See, also, Highways; Schools and School-Dis- Kan. 1885, c. 113,) they must be assessed by the

TROVER AND CONVERSION.

What constitutes conversion.

1. Where goods are sold and delivered in pay-
ment of a debt, the fact that the consideration ex-
pressed in the bill of sale is twice the amount of the
debt is not sufficient, in the absence of other proof
of the value of the goods, to sustain an action for
conversion against the seller, on his failure to ac-
count for a surplus.-Beaton v. Wade, (Colo.) 22 P.

1093.

2. A complaint alleged that plaintiff placed in
defendant's hands $3,600 with which to buy mining
stock, which she agreed to use for that purpose;
that on a certain day defendant bought, for account
of plaintiff, $600 worth of stock; on a certain other
day, $1,500 worth; and on another day, $1,500 worth.
Held, that the complaint contained a sufficient al-
legation of the value of the property to support a
money judgment for the amount for which defend-
ant had sold it.-Herrlich v. McDonald, (Cal.) 22
P. 298.

TRUSTS.

Declaration of trust.

1. Plaintiff's decedent conveyed certain land to
defendant, his brother, to avoid his creditors. De-
fendant at the time signed and acknowledged a
deed of the land to his brother, which was not de-
livered, and the nature of the deed was not shown.
Defendant testified that he afterwards paid for the
land, and the deed was destroyed by consent. Held,
that the deed did not constitute a written declara
tion of trust.-Hasshagen v. Hasshagen, (Cal.) 22
P. 294.

2. Testimony of defendant, taken down in writ-
ing after the death of his brother, and in settle-
ment of the estate, is not a written declaration of
trust, even if defendant admitted therein that there
was such a trust.-Hasshagen v. Hasshagen, (Cal.)

22 P. 294.

3. A statement of account, given to the widow
of deceased, merely showing the amount defend-
ant had received as rent, and certain expenditures
made, did not amount to a written declaration of
trust.-Hasshagen v. Hasshagen, (Cal.) 22 P. 294.

Parol evidence.

4. Plaintiff and others, by absolute deed, con-
veyed mining property to persons to whom plain-
tiff and one of the grantors, who had no interest in
the property, were indebted, and about two months
thereafter the creditors executed an agreement to
reconvey one-third of the property to plaintiff when
the creditors had realized sufficient to cancel the
indebtedness due them. Held, that parol evidence
was admissible to show the consideration for both
the deed and the agreement, and to show that the
latter was executed in pursuance of an agreemen
made at the time of the conveyance.-Adams v.
Lambard, (Cal.) 22 P. 180.

Resulting trusts.

5. Plaintiff and others, by absolute deed, con-
veyed mining property to persons, to whom plain-
tiff and one of the grantors, who had no interest
in the property, were indebted, and about two
months thereafter the creditors, in pursuance of a
parol agreement made at the time of the convey-
ance, executed an agreement to reconvey one-third
of the property to plaintiff when they had realized
sufficient to cancel the debt due them. Held, that
the conveyance constituted a valuable considera-
tion which supported the agreement, and, on the
happening of the contingency, a trust resulted in
favor of plaintiff.-Adams v. Lambard, (Cal.) 22
P. 180.

6. Where it appeared that plaintiff was in the
employ of, and sustained confidential relations to,
such creditors, and the contingency had occurred,
it was proper to find and enforce a trust in favor
of plaintiff, simply on the agreement.-Adams v.
Lambard, (Cal.) 22 P. 180.

7. Where defendant, in consequence of infor-
mation imparted to him by plaintiff, entered into a
contract binding himself to purchase a particular
tract of land, and to pay plaintiff one-third of the
net profits realized from its sale. a trust in the
v.22P.-78

land results in plaintiff's favor, and he is entitled
to have the land disposed of in accordance with the
terms of the contract, and, when so disposed of, to
share in the profits.-Green v. Brooks, (Cal.) 22 P.
849.

Validity.

8. Under Code Civil Proc. Cal. § 1971, and Civil
Code, § 852, in order to establish a trust over any
estate in real property it must be proven that the
trust was created "by operation of law, or a con-
veyance or other instrument in writing."-Hass-
hagen v. Hasshagen, (Cal.) 22 P. 294.
Rights of trustee.

9. Where a trustee has expended money in
necessary repairs and improvements of the trust-
estate, and the outlay has been approved by the
cestui que trust, he may hold the land on which
the money was expended till the sum is repaid.-
Woodard v. Wright, (Cal.) 22 P. 1118.
Accounts of trustees.

10. Plaintiff, by absolute deed, conveyed mining
property to his creditors, and the latter executed
an agreement to reconvey one-third of the prop-
erty when they had realized sufficient to cancel the
debt due them. Held, that a sum paid by them to
a third person for his interest in the mine, in pur-
suance of a covenant in the deed, was no part of
such debt.-Adams v. Lambard, (Cal.) 22 P. 180.

11. Where such agreement is silent as to inter-
est, and such indebtedness became extinguished
by the conveyance of the mine property, and said
creditors were permitted to work the mine or not,
at their discretion, interest will not be allowed on
the amount of such indebtedness, or on moneys ex-
pended in working the mine, especially as the cred-
itors were to retain an interest in the property in
consideration of the money advanced, besides re-
ceiving payment for the indebtedness and the ex-
penses.-Adams v. Lambard, (Cal.) 22 P. 180.

12. Where the creditors neglected to render an
accounting of the expenses and income of said
mine, though often requested by plaintiff, and with-
out plaintiff's knowledge sold the mine to an inno-
cent purchaser, plaintiff is entitled to compound
interest from the date of the sale. -Adams v. Lam.
bard, (Cal.) 22 P. 180.

13. In the absence of an express agreement to
the contrary, money paid to the cestui que trust
by the trustee will be presumed to be payments on
account of the rents, issues, and profits of the trust-
estate.-Woodard v. Wright, (Cal.) 22 P. 1118.

14. Where a trust in land has resulted in plain-
tiff's favor by virtue of an agreement whereby de-
fendant bound himself to purchase a certain tract
of land and to pay plaintiff a certain portion of the
profits realized from the sale, plaintiff is entitled
to an accounting, though there is no fraud on de-
fendant's part, and though no profits have been
realized by defendant from sales of the land.-
Green v. Brooks, (Cal.) 22 P. 849.

Equity jurisdiction.

15. A will provided that after the payment of
the debts and legacies specified the residue of all
the testator's property was to be held in trust for
a certain period, and out of the rents and profits
to be collected therefrom the executors were to
pay to the widow such sums as might be necessa-
ry for the support of her and the minor children.
Held, that the duty to pay debts and legacies was
strictly executorial, and that when this was done,
and the property taken on trust for the purposes
specified, the executors became trustees exclusive-
ly, and the jurisdiction thereafter was in equity.
-Jasper v. Jasper, (Or.) 22 P. 152.

1234

action may be brought by any person against an-
other, who claims an estate or interest in real
property adverse to him, for the purpose of deter-
mining such adverse claim.-Welch v. Plumas
County, (Cal.) 22 P. 254.

Variance.

See Pleading, 19, 20.
Between indictment and proof, see Robbery, 6, 7.

VENDOR AND VENDEE.

See, also, Covenant; Deed; Fraudulent Convey-
ances; Judicial Sales; Sale; Specific Perform

ance.

The contract.

1. An alleged contract to sell land consisted of
letters written by the parties. Plaintiff offered to
purchase, and asked the price. Defendant an-
swered he would sell for $16 an acre, to which
plaintiff replied, asking easier terms. Defendant
then wrote that his agent had an offer of $13 an acre,
cash, and asked plaintiff if he was willing to make
the purchase. To this plaintiff replied, "I am ready
and willing to buy," but he still asked easier terms,
ard concluded the letter by saying: "The money
is ready as soon as I can have it sent." Held, that
there was no agreement in writing for the purchase
and sale of the land.-Wristen v. Bowles, (Cal.) 22

P 1136.

2. Where a contract for the sale of land is
made by one acting as agent, in the immediate
presence of the owners, and the sum paid on the
purchase price is, by direction of one of the own-
ers, immediately paid by the agent to the other,
and the owners subsequently direct the agent to
execute a written contract for the land, the sale is
in legal effect made by the owners, and the fact
that the agent did not have written authority to
make the sale is unimportant.-Karns v. Olney,
(Cal.) 22 P. 57.

3. The fact that the owners did not, at the
time of the contract, know of the exact location of
the land, and were mistaken as to its value, could
not be taken advantage of to deny the validity of
the sale.-Karns v. Olney, (Cal.) 22 P. 57.

Validity.

4. A contract is not void for uncertainty be
cause it is made "subject to the conditions in a
formal contract as to clearing streets, improve-
ments," etc., referring to a contract to be execut
ed in the future.-Karns v. Olney, (Cal.) 22 P. 57.
5. Nor was it objectionable because it provided
for its surrender "on delivery of formal contract
or deed," it appearing that at the date of the con-
tract the vendors had not themselves acquired the
legal title.-Karns v. Olney, (Cal.) 22 P. 57.

Performance.

6. A deed purporting to convey all of defend-
ant's "right, title, and interest" in certain prem-
ises is not admissible in evidence to show compli-
ance with an agreement by defendant to execute
to plaintiff "a good and sufficient deed of bargain
and sale to said property, free and clear of all in-
cumbrances," and it is immaterial that the trial is
by the court without a jury.-Rogers v. Borchard,
(Čal.) 22 P. 907.

Rights and remedies.

7. One who held a recorded bond for a deed to
certain land conditioned for the delivery of the deed
on payment of a balance of the price at a certain
time, conveyed the same to one R. The latter paid
such balance at the time specified, and a deed was
delivered by the vendor's agent, who had been in-
structed to deliver it only on payment of the bal-
ance, and a certain sum for expenses incurred in
the preparation of the deed. Afterwards, on de-
manding this sum, R. refused to pay it, returned
the deed, and was refunded the amount paid.
Held, that R. was entitled to a conveyance of the
legal title from one to whom the vendor subse-
quently conveyed it, on payment of the balance of
the price, and without a previous tender thereof.
-Irvine v. Hawkins, (Nev.) 22 P. 240.

8. Where an assignee of a bond for a deed, con-
ditioned for the delivery of the deed on the pay-
ment of a balance of the purchase price, seeks to
enforce his right by way of equitable defense to an
action of ejectment against hím, it is no ground of
objection that the unpaid purchase money was not
deposited in court at the time of filing his answer.
-Irvine v. Hawkins, (Nev.) 22 P. 240.
Breach of contract.

9. In an action to recover money paid on a con.
tract for land, the complaint alleged that the land
had been dedicated to the public as a street by
deed. Held, that the ultimate fact to be determined
was whether there had been a valid dedication.
and it was unnecessary to find that it had been by
deed.-Turner v. Reynolds, (Cal.) 22 P. 546.

Damages.

10. In an action to recover money paid on a con-
tract for the purchase of land, plaintiff is entitled
to interest on the money from the time its return
was demanded after failure of defendant to deliver
a valid deed, without regard to subsequent de-
mands for a deed.-Turner v. Reynolds, (Cal.) 23
P. 546.

11. Money expended by plaintiff for an abstract
and report on the title to the land was properly al-
lowed as damages, within Civil Code Cal. § 3306,
which provides that the damages for breach of a
contract to convey land shall include "the expenses
properly incurred in examining the title and pre-
paring the necessary papers, with interest there
on."-Turner v. Reynolds, (Cal.) 22 P. 546.
Bona fide purchasers.

12. Open and notorious possession of land puts
a purchaser on inquiry as to the extent of pos-
sessor's title, though by the records it appears
that he is holding under a deed from a stranger to
the title.-Bank of Mendocino v. Baker, (Cal.) 22

P. 1037.

13. An attachment levy on real estate is con-
structive notice only to such persons as may ac
quire subsequent interests in the attached realty
from parties or privies to the action.—Travis v.
Topeka Supply Co., (Kan.) 22 P. 991.

14. In an action to enforce a claim against land,
to give the defendant the status of a bona fide pur-
chaser of land for value and without notice, it must
be alleged and proven, among other things, that
the person who conveyed to defendant was seised
in fee, or pretended to be so seised, and was in pos-
session, if the conveyance purported an immediate
transfer of the possession, when he executed the
deed to such purchaser.-Wood v. Rayburn, (Or.)
22 P. 521.

15. To constitute one a bona fide purchaser of
land he must actually have paid the purchase mon-
ey before he received notice of a claim against the
land. It is not enough to show that the considera-
tion was secured to be paid by mortgage or other-
wise.-Wood v. Rayburn, (Or.) 22 P. 521.

16. A person claiming to own land under a quit-
claim deed executed to him is bound to take notice
of all superior titles to the land which might have
been discovered by proper inquiry.—Goddard v.
Donaha, (Kan.) 22 P. 708.*

VENUE IN CIVIL CASES.
See Chattel Mortgages, 6.
Suit for injunction.

1. A suit to enjoin the building of a dam which
it is alleged will flood plaintiff's land is such an ac-
tion for injury thereto as must be tried in the
county where the same is situated, under Code Civil
Proc. Cal. § 392, providing that actions for injury
to real property must be tried in the county where
the subject of the action is situated.-Drinkhouse
v. Spring Valley Water-Works, (Cal.) 22 P. 252.
Change of venue.

2. in an action before ajustice to recover taxes
paid for defendant, the answer averred illegality
of the taxes; whereupon, as required by Code Civil
Proc. Cal. § 838, the cause was certified to the su-
perior court of the county. Held, under section
396, providing that the trial may be had in the coun-

ty in which an action is brought, though it be not
the proper county, unless defendant, at the time he
appears and answers or demurs, demands in writ-
ing that the trial be had in the proper county, that
a demand for change of venue, made in the supe-
rior court, was too late.-Powell v. Sutro, (Cal.) 22
P. 308.

3. The court has no authority to change the
venue of civil cases, except as provided by statute.
-Commercial Nat. Bank v. Davidson, (Ör.) 22 P.

517.

Venue in Criminal Cases.

See Criminal Law, 13-15.

Verdict.

See Ejectment, 12; Trial. 18-16.

Verification.

See Pleading, 17, 18.

Priority of appropriation.

2. In an action by lower against upper appro
priators to determine who has the superior right
to divert the water of the stream, a finding that

Of information, see Indictment and Informa- plaintiff has adversely appropriated the waters of
tion, 2.

Vested Rights.

See Constitutional Law, 16.

See Sale, 4, 5.

Warranty.

WATER COMPANIES.

Water-rates.

1. Const. Cal. art. 14, § 1, provides that the
rates of compensation for the use of water supplied
to any city, county, town, or inhabitants thereof,
shall be fixed annually by the board of supervisors,
or other governing body, of such city, county, or
town, by ordinance or otherwise, in the manner
that other ordinances or legislative acts or resolu-
tions are passed by such body, and shall continue
in force one year, and no longer. Any such body
failing so to do within the proper time shall be
subject to peremptory process to compel action, at
the suit of any one interested. Any one collecting
water-rates otherwise than as so established shall
forfeit his franchises and water-works for the pub-
lic use. Section 2 provides that the right to col-
lect such water-rates is a franchise, and cannot be
exercised except by authority of, and in the man-
ner prescribed by, law. Held, that the constitu-
tion did not make the board of supervisors part of
the legislative department of the state, but that
the power granted to it was to fix reasonable rates
and just compensation.-Spring Val. Water-Works
v. City and County of San Francisco, (Cal.) 22 P.
910.

the stream, "the waters so diverted and used be-
ing sufficient to fill its ditch, whenever there was
water in the stream to fill it, and when there was
not sufficient water to fill the plaintiff's said ditch
it took what water came down the creek in its
natural flow," is indefinite and uncertain. If
plaintiff diverted only the water that defendants
allowed to pass, plaintiff acquired no right as
against defendants to a supply of water sufficient
to fill its ditch.-Lakeside Ditch Co. v. Crane,
(Cal.) 22 P. 76; Settlers' Ditch Co. v. Hayes, (Cal.)
22 P. 1152.

3. As the defendants had no interest by virtue
of prior appropriation, it was immaterial that
plaintiff had not obtained permission to construct
its ditch from the water commissioners in compli-
ance with St. Cal. 1868, p. 112, which provides that
"no ditch shall hereafter be taken out of any
stream in the waters of which different persons
have an interest by virtue of prior appropriation,
without leave of said commissioners." Nor does
the fact that defendants had obtained the consent
of the commissioners give them any right against
plaintiff, the prior appropriator.-Lakeside Ditch
Co. v. Crane, (Cal.) 22 P. 76; Settlers' Ditch Co. v.
Hayes, (Cal.) 22 P. 1152.

4. The defendants not having denied that they
diverted the water, evidence of diversion by other
ditches above defendants', which other ditches
were later in time of diversion than both plaintiff's
and defendants', was properly excluded.-Lakeside
Ditch Co. v. Crane, (Cal.) 22 P. 76; Settlers' Ditch
Co. v. Hayes, (Cal.) 22 P. 1152.

5. The findings should state the quantity of
water the plaintiff is entitled to have flow past the
defendant's ditch in inches or gallons, and not
merely by fixing the width, depth, and grade of
the ditch.-Lakeside Ditch Co. v. Crane, (Cal.) 22
P. 76; Settlers' Ditch Co. v. Hayes, (Cal.) 22 P. 1152.
Ways.

2. Where such board of supervisors have arbi-
trarily, without investigation, and without any ex-
ercise of judgment or discretion, fixed these rates
without reference either to the expense necessary
to furnish the water or to what is a fair and reasona-
ble compensation therefor, so as to render it im- See Highways; Turnpikes and Toll-Roads.
possible to furnish water without loss, and so low
as to amount to a practical confiscation of the prop-
erty invested in the business, a court of equity has
jurisdiction to set aside such ordinance and direct
the board to fix such rates as the constitution pro
vided for.-Spring Val. Water-Works v. City and
County of San Francisco, (Cal.) 22 P. 910.

3. It is not necessary that the board should
give notice to parties furnishing water of an inten-
tion to fix the rates, the notice not being provided
for by the constitution; but it is the duty of the
board to obtain all information necessary to act
intelligibly and fairly.-Spring Val. Water-Works
v. City and County of San Francisco, (Cal.) 22 P.
910.

4. An ordinance is not objectionable for uncer-
tainty, in that it gives every householder the op-
tion to require a meter, and to pay for the water
used at water-rates which are different from house-
rates, as the rates are fixed.-Spring Val. Water-
Works v. City and County of San Francisco, (Cal.)

23 P. 910.

WILLS.

See, also, Descent and Distribution; Executors
and Administrators.

Probate and contest.

1. In a proceeding to probate a will it was
stipulated that, according to the finding of the is-
sues by the jury, the form of their verdict should
be: "We, the jury, find for the contestant, K., "or
"for the petitioner, P." The stipulation was not in
writing, nor was it entered on the minutes, nor
were special findings waived in any other manner.
The verdict was for contestant, and an entry there-
of was made in the minutes, in the presence of the
petitioner and his counsel, without any objection
thereto. Held, that the absence of any findings of
fact was an irregularity which, as it did not affect
the substantial rights of the parties, could be dis-
regarded, within Code Civil Proc. Cal. § 475.—King
v. Ponton, (Cal.) 22 P. 1087.