the time stated in the complaint. Upon the affirmance of the judgment, the value of the use and occupation from the time of the appeal became due and payable. Non-payment operated as a breach of the condition of the undertaking; for the condition was to pay, if the judgment appealed from was affirmed, not only from the time of the appeal, but until delivery of possession of the land pursuant to the judgment. The only breach assigned, however, involves the non-payment of the value of the use and occupation of the land from the time of the appeal, i. e., from the twenty-seventh day of July, 1870, until the thirtieth of January, 1872. That is the only cause of action stated in the complaint, and it is the only question with which we have to deal; for whether any other breach of the undertaking may be assigned as a cause of action for the value of the use and occupation of the land not included in this action is a question with which we have nothing to do in this case. The demurrer should have been sustained, for as the complaint was filed on the seventh of September, 1876, more than four years after the cause of action accrued, the motion was barred by the statute of limitations. Section 337, Code Civil Proc.

Judgment and order reversed, and cause remanded.

We concur: SHARPSTEIN, J.; MYRICK, J.; Ross, J.

MCKINSTRY, J. I concur in the judgment.

THORNTON, J. I dissent. I adhere to my opinion as formerly delivered, (4 PAC. REP. 689,) which I file as my opinion in this case.

(66 Cal. 632)

HATCH v. STONEMAN, Governor, etc. (No. 11,020.)

Filed April 24, 1885.

1. CONSTITUTIONAL AMENDMENTS-ADOPTION AND ELECTION ON.

Amendments to the California constitution, under its provisions, are proposed by the two houses of the legislature, but the time for submission of the same to the people must be fixed by act of the legislature, and receive the approval of the governor, or passage in a constitutional manner, after disapproval or veto by the governor, in the regular manner of other bills.

2. SAME-PROCLAMATION FOR ELECTION-MANDAMUS TO COMPEL GOVERNOR TO

ISSUE.

The governor cannot be compelled, by mandamus, to issue a proclamation for an election, on a date specified in a measure adopted by the legislature for submission to the people of a proposed amendment to the constitution, where no law has been adopted fixing the time for such election.

In bank. Application for mandamus.

Garber, Thornton & Bishop, for petitioner.
D. M. Delmas, for respondent.

MORRISON, C. J. This is an application for a writ of mandamus to compel the respondent, as governor of the state of California, to sign, approve, and authenticate a certain measure adopted by the legislature of this state, at its recent session, providing for the sub

mission to the people of certain amendments to sections 1, 8, 10, and 11 of article 13 of the constitution of the state, and also to issue forthwith a proclamation as provided in said measure, calling a special election to be held on the sixth day of June, 1885, submitting to the people of the state, for their approval, the said proposed amendments. As we understood on the argument, the application for the writ to compel the governor to sign the proposed measure or bill was abandoned, it being conceded that the governor, in the matter of signing and approving bills passed by the legislature, has a discretion which cannot be controlled by the writ of mandate.

Section 1085 of the Code of Civil Procedure, by which the issuance of the writ is authorized, provides that it may be issued to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, and the writ can issue only. to compel the performance of an act or duty clearly enjoined by law. Draper v. Noteware, 7 Cal. 278.

The learned counsel for the respondent contends that the duty, the performance of which is sought to be enforced by the writ in this case, is not imposed on the governor either by the constitution or the law; and it is very clear that unless the constitution or the law makes it the duty of the governor to issue a proclamation for an election, this court cannot compel him to do so.

Let us first look at the constitution: Section 1, art. 18, of that instrument provides that "any amendment or amendments to this constitution may be proposed in the senate or assembly, and if two-thirds. of all the members elected to each of the two houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in their journals, with the nays and yeas taken thereon; and it shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner and at such times and after such publication as may be deemed expedient." It will be remarked that the power to propose an amendment to the constitution is vested in the two houses,-senate and assembly,-and if two-thirds. of all the members elected to each of the two houses vote in favor thereof, it shall be the duty of the legislature to submit such proposed amendment or amendments to the people to be voted thereon. The proposal of the amendment or amendments is not by the legislature, as such, in the ordinary enactment of a law, and with the proposal the governor has nothing to do. The act is that of two-thirds of each branch of the legislature. But the matter of submitting the proposed amendment or amendments to the vote of the people is quite different. That is to be done by the legislature, by a law to that effect, and in the enactment of a law the governor is a part of the law-making power. As was said by the supreme court of the United States in the case of Memphis v. U. S. 97 U. S. 296, 297, "the constitution ordains that no bill shall become a law until it shall have received the approval of the governor, or shall have been otherwise passed

under the provisions of the constitution; that is, as we understand it, over his refusal to approve. The executive is thus made a necessary

constituent of the law-making power."

The foregoing decision was under a constitution similar to ours on the point in question. By section 16, art. 4, of our constitution, it is declared that "every bill which may have passed the legislature shall, before it becomes a law, be presented to the governor. If he approve it he shall sign it; but if not, he shall return it with his objections to the house in which it originated, which shall enter such objections upon the journal and proceed to reconsider it. If any bill shall not be returned within ten days after it shall have been presented to him, (Sundays excepted,) the same shall become a law in like manner as if he had signed it, unless the legislature, by adjournment, prevents such return, in which case it shall not become a law unless the governor, within ten days after such adjournment, (Sundays excepted,) shall sign and deposit the same in the office of the secretary of state, in which case it shall become a law in like manner as if it had been signed by him before adjournment."

In this instance the legislature, by adjournment, prevented such return, and the governor did not sign and deposit the bill in the office of the secretary of state. The learned counsel for the petitioner contends that it was intended by the framers of the constitution that the same power that could propose the amendment could provide for its submission to the people at any time it saw fit, and that it never was intended that any one man should thwart their will. If such was the intention the language employed does not aptly express such intention; but, on the contrary, the language used expresses a different idea. At the expense of repetition, we again say that the two houses of the legislature propose the amendment, but the time when such proposed amendment is to be submitted to the people is fixed by an act of the legislature, and such act does not require the concurrence of two-thirds of each branch of that body, but does require the approval of the governor, or the passage in the constitutional manner, after his disapproval or veto of the bill, to make it a law. We do not find in the constitution anything which imposes upon the governor of the state the duty to issue the proclamation for an election, and it is not contended that there is any law, independent of the measure we have been considering, which casts the duty upon him. The time when the election is to be held must be fixed by law, and as there is no law fixing such time, it follows that a proclamation calling an election on the sixth day of June is not a duty resulting from an office, trust, or station which the governor can be required by writ of mandamus to perform. The petition must therefore be denied; and it is so ordered.

We concur:

SHARPSTEIN, J.; MCKINSTRY, J.; MCKEE, J.; THORNTON, J.; MYRICK, J.

(66 Cal. 636)

SCHROEDER v. WITTRAM. (No. 8,248.)

Filed April 24, 1885.

JURISDICTION OF JUSTICE'S COURT-ACTION FOR DEPOSIT PENDING SEARCH OF TITLE TO LAND.

The justice's court has jurisdiction to hear and determine an action for the recovery of a sum of money less than $300, deposited by the plaintiff with the defendant as security for the performance of a contract for the purchase of certain land, if the title was good, on defendant's promise to immediately return the deposit if the title shall be found not good within the time allowed for the search of such title: such a case not involving the question of title to land. The jurisdiction of the justice's court is not necessarily divested because the title or possession of the land is a fact incidentally in controversy, nor unless the actual title or right of possession is directly involved in the case.

In bank. Appeal from the superior court of the city and county of San Francisco.

C. Wittram, for appellant.

F. J. Castleton, for respondent.

MCKEE, J. This is an appeal from the judgment of a superior court rendered in a trial de novo of a case on appeal from the judgment of a justice's court, taken on questions of both law and fact. The contention made by the appellant is that the judgment is void because the justice's court had no jurisdiction to try and determine the action, it being an action in which the question of title to real property was involved.

• Unquestionably, a justice's court has no jurisdiction of an action "which involves the title or possession of real property." Original jurisdiction to hear and determine such cases has been vested by the constitution in the several superior courts. Section 5, art. 6, Const. But the very question here is whether the action in which the judgment appealed from was rendered, is of that character. We think it is not. It is, in its scope and object, merely an action to recover a deposit made by the plaintiff as a party to an executory contract for the sale of real property, by which he agreed to purchase the property at a stipulated price if the title was good, and in which it was stipulated, "if the title should not be good the deposit was to be immediately returned, fifteen days being given for legal search of title."

Upon an examination of the records of the title, made within the contract time, the plaintiff found that the land which he proposed to buy was incumbered, and that the title to it was not good. He thereupon immediately notified the vendor of the fact, and demanded a return of the deposit, and payment of the expenses incurred in the search of title. This the defendant refused, and the plaintiff brought the action in hand to recover judgment for the amount. If the plaintiff could not obtain what he proposed to buy, i. e., title to the land, he had the right to refuse to buy, and to recover back any money he may have deposited as security for the performance of his contract. This right is grounded upon the fact, as ascertained by him upon an examination of the records of the title, that the land was incumbered, v.6p,no.11-47

or that the title was apparently defective. Where that fact exists, a purchaser of real property cannot be compelled to take it.

"It is a principle obviously just," say the supreme court of Maryland, "that a vendee is entitled to have that for which he contracts before he can be compelled to part with the consideration he agreed to pay. He is not to take an estate fettered with incumbrances. * * * He is not bound to accept anything short of an unincumbered legal estate in fee." Gill v. Wells, 59 Md. 493. So says the supreme court of New York: "A contract to sell land can only be performed by a conveyance that will vest in the grantee an unincumbered and indefeasible estate." Delavan v. Duncan, 49 N. Y. 485. When, therefore, a purchaser of real estate finds, from the search of title, that he cannot obtain title from the proposed vendor, he is not bound to accept the land without a good title any more than he would be bound to receive personal property which did not correspond with the description given of it. The personal property he can return, and the land he can refuse to take. In either case equity will not compel him to buy, and what absolves him in equity will discharge him at law from responsibility upon the contract to buy. In legal effect the consideration of such a contract fails; and a failure of the consideration ends the contract. What is known in the civil law as rehibition, and in our law as rescission of the contract, or dissolution of the proposed sale, takes place, and the buyer and seller are restored to their original position; the law vesting the buyer with the right to a return of any money which he may have paid upon the contract, and to a legal remedy to enforce the return of it by an action against the seller as for money had and received.

As an action for money had and received, the justice's court in which the complaint was filed had jurisdiction. The statement of the cause of action showed that plaintiff deposited with defendant $50 as security to perform the contract which he had made for the purchase of the land if the title was good; that the defendant promised to immediately return the deposit if the title should not be found good within the time allowed for the search of the records of title; that within that time the plaintiff, having ascertained that the title was not good, declined to complete the purchase, and demanded a return of his deposit, and the expenses incurred by him in the examination of the records of the title, which were refused, and he asked judgment for $125 and costs. Upon that statement of his cause of action the plaintiff would have been entitled to judgment for the amount demanded if the defendant had failed to appear and answer the complaint. Subdivision 1, § 871, Code Civil Proc. But defendant appeared and answered by a general denial. The complaint was not verified, nor was the answer; so that there was no question of title or possession of real property presented by the complaint, nor in the issues raised by the complaint and answer; and as the justice's court acquired jurisdiction of the parties, and had jurisdiction of the sub