We concur: MCFARLAND, J., Works, J., PATERSON, J., SHARPSTEIN, J.

(80 Cal. 114)

during the minority of the beneficiaries, | clearly such a trust is valid. See sections and terminate at the expiration of such | 2221, 2222, Civil Code. The trust is definite minority." in every respect required by statute, (see The accumulations are only for the bene- sections above cited,) and the trustees here fit of minors who are in being at the death have accepted the trust. The foregoing dis of the testator. One of the children of Mar-poses of all the questions raised in which garet Chappelhow and John Chappelhow, the judgment of this court is sought. We viz., Esther Hannah, is an infant. Two of find no error in the judgment of the court the children of Jane Allison and Giblum below, and it is affirmed. So ordered. Allison are minors. John Thompson's children are minors. James Thompson had no children. The other children have reached their majority. On the death of the mother or father of the children, and the death or marrying of the surviving wife left a widow, or the surviving husband left a widow- FRESNO CANAL & IRRIGATION Co. v. Row. er, each one of the children mentioned, who ELL. (No. 13,057.) is married or of age, becomes entitled to (Supreme Court of California. Aug. 2, 1889.) his or her share. If there is any income of COVENANTS RUNNING WITH THE LAND-NOTICE. such share received afterwards, it goes to such married or adult child as accrued in- 1. Plaintiff contracted in writing with E., the come on his share which has already vested owner of certain land, to furnish water for a cerin possession. It is clear from the will that tain period at a certain price, which E. agreed to pay all the income is to be paid over and not at stated times. He also covenanted, inter alia, for himself and his successors in interest, annually, accumulated at all during the lives of the that the contract and covenants therein contained nephews and nieces, and during the lives of on his part should "run with and bind the land.” the surviving husbands and wives referred Held, that under Civil Code Cal. § 2884, which to in the will, as long as they remain un- provides that a lien may be created by contract married. After the foregoing events have to take immediate effect, as security for the peroccurred the shares of the corpus of the contract was a lien upon the land of E., and bound formance of obligations not then in existence, the fund have to be paid over to the married or it as against any successor of E. with notice thereof. adult children of the parents mentioned in the will, with the income accruing on their shares as a part of the share; such income, if any, being accrued on the share of such adult or minor child. The only accumulation is, then, for the minors, and such accumulation ends with their minority or marrying. When majority is reached, or marriage occurs before, each share vests, with its accumulation of the income, in such minor child.

2. Where a grantee of the covenantor had notice of the water-right when he purchased the land, but did not know its terms, such knowledge was sufficient to put him upon inquiry, and a failure to do so will not relieve him of the obligation upon the

land.

edged by the incumbrancer of the land to render it 3. Such a contract only required to be acknowlcapable of recordation, and the record thereof was sufficient notice to subsequent purchasers of the land.

4. As plaintiff complied with the contract on his part by supplying the water, the fact that defendant did not use it is immaterial, and the land was bound whether the water was used or not. 5. Under Civil Code Cal. §§ 1460-1462, specifying what covenants run with the land, the covenants under the contract in question do not run with the land, not being contained in the grant of the estate, and no personal judgment can be had against defendant; but the lien must be foreclosed against the land, he not being a bona fide purchaser with

out notice of the lien.

It may be remarked that the accumulations of income on an invested fund are not forbidden because they tend to a perpetuity. That such accumulations were for adults did not create or tend to a perpetuity was held in Thellusson v. Woodford, above cited. See remarks of Lord ELDON on page 144, 11 Ves. The prohibition of accumulations longer than the minority of the takers of the interest was made to prevent an unfeeling and selfish testator from so devising his estate as to make persons rich in the distant future, to the detriment of those during the period of limitation who had better claims on his bounty. The lat-payments due under a contract entered ter had to live in poverty, in order that their children or grandchildren might be made rich at a distant future day.

As to the after-born child of John Thompson, she came into existence during her father's life, one of the lives in being at the creation of the interest. She would take an interest under the will, as she was one of the class mentioned in it, to-wit, the children of John Thompson, (Civil Code, § 1337,) vested in right when she was born, and in possession contingent on her attaining the required age or marrying. If this interest could ever vest in possession, it must have vested within 21 years after her father's death. Such an event did not render the interest devised void. No question is made as to the validity of the trust created by the will as a trust. The only objection made to it has been considered above. But

In bank. Appeal from superior court, Fresno county; J. B. CAMPBELL, Judge. Action by the Fresno Canal & Irrigation Company against one Rowell, for certain

into with it by defendant's grantor, one Easton, for supplying water to be used on the land owned by him. Judgment for plaintiff. Defendant appeals. Civil Code Cal. § 2881, is as follows: "A lien is created (1) by contract of the parties, or (2) by operation of law. Sec. 2882. No lien arises by mere operation of law until the time at which the act to be secured thereby ought to be performed. Sec. 2883. An agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien, or not yet in existence. In such case the lien agreed for attaches from the time when the party agreeing to give it acquires an interest in the thing, to the extent of such interest. Sec. 2884. A lien may be created by contract, to take immediate effect, as security for the performance of obligations not then in existence." Civil Code

Cal. § 1460, reads: "Certain covenants con- that at that time he knew that there was a tained in grants of estates in real property water-right of plaintiff's connected with the are appurtenant to such estates, and pass land, but did not know its terms. It seems with them, so as to bind the assigns of the to us that such knowledge was sufficient to covenantor, and to vest in the assigns of put him on inquiry as to the water-right; the covenantee, in the same manner as if that by pushing the inquiry he might have they had personally entered into them. ascertained its exact condition; and that Such covenants are said to run with the it was his duty to make the inquiry. Eastland. Sec. 1461. The only covenants which on, or either of the officers of the plaintiff run with the land are those specified in this company, could have informed him of the title, and those which are incidental there- right and its terms. He cannot, by failure to. Sec. 1462. Every covenant contained in to inquire, relieve himself of the obligaa grant of an estate in real property, which tion which inquiry would have shown is made for the direct benefit of the prop- bound the land. He cannot be allowed erty, or some part of it then in existence, to shut his eyes, and say he did not see, runs with the land. Sec. 1463. The last sec- when by opening; them he might have seen. tion includes covenants of warranty' 'for But, waiving the point of actual notice, quiet enjoyment,' or for further assurance we are of opinion that the notice by the on the part of a grantor, and covenants for record of the agreement was sufficient. the payment of rent, or of taxes or assess- The written paper was such a paper as ments upon the land, on the part of a could by law be recorded, and impart nograntee. Sec. 1464. A covenant for the ad- tice to subsequent purchasers. All that was dition of some new thing to real property, required was that it should be properly acor for the direct benefit of some part of the knowledged by Easton, the creator of the property not then in existence, or annexed incumbrance on the land. The policy of thereto, when contained in a grant of an the recording laws is that the record should estate in such property, and made by the impart notice to subsequent purchasers or covenantor expressly for his assigns, or to mortgagees of the grantor. The plaintiff the assigns of the covenantee, runs with had no interest in the land, and created no land so far only as the assigns thus men- incumbrance on it. There could be no subtioned are concerned. Sec. 1465. A cove- sequent purchasers or mortgagees of the nant running with the land binds those land from it. It was no more necessary only who acquire the whole estate of the that it should be acknowledged by it covenantor in some part of the property. than that a mortgage should be acknowlSec. 1466. No one, merely by reason of hav-edged by the mortgagee. The plaintiff acing acquired an estate subject to a cove- cepted the incumbrance created on the land, nant running with the land, is liable for a but did not create it, or charge the land in breach of the covenant before he acquired any way. Spect v. Gregg, 51 Cal. 198, is a the estate, or after he has parted with it, direct authority on the point. The execuor ceased to enjoy its benefits." tion of the power of attorney by one of the contestants made the appointee his attor ney. The instrument, by its terms, read that the appointee should be the joint attorney of the four parties executing it, or severally of each. The acknowledgment by one of the contestants created the appointee his attorney, and his acknowledgment was make the record notice as to any subsequent purchaser from him. So here, as to Easton, who in fact was the only creator of the incumbrance, and the only one who charged the land.

George E. Church, for appellant. Wharton & Short, for respondent.

whether the water was used or not.

THORNTON, J. The contract binds Easton, but we cannot see it binds defendant personally. Rowell was no party to the contract, nor do we see that he ever agreed to bind himself personally for its perform-sufficient to authorize its recordation, and ance. Easton owned certain lands, and, while owner, made a contract in writing with plaintiff to furnish water for a certain period for a certain price, which Easton agreed to pay, and that his successors in interest should pay annually, on certain The fact that the defendant did not use days of the year. He also covenanted that the water, if the plaintiff complied with the the contract and the covenants therein contract,-and this was found to be a fact, contained on his part should "run with-is immaterial. The land was then bound and bind the land." A lien may be created on property by contract. Civil Code, §§ 2881-2884. We think that there was a lien created by contract on Mr. Easton's land mentioned in the agreement. All the covenants in the agreement were agreed to bind the land. One covenant was to pay money afterwards to become due. The language above quoted shows an intent by Easton, the owner of the lands, to create a lien on them. This makes a contract of lien. This lien bound the land as against any person who succeeded to Easton's estate, with notice of it. It seems to be conceded that de fendant is the grantee or successor of Easton as to part of the lands above referred to. The evidence tends to show that defendant had actual notice of the water-right when he purchased the land. He testified

It may be added that the covenants are not here regarded as covenants running with the land. They could not be such because they are not contained in grants of the estate. Such is the manifest meaning of the statute, and such, we think, was the common law. Civil Code, §§ 1460-1462, and the sections following in the title. There can be no judgment against defendant, personally, for money, but the lien can be enforced by foreclosure against the land, and every grantee who is not a bona fide purchaser without notice. Judgment and or der reversed, and cause remanded for a new trial.

We concur: WORKS, J.; SHARPSTEIN, PATERSON, J.

J.;

(83 Cal. 101)

CUCAMONGA FRUIT & LANd Co. v. MOIR. |cation was filed the statute required the ap

1. A party seeking to attack a patent must show that he is connected in some way with the original source of title, so as to be able to aver that his rights are injuriously affected by the existence of the patent.

2. Under Pol. Code Cal. § 3500, providing that an application to purchase state lands must state "that there is no valid claim to such land other than that of the applicant; * that he has not entered any land in part satisfaction of the unsold portion of the 500,000-acre grant," etc.,-an application stating that there was no valid claim other than the applicant's, but failing to state that he had not "entered any land," etc., creates no such claim as will entitle the applicant to question the validity of a certificate of purchase issued to another. 3. A certificate of purchase from the state is not void though the application and affidavit are defective.

plicant to state, among other things, "that there is no valid claim to such land other than that of the applicant;

that

he has not entered any land in part satis-
faction of the unsold portion of the 500,000-
acre grant, or of the grant in lieu of the
sixteenth or thirty-sixth sections, which,
together with that now sought to be pur-
chased, exceeds 320 acres." Section 3500,
Pol. Code. The application of Moir did
state that there was no valid claim other
than his own, but did not state that he had
"not entered any land in part satisfaction,"
etc. At the time the application was filed
the plaintiff and its grantors held a certifi-
cate of purchase from the state of California
for the land, and it appears from the evi-
dence that defendant and one
both living on the land, claiming adversely
to each other at the time the application
was filed. Having failed to establish a priv-

were

4. Such certificate is sufficient to maintain eject-ity with the paramount source of title,

ment.

In bank. Appeal from superior court, San Bernardino county; JAMES A. GIBSON, Judge.

H. T. Hazard and Chapman & Hendrick, for appellant. Curtis & Otis and J. C. Lynch, for respondent.

affidavit were defective. (Rowell v. Perkins, 56 Cal. 220;) and a certificate is sufficient to maintain an action in ejectment, (Young v. Shinn, 48 Cal. 26; Laugenour v. Hennagin, 59 Cal. 625.) Judgment and order affirmed.

to show that he was duly qualified according to law to purchase the land in controversy, and had fully complied with the laws of the state of California regulating the sales of such lands,-he is not in a position to question the title of the plaintiff. Peabody v. Prince, 21 Pac. Rep. 123; Chapman v. Quinn, 56 Cal. 278; McKenzie v. BranPATERSON, J. Ejectment. The complaint don, 71 Cal. 209, 12 Pac. Rep. 428; Plummer is in the ordinary form. The answer spe- v. Woodruff, 72 Cal. 29, 11 Pac. Rep. 871, and cifically denies plaintiff's ownership, and 13 Pac. Rep. 51; Harbin v. Burghart, 18 Pac. that the defendant wrongfully or unlaw-Rep. 127. Mullan's certificate of purchase fully entered into or withholds possession is not void, even though his application and of the premises. Plaintiff claims title under a patent of the United States and a certificate of purchase from the state of California. Defendant contends that the patent is void because the United States had no title, the land having been listed to the state in 1870, and confirmed by congress; that the certificate of purchase issued to Mullan, defendWe concur: MCFARLAND, J.; SHARPant's grantor, is void because the state STEIN, J.; WORKS, J.; THORNTON, J. never had any title until the passage of what is known as the "Booth Bill," March 1, 1877, eight years after Mullan's certificate of purchase had been issued, and seven years after the act of March 24, 1870, had been passed. The defendant's answer does not allege, and the evidence does not show, that he occupies such a status as authorizes him to control the legal title, or to question the authority of the officers who issued the patent. A party seeking to attack a patent must show that he is connected in some way with the original source of title, so as to be able to aver that his rights are injuriously affected by the existence of the patent. Fletcher v. Mower, 56 Cal. 424; Dodge v. Perez, 2 Sawy. 653; Davidson v. Land Co., 20 Pac. Rep. 152; Kentfield v. Hayes, 57 Cal. 409.

(80 Cal. 111) MCCOMBER V. MILLS. (No. 12,957.) (Supreme Court of California. Aug. 2, 1889.)

FORECLOSURE OF MORTGAGE. Defendant, after giving plaintiff a mortgage to secure three notes on certain lots, agreed with him for the release of any lot on payment of $250 for each lot, provided as many lots were sold from the east side of the block as from the west, and that the release of not less than two lots should be demanded at one time. After the payment of the first note defendant secured the release of eight lots, and failed to pay the other two notes, but demanded the release of ten other lots, and in foreclosure pleaded the failure to release said lots. Held, that it was no defense, as he was not entitled to such release, without paying the price therefor according to the contract, and making de

Defendant's claim to the land in contro-mand for specific lots.

Leovy & Humes, for appellant. M. S. Babcock, for respondent.

versy rests upon an application to purchase In bank. Commissioners' decision. Apfrom the state. Conceding that he might peal from superior court, San Diego coun show, without pleading them, the facts up-ty; E. PARKER, Judge. on which he relies, it is sufficient to say that he has failed to aver or to prove the conditions necessary to make his application valid. His application did not allege, nor does the evidence show, that he had not entered any land in part satisfaction of the unsold portion of the 500,000-acre grant, or of the grant in lieu of the sixteenth and thirty-sixth sections. At the time his appli

GIBSON, C. This is an appeal from judgment foreclosing a mortgage against the defendant and from an order denying him a new trial. The only point urged upon this appeal is that a portion of the eleventh finding of the court below is not supported

by the evidence. The defendant by his an- into at the time of the execution of the swer admits the execution and delivery of notes and mortgage, and was not a part the notes and mortgage, and the non-pay- of the same transaction; that the defendment of the two notes in suit. The only ant never paid him any money but the affirmative defense interposed other than amount of the first note, after which he reone based on the alleged sale of the notes leased from the mortgage lien eight lots, by the plaintiff to another person prior to at the request of defendant, who did not bringing the suit, and that the third and ask for the release of any other lot or lots last note had not matured, was that, pur- until long after the second note matured, suant to a contract made with and as a and defendant had been asked several times part of the mortgage, providing for the re- to pay it; that the eight lots were released lease of lots from the mortgage on pay- with the understanding between himself ment of $250 for each lot, not less than two and defendant that the remaining sixty-two to be released at a time, and in equal num-lots should remain as security until the full bers, on the east and west side of the amount secured by the mortgage should be blocks, he, the defendant, sold eighteen lots, paid. Thus it appears from the defendand plaintiff, although requested to release ant's own testimony that the finding assuch lots, released but eight, and refused to sailed by him is not only supported by the release the other ten lots. Upon this de- evidence, but more favorable to him than fense the court found, in the finding assailed he was entitled to. After he paid the by the appellant, that only four east- amount of the first note, and obtained the side" lots, of the ten lots described in de-release of eight lots, and rested apparently fendant's answer, in addition to those re- satisfied for some time without making any leased prior to the commencement of the demand for the release of any other lots, suit, should be released from the mortgage lien. The court also found that the mortgage was given by the defendant to plaintiff on the 8th day of July, 1887, to secure three promissory notes for the sum of $13,750 in the aggregate, with interest, the said amount being the remainder due on the purchase of a portion of the property covered by the mortgage. And at the time of the execution and delivery of the notes and mortgage, and as part of the same transaction, plaintiff and defendant made and reduced to writing, in a paper separate from the notes and mortgage, an agreement, whereby the plaintiff agreed to release from the lien of said mortgage any lots therein described whenever the defendant might desire to sell any of them, upon the defendant paying to plaintiff the sum of $250 for each lot released: provided as many lots were sold by defendant upon the east side as upon the west side of each block, and not less than the release of two lots demanded at a time; and also found that the first of the three notes was paid, leaving the two others unpaid, and $10,779.82 due thereon, including an attorney's fee, as provided for in said notes; that the plaintiff was the owner of the notes; and that the last note had matured at the commencement of the suit.

he was not entitled to the release of any additional lots without paying the price therefor required by the contract, and making a demand for specific lots, not less than two in number, and an equal number on the east and west side of the blocks. We therefore advise that the judgment and order appealed from be affirmed.

We concur: VANCLIEF, C.; FOOTE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

PETERSON V. WEISSBEIN et al.
(Supreme Court of California.

RES JUDICATA.

(80 Cal. 38) (No. 13,051.) July 27, 1889.)

Where, in a suit between plaintiff and defendant's grantor, it has been determined that a judg ment, under which the latter has purchased the judicata in a suit between plaintiff and defendants. land in question, was valid, the question is res

In bank. Appeal from superior court, Nevada county; J. M. WALLING, Judge. For statement of facts and former opinion, see 16 Pac. Rep. 769.

P.F. Simonds and F. Searls, for appellant. A. Burrows, for respondents.

The only evidence in the statement on motion for a new trial, aside from that of WORKS, J. On a former appeal this cause the contract for the release of lots from the was reversed on the ground that the defendmortgage lien, and the testimony of two ants, who relied upon a constable's deed to witnesses on the question of attorney's fees, establish their title, had not made out their is the testimony of the plaintiff and defend- case, for the reason that they had failed to ant. The defendant, in substance, testified introduce in evidence the judgment and exthat he executed the notes and mortgage, ecution on which the deed was based. Peand in connection therewith, and as part terson v. Weissbein, 75 Cal. 174, 16 Pac. Rep. thereof, he and plaintiff entered into the 769. On a second trial this evidence was supcontract for the release of lots from the plied, and judgment was again rendered for mortgage; that he sold eighteen of the lots the defendants. The plaintiff objected to covered by the mortgage, and requested the introduction of the judgment and exeplaintiff to release ten lots in addition to cution in evidence, on the ground that the the eight previously released; and that the judgment was invalid. But it was shown only money he ever paid plaintiff was the by the evidence that in an action between amount of the first note; never paid $250 the plaintiff and the defendants' grantor, or any other sum for the release of any par- who was the purchaser at the constable's ticular lot, and did not tell plaintiff what sale, it was determined by the judgment of particular lots he wished released under the the court that the judgment of the justice' contract. The plaintiff testified, in sub-court and the sale under it were valid. stance, that the contract was not entered | This adjudication was conclusire as to the

validity of the judgment. Peterson V.
Weissbein, supra. Therefore the court be-
low did not err in admitting it in evidence.
The judgment roll in the case between the
plaintiff and the defendants' grantor was
objected to, on the ground that the parties
in that action were not the same as in this.
But, the defendants having purchased from
the party in the former action, the judg-
ment inured to their benefit, and was com-
petent evidence. Judgment and order af-legal title.
firmed.

We concur: SHARPSTEIN, J.; MCFAR-
LAND, J.; PATERSON, J.; THORNTON, J.

BELLEGARDE V. SAN FRANCISCO BRIDGE Co. reach. Plaintiff, the assignee of the purchaser, did