delivered to the grantee by the depositary after the death of the grantor, and that the title is to vest only upon such delivery after his death, then the deed is entirely inoperative as constituting an attempt by the grantor to make a testamentary disposition of his property.-Williams v. Kidd, 170 Cal. 631, Ann. Cas. 1916E 703, 151 Pac. 1.

8. Intent to deliver.-It is essential to the validity of a transfer of real property that there be a delivery of the conveyance with intent to transfer the title, and the true test under which delivery is to be determined is in ascertaining whether in parting with the possession of the conveyance the grantor intended thereby to divest himself of title; if he did, there is an effective delivery of the deed, and, if not, there is no delivery; the solution of this question is grounded entirely on the intention of the grantor, and this essential matter of intention is a question of fact to be determined by the trial court from a consideration of all the evidence in a given case bearing on the question.-Williams v. Kidd, 170 Cal. 631, Ann. Cas. 1916E 703, 151 Pac. 1,

9. Delivery or nondelivery is always a question of fact to be found from the surrounding circumstances of each transaction. -Donahue v. Sweeney, 171 Cal. 388, 153 Pac.

708.

10. Whatever method of delivery is adopted, there must be a plain showing that the grantor by acts or words or both intended to divest himself of title.-Donahue v. Sweeney, 171 Cal. 388, 153 Pac. 708.

11. Where a grantee deals with property as her own, after having delivered the deed to a third person, this negatives the theory that she intended the deed to pass title.Tweedale v. Barnett, 172 Cal. 271, 156 Pac. 483.

12. To constitute delivery of a deed, it is not sufficient that there be a mere delivery of its possession, but this act must be accompanied with the intent that the deed shall become operative as such.-Cox v. Schnerr, 172 Cal. 371, 156 Pac. 509.

13. The solution of the question of delivery or non delivery in each case is based upon the intention of the grantor at the time of passing the deed to a third person. Smith v. Smith, 173 Cal. 724, 161 Pac. 495.

14. Presumption of delivery. A deed found in the possession of the grantor supports a presumption that it was never delivered.-Donahue v. Sweeney, 171 Cal. 388, 153 Pac. 708.

15. The production of a deed by the grantee named therein is prima facie evidence of delivery, but may be overcome by evidence.-Cox v. Schnerr, 172 Cal. 371, 156 Pac. 509.

16. Proof of the execution of a deed and that it was not subsequently given to the grantees, or to any one for them, gives rise to the presumption of nondelivery.-Tweedale v. Barnett, 172 Cal. 271, 156 Pac. 483.

1. Delivery in escrow.-Where a deed is given to a third person to be delivered to the grantees in the deed on the payment of a certain sum of money, the grantor has a right to recall the deed any time prior to payment by the grantees, and the death of the grantor revokes the right to deliver the deed.-Holland v. McCarthy, 173 Cal. 597, 160 Pac. 1069.

2. The deposit of a deed with a third person to be delivered to the grantee only upon payment of the price fixed by the grantor can not be sustained as an escrow, where there has been no prior or contemporaneous contract of sale of which the delivery of the deed was to be the consummation.-Holland v. McCarthy, 173 Cal. 597, 160 Pac. 1069.

3. Where the very question is whether or not the alleged grantor has parted with his title by making an efficient delivery of his deed, his acts and statements material to the question of delivery during the entire period of escrow may be proven.-Smith v. Smith, 173 Cal. 724, 161 Pac. 495.

4. The attorney of the grantor is not disqualified from holding such a deed for delivery. Smith v. Smith, 173 Cal. 724, 161 Pac. 495.

5. The deposit by sureties on a bail of notes and mortgages with a bank under an agreement for their delivery to the owner in case the sureties are discharged in liability on the bond constitutes an escrow.-Phenegar v. Paolini, 27 Cal. App. 381, 149 Pac. 1008.

6. Rights of grantee.-Where a grantor gives a deed to a third person with instructions to deliver it to the grantee on payment of a certain sum and authorizes the third person to keep the proceeds, the deed is not converted into a valid escrow by the consent of the grantees that she may keep the deed until the payment of the consideration. -Holland v. McCarthy, 173 Cal. 597, 160 Pac. 1069.

7. Where a grantor gives a deed to a third person with instructions to deliver it to the grantee on the payment of a certain sum, and authorizes the third person to keep the proceeds, such third person acquires no interest in the proceeds prior to their payment by the grantee and her rights are terminated on the death of the grantor before the payment of the consideration by the grantee.-Holland v. McCarthy, 173 Cal. 597, 160 Pac. 1069.

8. It is essential to the validity and effectiveness of a deed in escrow that it be

1.

Interpretation of grants.-In ascertaining 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, the effort 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.

§ 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, 151 Pac. 165.

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.

§ 1104.

1.

Easements-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 matter 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.

if the road is not built within the stated time, the land shall revert to the grantor, is a conveyance upon condition subsequent, and upon breach of the condition the grantor is entitled to have his title to the land quieted as against the grantee.-Firth v. Los Angeles Pac. Land Co., 28 Cal. App. 399, 152 Pac. 935.

2. Such a condition subsequent is deemed satisfied by a substantial compliance with its terms; it is, however, held herein that the extension of a certain electric street-car line along a street on which the land in question had one frontage, was not intended as a compliance with such condition.-Firth v. Los Angeles Pac. Land Co., 28 Cal. App. 399, 152 Pac, 935.

3. Such a condition is not waived by the grantor in executing an extension agreement, whose only effect was to extend the time of construction of the road for one year. Firth v. Los Angeles Pac. Land Co., 28 Cal. App. 399, 152 Pac. 935.

4. Breach of a covenant ordinarily renders the covenantor merely liable in damages, but 'a conveyance upon condition subsequent if the agreement is so expressed, result may, in a defeat of the title of the vendee.Firth v. Los Angeles Pac. Land Co., 28 Cal. App. 399, 152 Pac. 935.

§ 1140.

1. Personal property-Transfer of title under sale.-If the subject-matter is identified when the contract is made, the title passes to the vendee, in the absence of controlling stipulations. When the subjectmatter is subsequently identified by its appropriation to the contract, the title passes at the time of such appropriation. But when there has at no time been identification of the subject, the title remains in the vendor.-Pabst Brewing Co. v. E. Clemens Horst Co., 229 Fed. 913.

§ 1141.

1. Executory agreement to sell.- - An agreement between the owner of all the personal property contained in a hotel and a person entering into the possession of the hotel and such property that the latter would purchase certain additional furnishings for the hotel to a stated amount and that the former would purchase them in turn from the latter when the latter was in a position to display the receipted bills for the same, constitutes merely an executory agreement to sell and not an executed sale, conditional or otherwise, which becomes consummated upon the purchase of the furnishings by the latter piece by piece or lot by lot, and a sale thereof accomplished by the mere execution of a bill of sale, without any immediate delivery or followed by any actual or continued change of possession is void as against the holder of a chattel mortgage upon such furnishings, subsequently executed by the original purchaser. -Jasper v. Presley, 28 Cal. App. 405, 152 Pac. 941.

1917 Sup.-26.

§ 1146.

1. Gifts.-The gift of the donor's own promissory note, either inter vivos or in view of death, does not create an enforceable obligation in favor of the donee against the donor or his estate.-Wisler v. Tomb, 169 Cal. 382, 146 Pac. 876.

2. The elements essential to constitute a valid gift are an intention to give and the delivery, either actual or symbolical, of the thing intended to be given.-Sullivan Shea, 32 Cal. App. 369, 162 Pac. 925.

§ 1147.

DELIVERY OF GIFT.

1, 2. Construction.

3. Delivery, how effected.

4, 5. Evidence and burden of proof.

1.

V.

Construction.-This rule has no application when the gift is effected by an instrument in writing.-Francoeur v. Beatty, 170 Cal. 740, 151 Pac. 123.

2.

Where a written instrument making a gift of stocks and bonds is executed and delivered to the donee, the retention of the possession of the property by the donor intermediate to the execution of the instrument of gift and actual delivery by the donor to the donee, raises no presumption of ownership in the former, and her declarations while so in possession as to her reason or purpose in making the conveyance are inadmissible in an action to have it established that the donee held such property in trust for certain persons.-Francoeur v. Beatty, 170 Cal. 740, 151 Pac. 123.

3. Delivery, how effected.-While in the case of one's child the necessity of a delivery is not dispensed with in order to constitute a gift, the formal ceremony of a delivery is not absolutely necessary, but it is sufficient if it appears that the donor intended an actual gift at the time, and evidenced his intention by some act which may be fairly construed into a delivery.-Wiley B. Allen Co. v. Edwards, 29 Cal. App. 184, 154 Pac. 1066.

4. Evidence and burden of proof.-The burden of proving a gift is on the donee.Sullivan v. Shea, 32 Cal. App. 369, 162 Pac. 925.

5. Where a claim of gift is asserted after the death of the donor, every element necessary to constitute a gift must be sustained by explicit and convincing evidence.-Sullivan v. Shea, 32 Cal. App. 369, 162 Pac. 925.

§ 1148.

1. Gift revocable before execution. — A note intended as a mere gift, with no other consideration than natural affection, can not form the basis of an action at law, as the gift is always revocable until it is executed, and it is not executed until the note is paid.— Wisler v. Tomb, 169 Cal. 382, 146 Pac. 876.

§ 1181.

conclusive, evidence to overcome a certificate of a notary, but it may be overcome and the truth shown.-In re Johnstone, 220 Fed. 218.

§ 1213.

1. Office of recordation.-Recordation has no other function than that of notice to the world.-Burkett v. Doty, 32 Cal. App. 337, 162 Pac. 1042.

§ 1214.

a

1. Recordation, necessity of.-Unless prior deed of land subsequently mortgaged is first recorded, it is void, against the mortgagee in good faith and for a valuable consideration, when such mortgage has been duly recorded. A mortgagee who had actual notice of the prior conveyance can not be a mortgagee in good faith.-Redondo Imp. Co. v. O'Shaughnessy, 168 Cal. 323, 143 Pac. 538. 2. Valuable consideration, what is a.-A conveyance in consideration of the cancellation of a pre-existing indebtedness is one for a valuable consideration within the meaning of this section.-Fowles v. Nat. Bank of California, 167 Cal. 653, 140 Pac. 271.

§ 1227.

1. Transfers - As between parent and child. A deed of trust made by a father to a son, without consideration, while the former was largely indebted, is not, in itself, a badge of fraud, but is a transaction which calls for the careful scrutiny of the court.Evans v. Sparks, 170 Cal. 532, 150 Pac. 372.

§ 1229.

1.

Revocation—Construction.—Aside from the implied permission of section 740, this and the following section show that it was the inherent right of every landowner to include a reservation defeating the interest granted. Each of these two sections is based on the assumption that such a reservation would be valid if made. The aforesaid sections can not be distinguished from section 2280 so far as they may be considered as a recognition of the validity of the reservation.-Tennant v. John Tennant Memorial Home, 167 Cal. 570, 140 Pac. 242.

§ 1237.

1. Homestead, of what it consists.-Whatever is used, being either necessary or convenient, as a place of residence for the family as distinguished from the place of business, constitutes the homestead subject to the statutory limit as to value; the premises to be described in the declaration are such, and only such, as the parties are residing upon and using as a homestead at the time their declaration is made. If more is included, it will not for that reason become a part of the homestead, and therefore exempt from execution, notwithstanding the whole may be less than five thousand dollars in value.-Guernsey v. Douglas, 171 Cal. 329, 153 Pac. 257.

2. In an action by a trustee in bankruptcy against a bankrupt and his wife to set aside a deed from the bankrupt to his wife of five uninclosed lots, and to vacate a declaration of homestead afterward filed thereon by the wife, a judgment that the homestead was valid as to one of the lots on which the bankrupt had built a house and in which he and his wife at the time resided, but invalid as to the other four lots, is proper, where it is found upon sufficient evidence that at the time the declaration of homestead was filed the defendants resided in the house situated on such lot and that it was sufficient in size for the convenient use and enjoyment of the house as a home, and that they never resided on the other lots, of which neither, nor any part thereof, were then or ever necessary for the use and enjoyment of such house or home.-Guernsey v. Douglas, 171 Cal. 329, 153 Pac. 257.

3. The homestead in nowise depends upon the character of the title which the homestead claimant has. A mere naked possession, without other title, may be impressed with the homestead characteristic. Whatever the character of the claim or title which the declarant has at the time of making the declaration, the homestead right will attach to such claim or title. Imperfections in or even the absence of title is a false quantity which must be excluded from consideration. -Bier v. Leisle, 172 Cal. 432, 156 Pac. 870.

4. The homestead in nowise depends upon the character of the title which the homestead claimant has; a mere naked possession, without other title, may be impressed with the homestead characteristic.Bell v. Wilson, 172 Cal. 123, 155 Pac. 625.

5. One may claim a homestead on public lands of the United States of which he has possession, and maintain his homestead rights against all the world except the owner of the superior title.-Bell v. Wilson, 172 Cal. 123, 155 Pac. 625.

6. A declaration of homestead upon two hundred and one acres of public land, embracing a pre-emption claim of eighty acres upon which the declarant resides, and an adjoining eighty acres and two fractional lots upon which he has filed an application for a certificate of purchase and of which he is in possession, is valid, and not void as to the excess over the eighty acres. -Bell v. Wilson, 172 Cal. 123, 155 Pac. 625.

§ 1241.

1. Deed as mortgage Subsequent declaration of homestead.-Where the husband and wife executed a mortgage in deed form with a collateral writing declaring the writing to be a mortgage, the subsequent declaration of a homestead on the property can not defeat the liability under the mortgage, because the collateral writing was not signed or acknowledged by any of the parties, nor the mortgage recorded until after the filing of the homestead. Such facts are within those contemplated by this sub

1. Homestead Conveyance or encumbrance 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.

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.

§ 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.

§ 1270.

WILLS.

1-9. As to testamentary capacity. 10, 11. Execution of will.

1. As to testamentary capacity.—The privilege of making testamentary disposition of property is not an inherent or even a constitutional right, but is wholly statutory, and since the legislature has seen fit to impose certain requirements looking to the execution of a will, compliance with exactions is absolutely necessary to the validity of any instrument offered as a testament. -Estate of Carpenter, 172 Cal. 268, L. R. A. 1916E 498, 156 Pac. 464.

2. No rule of law denies to a man who is dissipated and habitually addicted to the excessive indulgence in intoxicants the right to make a will.-Estate of Mahoney, 6 Cof. Prob. Dec. 1.

3. The fact that the testator, at the time of the execution of the will, is in charge of a guardian as an habitual drunkard, while

relevant as some evidence of incapacity, is never conclusive that a will is invalid.Estate of Mahoney, 6 Cof. Prob. Dec. 1.

4. The constituents of testamentary capacity have an idea of the character and extent of his property, and are capable of considering the persons to whom and the manner and proportion in which he wishes his property to go.-Estate of Egan, 6 Cof. Prob. Dec. 28.

5. If a testator has sufficient memory and intelligence fairly and rationally to comprehend the effect of what he is doing, to appreciate his relations to the natural objects of his bounty, and understand the character and effect of the provisions of his will; if he has a reasonable understanding of the nature of the property he wishes to dispose of, and of the persons to whom and the manner in which he wishes to distribute it, and so express himself, his will is good. It is not necessary that he should act without prompting.-Estate of Egan, 6 Cof. Prob. Dec. 28.