Levi Chase, for Lillian Cullen. C. F. Holland, for George Cullen. J. E. Deakin, for Walter L. Pease. M. A. Luce, for San Diego Building & Loan Association. Parrish, Mossholder & Lewis, for College Hill Land Association. Hunsaker, Britt & Lamme, for C. A. Lumsden. Sprigg & Carter, for J. C. Sprigg, Jr.

VAN CLIEF, C. This is an action for partition of pueblo lot No. 1111 of the lands known as the "Pueblo Lands of the City of San Diego." The appeal is from an interlocutory judgment determining the rights of the parties as to their respective interests in said lot, and from an order denying a new trial. The rights of the appellants rest upon their deraignment of title from the city of San Diego under a deed from the city executed October 25, 1869, to James W. Cullen, purporting to convey a tract in the southeastern portion of said lot, specifically described by metes and bounds, and forming a rectangular piece of land 40 chains in length and 20 chains in width. The rights of the respondents depend upon their deraignment of title from the city under two deeds from the trustees of the city, dated March 1, 1869, to William Evans, one for "that lot of land containing sixty acres, lying in block No. 1111, according to the official map of said | city made by Charles H. Poole, A. D. 1856," and the other for "that lot of land containing forty acres, lying in block 1111," according to the same map. The deed for the 60 acres recites, in substance, that the president and trustees, in compliance with a vote of the qualified electors of the city at an election held May 25, 1868, in pursuance of the "Act to repeal the charter of the city of San Diego, and to create a board of trustees," approved January 30, 1852, by which they are directed, authorized, and empowered to sell pueblo or city lands, the property of said city, sold the land and premises in said deed described "for the sum of $15, in gold coin of the United States of America, being at the price of 25 cents per acre, upon the conditions provided for and prescribed in a certain resolution or order of said board of trustees, made and entered on the 8th day of June, 1868, and said party of the second part has agreed to complete all improvements upon said land by said resolution or order requiring to be done, and has fully paid said sum of $15 into the treasury of said city." But these recitals precede the granting clause, to which no condition is appended, and which is in the following words: "Now, therefore, the president and trustees of the said city of San Diego, parties of the first part, for and on behalf of said city, by virtue of the power and authority in them vested by the law, and for and in consideration of the said sum of $15 gold coin of the United States, to them in hand paid by the said party of the second

ents, receipt whereof is hereby acknowledged, have given, granted, bargained, and sold, released and quitclaimed, and by these presents do grant, give, bargain, and sell, release and quitclaim, unto the said party of the second part, his heirs and assigns, forever, all the right, title, interest, and claim whatsoever of the said city of San Diego of, in, and to the following described piece or parcel of land situate in the said city, and within the limits of the pueblo lands of said city, and more particularly described as follows: Being that lot of land containing sixty acres, lying in block 1111, according to the official map of said city made by Charles H. Poole, A. D. 1856, and on file in the office of the secretary of said board, together with all and singular the tenements and appurtenances thereunto in any wise pertaining. To have and to hold all and singular the above-described premises unto the said party of the second part, his heirs and assigns, forever, as fully and absolutely as we, the said president and trustees, may or can by virtue of the power in us vested convey the same."

The deed for 40 acres contained, in substance, the same recitals and provisions, the consideration being $1.25 per acre, amounting to $50. The whole controversy relates to the admissibility and effect of these two deeds. Each was objected to by appellant upon the ground that it is void for uncertainty in the description of the lot attempted to be conveyed thereby. It is further insisted by the appellant that these deeds, being of no effect, do not sustain the findings of the trial court, as the findings are based upon an erroneous construction of the deeds, to the effect that they respectively conveyed an undivided 60 acres, and an undivided 40 acres, of block 1111; thereby making the grantee tenant in common with the grantor in the whole block, which contains 107.67 acres. By stipulation of the parties it is agreed that on March 1, 1869, the city of San Diego had title to the whole of pueblo lot 1111, and that the rights of the parties depended upon the validity and effect of the respective deeds from the city authorities to William Evans and James W. Cullen. It appears that on June 8, 1868, at a special meeting of the board of trustees of the city, it was resolved "that the only way pueblo lands will be granted is as follows: One-half of the purchase money to be paid at the time of securing certificate; to occupy and improve the lands within six months from date of certificate, said certificate to be called for within one month after approval of petition. The value of improvements to the amount of land granted, viz., on a fraction of an acre up to forty acres, $250, and on eighty acres, $400; and, if within one year from date of certificates the said improvements are not made, then the petitioner to forfeit the money deposited, and the land to revert to the city: provided, also, that whenever the stipulated amount of improvements shall have been made on the land granted, then the peti

tioner may apply for a deed for the same on his paying the residue of the purchase money. All surveys whatever to be paid for by the petitioner."

It is contended by appellants' counsel that, under these resolutions which were referred to in the recitals of the deeds to Evans, these deeds were given upon conditions precedent; and that, there having been no occupancy or improvement of the lands within six months, it was treated by the city as having been forfeited by non-compliance with the conditions, as evidenced by the fact that it (the city) afterwards conveyed the property to James W. Cullen, under whom appellants claim title, and that this conveyance operated as a declaration of forfeiture. The record does not show whether or not any part of the land in controversy was ever improved either by Evans or by Cullen, or by any person claiming under either of them. The only testimony relating to the subject is that of the county surveyor, who testified that "the block has never been subdivided into lots, except that recently some specific pieces of it have been sold by persons claiming under the Evans deeds, and these have been surveyed and located in blocks and lots." No equitable considerations arising from improvements appear in favor of either of the parties, and the questions presented are pure questions of law as to their respective rights, as successors in interest to the city.

I think the trial court ruled correctly both as to the admissibility and the effect of the deeds to Evans. Those deeds did not purport to describe any specific part of block 1111 by metes or bounds, but, by reference to the Poole map, described the block as a whole. This description is as definite and specific as if the metes and bounds of the block as indicated upon that map had been inserted in the deed. It is the settled law of this state that a conveyance of a definite number of acres, or of any other definite quantity of land within, and as parcel of a larger tract of land well described, but without locating the land thus conveyed, is to be construed as conveying an undivided interest in the larger tract, provided the deed does not purport specifically to describe the smaller tract so conveyed, and fail to do so with reasonable certainty. Schenk v. Evoy, 24 Cal. 110; Grogan v. Vache, 45 Cal. 610; Lawrence v. Bailon, 37 Cal. 518; Lick v. O'Donnell, 3 Cal. 60; Wallace v. Miller, 52 Cal. 655. In Pipkin v. Allen, 29 Mo. 229, a grant of 750 arpens of land was described as the "balance and remainder of a tract" of 1,220 arpens of land, which originally belonged to the grantor, "500 arpens of which have been selected by the recorder of land titles as being ratified by the laws of congress," and previously sold to another grantee; but it appeared that the 500 arpens so previously sold had not been selected as described. The court held, in view of the maxim, ut res magis valeat quam pereat, that the portion of the description which referred to the 500 arpens as having been se

lected should be disregarded, and the deed construed as if 500 arpens had been previously sold, without any other description, and as creating a tenancy in common of the two grantees in the whole tract in proportion to their respective interests. Section 1643 of the Civil Code provides that “a contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. The reference to the land granted as "being a lot," without any description of metes and bounds, does not alter the nature of the grant as essentially one of quantity undivided at the time of the grant, it being the manifest intent of the parties that the lot should be definitely fixed by a future location and survey, at the expense of the grantee.

The circumstance that the grant was by a municipal corporation does not affect its nature, or exempt it from the rule of interpretation which requires the grant to be made effective, if possible. It is only in cases of uncertainty, "not removed by the preceding rules of interpretation," that section 1654 of the Civil Code requires a contract between a public officer or body and a private party to be interpreted most strongly against the private party, as being the one who presumably caused the uncertainty. It is, indeed, a settled rule of construction that public grants to private persons are to be construed most strongly in favor of the grantor, (Civil Code, § 1069;) but this rule presupposes the existence of an effective grant, and relates only to the extent of its operation. In all cases it must be presumed that a grantor intended to make a valid grant of some property unless the contrary appears. In view of the cardinal principle of interpretation expressed by the maxim above quoted, I think the grant to Evans should not be held void for uncertainty. “A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates," (Id. § 1647;) and, in view of the known circumstances that these deeds were executed on the day of the sale, without any previous survey or subdivision of block 1111, and that the resolutions of the trustees provided for a survey at the expense of the grantee, the deed should be construed as if the description had been: "Being a lot of land” to be located and surveyed at the expense of the party of the second part, "containing sixty acres, in block No. 1111," etc. Had these words of the resolution been inserted in the deed, there could be no question that, until a partition should be made by some mode, the grantee would take an undivided interest in the block. Lawrence v. Ballou, 37 Cal. 518; Jackson v. Livingston, 7 Wend. 136.

The grant to Cullen, October 25, 1869, could not operate as a declaration of forfeiture of the lands granted to Evans, March 1, 1869, in any view of the case. The resolutions of the trustees, adopted June 8, 1865,

provided for a forfeiture only upon failure to make the required improvements within one year, and, if the resolution had been made an express condition of the grants to Evans, the conveyance by the city to Cullen in less than one year from the date of the sales to Evans could not operate as a declaration of forfeiture before Evans was in default. But under the terms of the deeds to Evans there could be no forfeiture of the lands. Contracts and laws declaring a forfeiture must be strictly construed, and a forfeiture can never take place by implication, but must be effected by express, unambiguous language. The terms of the resolution of June 8, 1868, only related to the forfeiture of contracts or certificates of purchase, and did not contemplate the execution of a deed until the required improvements should be completed. It is true that, in the deeds to Evans which were made on the day of the sale, there is a recital of a sale upon the conditions prescribed in the resolution, and also of an agreement by Evans to complete all improvements required by them; but the granting part and habendum of the deed, in consideration of the full receipt of the purchase money by the city, purports to vest in the grantee the full title of the city, in fee-simple absolute, without condition precedent or subsequent. To create a condition in a grant, apt and appropriate words must be appended to the grant, which ex vi termini import that the vesting or continuance of the estate is to depend upon the condition. Craig v. Wells, 11 N. Y. 320; Jackson v. McClallen, 8 Cow. 296. An estate upon condition cannot be created by deed, except when the terms of the grant will admit of no other reasonable interpretation. Reciting in a deed that it is in 'consideration of a certain sum, and that the grantee is to do certain things, is not an estate upon condition, not being in terms upon conditions, nor containing a clause of re-entry or forfeiture. 2 Washb. Real Prop. 4, 8. A clause in a deed, stating that it is made "on the express stipulation that a dwelling-house of not less than a certain value shall be put upon the land within a certain time," has been held not to constitute a condition, (Stone v. Houghton, 139 Mass. 175;) and a recital in a deed that it is made for and in consideration of a prior agreement between the parties, accompanied by a provision following the granting clause that it is upon certain further express terms, conditions, and reservations, contained in such agreement, has been held not to create an estate upon condition subsequent, there being no provision for a re-entry for breach of such terms, appended to the grant, nor that the absolute title granted should cease upon such breach, (City of Portland v. Terwilliger, 16 Or. 465, 19 Pac. Rep. 90.) It is further to be considered that no forfeiture appears in this case, for the reason that the record does not show affirmatively whether Evans or his successors in interest have or have not made the improvements required by the resolution. The v.23P.no.4-15

grant being in præsenti, if the recitals preceding it, as to the conditions of the contract of sale, and the agreement of Evans to perform those conditions, could be construed as conditions appended to the grant, they could only be regarded as conditions subsequent, (Hihn v. Peck, 30 Cal. 289,) and the burden would devolve upon the city or its successors to prove a failure to perform such conditions, in order to defeat the vested title. Moreover, the mere breach of conditions subsequent does not, ipso facto, effect a reverter of the title until the proper steps are taken to consummate the forfeiture. Ruch v. Rock Island, 97 U. S. 693; Ferris v. Coover, 10 Cal. 589-619. No such steps appearing to have been taken in this case after the time limited within which a forfeiture might accrue, if at all, the title of the grantee remains in him and his successors. I think the judgment and order should be affirmed.

JUE FOOK SAM v. LORD. (No. 13,462.) (Supreme Court of California. Feb. 22, 1890.) RECORD ON APPEAL.

An appellant who used no statement on his motion for a new trial, and who presented no bill of exceptions to the court for settlement at the time the decision was made, (Code Civil Proc. §

649,) nor served a copy of the proposed bill on the adverse party within 10 days after the decision was made, (section 650,) is not entitled to the use of any statement or bill of exceptions on his appeal from the judgment; section 950 providing that a bill of exceptions "settled as provided in section 649 or 650, or a statement or bill of exceptions "used on motion for a new trial," may be used on appeal from a final judgment.

Department 1. Appeal from superior court, Nevada county; J. M. WALLING, Judge.

Vincent Neale, for appellant. Cross & Simmonds, for respondent.

PATERSON, J. Judgment was entered in the court below in favor of the plaintiff, on February 20, 1889, for the sum of $774.74 and costs; and the defendant appealed therefrom to this court on April 8, 1889. The complaint states facts sufficient to constitute a cause of action, the verdict of the jury cov ers all the issues, and the judgment follows the verdict. There is therefore no merit in the appeal from the judgment. The notice of intention to move for a new trial was not filed or served until March 9, 1889, more than 10 days after entry of the verdict and judgment: and the proposed statement on niction for a new trial was not served on the atterney of defendant until April 25, 1889. The judge of the court below declined to settle the

Though a finding, in an action on a note for $2,546.48 with interest, that there is a balance of $790.75 due is merely a conclusion of law, and not a sufficient answer to the issue of non-payment, such issue is covered where the court specifically finds that plaintiff sold a $2,000 note, which defendant had assigned to him as collateral security, "for the amount of the principal and interest then due," and credited the proceeds on the note in suit, and that no part of the latter has been paid, except the amount of the principal and interest due on the $2,000 collateral note, January 25, 1886. In bank. On rehearing. For former opinion, see ante, 50.

Action by John T. Ward against Sadie I. Clay on a promissory note for $2,546.48, with interest. From a judgment for plaintiff for $790.75 and costs, and an order denying a motion for a new trial, defendant appealed, and, on affirmance, now moves for a rehearing.

R. Percy Wright, for appellant. J. W. Ward, Jr., and J. A. Cooper, for respondent.

BEATTY, C. J. The appellant bases her petition for a rehearing altogether upon the contention that the ninth finding of the superior court, "that there is now due and owing from defendant, Sadie I. Clay, to plain- | tiff, on the promissory note sued on in this case, a balance of $790.75," is merely a conclusion of law, and not a finding of fact covering the issue of non-payment. I think the contention is well founded, and that we ought not to approve the ninth finding as a sufficient answer to the issue of non-payment. But there are specific findings covering this issue. It is found that the defendant, as collateral security for the note in suit, assigned a note payable to her, dated December 7, 1883, for $2,000, bearing interest at 6 per cent. It is further found that this note so held as collateral security was sold by the plaintiff, January 25, 1886, "for the amount of the principal and interest then due" thereon, and the proceeds credited on the note in suit. It is further found that no part of the note in suit has been paid "except the amount of the principal and interest due on the $2,000 collateral note, dated January 25, 1886." The word "dated," in the last part of this finding, is an evident clerical mistake, and should be omitted. With or without it, the meaning of the finding is perfectly clear, viz., that no part of the note in suit has been paid except $2,000, the principal of said collateral note, and the interest due thereon, January 25, 1886. It is true this leaves the amount paid to be computed, but that is certain which can be made certain; and allowing in favor of the defendant that all the interest that had ever accrued on the $2,000 note was due and

maximum sum from the amount of the note in suit at the date of judgment, there remains the full sum found to be due, and for which judgment was rendered. Rehearing denied.

(82 Cal. 502)

LAREW v. NEWMAN, County Auditor. (No. 12,251.)

(Supreme Court of California. Dec. 4, 1889.) COUNTY OFFICERS - INCREASE OF COMPENSATION. Under Const Cal. art. 11. § 9, providing that the compensation of a county officer shall not be increased during his term of office, one who is appointed to fill a vacancy in the office of county superintendent of schools, the salary of which was increased after the election of his predecessor, but before the happening of the vacancy, is not entitled to the increase; as Pol. Code Cal. § 1004, provides that any person appointed to fill a vacancy is subject to "all the liabilities, duties, and obligations of the officer whose vacancy he fills."

Department 2. Appeal from superior court, Mariposa county; J. M. CORCORAN, Judge. J. H. Campbell, for appellant. Newman & Jones, for respondent.

MCFARLAND, J. This is a proceeding in mandamus to compel defendant, auditor of Mariposa county, to draw his warrant in favor. of plaintiff for $837.50. In the court below judgment went for defendant, and plaintiff appeals from the judgment, upon the judg ment roll alone. The facts necessary to be here stated are these: W. D. Egenhoff, having in 1882 been elected superintendent of schools of said county, qualified and entered upon the duties of said office on the 8th day of January, 1883, and held the office until March 19, 1884, when he resigned. On said March 19th the plaintiff, by an order of the board of supervisors, was appointed “to serve the unexpired term of W. D. Egenhoff, resigned." Under such appointment plaintiff held the office until the first Monday in January, 1887. He was paid his salary at the rate of $350 per annum; but he contends that he should have been paid at the rate of $650 per annum, and brings this proceeding for the difference. When Egenhoff took the office, the salary fixed by statute was $350 per annum. Afterwards, and before he had resigned, the general county government act (approved March 14, 1883) went into effect, by which the salary of said office was fixed at $650 per annum. This act enacted that its provisions for salaries "shall not affect the present incumbents;" and also that a vacancy in an office should be filled by appointment by the supervisors, "the appointee to hold office for the unexpired term." Section 9, art. 11, of the state constitution, provides that "the compensation of any county officer shall not be increased after his election, or during his term of office." Section 1004 of the Political Code provides that "any person elected or appointed to fill a vacancy, after tiling his official oath and bond, possesses all the rights and powers, and is subject to all the liabilities, duties, and obligations, of the officer whose vacancy he fills."

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