by deed it is not lost by mere nonuser, but it must be accompanied with the express or implied intention of abandonment.--People v. Southern Pac. Co., 172 Cal. 692, 158 Pac. 177.

2. Quasi easements which a testator has apportioned to various tracts during his lifetime ripen into easements in favor of or burdens upon such parcels of land at their severance under the terms of the testator's will. There is no good reason why a difference should be made between a "transfer" inter vivos and a devise of land in the mat. ter of the creation of easements. The word "transfer" as used in this section is employed in the general rather than the technical sense.—Cheda v. Bodkin, 173 Cal. 7, 158 Pac. 1025.

3. Where the owner of one heritage, consisting of several parts, has so adapted them that one derives a benefit from the other, when he sells one of them without making mention of the incidental burdens of one in respect to the other, an implied understanding arises that the burdens and correlative advantages shall continue as before the separation of the title.—Cheda v. Bodkin, 173 Cal. 7, 158 Pac. 1025.

4. Where an owner of property divides it into two parts and grants one of them, the grant, by implication, includes all such ease-, ments in the remaining part as are necessary for the reasonable enjoyment of the part granted in the form in which it was used at the time of the transfer.-Rodemeyer v. Meger, 30 Cal. App. 514, 158 Pac. 1047.

on

$ 1067.

1. Construction of descriptions.-In construing the description contained in a deed, natural boundaries and monuments control calls of courses and distances in conflict therewith.-Hunt v. Barker, 27 Cal. App. 776,

$ 1109.

1. Grant condition subsequent. - A deed of conveyance of real property, which first purports in direct terms to make an unreserved conveyance of the land in fee simple, and then provides that the land is so conveyed as a right of way for an electric

if the road is not built within the stated

$ 1146. time, the land shall revert to the grantor, is

1. Gifts.The gift of the donor's own a conveyance upon condition subsequent, and

promissory note, either inter vivos or in upon breach of the condition the grantor is entitled to have his title to the land quieted

view of death, does not create an enforce

able obligation in favor of the donee against as against the grantee.-Firth v. Los An

the donor or his estate.-Wisler v. Tomb, geles Pac. Land Co., 28 Cal. App. 399, 152 Pac. 935.

169 Cal. 382, 146 Pac. 876.

2. The elements essential to constitute a 2. Such a condition subsequent is deemed valid gift are an intention to give and the satisfied by a substantial compliance with

delivery, either actual or symbolical, of the its terms; it is, however, held herein that

thing intended to be given.-Sullivan the extension of a certain electric street-car

Shea, 32 Cal. App. 369, 162 Pac. 925. line along a street on which the land in question had one frontage, was not intended § 1147. as a compliance with such condition.-Firth

DELIVERY OF GIFT. v. Los Angeles Pac. Land Co., 28 Cal. App. 399, 152 Pac. 935.

1, 2. Construction.

3. Delivery, how effected. 3. Such a condition is not waived by the

4, 5. Evidence and burden of proof. grantor in executing an extension agreement, whose only effect was to extend the 1. Construction.-This rule has no applitime of construction of the road for one cation when the gift is effected by an inyear.-Firth v. Los Angeles Pac. Land Co., strument in writing.–Francoeur v. Beatty, 28 Cal. App. 399, 152 Pac. 935.

170 Cal. 740, 151 Pac. 123. 4. Breach of a covenant ordinarily renders

2. Where a written instrument making a the covenantor merely liable in damages, but

gift of stocks and bonds is executed and dea conveyance upon condition subsequent

livered to the donee, the retention of the may, if the agreement is so expressed, result

possession of the property by the donor inin a defeat of the title of the vendee.

termediate to the execution of the instruFirth v. Los Angeles Pac. Land Co., 28 Cal.

ment of gift and actual delivery by the App. 399, 152 Pac. 935.

donor to the donee, raises no presumption

of ownership in the former, and her decla8 1140.

rations while so in possession as to her rea

son or purpose in making the conveyance 1. Personal property-Transfer of title

are inadmissible in an action to have it esunder sale.-If the subject-matter is identi

tablished that the donee held such property fied when the contract is made, the title

in trust for certain persons.-Francoeur v. passes to the vendee, in the absence of controlling stipulations. When the subject

Beatty, 170 Cal. 740, 151 Pac. 123. matter is subsequently identified by its

3. Delivery, how effected.-While in the appropriation to the contract, the title

case of one's child the necessity of a delivery passes at the time of such appropriation.

is not dispensed with in order to constitute But when there has at no time been identi

a gift, the formal ceremony of a delivery is fication of the subject, the title remains in

not absolutely necessary, but it is sufficient the vendor.--Pabst Brewing Co. v. E. Clem

if it appears that the donor intended an ens Horst Co., 229 Fed. 913.

actual gift at the time, and evidenced his

intention by some act which may be fairly 8 1141.

construed into a delivery.-Wiley B. Allen

Co. v. Edwards, 29 Cal. App. 184, 154 Pac. 1. Executory agreement to sell. An

1066. agreement between the owner of all the

Evidence and burden of proof.-The personal property contained in a hotel and

burden of proving a gift is on the donee.a person entering into the possession of the

Sullivan v. Shea, 32 Cal. App. 369, 162 Pac. hotel and such property that the latter

925. would purchase certain additional furnish

5. Where a claim of gift is asserted after ings for the hotel to a stated amount and

the death of the donor, every element necesthat the former would purchase them in

sary to constitute a gift must be sustained turn from the latter when the latter was

by explicit and convincing evidence.-Sulliin a position to display the receipted bills

van v. Shea, 32 Cal. App. 369, 162 Pac. 925. for the same, constitutes merely an executory agreement to sell and not an executed

8 1148. sale, conditional or otherwise, which becomes consummated upon the purchase of

1. Gift revocable before execution. — A the furnishings by the latter piece by piece

note intended as a mere gift, with no other or lot by lot, and a sale thereof accomplished

consideration than natural affection, can not by the mere execution of a bill of sale, with

form the basis of an action at law, as the out any immediate delivery or followed by

gift is always revocable until it is executed, any actual or continued ch ge of posses

and it is not executed until the note is paid.sion is void as against the holder of a chat

Wisler v. Tomb, 169 Cal. 382, 146 Pac. 876. tel mortgage upon such furnishings, subsequently executed by the original purchaser.

$ 1181. -Jasper v. Presley, 28 Cal. App. 405, 152 1. Conclusiveness of notary's certificate.Pac. 941.

It requires considerable, and perhaps almost conclusive, evidence to overcome a certifi- 2. In an action by a trustee in bankcate of a notary, but it may be overcome and ruptcy against a bankrupt and his wife to | the truth shown.-In re Johnstone, 220 Fed. set aside a deed from the bankrupt to his 218.

wife of five uninclosed lots, and to vacate

a declaration of homestead afterward filed § 1213.

thereon by the wife, a judgment that the 1. Office of recordation.—Recordation has

homestead was valid as to one of the lots no other function than that of notice to the

on which the bankrupt had built a house world.—Burkett v. Doty, 32 Cal. App. 337,

and in which he and his wife at the time 162 Pac. 1042.

resided, but invalid as to the other four lots,

is proper, where it is found upon sufficient 8 1214.

evidence that at the time the declaration

of homestead was filed the defendants re1. Recordation, necessity of.-Unless a

sided in the house situated on such lot and prior deed of land subsequently mortgaged

that it was sufficient in size for the conis first recorded, it is void, against the mort

venient use and enjoyment of the house gagee in good faith and for a valuable con

as a home, and that they never resided on sideration, when such mortgage has been

the other lots, of which neither, nor any duly recorded. A mortgagee who had actual

part thereof, were then or ever necessary notice of the prior conveyance can not be a

for the use and enjoyment of such house or mortgagee in good faith.--Redondo Imp. Co.

home.-Guernsey v. Douglas, 171 Cal. 329, v. O'Shaughnessy, 168 Cal. 323, 143 Pac. 538.

153 Pac. 257. 2. Valuable consideration, what is a.-A

3. The homestead in nowise depends upon conveyance in consideration of the cancellation of a pre-existing indebtedness is one

the character of the title which the home

stead claimant has. A mere naked possesfor a valuable consideration within the

sion, without other title, may be impressed meaning of this section.-Fowles v. Nat.

with the homestead characteristic. WhatBank of California, 167 Cal. 653, 140 Pac.

ever the character of the claim or title which 271.

the declarant has at the time of making the $ 1227.

declaration, the homestead right will attach

to such claim or title. Imperfections in or 1. Transfers As between parent and

even the absence of title is a false quantity child.-A deed of trust made by a father to which must be excluded from consideration. a son, without consideration, while the for- --Bier v. Leisle, 172 Cal. 432, 156 Pac. 870. mer was largely indebted, is not, in itself, a

4. The homestead in nowise depends badge of fraud, but is a transaction which

upon the character of the title which the calls for the careful scrutiny of the court.

homestead claimant has; a mere naked posEvans v. Sparks, 170 Cal. 532, 150 Pac. 372.

session, without other title, may be im§ 1229.

pressed with the homestead characteristic.

Bell v. Wilson, 172 Cal. 123, 155 Pac. 625. 1. Revocation-Construction.—Aside from

5. One may claim a homestead on public the implied permission of section 740, this

lands of the United States of which he has and the following section show that it was

possession, and maintain his homestead the inherent right of every landowner to

rights against all the world except the include a reservation defeating the interest

owner of the superior title.-Bell v. Wilson, granted. Each of these two sections is based

172 Cal. 123, 155 Pac. 625. on the assumption that such a reservation

6. A declaration of homestead upon two would be valid if made. The aforesaid sec

hundred and one acres of public land, emtions can not be distinguished from section 2280 so far as they may be considered as a

bracing a pre-emption claim of eighty acres recognition of the validity of the reserva

upon which the declarant resides, and an tion.-Tennant v. John Tennant Memorial

adjoining eighty acres and two fractional

lots upon which he has filed an application Home, 167 Cal. 570, 140 Pac. 242.

for a certificate of purchase and of which 8 1237.

he is in possession, is valid, and not void

as to the excess over the eighty acres.-Bell 1. Homestead, of what it consists.-What

v. Wilson, 172 Cal. 123, 155 Pac. 625. ever is used, being either necessary or convenient, as a place of residence for the

1241. family as distinguished from the place of business, constitutes the homestead subject 1. Deed as mortgage — Subsequent decto the statutory limit as to value; the prem- laration of homestead.-Where the husband ises to be described in the declaration are and wife executed a mortgage in deed form such, and only such, as the parties are resid- with collateral writing declaring the ing upon and using as a homestead at the writing to be a mortgage, the subsequent time their declaration is made. If more is declaration of a homestead on the property included, it will not for that reason become can not defeat the liability under the morta part of the homestead, and therefore ex- gage, because the collateral writing was empt from execution, notwithstanding the not signed or acknowledged by any of the whole may be less than five thousand dollars parties, nor the mortgage recorded until in value.-Guernsey v. Douglas, 171 Cal. 329, after the filing of the homestead. Such facts 153 Pac. 257.

are within those contemplated by this sub

a

division,-First Nat. Bank v. Merrill, 167 Cal. 392, 139 Pac. 1066.

the amount of land or the number of tracts and parcels of land, provided they are contiguous, which may be lawfully impressed with the homestead characteristics; the limitation is upon the value of the land, not upon the quantity or acreage.--Bell v. Wilson, 172 Cal. 123, 155 Pac. 625.

or

encum

8 1242.

1. Homestead Conveyance brance of.--A purported conveyance or encumbrance of the homestead by either spouse not made in strict compliance with section 1242 of the Civil Code is invalid and inoperative for any purpose.--Ainsworth v. Morrill, 31 Cal. App. 509, 160 Pac. 1089.

2. In an action brought by a husband and wife to have a written contract for an exchange of real property reformed and then specifically enforced, the complaint does not state a cause of action, where it appears therefrom that the contract was not signed and acknowledged by the wife, but only by her husband, and that she, previous to the execution of such contract, had declared a homestead upon the property to be exchanged.—Ainsworth v. Morrill, 31 Cal. App. 509, 160 Pac. 1089.

§ 1265.

1. Homestead --Right of surviving husband.-A homestead declared by a wife upon her separate property "vests absolutely" in the husband upon her death.-Williams v. Williams, 170 Cal. 625, 151 Pac. 10.

2. The doctrine of election is inapplicable to the right of a surviving husband to assert his absolute title to the separate property of his deceased wife upon which she had declared a homestead during their marriage, notwithstanding the property was distributed in the matter of her estate, as provided by the terms of her will, to the husband for life with remainder over to the children.-Williams v. Williams, 170 Cal. 625, 151 Pac. 10.

3. -Right of surviving wife in.-A homestead declared upon land which was community property need not be inventoried, but vests absolutely upon the death of the husband in the surviving wife without the necessity of administration.-Estate of Shirley, 167 Cal. 193, 138 Pac. 994.

$ 1243.

1. Abandonment of homestead.--A homestead can not be abandoned by nonuse, but only in the manner prescribed by statute.Bell v. Wilson, 172 Cal. 123, 155 Pac. 625.

§ 1260.

1. Value of homestead-Limitation on.There is no limitation in this state as to

TITLE VI.

WILLS.

CHAPTER I.

EXECUTION AND REVOCATION OF WILLS.

$ 1313. Charitable, etc., bequests. Limitation as to time and amount.

§ 1270.

relevant as some evidence of incapacity, is WILLS.

never conclusive that a will is invalid.

Estate of Mahoney, 6 Cof. Prob. Dec. 1. 1-9. As to testamentary capacity. 10, 11. Execution of will.

The constituents of testamentary ca

pacity have an idea of the character and 1. As to testamentary capacity.The priv

extent of his property, and are capable of ilege of making testamentary disposition of property is not an inherent or even a con

considering the persons to whom and the stitutional right, but is wholly statutory,

manner and proportion in which he wishes and since the legislature has seen fit to his property to go.—Estate of Egan, 6 Cof. impose certain requirements looking to the

Prob. Dec. 28. execution of a will, compliance with ex- 5. If a testator has sufficient memory and actions is absolutely necessary to the valid- intelligence fairly and rationally to compreity of any instrument offered as a testament. hend the effect of what he is doing, to appre-Estate of Carpenter, 172 Cal. 268, L. R. A. ciate his relations to the natural objects of 1916E 498, 156 Pac. 464.

his bounty, and understand the character 2. No rule of law denies to a man who and effect of the provisions of his will; if he is dissipated and habitually addicted to the has a reasonable understanding of the naexcessive indulgence in intoxicants the right ture of the property he wishes to dispose of, to make a will.-Estate of Mahoney, 6 Cof. and of the persons to whom and the manner Prob. Dec. 1.

in which he wishes to distribute it, and so 3. The fact that the testator, at the time express himself, his will is good. It is not of the execution of the will, is in charge necessary that he should act without promptof a guardian as an habitual drunkard, while ing:-Estate of Egan, 6 Cof. Prob. Dec. 28.

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