legal estates is of no practical importance. They are both estates originating by law, and held under law, and in that sense are legal estates, and where a court is at liberty to rely upon the rule of equity of considering that as done which ought to be done, the difference between an estate so regarded and an estate at law is not worthy of consideration." It is apparent at a glance that, if an action for partition will lie in such a case, then an action by the holder of an equitable title against parties claiming adverse equities should be recognized and countenanced under the foregoing section of the code. For these reasons we think the action maintainable against all the defendants, except Robinson, the holder of the legal title.

4. Many findings of the court have been attacked by the opposing appellants as unsupported in the evidence. It would subserve no useful purpose in this opinion to enter into an examination of the record in this regard in detail. We have carefully gone over it, and are fully satisfied that all of the material findings of fact are supported by the evidence. Upon those findings we entirely agree with the trial court in its conclusion of law that the parol gift of this land by Polhemus to his daughter, Tuffree, vested in her his interest therein, for that there was an executed parol gift to her cannot be questioned by the evidence or findings.

5. Upon the remaining branch of the case we are compelled to arrive at a contrary conclusion from that of the trial court. The findings of fact establish an executed parol partition; and that land may be partitioned by parol in this state is well settled. (Long v. Dollarhide, 24 Cal. 218.) We have here a tract of land containing more than one hundred thousand acres, owned by five tenants in common. The land appears

to have been wild and uncultivated. The title was placed in the name of one Robinson, who appears to be a mere naked trustee. The cotenants evidently were desirous of renting and selling, and with the object of demonstrating, by planting and cultivating, the pro

ductiveness of the soil, they entered into a verbal agreement that they would each select a section from among the lands comprising this immense tract, and that such selection, so made, should be owned by the person selecting in severalty. Under this agreement Polhemus selected a section which he gave to his daughter, the plaintiff herein. She entered into the possession thereof, claiming the same; has had the exclusive possession for more than fifteen years; has cultivated the same, and made improvements thereon to the value of seven thousand dollars; and said cultivation and making of improvements were known to Robinson and all the cotenants. This is a strong showing, and clearly indicates an example of an executed parol partition; for Mrs. Tuffree certainly stands in as good a position with reference to this case as Polhemus himself would, if he had done these things and was now seeking to quiet his title against his cotenants. There is nothing in the findings to nullify the conclusion we have arrived at upon the foregoing facts, unless it be the following: "That none of said beneficiaries, except the said C. B. Polhemus, had any knowledge that said named plaintiffs were occupying or improving said land under any gift from said Polhemus, nor did said beneficiaries, or either of them, except said Polhemus, know that said land had been selected as aforesaid; nor did they agree that said land, so selected, should be owned by the said Polhemus, or by his donee, Caroline B. Tuffree, in severalty." We do not see how this finding could have any weight, if, as previously suggested, Polhemus were the party plaintiff; and likewise we think it avails nothing against Mrs. Tuffree. This finding of fact discloses nothing violative of the original agreement of partition. We do not see how it is material upon this question that Polhemus' cotenants should have had knowledge that Mrs. Tuffree based her rights upon a gift from her father; nor how it becomes material that the cotenants should have been informed that Polhemus had selected this particular tract of land

under the agreement; nor that they should have agreed after the selection that the land so selected should be owned by the said Polhemus, or his donee, in severalty. That whatever selection was made by any of these cotenants should belong to them in severalty was the original agreement in the first instance, and we see no necessity for a ratification thereof after the selection was made. This tract of land covered an immense territory, and Polhemus' right of selection of any particular tract was as broad as the territory itself. It is evident the owners did not reside upon this body of land, and their lack of knowledge as to Polhemus' selection, or the claims of Mrs. Tuffree thereto, may well be accounted for upon this theory; but, be that as it may, we think none of the facts declared by this finding of the court defeat plaintiffs' claims that her acts, taken in connection with those of Polhemus, constituted an executed parol partition under the original agreement.

For the foregoing reasons the judgment in favor of the plaintiffs and against the defendant Polhemus is affirmed; the judgment in favor of the defendants other than the defendant Robinson is reversed, and the superior court is directed to enter judgment upon the findings of fact in favor of the plaintiffs and against the said defendants other than the defendant Robinson. The order denying a new trial to the defendant Polhemus and to the plaintiffs is affirmed. The costs of this appeal are to be taxed against the defendants other than Robinson. The judgment in favor of the defendant Robinson is affirmed.

HARRISON, J., and VAN FLEET, J., concurred.

Hearing in Bank denied.

BEATTY, C. J., dissented from the order denying a hearing in Bank.

[No. 31, Crim. In Bank.-September 4, 1895.]

IN THE MATTER OF WONG HANE ON HABEAS CORPUS.

MUNICIPAL ORDINANCE-POSSESSION OF LOTTERY TICKET PRESUMPTION OF GUILT-CONSTITUTIONAL LAW.-A municipal ordinance declaring it unlawful for any person to have in his possession any lottery ticket unless it be shown that such possession is innocent or for a lawful purpose, assumes to overthrow the presumption of innocence, and to put upon the defendant the burden of showing that such possession was lawful or innocent; and such ordinance is a violation of constitutional rights and is invalid.

ID. CONSTRUCTION OF ORDINANCE-PROOF OF CRIMINAL INTENT— TEST OF ORDINANCE-DEFINITION OF OFFENSE.-The clause of the ordinance declaring that the offense exists, unless it be shown that the possession of the lottery ticket was innocent or for a lawful purpose, cannot be disregarded, nor can the prosecution prove the criminal intent of the defendant, or show that his possession was not innocent or for a lawful purpose; but the ordinance is to be tested by its own terms, and the qualification is attached to the definition of the offense, and is of necessity required to be established by the defendant.

ID. INSEPARABLE PROVISION.-No effect can be given to the ordinance by disregarding the qualifying clause; but the provisions of the ordinance are to be considered as a whole, and it cannot be assumed that the city council would have adopted the first clause of the ordinance without enacting the condition thereto, and the clauses must be regarded as inseparable, and not as independent.

HEARING in the Supreme Court upon writ of habeas corpus to the Police Court of the City of Los Angeles. M. T. OWENS, Police Judge.

The facts are stated in the opinion of the court.

M. G. Norton, for Petitioner.

W. E. Dunn, for Respondent.

HARRISON, J.-The petitioner is held in confinement by the chief of police of the city of Los Angeles under a warrant of arrest issued by the police judge of that city upon a complaint charging him with the violation of a city ordinance, in that he did "willfully and unlawfully have in his possession, such possession being neither innocent nor for a lawful purpose, a certain tool, device, and paper used and intended to be used in

and for the contriving, setting up, preparing, and drawing a certain lottery." The ordinance under which the complaint is made is as follows:

"The mayor and council of the city of Los Angeles do ordain as follows:

"SECTION 1. It shall be unlawful for any person to have in his possession, unless it be shown that such possession is innocent or for a lawful purpose, any lottery ticket, or any ticket, certificate, paper, or instrument, purporting or representing, or understood to be or to represent, any ticket, chance, share, or interest in or dependent upon the event of any lottery; or any tool, instrument, stamp, or device used or intended to be used in or for contriving, preparing. making, writing, printing, stamping, or getting ready for sale or distribution any lottery ticket or tickets.

"SEC. 2. Any person who shall violate any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars, or be imprisoned in the city jail for a term not exceeding six months, or by both such fine and imprisonment."

The effect of this ordinance is to make proof of the mere possession of a lottery ticket a misdemeanor, and to place upon the defendant the burden of showing that his possession was lawful or innocent. The mere possession of a lottery ticket does not, however, of necessity involve the possessor in a crime. The ticket may be in possession of the court, or of one of its officers, to be used as evidence upon the trial of one charged with selling it. It may be in the possession of one who purchased it in a country which recognizes the right to traffic in lottery tickets, and who is merely passing through the city. The Penal Code of this state does not make the purchase of a lottery ticket an offense-the provisions of that code being directed against the selling of such tickets. By the very terms of the ordinance under consideration, it is assumed that the possession of the ticket may be lawful or innocent, and that in such case the