No. 8,150.

REYNOLDS v. WESTON ET AL.

Department Two. Filed July 19, 1884.

JUDGMENT OF THE LOWER COURT MODIFIED.

APPEAL from a judgment of the superior court for Santa Clara county, entered in favor of the plaintiff, in an action to obtain a decree authorizing the plaintiff to sell certain lands held by him in trust. The further facts appear in the opinion.

William L. Gill, for the appellants.

C. D. Wright and John Reynolds, in propria persona, for the respondent.

THE COURT. The decree seems to follow the provisions of the deed of trust in authorizing a sale of the premises conveyed to the plaintiff when he shall obtain possession thereof by virtue of a judg ment in an action then pending in which the right of possession was involved-except in the particular hereinafter noted.

As to the compensation to which the court found plaintiff entitled, and decreed that he should be paid out of the proceeds of said sale, we are not prepared to say that the amount is unreasonable.

The deed contained the agreement that Reynolds should hold the land until the litigation be finally ended; the decree authorizes a sale when the litigation be finally disposed of as to the whole or any part of said premises. The decree should be modified by striking out the words " or any part" and "or any part thereof." The court below is directed to modify the decree in this particular; and in all other respects the judgment is affirmed.

No. 9,225.

DURFEE ET AL. v. GARVEY.

Department Two. Filed July 19, 1884

MARRIED WOMAN'S DEED-ACKNOWLEDGMENT.-The deed of a married woman, acknowledged as the deed of a feme sole, conveys no title; and her subsequent proper acknowledgment of the same will not operate, by relation, to pass title as of the date of the first acknowledg

ment.

APPEAL from a judgment of the superior court for Los Angeles county, entered in favor of the defendant, and from an order denying the plaintiff a new trial, in an action to quiet title. On July 26, 1877, one Maria E. Espinosa, a married woman, delivered to the appellants an instrument purporting to be her deed to the land in controversy. Such instrument was acknowledged by her as a feme sole, before a justice of the peace, who certified to her acknowledg ment as a feme sole. This instrument was recorded on July 28, 1877. On August 9, 1881, the said Espinosa conveyed the land to the defendant, by a deed properly acknowledged. On December 29,

1881, the plaintiff's had their grantor re-acknowledge their deed, and had it properly certified.

Brunson & Wells, for the appellants.

F. H. Howard, and Smith, Brown & Hutton, for the respondent.

THE COURT. The certificate of acknowledgment of Maria E. Espinosa, dated July 26, 1877, was fatally defective, and the deed conveyed no title. The evidence given on the trial of the case does not show that the acknowledgment was other than as certified by the officer. Her proper acknowledgment of the deed, subsequent to her conveyance to the defendant, did not cure the defective acknowledgment. The court found that Garvey made on representation to said Maria for the purpose of deceiving her, and that she was not deceived.

We see no error.

Judgment and order affirmed.

No. 8,958.

CALIFORNIA SOUTHERN R. R. Co. v. SOUTHERN PACIFIC R. R. Co.

Department Two. Filed July 19, 1884.

AN ACTION FOR THE CONDEMNATION OF LAND MUST BE BROUGHT and tried in the county in which the land is situated.

APPEAL from an order of the superior court for San Bernardino county, entered in favor of the plaintiff. The opinion states the facts.

A. B. Hotchkiss, for the appellant.

Cooper and Waters, for the respondent.

THE COURT. This action was brought to condemn land for the use of a railroad. The defendant demanded a change of venue on the ground that its principal place of business was in the city and county of San Francisco, and that the action should have been there commenced. The court denied the motion. Sufficient authority for the order of the court is found in sec. 1,243, C. C. P., which declares that actions of this character must be brought in the superior court of the county in which the property is situated. real estate sought to be condemned is in San Bernardino county; therefore, that was the proper county for the commencement of the action, and for its trial. For this reason, and also for the reasons given in Cal. S. R. R. Co. v. S. P. R. R. Co., No. 9,C24, opinion filed July 18, 1884, ante, p. 301, the order is affirmed.

The

No. 9,493.

ESTATE OF HIGGINS, Deceased.

Department Two. Filed July 19, 1884.

HUSBAND AND WIFE-SEPARATE AND COMMUNITY PROPERTY.-Real estate bought by a husband after marriage, with money resulting from the ordinary use by him of the property which he owned at the time of his marriage, is not community property.

APPEAL from an order of the superior court for Santa Barbara county, refusing to set aside a homestead. The opinion states the facts.

R. B. Canfield, for the appellant.

Paul R. Wright, for the respondents.

MYRICK, J. The widow of deceased petitioned the court below to set apart a homestead to her own use, absolutely, out of the real estate, averring that the said real estate was community property of herself and her said husband. The father and mother of deceased (he leaving no issue) contested the petition, averring that the property was the separate property of the deceased. The court found, as conclusion of law, the property to be separate property of deceased, and refused to set apart a homestead except for a limited period. From this order the widow appealed.

The facts, as to the property, are as follows: The said Frank G. Higgins and the petitioner, then residents of Illinois, intermarried in that state in February, 1880. At that time he was the owner of a farm in Illinois, and of stock and farming utensils thereon, and other personal property. From the time of the marriage they resided on the farm, and he tilled and cultivated the same, and raised live stock thereon, and purchased live stock, which he raised and fattened with the products raised by him on the farm, and from time to time sold portions of such live stock and of the products raised by him on said farm. Subsequent to the marriage he expended large sums of money in the construction of a dwelling and other buildings and improvements on the farm. In November, 1882, decedent sold the said farm and personal property, with the buildings and improvements, and the increase and profits of said property and of the labor and industry of decedent, and converted the same into money, and removed to this state, and purchased, and out of said money paid for the real property mentioned in the petition herein.

The findings of the court below state the law of Illinois, regarding the right of the widow to share in the property of her deceased husband; but it is not necessary, for the purposes of this appeal, to consider the law of that state, as it relates to heirship, and does not appear to have the distinction as between separate and community property, appearing in the laws of this state.

It is sufficient to say that it does not appear even when measured by the law of this state, that the real estate mentioned in the peti

tion, was community property. It does not appear what part, if any, of the purchase money was the product of the labor or industry of the decedent after the marriage. It does not appear (the case being here on the findings and order) that the petitioner offered to show what portion, if any, of the purchase money was earned by her husband during the coveture. On the contrary, it would seem. from the findings, that all the accumulations after the marriage were the result of the ordinary use by him of the property which he owned at the time of his marriage with the petitioner.

Order affirmed.

SHARPSTEIN, J., and THORNTON, J., concurred.

No 8,040.

KERNS v. MCKEAN.

Department Two. Filed July 22, 1884.

CONTRACT FOR SALE OF LAND-FORFEITURE-VENDOR AND VENDEE.-The right of a vendor to enforce a stipulation in a contract for the sale of land, providing for a forfeiture of the ontract upon the non-payment of the purchase price, is not waived nor lost by mere delay, or by the death of the vendee.

JUDGMENT REVERSED ON ACCOUNT OF CONTRADICTION in the findings.

APPEAL from a judgment of the superior court for Santa Cruz county, entered in favor of the defendant, and from an order denying the plaintiff a new trial. The opinion states the facts.

C. B. Younger, for the appellant.

J. A. Barham, for the respondent.

THORNTON, J. Action to recover possession of a parcel of land situated in the county of Santa Cruz. The defenses set up do not invoke any equity for defendant's protection. They are purely legal, and go to the plaintiff's claim to recover on his legal right to the possession. No equity to a specific performance of the contract referred to in the findings between Patterson and Sanford is put forth in the answer. Therefore the cases cited for respondent are not applicable.

The court rendered the following decision:

"First-On and before the twenty-fifth day of October, 1867, W. H. Patterson was the owner of the premises described in plaintiff's complaint, holding the same by regular mesne conveyances from the heirs of José Amesti, a claimant of a grant from the Mexican government, which was, in due form confirmed and patented to the heirs of said Ámesti by the United States authorities.

"Second-That while said Patterson was so the owner of said premises, and on the twenty-fifth day of October, 1867, he made, entered into and executed an agreement in writing with one A. P. Sanford, by the terms and conditions of which the said Sanford agreed to pay said Patterson the sum of three thousand three

hundred and thirty-six dollars at the time and in the manner fol

lowing, to wit:

Together with interest on said sums unpaid from October 25, 1867, at 10 per cent. per annum, with like interest on all sums unpaid. The interest if not paid to be compounded from month to month. It was also provided in said agreement that Sanford should keep all the taxes of every kind, laid, imposed or assessed thereon, or which might prima facie appear to be laid, imposed or assessed thereon, paid.

"Third-In consideration of these payments thus to be made, Patterson agreed and covenanted to execute to Sanford, upon the full payment of said several sums, a conveyance to the tract in question. It was further provided that in the event default should be made in the payment of any of said installments, either of principal or interest, or the payment of any taxes when the same became due, or should appear to be due, that the whole principal and interest should be due at the election of said Patterson, and that said Patterson might declare said agreement and all the rights of said Sanford thereunder, forfeited and ended, by depositing written notice that he declares the same forfeited, in the office of the county recorder of Santa Cruz county, and immediately thereupon said Patterson should be at liberty and have the right to re-enter into the free and full possession of said premises, and should be restored to his former estate therein, and remove all persons therefrom, and all payments thereto made thereon by Sanford should be retained as the compensation and equivalent for the use of said premises prior to said forfeiture. It was further provided in said agreement that said Sanford should take immediate possession of said premises and hold possession thereof until default should be made in some one of the covenants and agreements contained to be kept and performed by said Sanford. That said agreement was executed in duplicate, one of which was delivered to Sanford, the other to said Patterson. Said agreement, as attached to defendant's answer, is hereby referred to and made a part of this finding.

"Fourth-Under this agreement Sanford entered into possession and the occupation of said premises, and remained in the possession thereof until his death, Sept. 4, 1874.

"Fifth-That said Sanford made the following payments and no other on said contract:

Oct. 25, 1867, by exchange of land...

Dec. 19, 1868, by cash..

May 20, 1871, by cash...

.$500

500

200

"That said Patterson never at any time took steps to enforce the collection of the payments in arrears on said contract, or to declare