2. Where a land contract provides that, on noncompliance by the purchaser with the terms as to deferred payments, the seller shall be free from any obligation to convey, and the purchaser shall forfeit all rights thereunder, except a right to occupy the premises as a tenant of the seller so long as the sums paid are equivalent to an annual rent equal to 12 per cent. of the price agreed on, with the right to purchase during such time, the seller, by bringing an action to recover the unpaid price, waives his right to treat the agreement to convey as void, and hence this clause, giving a right of occupancy for a certain time to the purchaser, which was to apply only in case of forfeiture, has no application.

per

annum

Commissioners' decision. Department 2. Appeal from superior court, Los Angeles County: Walter Van Dyke, Judge.

Action by Daniel Freeman against Daniel Griswold. From a judgment for plaintiff, defendant appeals. Affirmed.

J. R. Dupuy, E. H. Bentley, and R. Dunnigan, for appellant. Henry Bleecker and Geo. I. Cochran, for respondent.

SEARLS, C. This is an action on a written contract entered into between the assignor of plaintiff and defendant for the sale and purchase of real estate, and is brought to recover a balance of $5,863.24 on account of the purchase price, and interest from August 2, 1887, at 10 per cent. per annum. Plaintiffi had judgment, from which, and from an order denying a motion for a new trial, defendant prosecutes this appeal.

By the agreement which was entered into on the 2d day of August, 1887, R. F. Lotspeich, trustee, agreed to sell, and defendant, Daniel Griswold, agreed to buy, certain lots of land situate in the county of Los Angeles, at specified prices per acre, the purchase price of which amounted in the aggregate to $8,194.90. Of the purchase price defendant paid $2,331.66 at the execution of the agree ment, and agreed to pay a like sum at the expiration of six months, and the residue at the end of one year from the date of the agreement, with interest at 10 per centum per annum. That portion of the agreement which gives rise to the principal contention here follows, and is in the following language: "In the event of a failure to comply with the terms hereof by the said party of the second part, the said party of the first part shall be released from all obligation in law or equity to convey said property, and said party of the second part shall forfeit all right thereto, except a right to occupy such premises as a tenant of party of the first part so long as the sums paid are equivalent to an annual rent equal to 12 per cent. per annum of the purchase price agreed on, and party of the second part shall have the right to purchase at any time during the continuance of said rental at original price and twelve per cent. interest. And the said party of the first part, on receiving such payment at the time and in the manner above mentioned, agrees to execute and deliver to said

party of the second part, or to his assigns, a good and sufficient deed in form of grant, bargain, and sale. Time is the essence of this contract, and it is understood that the stipulations aforesaid apply to and bind the heirs, executors, administrators, and assigns of the respective parties." No payments have been made upon the contract except the $2,331.66 paid at the date of its execu tion.

*

According to the complaint and findings of the court, defendant asked for and received from Lotspeich an extension of time for payment of the residue of the purchase price until on or about December 10, 1889, when defendant refused to pay then or at any time, repudiated the contract, and declared himself no longer bound thereby. January 4, 1890, Lotspeich transferred, assigned, and conveyed the land and his interest in the agreement to the plaintiff herein. At the trial it was stipulated "that the contract set out in the complaint was admitted, and the assignment as set out in the complaint was admitted, * and the sole issue was stipulated to be as to the extension of time and waiver, as set out in the complaint." The cause was tried January 27, 1891. It is highly probable, judging from the foregoing stipulation, that the defendant at the trial sought to bring himself within the purview of the rule enunciated in Cleary v. Folger, 84 Cal. 316, 24 Pac. Rep. 280, to the effect that where time is made the essence of a contract for the sale of land, which contract provides for the execution of a deed at a given day upon the payment of a certain sum of money, and also provides for a forfeiture, and that in the event of a failure by the purchaser to comply with the terms of the contract the seller shall be released from all obligations to convey, and the purchaser shall forfeit all right thereto, then, and in such a case, the covenants to convey and to make payment are mutual and dependent, and, if nelther party tenders performance on his part, or demands performance from the other on the day fixed, the contract is at an end, and cannot thereafter be enforced by either party. The covenants and agreements in the case at bar are, in effect, precisely similar to those set out in the agreement in Cleary v. Folger, supra, except as to the proviso here that the purchaser might become a tenant of the seller, and might subsequently purchase at the same price, but with an added rate of interest. Cleary v. Folger, so far as it held that in the absence of payment by the purchaser the seller was bound to tender a deed on the precise day named in the contract, and that, failing to do so, he could not thereafter, upon tender of a deed, recover the purchase money remaining unpaid, was not in conformity with the law as previously declared in like cases, and was to the extent indicated directly

overruled in the later case of Newton v. Hull, 90 Cal. 487, 27 Pac. Rep. 429, decided after the case at bar was tried upon an opinion concurred in by a majority of the commissioners who participated in the opinion in Cleary v. Folger. We must hold here, as was held in Newton v. Hull, supra, and in Wilcoxson v. Stitt, 65 Cal. 596, 4 Pac. Rep. 629, as well as many others that might be cited, that a covenant in an agreement to convey land which provides that, in the event of a failure to comply by the purchasers with the terms as to payment, the seller shall be released from all obligations in law or equity to convey the land, and the purchaser shall forfeit all right thereto, time being made of the essence of the contract, is a covenant for the benefit of the vendor, and must be construed as authorizing him to avoid the contract or not, at his option, and does not authorize the vendee to take advantage of his own neglect in making payment and avoid such contract. It may be said here as was said in Newton v. Hull, supra: There is no provision in the agreement that the plaintiff should forfeit his right to the purchase money in case the defendant should fail to pay it on or before the day on which it became due, nor in case he failed to tender a deed on that day, or at any time before the defendant tendered payment of the purchase money.

Plaintiff was not bound to tender a deed, except upon a tender of the purchase money. Smith v. Mohn, 87 Cal. 489, 25 Pac. Rep. 696; Wilcoxson v. Stitt, supra. Plaintiff could only be put in default by a tender of the purchase money and failure to deliver a deed, and as there is no claim that any such tender of purchase money was ever made we are bound to conclude that the plaintiff is entitled to recover under the contract, unless inhibited therefrom by the exception contained therein, which provides that upon a failure, etc., the party of the second part shall forfeit all right thereto, (to the property,) except a right to occupy the premises as a tenant of the party of the first part so long as the sums paid are equivalent to an annual rent of 12 per cent. per annum of the purchase price agreed to be paid, with the right on his part to purchase the land at any time during such tenancy at the price originally agreed upon, with interest thereon at 12 per cent. per annum. This clause is certainly peculiar. So far as we know, it is sui generis, and is probably an outgrowth of the boom period in which it originated. Twelve per cent. per annum on $8,194.90, the purchase price, would amount to $983.38 per annum, according to which calculation defendant would have been entitled to hold as a tenant, with the privilege of purchasing, for say 28 months. A careful examination of this clause in connection with the provision of forfeiture of which it is a part, and to

which it is an exception, leads to the following conclusions:

1. If defendant failed to make payment of the purchase money as called for by the agreement, his vendor was at liberty to declare a forfeiture, refuse a conveyance, and retain the money already paid.

2. If the vendor declared such forfeiture, and refused a conveyance, defendant had a right, although he had not paid in full, to enter as a tenant, and to purchase, as hereinbefore specified.

3. If the vendor waived a forfeiture, as under a covenant for his own benefit he might well do, the exception, which only applied in case of forfeiture, had no application.

4. The vendor, by bringing an action to recover the purchase money remaining due and unpaid, waived his right under the contract to treat his agreement to convey as null and void, and hence the exception, which only applied in case of forfeiture, had no application.

If we are in error in these views of the force and effect of the contract, it still remains to be said that, the exception in the clause providing for a forfeiture, being for the benefit of defendant, and in the nature of an option, he was at liberty to avail himself of or to reject it, at his pleasure. According to the complaint and findings, which are supported by the testimony, he did repudiate the contract, and there is not in his answer or in the testimony any suggestion that he ever entered into possession as a tenant of his vendor, or claimed any right or evinced any desire so to do. It follows from these views that the demurrer to the amended complaint was properly overruled, and that the contentions of appellant upon the same questions as presented at the trial by numerous exceptions cannot be maintained. The assignment to plaintiff is averred in the complaint, and not denied by the answer. There was evidence in support of the findings, and it can serve no useful purpose to refer to them in detail. The judgment and order appealed from should be affirmed.

We concur: VANCLIEF, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

(99 Cal. 593) LOS ANGELES COUNTY v. BALLERINO et al. (No. 19,036.) (Supreme Court of California. Oct. 4, 1893.) DELINQUENT TAXES-COLLECTION-PENALTY-LIMITATION OF ACTIONS.

1. Under St. 1880, p. 136, providing that "any county, or city and county,' where taxes are delinquent, may sue in its own name for

the recovery thereof, "whether the same be for county or city, or city and county, and state purposes or taxes, or either of them," a county inay sue for delinquent taxes levied for county purposes only; and defendant cannot claim that it ought also to have sued for delinquent state taxes, levied in the same year, and not to have split its demand, thus subjecting defendant to two actions, when it is not alleged in the answer that another action to recover the state taxes is pending, or has been prosecuted to judgment. Los Angeles County v. Ballerino, (Cal.) 32 Pac. Rep. 581, aflirmed.

2. An action to recover delinquent taxes is not within Code Civil Proc. § 339, providing that an action "upon a contract obligation or liability not founded on an instrument in writing" must be brought within two years after the cause of action accrues, but it is within section 338, providing that an action on a liability created by statute, other than a penalty or forfeiture, must be brought within three years. Los Angeles County v. Ballerino, (Cal.) 32 Pac. Rep. 581, affirmed.

3. Pol. Code, § 3770, directs that 5 per cent. on the amount of the delinquent tax be collected in addition to such delinquent tax. Held, that the added per cent. is not such a penalty or forfeiture as is excepted from the operation of Code Civil Proc. § 338, or as falls within section 340, requiring an action "upon a statute for penalty or forfeiture, when the action is given to an individual and the state," to be brought within one year after the cause of action accrues; but the statute contemplates that it shall be collected at the same time and in the same manner as the delinquent tax, and the right to recover it is not lost until the cause of action on the delinquent tax is barred. Los Angeles County v. Ballerino, (Cal.) 32 Pac. Rep. 581, affirmed.

4. Where a party defends an action for delinquent taxes on the ground that his property was fraudulently assessed in excess of its real value, he must show by his answer that he has paid or tendered the amount which would have been due if his property had been assessed at a fair valuation, and he must offer to pay what the court shall find equitable and just; otherwise evidence cannot be admitted as to matters alleged in the answer in regard to the unjust discriminations made against him in the assessment. Los Angeles County Ballerino, (Cal.) 32 Pac. Rep. 581, affirmed. On rehearing.

V.

2. Pol. Code, § 3899, provides that the comptroller may direct a tax collector to whom a delinquent list has been delivered not to proceed further with the collection of any tax on the list amounting to more than $300; and that, if there is no purchaser in good faith at such sale, the collector must deliver to the comptroller a certified copy of the entries on the delinquent list relative to such tax, whereupon an action to collect the same may be brought in the name of the state. Held, that the complaint must aver that the property had been once offered for sale, and a failure to do so is not cured by an averment that defendant had procured an injunction against the sale.

Department 2. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge.

Action by the people of the state against Ballerino and others to recover delinquent taxes. There was a judgment in favor of the people, and defendant Ballerino appeals. Reversed.

Horace Allen, for appellant. James McLachlan, for the People.

By section 1 of "An act prescribing the form of complaints in actions to recover delinquent taxes, and to authorize the bringing of suits therefor," (St. 1880, p. 136, Bancroft Ed. p. 402.) it is provided that "any county, or city and county, where such taxes are delinquent, may sue in its own name for the recovery of delinquent taxes, whether the same be for county, or city and county and state purposes, or taxes, or either of them." The defendant contends that the authority thus given to the county, or city and county, is exclusive, and that the people of the state are not authorized to maintain such actions. We do not think this act should be so construed. Section 3899 of the Political Code authorizes an action to be brought in the name of the people of the state to recover delinquent taxes under certain circumstances. This section of the Political Code is not expressly repealed by the later act of 1880, just cited, and there is no such repugnancy between that section and the act referred to as will justify us in holding that the latter repeals the former by implication. The remedy given by the act of 1880 is more simple, but there is nothing in

its language which expressly or by implication deprives the people of the state of the right to maintain an action for the collection of delinquent taxes under the provisions of section 3899 of the Political Code. The remedy given by the act of 1880 is cumulative, and not exclusive. But, while this is so, we are of the opinion that the complaint in this action does not state facts sufficient to entitle the people of the state to maintain this action under section 3899 of the Political Code. That section provides: “3899. The controller may, at any time after a delinquent list has been delivered to a collector, direct such collector not to proceed in the collection of any tax on said list, amounting to three hundred dollars, further than to offer for sale but once any property upon which such tax is a lien. Upon such direction the collector, after offering the property for sale once, and there being no purchaser in good faith, must make out and deliver to the controller a certified copy of the entries upon the delinquent list relative to such tax; and the tax collector or the controller, in case the tax collector refuses or neglects for fifteen days after being directed to bring suit for collection by the controller, may proceed by civil action in the proper court, and in the name of the people of the state of California, to collect such tax and costs." It is very clear that under this section the people of the state are not authorized to commence an action for the recovery of the delinquent tax until after the property upon which the tax is delinquent has been once offered for sale. This is made by the section a condition precedent to the right to maintain such an action, and it is not alleged in the complaint here that this condition was complied with, or that the controller ever directed the tax collector to only once offer such property for sale. The averment that the defendant procured a temporary injunction restraining the tax collector from selling the property for delinquent taxes, and that this injunction was not dissolved until May 19, 1890, does not cure the defect in the complaint just noticed. The statute having prescribed the conditions upon which alone the state may proceed by action, the performance of such conditions is essential to the right to maintain the action. The manner of collecting taxes rests with the legislature, and when the legislature has prescribed the particular mode, that procedure must be followed, uness it is apparent that it was not intended that such course of procedure should be exclusive. Cooley, Tax'n, pp. 13, 200; City of Camden v. Allen, 26 N. J. Law, 398. This principle was applied in the case of People v. Pico, 20 Cal. 595. Section 2 of the act of 1861 (St. 1861, p. 471) contained a provision that, "if the tax collector of the county shall fail to collect the delinquent taxes * by reason of his inability to find, seize or sell property belonging to the delin

quent, it shall be the duty of the district attorney of the county to commence a civil action # * * to recover the unpaid taxes;" and the court in that case, construing this language, said: "No right of action or authority to bring an action under that act is given, except in cases in which the tax collector shall fail to collect the delinquent tax for the reason above mentioned. The complaint in this case, although averring the action to be brought in pursuance of the act, omits altogether to state the fact of the failure of the tax collector to collect the delinquent tax for the reason above specified, or for any reason. Without such an averment, the complaint shows no cause of action under that act." And this same rule was affirmed in the later case of People v. Holladay, 25 Cal. 301. We think it equally clear that section 3899 of the Political Code confers no right upon the people of the state to maintain such an action as this without at least once offering for sale the property upon which the tax is delinquent, in compliance with the terms of that section. The case of Oakland v. Whipple, 39 Cal. 112, does not conflict with this view. Section 33 of the act of April 24, 1862, (St. 1862, p. 337,) under which that action arose, conferred upon the district attorney the general authority to commence that action.

The question whether the citizen may be harassed and vexed by two suits to recover the amount of taxes levied for state and county purposes in one year upon property situate in one county,-that is, whether the state can maintain an action for its portion, and the county a separate action for the amount levied for county purposes,-is not raised by the answer in this case, and we express no opinion upon it.

Other points urged by counsel for defendant are disposed of adversely to his contention in the case of County of Los Angeles v. Ballerino, 34 Pac. Rep. 329, (19,036,) the decision in which has just been tiled, and it is unnecessary to discuss them here. Judgment and order reversed.

We concur: MCFARLAND, J.; FITZGERALD, J.

(99 Cal. 587) (No. 19,130.) Oct. 3, 1893.)

FULTON v. JANSEN et al.
(Supreme Court of California.
SPECIFIC PERFORMANCE-FAILURE TO SHOW PART
PERFORMANCE-STATUTE OF FRAUDS.

Plaintiff, who purchased land, paying part cash, the balance payable within a year, under oral agreement that he should have a deed thereof on final payment, cut wood on the land for fuel, but never entered into possession. Before the year expired, his grantor conveyed the land to defendants, who verbally agreed to carry out his contract with plaintiff. Held an insufficient part performance by plaintiff to warrant a decree compelling defendants to convey the land to plaintiff.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; William P. Wade, Judge.

Action by Joseph Fulton against Christian Jansen and others. Judgment for plaintiff. Defendants appeal. Reversed.

E. C. Bower and Reymert & Orfila, for appellants. A. R. Metcalfe, for respondent.

SEARLS, C. This action was brought by the respondent to enforce the specific performance of a contract to convey certain real property situate in the county of Los Angeles. Plaintiff had judgment, from which, and from an order refusing a new trial, defendants appeal.

The findings of the court show, in substance, that on the 13th day of October, 1889, one Jason Brown was the owner of the land in dispute, and certain other land of which it was an undivided part. That said Brown, in the presence of defendants, and upon the land, pointed out to plaintiff certain boundaries defining the northerly portion of the tract, which he offered to sell to plaintiff, and plaintiff agreed to buy, for $450,$200 in cash, and the remaining sum of $250 in one year, without interest; a deed to be executed and delivered when the final payment was made. Fulton, the plaintiff, paid the $200 to Brown on the following day, and received a receipt therefor from Brown. One hundred dollars of the amount so paid was borrowed from Christian Jansen, for which plaintiff gave a promissory note payable within 18 months, with interest. Plaintiff lived in a house near said land, upon which he entered, and thereafter cut wood upon it, and removed it to his house, where he used it for fuel. Defendants and plaintiff were at the time intimate friends, and they were present consulting and advising in relation to the purchase. On the 5th of November following, Brown conveyed the whole tract of land, including that sold to plaintiff herein, to the defendants, they agreeing on their part that they would carry out, with plaintiff, Brown's contract to convey to him. Plaintiff tendered the residue of the purchase money to defendants, and demanded from them a conveyance, which was refused. The agreement of Brown to convey to plaintiff, and that of defendants to carry out the same contract, were verbal, and no memorandum or agreement in writing was made or had.

The important questions in the case are these: (1) The contract between Brown and Fulton being for the sale of land, and not being in writing, was there such a part performance as to take the case out of the statute of frauds? (2) If not, does the case, as made, develop such a state of facts as to raise a resulting or a constructive trust in favor of plaintiff which will support the decree? The only evidence under this head tends to prove that the plaintiff paid part

of the purchase price, and used the land in question so far as to cut and remove from it stovewood (but how much, or at how frequent intervals, or for how long a period, does not appear) for family use. This falls far short of making a case for specific performance. Forrester v. Flores, 64 Cal. 25, 28 Pac. Rep. 107. No improvements were made upon the property by plaintiff. The evidence did not show, and the court did not find, that plaintiff entered into possession of the property. In Forrester v. Flores, supra, it was said: "It is only where the payment is accompanied by a change of possession in the land, or the expenditure of money upon it on the faith of the oral agreement, and where the failure to perform by the vendor would work a gross fraud upon the vendee, that a court of equity will decree specific performance by compelling the execution of a deed. Story, Eq. Jur. § 761. For money paid under an invalid contract, the party who pays has an adequate remedy at law.” It is concluded that there can be no specific performance of the oral contract to convey decreed upon the ground of such part performance as is shown in this case.

Resulting trusts and constructive trusts are such as arise by operation of law, and are by our Civil Code, § 2217, denominated "involuntary trusts." Resulting trusts are such as arise where the legal estate in property is transferred or conveyed, but the interest appears, or it is inferred from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to pass to, or be enjoyed with, the legal title. Familiar examples of this character of trusts are cases where property is conveyed by will or deed upon trusts, but no trusts are in fact declared, or where the trust, although in fact declared, has failed, or, where attempted to be declared, the declaration of trust is so imperfect that it cannot be carried into effect. Another example of a resulting trust occurs where a conveyance of property is made to A., the price or consideration being paid by B., whereupon, according to well-settled principles in equity, A. takes the title in trust for B. Pom. Eq. Jur. § 1037; Hidden v. Jordan, 21 Cal. 93; Bayles v. Baxter, 22 Cal. 575. Cases of this character are not within the statute of frauds, and may be proved and disproved by parol. In order to raise such resulting trust by payment of the purchase money, it is essential that the payment be actually made by the beneficiary, or that an absolute obligation to pay should be incurred by him, "as a part of the original trasaction of purchase, at or before the time of the conveyance. No subsequent and entirely independent contract, intervention, or payment on his part would raise any resulting trust." Pom. Eq. Jur. § 1037. Where a part, only, of the purchase money is advanced by B., under like circumstances, a resulting trust pro tanto arises, and an allegation of such