crossing of public highways, and the passage through cities and villages, where life and property are constantly in imminent danger by the rapid and fearful speed of railway trains. The exercise of their franchises by corporations must yield to the public exigencies and the safety of the community.' And in Railroad Co. v. Willenborg, 117 Ill. 203, 7 N. E. 698, 57 Am. Rep. 862, where the question was whether a railroad company could be required to construct a farm crossing over its road years after the road had been built, the court said: "The point is made, however, that these provisions are not obligatory on this corporation, because they were enacted many years since it received its charter from the state. This is a misapprehension of the law. The regulation in regard to fencing railroad tracks, and the construction of farm crossings for the use of adjoining land owners, are police regulations in the strict sense of those terms, and apply with equal force to corporations whose tracks are already built as well as those to be thereafter constructed. They have reference to the public security, both as to persons and to property. No reason is perceived why, upon the same principle on which a railroad corporation may be required to fence its track and construct cattle guards, it may not be required also to construct farm crossings.' In Chicago & N. W. R. Co. v. City of Chicago, 110 Ill. 309, 317-319, 29 N. E. 1109, 1111, the question was whether, in a case where a city institutes a condemnation proceeding to open or extend a street across a railroad already constructed, the company owning such railroad was entitled to be allowed, as a part of its just compensation, the amount of its expenses in constructing and maintaining the street crossing. In that case it appeared that the railroad was constructed prior to the above act of 1872 for the incorporation of cities and villages, and before the passage of the act of 1874, which required that thereafter, at all railroad crossings of highways and streets,' the railroad companies should construct and maintain such crossings, and the approaches thereto, with their respective rights of way, so that at all times they should be safe as to persons and property. 2 Starr & C. Ann. St. p. 1927. The court said: 'Government owes to its citizens the duty of providing and preserving safe and convenient highways. From this duty results the right of public control over public highways. Railroads are public highways, and in their relations as such to the public are subject to legislative supervision, though the interests of their shareholders are private property. Every railroad company takes its right of way subject to the right of the public to extend the public highways and streets across such right of way. * If railroads, so far as they are public highways, are, like other highways, subject to legislative supervision, then railroad companies, in their relations to high ways and streets which intersect their rights of way are subject to the control of the police power of the state.-that power of which the court has said that "it may be assumed that it is a power coextensive with self-protection, and is not inaptly termed the law of overruling necessity." Town of Lake View v. Rose Hill Cemetery Co., 70 Ill. 191, 22 Am. Rep. 71. The requirement embodied in section 8, that railroad companies shall construct and maintain the highway and street crossings and the approaches thereto within their respective rights of way, is nothing more than a police regulation. It is proper that the portion of the street or highway which is within the limits of the railroad right of way should be constructed by the railroad company, and maintained by it, because of the dangers attending the operation of its road. It should control the making and repairing of the crossing for the protection of those passing along the street, and of those riding on the cars. * * The items of expense for which appellant claims compensation are such only as are involved in its compliance with a police regulation of the statute. It is well settled that "neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation designed to secure the common welfare." Chicago & A. R. Co. v. Joliet, L. & A. Ry. Co., 105 III. 388, 44 Am. Rep. 799. It has been held by this court in a number of cases that railroad corporations may be required to fence their tracks. to put in cattle guards, to place upon their engines a bell, and to do other things for the protection of life and property, although their charters contained no such requirements. Railroad Co. v. Loomis, 13 Ill. 548, 56 Am. Dec. 471; Same v. Dill, 22 Ill. 264; Railroad Co. v. McClelland, 25 III. 140; Peoria & P. Union Ry. Co. v. Peoria & F. Ry. Co., 105 Ill. 110. Uncompensated obedience to a regulation enacted for the public safety under the police power of the state is not a taking or damaging, without just compensation of private property, or private property affected with a public interest.' See, also, Mugler v. Kansas, 123 U. S. 623, GGS, 8 Sup. Ct. 273, 31 L. Ed. 205; Boston & M. R. Co. v. York County Com'rs, 79 Me. 386, 10 Atl. 113; Thorpe v. Railroad Co., 27 Vt. 150, 62 Am. Dec. 625; Lake Shore & M. S. R. Co. v. Cincinnati, S. & C. Ry. Co., 30 Ohio St. 604; Railroad Co. v. Deering. 78 Me. 61, 70, 2 Atl. 670, 57 Am. Rep. 784; State v. Chicago, B. & Q. R. Co., 29 Neb. 412, 45 N. W. 469; New York & N. E. R. Co. v. City of Waterbury, 60 Conn. 1, 22 Atl. 439; Railroad Co. v. Gibbes, 142 U. S. 386, 393, 12 Sup. Ct. 255, 35 L. Ed. 1051. "We concur in these views. The expenses that will be incurred by the railroad company in erecting gates, planking the crossing, and maintaining flagmen, in order that its road may be safely operated,-if all that should be required,―necessarily result from the maintenance of a public highway under legislative sanction, and must be deemed to have been taken by the company into account when it accepted the privileges and franchises granted by the state. Such expenses must be regarded as incidental to the exercise of the police powers of the state. What was obtained, and all that was obtained, by the condemnation proceeding, for the public, was the right to open a street across land within the crossing that was used, and was always likely to be used, for railroad tracks. While the city was bound to make compensation for that which was actually taken, it cannot be required to compensate the defendant for obeying lawful regulations enacted for the safety of the lives and property of the people." Since the facts as found by the trial court show that the construction of a street crossing at First street will necessitate a serious impairment or destruction or removal of valuable property of the railroad company, and of a character it had a right to construct under the express terms of its grant, we are of the opinion that, in so far as such will be the result, the impairment, removal, or destruction of such property without just com pensation constitutes a taking of private property for public uses without just compensation, and is therefore in violation of the rights guarantied to the company by the constitution of the United States. For the reasons herein stated, the judgment of the district court, so far as it relates to the opening of California avenue, is affirmed, and reversed to that part of the judgment dissolving the temporary injunction as to First street; and the cause is remanded to the district court of Oklahoma county with directions to render judgment for the plaintiffs in error on the facts found, and make the injunction perpetual, subject to the right of defendants in error to open said street by making just compensation to the railway company, or after proper condemnation proceedings; the defendants in error to pay the costs in this court. BURFORD, C. J., and PANCOAST and BEAUCHAMP, JJ., concur. IRWIN and GILLETTE, JJ., absent. BURWELL, J., not sitting. (137 Cal. 236) SAN FRANCISCO MUT. LOAN ASS'N v. 1. One who, with his wife, had given mortgages on the homestead, falsely represented to the mortgagee that his wife was dead, and the mortgagee consented to cancel the mortgages, made an additional loan, and accepted a mortgage from the husband alone on the homestead and other realty. Held, in a suit to set aside the cancellation of the former mortgage, that a decree setting aside the cancellation, foreclosing the homestead mortgages, and crediting such amount on the husband's mortgage, and canceling the latter so far as it covered the homestead premises, was proper. 2. The judgment was not insufficient because there was no averment or finding that the mortgagee had been injured. 3. It was not necessary that the mortgagee, before suing for the cancellation, should have surrendered the mortgage executed by the husband alone; that mortgage including other property than the homestead, and being in part to secure money other than that involved in the homestead mortgages. 4. It was proper to admit in evidence an indorsement of the husband's name, followed by the word "widower," made by him on the application for the loan. Department 2. Appeal from superior court, city and county of San Francisco; George H. Bahrs, Judge. Suit by the San Francisco Mutual Loan Association against William Bowden and wife. From a decree for plaintiff, defendants appeal. Affirmed. Reddy, Campbell & Metson and Ira D. Orton (N. B. Frisbie, of counsel), for appellants. Naphtaly, Freidenrich & Ackerman, for respondent. MCFARLAND, J. This is an appeal by the defendants, William Bowden and his wife, Catherine Bowden, from a judgment in favor of plaintiff. The purpose of the action was to obtain a decree setting aside the cancellations made by plaintiff of two certain mortgages executed by the defendants, Bowden and wife, to plaintiff on certain described land on Filbert street, in San Francisco, which at the date of the mortgages were, and still are, the homestead of said defendants. One of the mortgages was executed in January, 1883, to secure $1,000, and the other in May, 1888, to secure $600; and at the date of each of said mortgages defendants also pledged to plaintiff, as additional security, certain shares of the capital stock of plaintiff. It is averred in the complaint, and found by the court, that on December 20, 1892,-the money secured by said mortgages being unpaid, excepting interest, the defendant William Bowden, wishing to borrow some more from plaintiff, and designing to fraudulently induce plaintiff to cancel said mortgages, falsely and fraudu. lently represented to plaintiff that his wife, the defendant Catherine, was dead, and that therefore the title to said mortgaged homestead premises had vested solely in him. plaintiff, deceived by said representation, consented to release said mortgages, and took a mortgage of said William alone for the money still due thereon. William had theretofore also given a mortgage to plaintiff upon land owned by him on Havens street, in San Francisco. The parties then calculated the amount due on said mortgages, after deducting the surrender value of said stock; and it was found that the amount so due, together with the additional loan desired by said defendant, The aggregated $1,800. Thereupon defendant William Bowden gave to plaintiff his note for the amount, and also a mortgage executed by himself alone to secure it, upon the said homestead premises, and also upon the lot on Havens street; and plaintiff entered of record a cancellation of the former mortgages, and delivered to William the notes secured by them. Plaintiff would not have done these things "if it had known that said Catherine Bowden was then living, and that said William Bowden was not a widower." Plaintiff did not discover that Catherine was not dead until it commenced an action on the individual mortgage of William Bowden, a short time before the commencement of the present action. The evidence supports the findings of the court. The judgment rendered is, upon the merits, a just one. It sets aside the cancellation of the homestead mortgages, and forecloses them for the amount still due thereon, and orders that this amount be credited on the said mortgage of William Bowden, of December 20, 1892, and cancels the latter mortgage in so far as it covers the homestead premises. But appellants attack the judgment for certain alleged irregularities and defects connected with the pleadings, evidence, etc. It is contended that the judgment cannot stand because there is no express averment or finding that plaintiff was injured by the fraud; that is, that there is no averment that the land on Havens street, included in the mortgage executed by William Bowden, was not sufficient security for the money secured by the homestead mortgages. This contention, however, is not tenable. As matter of legal right, plaintiff was entitled to its original mortgages, and to foreclose them, and was not called upon to determine the value of the security which had been fraudulently substituted. It was not required of plaintiff to surrender the mortgage executed by William Bowden alone, before being entitled to bring this action. That mortgage included other property than the homestead, and was, in part, to secure money other than that involved in the homestead mortgages, and the decree of the court leaves appellants entirely unprejudiced on that subject. Plaintiff's witness Sbarboro, its secretary, testified to the representation of William Bowden that his wife had died, and that at the time of the representation he (Sbarboro) wrote on the back of Bowden's application for the loan the words "William Bowden, widower"; and appellants contend that the court erred in admitting in evidence the application, with this indorsement of "widower" on it. We do not think that this was error. It was a memorandum made by the witness at the time of the occurrence testified to, and was admissible under the principle which allows such a memcrandum to be referred to. Moreover, in the body of the mortgage itself Bowden is described as "widower," and, as he made no attempt to explain how that designation occurs there, he is in a poor position to dispute the fact. There are no other points which we deem necessary to discuss. The judgment is affirmed. We concur: TEMPLE, J.; HENSHAW, J. (137 Cal. 227) HOWARD et al. v. HIGGINS et al. (S. F. 2,005.) (Supreme Court of California. Sept. 4, 1902.) NOTES-ACTION-TENDER OF DEED. 1. Defendant having given a note and mortgage in consideration of a conveyance of premises to be made by plaintiff, plaintiff cannot maintain action thereon without first tendering the deed. 2. An offer to execute a deed, and place it in the hands of the judge of the court, is not equivalent to a tender to defendant of ar executed deed. Department 2. Appeal from superior court, Alameda county; S. P. Hall, Judge. Action by John L. Howard and others From against W. H. Higgins and others. an order granting defendants a new trial, plaintiffs appeal. Affirmed. Olney & Olney, for appellants. R. E. Hewitt and W. J. Donovan, for respondents. MCFARLAND, J. This action is upon a promissory note, and a mortgage to secure it, both made by defendant Higgins to plaintiffs. The prayer is for the usual judgment in such a case. The answer set up that the consideration of the note was that plaintiffs were to build a house, which they had not done, and that plaintiffs were to execute and deliver to Higgins a deed of conveyance of the mortgaged premises free of all liens, etc., except the mortgage sued on, and that they had refused to give such deed, although requested to do so. It appears from the evidence that the plaintiffs were, and still are, the owners of the mortgaged premises; that they sold the same to Higgins, and that Higgins gave the note and mortgage in payment thereof. The court found that the averments of defendants as to the house and the deed were not true, and rendered judgment for plaintiffs foreclosing the mortgage. Defendants moved for a new trial upon most of the statutory grounds, and specified that the evidence was insufficient to justify the findings of fact, and the court made a general order granting a new trial. Plaintiffs appeal from that order. There was clearly evidence warranting the trial court in holding that it had erred in finding that the giving of the deed was not a part of the contract between the parties, and therefore we cannot disturb its conclusion on that issue of fact. And that being so, we cannot see how, as a matter of law, the plaintiffs can maintain an action to collect the note (the purchase price) without having first tendered the deed. The mortgage, of course, was a mere incident of the debt. Respondent could certainly not enforce the execution of the deed without having given the note and mortgage. Neither party can put the other in default without first having performed, or tendered performance, of his part of the contract. The offer before the final submission of the case relied on by appellants, even if the tender of a deed after suit commenced could, in any event, be deemed sufficient, was not the tender of a deed to respondent; it was a mere offer to execute a deed, and "place it in the hands of the judge of this court," and not a tender of an executed deed to respondent. Appellants also made some other offers to respondents, which certainly appear to have been very just and fair; but they do not obviate the legal difficulties of the situation. The order appealed from is affirmed. We concur: BEATTY, C. J.; TEMPLE, J. (137 Cal. 225) ANDERSON v. ANDERSON. (S. F. 3,229.) (Supreme Court of California. Sept. 4, 1902.) ALIMONY PENDING DIVORCE SUIT. 1. The authority given by Civ. Code, § 137, to the court to require the husband, pending an action for divorce, to pay as alimony any money "necessary" to enable the wife to support herself and children, is not devested by the fact that he is paying all the bills contracted by the wife, or by his declaration that he is willing to pay them till conclusion of the action. Department 1. Appeal from superior court, city and county of San Francisco; Frank H. Kerrigan, Judge. Action by Elizabeth Anderson against Andrew Anderson for divorce. From an order for temporary alimony, defendant appeals. Affirmed. H. W. Hutton, for appellant. Lennon & Hawkins and Chas. E. Nougoues, for respondent. HARRISON, J. After the plaintiff had commenced this action for a divorce from the defendant, the superior court made an order requiring the defendant to pay to her a certain sum of money for costs and counsel fees for the prosecution of the suit, and also an additional amount as alimony for the support of herself and infant child during the pendency of the action. From this order, defendant has appealed. Upon the hearing of the plaintiff's application for the order, the financial ability of the defendant was shown; and the court found that the plaintiff is without any individual means to prosecute the action, or for the maintenance of herself and child, and thereupon made the order. No objection is made to the amounts ordered to be paid, or to the correctness of the order for the payment of costs and counsel fees; but the appellant contends 1. See Divorce, vol. 17, Cent. Dig. § 616. that, inasmuch as it appeared at the hearing that the plaintiff is occupying the family residence, and that, as the defendant stated at the hearing that he was willing to pay the bills contracted by the plaintiff for her support until the action is concluded, it did not appear to the court that the payment of any money by the husband was "necessary" to enable the plaintiff to support herself and child, and therefore that, under section 137, Civ. Code, the court was not authorized to make the order. This contention of the appellant is without merit. The authority of the court to direct the husband to pay a definite amount as alimony is not devested by the fact that he is paying all the bills contracted by the wife, or by his declaration that he is willing to pay them during the prosecution of the action. The wife is not required to depend upon the will or caprice of the husband for her support, or to satisfy tradesmen and others from whom she is to obtain the necessary articles for her support and comfort that the husband will pay for them; but she is entitled to receive from him a definite amount of money with which to supply her wants as she may desire, and to have the power of disbursing it as she may choose. When it is shown that she is without the means of support, and that her husband has the financial ability therefor, the court has the authority to direct the payment by him of such an amount as, in its discretion, may be appropriate. See Cowan v. Cowan, 10 Colo. 540, 16 Pac. 215. The order is affirmed. We concur: GAROUTTE, J.; VAN DYKE, J. RIEBLI v. HUSLER. (7 Cal. Unrep. 1) (S. F. 2,842.) (Supreme Court of California. Sept. 4, 1902.) SEPARATE PROPERTY OF WIFE-EVIDENCEFRAUDULENT CONVEYANCE. 1. The presumption that cattle bought by the husband during the marriage were community property is not overcome by the wife's mere testimony that it was bought with her money, and that she had a certain amount of money in banks and loaned when she was married, three years before the purchase; they having been placed on a ranch occupied by them under .a lease to the husband alone, and treated as his property by his afterwards giving her, when he was insolvent, a bill of sale thereof. 2. A recorded bill of sale from husband to wife of cattle, possession of which remained as before on a ranch occupied by husband and wife, but leased to him alone, is within Civ. Code, § 3440, providing that a transfer of personalty, made by one having the possession or control thereof, and not accompanied by delivery and followed by change of possession, is void against the seller's creditors. Commissioners' decision. Department 1. Appeal from superior court, Sonoma county; Albert G. Burnett, Judge. Action by Christina A. Riebli against E. A. Husler. Judgment for defendant. Plaintiff appeals. Affirmed. J. P. Rodgers, for appellant. Lippitt & Lippitt, for respondent. COOPER, C. This action was brought to recover 14 head of cows, or the value thereof, which are alleged to be the separate property of plaintiff. The defendant at the time of taking the property was a constable of Petaluma township, and justified under a writ of execution in favor of one Keegan against A. B. Riebli, the husband of plaintiff. The case was tried before the court, findings filed, and judgment entered for the defendant. Plaintiff prosecutes this appeal from the judgment, and from the order denying her motion for a new trial. The court found that, at the time of the taking, the property was not the property of plaintiff, but was the property of her husband, against whom the writ of execution issued. The sole point contended for by plaintiff is that there is not sufficient evidence to sustain this finding. We have carefully examined the evidence, and find it sufficient. The cows were bought by plaintiff's husband in October, 1899. They were not owned by plaintiff before her marriage, nor were they afterwards acquired by her by gift, bequest, devise, or descent. At the time they were purchased they were not conveyed to her by an instrument in writing. The cattle, therefore, having been purchased during marriage, the presumption is that they were community property. The burden was upon plaintiff to overcome this presumption by evidence clear and convincing. In the absence of such evidence the presumption as to the community character of the property must prevail. Code, §§ 162, 164; In re Boody's Estate, 113 Cal. 686, 45 Pac. 858; Fennell v. Drinkhouse, 131 Cal. 451, 63 Pac. 734. Civ. While there is some evidence tending to show that the cows were purchased with the separate money of the plaintiff, it is not clear, nor, in our opinion, sufficient to overcome the presumption as to the community character of the property. The only evidence on the point is that of plaintiff. She did not produce the evidence of her husband, nor of the party from whom the cattle were purchased. She testified that the cattle were bought by her husband out of her money; that at the time of her marriage-more than three years before-she had between $900 and $1,000 in the Sonoma County Bank, and some money in the German Loan Society, and some loaned out in Washington. She did not say that she had this money or any money in any bank at the time the cattle were purchased. She did not show that she drew any money from any bank about the time of the purchase, nor that she gave her husband or any one a check on any bank or on any party in payment of the cattle. The cattle were brought and placed on the ranch, which was occupied by plaintiff and her husband, under a lease to the husband alone, and turned on the range with the other cattle. They were not branded or marked by plaintiff in any way so as to identify them from the cattle owned by her husband. No one testified to any claim made by her to the cattle at or about the time of the purchase. Afterwards, in June, 1900, the plaintiff and her husband went to an attorney for advice, and thereupon the husband executed and delivered to the plaintiff a bill of sale for "twenty-six head of cows, one bull, seven calves, seven head of horses and harness, wagons, and farming implements, now on the ranch of Charles Lynch, in Vallejo township; also all chickens, pigs, and hay on said ranch." The bill of sale included the cows in controversy. It was recorded, and plaintiff said concerning its execution: "Q. How came he [Riebli] to make that bill of sale? A. Well, he lose all his property where he had all his money he had,-he lose on the Lynch place,and, of course, I want to be sure of my property; and that's why we had the bill of sale drawed up, so I could do as I pleased, because it was bought out of my own property, and was my own property, that I worked thirteen long years for." It is evident that this bill of sale was an afterthought. Plaintiff had taken no bill of sale of the property at the time it was purchased, but when her husband had lost his money she took the precaution to take a bill of sale from him of that which she says she already owned, and to have the bill of sale recorded. It is evident that at the time the bill of sale was made the plaintiff and her band regarded the property as community property, or the separate property of the husband, and we will so regard it. It has been held that the contemporaneous and practical construction of a contract by the parties to it is strong evidence as to its meaning if its terms are equivocal. Keith v. Engineering Co. (Cal.) 68 Pac. 598. We think it equally clear that the plaintiff and defendant, by the bill of sale, treated the property as subject to the control and dominion of the husband, and not as the property of the wife. We will assume that they each knew its character, and that the husband would not have conveyed, nor the wife have demanded a conveyance of, property the title of which was already in the wife. We fully recognize the right of the wife to her own separate property, and her right to invest and reinvest it as she pleases. But we know that the wife is often a willing tool in aiding her husband to escape his just debts. In such case the better rule is to require the character of the property to be proven by clear and convincing evidence. It is not clear to us that property bought by the husband, and mingled with his own, and afterwards conveyed by him to his wife, was all the time her separate property. The bill of sale conveyed the property to the wife as between husband and wife. But there was no immediate delivery nor change of possession. It remained upon the ranch in the possession of the husband as before. The ranch was leased by the husband, and no claim is made as to any change of possession. |