granted by any incorporated city or town for a less sum than herein before specified." In view of these considerations, in so far as State v. Wright, supra, is in conflict with the construction we have given to the constitutional provision in question, it must be considered as overruled, and the judgment in the case at bar must be affirmed.

PEDERSON v. SEATTLE CONSOLIDATED ST. RY. CO. (Supreme Court of Washington. Nov. 6, 1893.)

PERSONAL INJURIES-RELEASE-VALIDITY.

Where a corporation obtains a release from liability for personal injuries from the person injured while he is lying in a hospital, without means or friends, mangled and shocked, and before his wounds are dressed, or his mind is composed, such release is void. Per Dunbar, C. J., dissenting.

Dissenting opinion.

For report of majority opinion, see 33 Pac. Rep. 351.

DUNBAR, C. J. I dissent. The testimony, to my mind, shows clearly (1) that the agent of the company in charge of the matter was guilty of gross negligence; (2) that the respondent was not guilty of contributory neg ligence; (3) that undue advantage was taken of the respondent to obtain the release which the appellant pleads in defense. I do not question the law pronounced at great length in the majority opinion, but I assert that it does not govern this case. The opinion does not state the circumstances under which it is alleged the release was obtained. While this man was lying mangled and shocked by the injury, before his wounds were dressed or his mind composed, the agents of the company obtained this socalled "release." The undisputed testimony shows such a condition of mind and body as would render absolutely farcical any attempt of the respondent to enter into a contract concerning important rights. Courts would not hesitate to set aside a contract urged and procured by a private individual under such circumstances as are proven in this case, and no different rule should be prescribed for a corporation. Contracts, when they are honestly and fairly entered into, must be rigidly maintained and enforced by the courts, because contracts, express or implied, are at the bottom of all business relations. But a contract is only entitled to respect from the presumption that the contracting parties were standing on an equal footing at the time the contract was entered into. Will any man assert that the parties to this action were on an equal footing at the time this contract was entered into? Here was a man without means and without friends, torn and bruised by an accident, and jolted and shocked until he was prostrated, his wounds not yet examined to ascertain if they

were fatal, racked with physical pain, and scared out of his wits by the misfortune that had overwhelmed him; and while in this condition-a condition of mind and body absolutely preventive of intelligent calculation -the company with unseemly haste thrust this cold calculating stipulation into his face, and obtained his signature to it. The essence of a contract is an agreement of the minds of the parties, or the consent and harmony of their intentions. The circumstances under which the respondent's signature was obtained to the so-called "release" shows, indeed, no want of harmony; but it was unilateral harmony; there was but one mind operating; the mind of the respondent was plainly in no condition to agree to anything; and appellant should not be allowed to shelter itself behind an instrument obtained in such a way. The judgment should be affirmed.

LEDDY v. ENOS.

(Supreme Court of Washington. Nov. 3,

1893.)

COVENANTS AGAINST INCUMBRANCES WHAT CONSTITUTE-BREACH-LIABILITY.

1.1 Hill's Code, § 1424, provides that a warranty deed containing the words "convey and warrant" shall be construed to contain express covenants by the grantor to the grantee, his heirs and assigns, that the premises are free from all incumbrances, "and such cove nants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at full length in such deed." Held, that the statute applies to a deed drawn in the form prescribed by statute, and which set out the exact things warranted by the grantor. Per Dunbar, Č. J., dissenting.

2. A covenant which recites that the grantor covenants, grants, and agrees that he, "against all and every person and persons whomsoever lawfully claiming or to claim the same, or any part thereof, shall and will warrant and forever defend," is a covenant against incumbrances. Per Dunbar, C. J., dissenting.

3. Outstanding city and county taxes at the time the deed is executed constitute a breach of such covenant, and the payment of such taxes by the grantee, before any move is made to collect the same, imposes a liability on the grantor, under the covenant. Per Dunbar, C. J., dissenting.

Dissenting opinion.

For report of majority opinion, see 33 Pac. Rep. 508.

DUNBAR, C. J., (dissenting.) I am unable to agree with the reasoning or conclusions of the majority. I think the contention of the respondent that the deed, which is made in the form prescribed by statute, should be construed as a warranty deed carrying implied covenants as provided for in said statute, is irresistible, and that the deed must be construed as though such covenants had been expressed therein. Nor do I think with the majority that the deed is taken out of the statute because it is made fuller than

the statutory form requires. The excess is simply surplusage, and does not bring it within the rule of "expressio unius est exclusio alterius." Nor do I think that it was the duty of the grantee to stand idly by and see the incumbrances on his land increased by penalties accumulating as delinquent taxes. He rightly made his damages as light as possible by the payment of taxes, and ought not to be made to suffer for doing that which the law in every other character of case would compel him to do. Certainly no presumption will attach that the taxes were illegally levied, and will be successfully contested. The presumption is exactly the reverse. The judgment should be affirmed.

HOLLAND v. SOUTHERN PAC. RY. CO.

(No. 18,128.)

the verdict and judgment recovered in the superior court, it was incumbent upon him to show, not only that the injury he received was proximately caused by the negligence of Mulligan, but also that the latter was incompetent, and that there was negligence upon the part of the defendant in employing him in the first instance, or in retaining him in its service after notice of his incompetency and the alleged careless and reckless manner in which he had dis charged his duties as an engineer. It is not claimed by the plaintiff that the defendant failed to exercise reasonable and ordinary care to ascertain whether or not Mulligan was a competent engineer at the time of first employing him, but he contends that the defendant was guilty of negligence in retaining him as an engineer after notice that he was careless and reckless in the discharge of the duties incident to that posi

OF PRIOR NEGLIGENCE.

The fact that an engineer once ran his train in 40 minutes over a distance scheduled for an hour, though he knew that hand cars and sectionmen might be on the track up to 10 minutes before schedule time, no accident having in fact occurred, does not show that he was unfit for his position, and that the company ought to have discharged him after notice.

Department 2. Appeal from superior court, Yuba county; E. A. Davis, Judge.

Action by one Holland against the Southern Pacific Railway Company for damages for personal injuries. Judgment for tiff. Defendant appeals. Reversed.

S. C. Denson, E. A. Forbes, and Fred Blake, for appellant. W. H. Carlin and Jacob Samuels, for respondent.

DE HAVEN, J. This is an action brought to recover damages for personal injuries sustained by the plaintiff while in the employment of the defendant as a road master. The injuries were the result of a collision between a locomotive engine and a construction train upon which the plaintiff was riding. The engine which came in collision with the train was then being used in the work of defendant, and was driven by an engineer named Mulligan, employed by the defendant for that purpose. The complaint alleges that Mulligan, for some time prior to and up to the time of the collision, "had been and was incompetent, reckless, and grossly negligent in the performance of his duties as an engineer and * * employe of defendant," and that defendant had notice of such incompetency and negligence. The case was tried by a jury, and a verdict returned in favor of plaintiff for the sum of $7,500, and judgment was rendered in the superior court in accordance therewith. The defendant appeals.

The plaintiff and Mulligan were fellow servants, and, in order to entitle plaintiff to

plaintiff himself testified that in making about 11⁄2 miles of this run, over a portion of the road which was level, the train was driven at a speed of about 40 or 45 miles an hour; and he further testified that this road was not considered safe to run fast upon, because it was laid with light iron rails. There was but one train a day run over this road, but hand cars used by construction men might have been upon the track at this time, and, under the rules of defendant, would have had the right to remain there until within 10 minutes of the schedule time for the arrival of the regular train. This run was made in daylight, and without acci dent or injury to any one. The plaintiff, although requested by Mulligan not to do so, notified the proper officers of defendant of the manner in which this train was run upon the occasion just referred to. This was all the evidence tending in any degree to show the incompetency of Mulligan as an engineer prior to the collision in which plaintiff re ceived his injuries. Counsel for plaintiff in their very able brief filed in this court argue that this evidence was sufficient to show that Mulligan knew, or ought to have known, that it was dangerous to run a train so fast upon this particular road; and that in so doing be not only endangered the lives of the pas sengers on the train, but also imperiled the

lives of the section or construction men who were on the road, and who had the right to remain there until within 10 minutes of the time for the regular approach of the train, and that the jury were justified in finding from this single act of Mulligan that he was reckless and careless to such a degree as to render him wholly incompetent as an engineer; and that the defendant could not, with notice of the incompetency thus shown, retain him in its service as an engineer with- | out rendering itself liable to those of its employes who might thereafter be injured through his negligence. But we do not think so. It may be, and doubtless is, true that a single act may be such as to furnish an unerring index of the character of the actor, and, when considered by itself and in connection with the circumstances surrounding it, be sufficient to demonstrate the unfitness of a person to be placed in any position requiring great or even ordinary care in the discharge of its duties.

Still, the

act relied upon here was not of a character to necessarily stamp Mulligan as unfit or incompetent to discharge the duties of an engineer. It did not of itself show him to be a grossly careless person, or reckless of the lives, either of the passengers committed to his charge, or the lives of the employes of defendant at work upon the track. No accident occurred at that time, nor is there anything in the evidence to show that this result was due more to chance or good fortune than the management of the engine and the actual condition of the road upon which the train was running; and, although men were liable to have been working on the track, it does not appear that they could not have been easily seen, and would not have had ample time to escape all harm after being warned by bell or whistle of the approach of the train. Upon the facts disclosed by the evidence, the jury was not warranted in finding that the defendant failed in its duty to plaintiff or its other employes in not discharging Mulligan from further service as an engineer because of this one act, assuming it to have been a negligent one. The true rule upon this subject is stated with great precision and clearness by Allen, J., in delivering the opinion of the court of appeals of the state of New York in the case of Baulec v. Railroad Co., 59 N. Y. 363, as follows: "An individual who by years of faithful service has shown himself trustworthy, vigilant, and competent is not disqualified for further employment, and proved either incompetent or careless and not trustworthy, by a single mistake or act of forgetfulness and omission to exercise the highest degree of caution and presence of mind. The fact would only show, what must be true of every human being, that the individual was capable of an act of negligence, forgetfulness, or error of judgment. This must be the case as to all employes of corporations until a race of servants can be

found free from the detec's and infirmities of humanity. A single act may, under some circumstances, show an individual to be an improper and unfit person for a position of trust or any particular service, as when such act is intentional and done wanton.y regardless of consequences, or malicious.y. So the manner in which a specific act is performed may conclusively show the utter incompetency of the man and his inability to perform a particular service. But a singi act of casual neglect does not, per se, tell to prove the party to be careless and imprudent, and unfitted for a position requiring care and prudence. Character is formed and qualities exhibited by a series of acts, and not by a single act." See, also, Elevator Co. v. Neal, 65 Md. 438, 5 Atl. Rep. 338. An in Wharton on Negligence (section 238) it is said: "If single exceptional acts of negl gence should prove an officer to be incompe tent, no officer could be retained in service, for there is no person who is not at some time to some degree negligent. Hence it has been properly held that intelligent men, of good habits, who are engineers or brakemen or switchmen on railroads, are not necessarily to be discharged by their employers for the first error or act of negligence such employes commit; nor will railroad companies necessarily be liable for a second error. or negligent act of a servant to all other servants of such companies when the latter sustain damages by reason thereof." It necessarily follows from these views that the judgment and order appealed from must be reversed.

1. Civil Code, §§ 1384, 1402, provide that on the death of a husband intestate the title to one-half of the community property vests in the surviving wife, subject to the debts and the control of the probate court for purposes of administration. Held, that the widow could not by a conveyance of her interest in the land bar a homestead therein for herself and children.

2. The latter clause of Code Civil Proc. § 1485, which defines the rights of successors by purchase to homesteads and to the right to have homesteads set apart to them, relates only to such purchasers as have succeeded to the rights of all the persons entitled to a homestead, but has no application where the succession is to the rights of only one of such persons.

3. In ejectment by a widow, who had sold her interest in community property, and by her daughter, to get possession of their homestead right, defendant cannot contend that he has not contested the right of the daughter to possession as a tenant in common with him,

so that there has been no ouster, when the complaint avers title in plaintiffs and ouster by defendant, and the answer denies every material allegation of the complaint, and pleads the statute of limitations, and when the agreed statement of facts admits that on given date the widow, on behalf of herself and daughter, demanded of defendant that they be let in possession, but that defendant refused, and has since withheld possession from plaintiffs.

a

4. Where the affidavit of the administra

trix, attached to the inventory and appraise ment, was almost in the precise language prescribed by the Code, except that the affidavit reads "and of all just claims of the said deceased against the said decedent," instead of "against the said affiant," such affidavit was sufficient, the error being merely clerical, and it could not in any way vitiate the subsequent proceedings.

5. The clause in Code Civil Proc. 8.1443, requiring the administrator to file his inventory and appraisement within three months after his appointment is directory, and does not render them invalid when subsequently filed.

6. The fact that a second inventory was filed did not affect the validity of the proceedings, for, if the first was in proper form, and the second involved no changes, it was mere surplusage; but if, from the destruction of some property or the discovery of more, the court wished a further inventory, it was within its power to order one taken.

7. The petition for a homestead asked that it be set apart for the widow and her two children. but the decree stated that the property described "is hereby set apart for the use of the family of said O., deceased." The family of O. was shown by the record to have consisted of the widow and two minor children. Held that, as the term "family" is used throughout the chapter providing for homesteads to denote the surviving husband or wife and children, it must be regarded as used in the decree in that sense, and as sufficiently describing the widow and children.

8. Objections to a decree setting apart a homestead urged on an appeal in an ejectment suit, a collateral proceeding, can only avail by showing such errors as render the decree absolutely void.

9. Even if the probate proceedings were void, the infant plaintiff could still recover, as the heir of her deceased father, (Code Civil Proc. 1452,) her interest in the real property, and possession thereof, except as against the administrator.

10. Evidence was properly excluded that after the death of her husband the widow purchased with her separate funds a lot in another town, and resided there with her children, and declared a homestead thereon, which lot was subsequently sold by her, before the application for a homestead herein, for the right to a homestead herein inured to her and her children as a joint right which she could not individually waive.

11. The possession of defendant under the agreement to purchase, made by the widow in 1883, was in subordination to plaintiffs' title, and did not become adverse to either of them until the date of the deed September 1, 1885, and, as the ejectment action was begun April 11, 1890, less than five years after the execution of the deed, it was not barred by the statute of limitations.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; William P. Wade, Judge.

Ejectment by Maggie Phelan and Mary O'Connor against Edward Smith. From a judgment in favor of plaintiffs, and from an

order denying a new trial, defendant appeals. Affirmed.

O'Melveny & Henning, for appellant. W.L Foley and Chapman & Hendrick, for re spondents.

SEARLS, C. This is an action of ejectment to recover a parcel of land situate in judgment, from which, and from an order the county of Los Angeles. Plaintiffs had denying a motion for a new trial, defend ant appeals. The parcel of land in question is part of a larger tract, of which John O'Connor died seised July 21, 1882. The entire tract was community property of John O'Connor and Maggie O'Connor, (now Mag gie Phelan,) his wife. John O'Connor died intestate, and left him surviving the said Maggie, his widow, and their two minor children, Louis Francis, who died intestate. a minor, without issue, February 22, 1889, and the plaintiff, Mary O'Connor, who is still a minor. Maggie O'Connor was on the 13th day of October, 1882, appointed guardian of the person and estate of her infant daughter, Mary O'Connor, and on the 8th of November, 1882, she was duly appointed administratrix of the estate of her deceased husband, and qualified as such administratrix. On the 14th of April, 1883, Maggie O'Connor entered into an agreement with the defendant, Edward Smith, and his brother, W. D. Smith, where by she agreed to convey to them a tract of land consisting of 94 acres, which in Icludes the land involved in this action. The consideration was $3,000. W. D. Smith as signed his interest in the contract to de fendant, and, the consideration therefor hav ing been paid, on the 1st day of September, 1885, Maggie O'Connor conveyed the undivided one-half of the land by deed of grant to the defendant. The land so conveyed was community property, as aforesaid, and be longed to the estate of John O'Connor, de ceased. No order or authority of the probate court was had, either authorizing or approving such sale, and it was made by Maggie O'Connor individually, and not in any representative character. Defendant went into possession of the land at the date of the agreement, by consent of Maggie O'Connor, and since the date of the convey. ance has remained in possession, claiming title to an undivided one-half thereof under said deed, and not otherwise, adversely to plaintiffs, and has paid all taxes levied thereon. On July 9, 1888, the land was appraised as of the estate of John O'Connor, deceased, in two parcels. The first parcel, being the land in dispute in this action, was appraised at $4,500, and the second parcel at $3.500 On the 18th day of August, 1888, said Maggie O'Connor, as administratrix of the es tate of John O'Connor, deceased, filed her pe tition in the superior court asking that parvel one of the land aforesaid, with the dwelling house thereon, be set apart by said cort as

a homestead for the use of said Maggie O'Connor, widow, as aforesaid, and her two minor children, aforesaid, and such proceedings were thereafter had that on the 18th day of August, 1888, said first parcel of land, with the dwelling house, etc., thereon, was set apart by the court as a homestead. After the death of Louis Francis O'Connor, and on the 15th day of August, 1889, a decree of distribution in the matter of said estate was given and made, by which decree threefourths of said estate was awarded and distributed to Maggie O'Connor, the widow, and one-fourth part thereof to Mary O'Connor, the surviving child. Maggie O'Connor, on the 11th day of March, 1889, married E. F. Phelan, and still is the wife of said Phelan.

Appellant contends that as against the plaintiff Maggie Phelan the deed of September 1, 1885, from her to him, divested her of all title she had to the land, and that she had the one-half thereof, under section 1402 of the Civil Code. That if the decree of the court setting aside the homestead out of the estate of John O'Connor vested any new interest or estate in said Maggie, the same inured to her grantee, and that the homestead decree is not sufficient to enable her to maintain ejectment against her grantee. "Upon the death of the husband, one-half of the community property goes to the surviving wife. . . In case of the dissolution of the community by the death of the husband, the entire community property is equally subject to his debts, the family allowance and the charges and expenses of administration." Civil Code, § 1402. We assume at the outset of the inquiry that whatever title Maggie O'Connor could at the date of her deed convey to defendant in and to the undivided one-half of the property in question passed to the latter by her deed. Her deed being in form and substance one of grant, an after-acquired title, vesting in her as an individual, and which she could convey as such, passed by operation of law to her grantee under such deed. It remains to inquire as to her capacity to convey an interest in the community property of her deceased husband, pending proceedings in administration, and the limitations, if any, attaching to the title conveyed. "The property, both real and personal, of one who dies without disposing of it by will passes to the heirs of the intestate, subject to the control of the probate court, and to the possession of any administrator appointed by that court for the purposes of administration." Civil Code,

1384. The title to one-half of the community property, under sections 1384 and 1402 of the Civil Code, upon the death of the husband who dies intestate, at once vests im the surviving wife, subject to the payment of debts, etc., and subject to the exercise by the probate court of the powers over it, vested in that court, and qualified or subject to be qualified by the exercise of those powers. The objects of administration were

discussed at considerable length in Estate of Moore, 57 Cal. 437. That case, like the present, was one in which the husband died intestate, leaving community property, and one in which there had been no homestead declared during the lives of the spouses. The widow had there, as here, conveyed her interest in the real property; the only difference being that in that case it was by quitclaim deed while here it is by grant. She subsequently applied to have a homestead for herself and children carved out of the real estate so conveyed. The court below refused her application. On appeal, this court, in reversing the order denying a homestead, said: "The deed of Mrs. Moore is silent upon the subject of homestead. Whatever its effect as a conveyance, it was no more than to convey the interest in the property of the deceased which she received upon his death by succession. A homestead right, or a right to have a, homestead, is not a right which vests under the law by succession. It is a right bestowed by the beneficence of the law of this estate for the benefit of the family. Upon the death of an intestate his property goes by succession to his heirs, subject to administration. The objects of administration are: (1) To support the family for a period; (2) to set apart a homestead to the family; (3) to pay the expenses of administration; (4) to pay the debts of the deceased; (5) to distribute the balance of the estate to those who take it by law. If an heir convey his interest in the estate, or any part thereof, he conveys such interest only as will remain to him after satisfying the first four objects above named, unless the deed should in terms expressly cover more. Setting apart a home stead is a part of the probate proceeding, as much as is a family allowance. * The homestead, when set apart, is to be set apart for the benefit of the widow and children. *** It certainly could not be said that her deed, conveying her interest as successor, would interfere with and defeat the purpose of the law in giving the family an abiding place." In re Lahiff's Estate, 86 Cal. 151, 24 Pac. Rep. 850; Estate of Moore, 57 Cal. 446. The right to have a probate homestead carved out of the estate is in the nature of a charge upon the estate, from which the widow, under her right of succession, could no more discharge than she could free the estate from its liability for the debts of her deceased husband. The right is inherent, not in her alone, but in the children as well; and she can no more foreclose their right thereto than she can their rights as heirs to the estate. It is conferred for the beneficent purpose of affording a home in which the minor children may be sheltered and shielded from want. To hold that the widow, or any less than all the parties in interest, can by a conveyance defeat the object of the law. would be a fraud upon the rights of those not joining in such conveyance. To say that