1. Civil Code, § 1489, provides that an offer of performance may be made at any place within the state if the person to whom the offer ought to be made, or such person's residence or place of business, cannot, with reasonable diligence, be found in the state. Held, in an action to recover money due upon a contract to convey land. that a sufficient compliance with this section was not shown by proof that plaintiff prepared a deed and was ready to deliver it; that defendant was a resident of another state; and that plaintiff had been told that defendant had no residence in this state.

2. An action may be maintained for the recovery of unpaid purchase money on a contract to convey land, even though the vendor retains in himself the title to such land.

3. Where, in an action to recover money dne upon a contract to convey land, the answer alleges that plaintiff was unable to convey the land free from incumbrance, and there is evidence tending to support such allegation, the failure to find upon it is error.

Commissioners' decision. Department 2. Appeal from superior court, Fresno county; M. K. Harris, Judge.

Action by A. J. Samuel against Ormanzo Allen to recover money due upon a contract for the sale of land. From a judgment for plaintiff, defendant appeals. Reversed.

W. S. Wright, for appellant. Church & Cory, for respondent.

TEMPLE, C. This appeal is from the judgment, but was taken within 60 days after the rendition and entry thereof. The action is brought to recover money due upon a contract for the sale of land. The plaintiff, who is the vendor, avers that he has performed all the conditions of the contract on his part, and that on the 17th day of January, 1890, the defendant refused to accept performance on his part, and notified plaintiff of his refusal to accept performance on the part of plaintiff, and still does refuse to accept performance. These allegations are specifically denied in the answer. There was, at the trial, no attempt made to prove the alleged waiver of an offer to perform, or that defendant had refused to accept performance on the part of plaintiff, or had notified him to that effect. In lieu of the waiver alleged, plaintiff proved that he prepared a deed, and was ready to deliver it, and that defendant was a resident of Austin, Minn., and plaintiff had been told in Los Angeles that defendant had no residence in this state. Section 1489 of the Civil Code provides that, in the absence of an express provision to the contrary, an offer of perv.33P.no.5-18 Cal. Rep. 32-34 P.-23

cannot, with reasonable diligence, be found within this state, and within a reasonable distance from his residence or place of business, or if he evades the debtor, then at his residence or place of business, if the same can with reasonable diligence be found within the state; or (4) if this cannot be done, then at any place within this state." It was not shown that the defendant was not at the time of the alleged offer within this state, nor that he did not have a place of business within the state. Nor was any diligence shown on the part of plaintiff to find defendant within the state, or to ascertain whether he had here a place of business. It is denied in the answer that any offer of performance was ever made, or at least the denial is as broad as the allegation, which is really that an offer had been waived. We think the evidence does not sustain the finding that the offer was made by plaintiff, or that defendant has refused to perform.

The appellant contends that inasmuch as plaintiff, by his contract, retained the title to the land, which was the subject of the contract, he cannot maintain an action for the unpaid purchase money, except in the form of an action to enforce specific performance, or for foreclosure of the lien. It is true that in some sense the vendor has a lien on the land for the portion of the purchase money which remains unpaid, and that it has been held that until a conveyance has been made the lien constitutes such security as will prevent the creditor from suing out an attachment, but it has also been uniformly held that such contract does not establish the relation of mortgagor and mortgagee. There is therefore no statutory prohibition upon the right to a personal action to enforce the debt when it becomes due. The action is for money due, as much so as though suit were upon a promissory note. It is not, therefore, a local action, and the court in Fresno county has jurisdiction, although the land which is the subject of the contract is in Los Angeles county.

The defendant denied that plaintiff was able to convey the land free from incumbrance, and it is stated in a stipulation that defendant had denied that plaintiff could furnish title according to the contract. There was evidence, the effect of which appellant contends was to show an existing incumbrance. There should have been a distinct finding upon this question.

We think the evidence also defective in that it did not show what was the pro rata share of the water stock mentioned, or that the money claimed to be due as an assessment upon such stock, in the supposed tender, was assessed or paid by plaintiff upon such pro rata share. We advise that the judgment be reversed, and a new trial had.

1. Where, in an action to set aside a conveyance from a husband to his wife as fraudulent as to plaintiff, a creditor of the husband, the evidence plainly supports a finding that the conveyance was not made with such intent, a judgment for defendants, based on such finding, will not be disturbed.

2. It was not reversible error to refuse to strike out certain parts of the answer as "sham, irrelevant, and redundant," where they could have no effect upon, and were not necessary to support, the judgment.

3. It was not error to exclude certain letters written by defendants to plaintiff, offered to show the financial condition of defendant husband, where the complaint alleged the husband's insolvency, and the answer did not deny it.

Commissioners' decision. Department 2. Appeal from superior court, San Joaquin county; Joseph H. Budd, Judge.

Action by Howell Clark against A. S. Olsen and wife to set aside a conveyance from said Olsen to his said wife on the ground that it was made with intent to delay, hinder, and defraud plaintiff, a creditor of said Olsen. Judgment for defendants. From an order denying his motion for a new trial, plaintiff appeals. Affirmed.

S. Salon Holl and Carter H. Smith, for appellant. F. T. Baldwin and Baldwin & Campbell, for respondents.

VANCLIEF, C. The defendants are husband and wife, and this action is in the nature of a creditors' bill in equity, to set aside two conveyances of a certain tract of land (about 327 acres) situate in the county of San Joaquin, made by A. S. Olsen to his wife, Anna, on the ground that they were made "with intent to hinder, delay, and defraud the creditors of the said A. S. Olsen, and particularly the plaintiff herein." The separate answers of the defendants admit the conveyances, but deny the alleged intent thereby to hinder, delay, or defraud any creditor of A. S. Olsen. Judgment passed for the defendants, and the plaintiff brings this appeal from an order denying his motion for a new trial.

tified by the evidence. If the finding that the conveyances were not made with intent to hinder, delay, or defraud the plaintiff, or any other creditor of A. S. Olsen, is justified by the evidence, it disposes of the appeal in favor of the respondents, so far as the facts are concerned, even though creditors may have been hindered and delayed by those conveyances, (Bull v. Bray, 89 Cal. 286, 26 Pac. Rep. 873; Windhaus v. Bootz, 92 Cal. 617, 28 Pac. Rep. 557;) and that the evidence is sufficient to justify this finding is so plainly apparent that no statement of it, in detail, is necessary in this opinion.

2. It is contended for appellant that the court erred in denying plaintiff's motion to strike out certain parts of the separate answers of defendants, on the alleged ground that such parts of their answers "are sham, and irrelevant and redundant." It does not appear that any part of the answers was sham. The seventh paragraph of each answer, alleging the declaration and recording of a homestead by the wife, and the tenth paragraph, alleging a novation of promissory notes from the husband to plaintiff, may be conceded to be insufficient defenses; but the first does not affect the issue as to the intention of defendants to delay or defraud creditors by the conveyance of the land from the husband to the wife, and therefore does not affect, and is not necessary to support, the judgment. As to the novation of the promissory notes, the court found that the plaintiff had obtained a valid judgment upon the original notes, which was a lien upon all real property of A. S. Olsen in the county of San Joaquin. This, by implication, negatived the novation of the notes, and defeated any possible effect on the tenth paragraph of the answer. All the allegations and findings relating to the homestead and to the novation of notes may be stricken from the record without any possible effect upon the judgment. As to other parts of the answers comprehended in the motion to strike out, the most that can be fairly claimed is that some of them are averments of evidentiary facts tending to negative the alleged fraudulent intent of the defendants, and to prove that the entire equitable estate in the land was the separate property of the wife; but this was not one of the grounds of the motion. Besides, the striking out of all such parts of the answers would not have curtailed the evidence given upon the issue as to the alleged fraudulent intent.

3. It is claimed that the court erred in excluding certain letters written by defend ants to plaintiff, offered by plaintiff to show the financial condition of A. S. Olsen at the time he conveyed the land to his wife. It is averred in the complaint that, at all the times therein mentioned, A. S. Olsen was insolvent, and had no other property not exempt from execution than the land in quesThis averment was not denied, and

TIME OF FILING TRANSCRIPT.

Gen. Laws 1891, p. 121, § 15, relating To appeals from the court of appeals to the supreme court, provides that they shall be perfected in the same manner and under the same conditions as in cases brought from other courts. Code Civil Proc. § 389, relating to appeals from other courts, provides that appellant shall lodge in the supreme court clerk's office a copy of the record of the judgment appealed from by the third day of the next term of the supreme court, provided that, if there be not 30 days between the time of taking the appeal and sach term of the supreme court, then such copy shall be lodged in such clerk's office by the third day of the next succeeding term, or the appeal shall be dismissed, unless time has been granted by such court for good cause shown. Held that, where the transcript of record was not filed in the supreme court until nearly a year after making an appeal from the judgment of the court of appeals, and there was a term of the supreme court prior to such filing, and more than 30 days after the making of such appeal, the latter must be dismissed.

Appeal from court of appeals.

Action by L. C. Rockwell against the Highland Ditch Company on a contract for the delivery of water from defendant's reservoir. From the judgment of the court of appeals (29 Pac. Rep. 285) affirming a judgment dismissing the bill, plaintiff appeals. Dismissed.

L. C. Rockwell, for appellant. Carr & Secor, for appellee.

PER CURIAM. This appeal is from a judgment rendered by the court of appeals. The rights of the parties rest entirely upon contract. Under this contract appellee undertakes to deliver certain water at specified places. Appellant seeks by his action to compel the division of this water, and its delivery at places other than those specified in the contract. The water is from a certain reservoir, the property of appellee. No question in reference to the rights of appropriators of water from a natural stream is involved in the controversy. There is no contest in reference to the amount of water which appellee is to carry and deliver, the contest being solely with reference to the place and manner of delivery. The right to a review in this court is claimed on the ground that the controversy relates to a freehold. Appellee bases his motion to dismiss upon the laches of the defendant in bringing the record to this cou., and also upon the

a freehold. As the appeal must be dismissed for the first reason assigned, a decision of the second ground is unnecessary. The judgment of the court of appeals was rendered on the 23d day of February, A. D. 1892. The appeal bond was filed and approved on the 7th day of April following. The transcript of record was not filed in this court until nearly a year thereafter, to wit, on the 29th day of March, A. D. 1893. It is well settled that an appeal is a creature of statute, and a party seeking to avail himself of the right conferred must comply with the statute in all substantial particulars. The statute governing appeals from the court of appeals to this court provides, inter alia: "Appeals shall be perfected and writ of error made a supersedeas in the same manner and under the same conditions as in cases brought from other courts." Gen. Laws 1891, p. 121, § 15. Section 389, Code Civil Proc., provides, in cases brought from other courts, that "the appellant shall lodge in the office of the clerk of the supreme court an authenticated copy of the record of the judgment or decree appealed from by or before the third day of the next term of said supreme court: provided, that if there be not thirty days between the time of making the appeal and the sitting of the supreme court, then the record shall be lodged, as aforesaid, at or before the third day of the next succeeding term of the supreme court; otherwise the said appeal shall be dismissed, unless further time shall have been granted by the supreme court for good cause shown." The next term of the supreme court after the making of this appeal began on the 11th day of April, A. D. 1892. As this was more than 30 days after the making of the appeal, the record should have been lodged in the court on or before the third day of such April term. It not having been filed within the time prescribed by the statute, the appeal must be dismissed.

MENTS-CONDEMNATION PROCEEDINGS-Costs.

1. Where, in a proceeding before the county court, the petition fails to show that the amount involved is within the jurisdiction of the court, the petition may be amended on the trial by inserting the facts necessary to show such jurisdiction.

2. Mills' Ann. St. § 1721, providing that in condemnation proceedings any party may demand a jury of freeholders to appraise the compensation to be allowed to the owner, is in contravention of Const. art. 2, § 15, which declares that the compensation shall be ascertained by commissioners, or by a jury, "when required by the owner of the property.'

3. Where the compensation allowed is less than the amount tendered the owner by petitioner, it is error to impose the costs of the proceeding on the owner.

Appeal from Conejos county court.

Proceeding by the Hickory Jackson Ditch Company to condemn a right of way for a ditch across lands owned by the Southwestern Land Company. Judgment was rendered on the verdict of a jury, awarding compensation, and imposing costs on the landowner, and the owner appeals. Reversed.

The other facts fully appear in the following statement by GODDARD, J.:

*

*

The Hickory Jackson Ditch Company filed its petition in the county court of Conejos county to condemn a right of way for a ditch across certain lands of the Southwestern Land Company. The jurisdictional allegation therein contained is as follows: "That the value of the strip of land herein sought to be condemned and acquired is less than two thousand dollars." The clerk of the court, in pursuance of section 8 of "An act to provide for the exercise of the right of eminent domain," as amended in 1889, selected a jury as therein provided, issued a venire, directed to the sheriff of his county, commanding him to summon the twelve persons selected as jurors, which was accordingly done. Before the jury was impaneled the defendant moved to dismiss the complaint and the cause because the complaint or petition "failed to state facts sufficient to give the court jurisdiction of the subject-matter of the action." This motion was overruled, and defendant excepted. The jury was then called, and before the jurors were sworn to answer questions the defendant objected to the impaneling of a jury, which objection was overruled, and exception taken. After the jury had been selected, defendant objected to the jury being sworn in the case at that time, and objected to the jury being impaneled in the case, which objections were overruled, and exception taken. And again, before taking testimony, defendant, by its attorney, objected to the admission of any testimony, for the that the jury had been improperly selected, impaneled, and sworn in the case," which objection was overruled, and exception taken. After the examination in chief of one witness, plaintiff's counsel asked leave to amend the petition by inserting the words, "nor would the damages, by reason of the construction of this ditch, to respondent's land, or to the Southwestern Land Company's land, exceed the sum of two thousand dollars." This amendment was allowed, over the objection of defendant's counsel, whereupon defendant's counsel moved for a continuance, which was denied. The complaint or petition was thereupon amended, by interlineation, by inserting the following: "And any and all damages to respondent's property." The trial of the cause was proceeded with, and resulted in a verdict for the petitioner, and an assessment of damages for the land actually taken in the sum of $400.80. Judgment was rendered in accordance with the verdict, and

reason

GODDARD, J., (after stating the facts.) The foregoing statement sufficiently presents the three more important questions involved in this controversy: First, the sufficiency of the petition to confer jurisdiction upon the county court to entertain the proceeding; second, the right to submit the question of compensation to a jury, over the objection of respondent; third, the validity of the judgment against respondent for petitioner's costs.

The petition originally filed was defective in not averring that the amount of damages, if any, to the residue of respondent's property, and the value of the strip of land sought to be taken, were within the jurisdiction of the county court; and counsel for respondent insist that, the jurisdictional averment being insufficient, the court had no power to grant leave to amend. With this we cannot agree. The defect might have been cured by amendment if the petition had been attacked by demurrer. By section 50 of the Code of Civil Procedure a want of jurisdiction of "the subject-matter of the action" is made a ground of demurrer. Section 74 provides that if a demurrer is sustained "the unsuccessful party shall plead over or amend upon such terms as shall be just." The motion to dismiss in this case upon the grounds stated was the equivalent of a demurrer, and we can perceive no reason why the amendment might not be made upon proper terms as well as upon demurrer. As amended, the jurisdictional averment was sufficient, and the court had jurisdiction of the subject-matter thereafter. The respondent continued to appear in the case, and to contest the right of petitioner to condemn its property on other grounds than want of jurisdiction, introduced evidence in support of its answer, and tried the issues joined upon their merits. We think the claim of the want of jurisdiction, as now presented, ought not to be sustained.

The action of the clerk in summoning, and the court in impaneling, a jury to ascertain the compensation to be awarded, was unwarranted. The eminent domain act, in so for as it provides for a jury upon request of any party other than the respondent,' is in contravention of the express terms of section 15, art. 2, of the bill of rights, which reads as follows: "That private property shall not be taken or damaged for public or private use without just compensation. Such compensation shall be ascertained by

'Mills' Ann. St. § 1721, provides that in conCemnation proceedings any party may demand a jury of freeholders to appraise the compensation to be allowed.

a board of commissioners, of not less than three freeholders, or by a jury, when required by the owner of the property, in such manner as may be prescribed by law," etc. It appears from the record, not only that the jury was impaneled without the request of respondent, but against its consent, and over its repeated objections. This was clearly error.

The statute, while it allows no costs to a party to whom compensation shall be awarded, if the amount of such compensation shall not be in excess of any lawful tender made by petitioner before proceedings are com. menced, does not provide that he shall be liable for other costs, and, if it imposed this burden upon him, it would, in our opinion, be unconstitutional. It was error to impose the costs incurred by petitioner upon the respondent.

It is unnecessary to notice the other errors assigned, as those considered are decisive of the case, and compel a reversal of the judgment. Reversed.

1. Defendant, a real-estate agent, applied to plaintiff for a loan on certain property of M., furnishing an abstract of title. Defendant made out the mortgage and mortgage note, and undertook to attend to their execution. Upon the delivery by defendant of the instruments, apparently executed by M., plaintiff gave defendant her check, payable to defendant's order, for the amount of the loan. Defendant thereupon turned over to J., at whose suggestion the negotiation for the loan was undertaken, and through whom defendant acted in securing M.'s apparent execution of the instruments, the proceeds of the check. Held, it appearing that M.'s signature to the note and mortgage was a forgery, that plaintiff was entitled to recover.

2. In such case plaintiff is not entitled to interest prior to the date of recovery. Railroad Co. v. Conway, 5 Pac. Rep. 142, 8 Colo. 1, followed.

Appeal from district court, Arapahoe county.

Action by Mary E. Thalheimer against Pettit & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

C. E. & F. Herrington and Riddell, Starkweather & Dixon, for appellants. Wolcott & Vaile and Henry F. May, for appellee.

BISSELL, P. J. There is so little dispute concerning the facts of this controversy that there is substantially nothing for the court to do but to determine whether thereon a judgment ought to have been entered for the plaintiff. Of this there can be no question. The principal discussion tendered by the appellants in support of their contention that the case ought to be reversed is based upon the testimony contained in the record. What the court assumes to be the facts dis

closed by the record will be stated without argument, or attempt to justify the results deduced from the evidence of the witnesses. This will be ample to determine the rights of the parties, and a fuller history of the case would scarcely subserve the useful purpose of a precedent. Early in 1885, A. S. Pettit & Co. were dealers in real estate, and brokers who negotiated loans on various kinds of property. A brother of the appellee, Thalheimer, had suggested to Pettit & Co. that he could get money from his sister on good 10 per cent. real-estate loans if one should be offered them. This seems to have been the inception of the dealings between Henry Thalheimer, as the agent of his sister, Mary, and Pettit & Co. In the month of April, 1885, Pettit & Co. applied to Thalheimer for a loan on certain real estate in Denver belonging to Mrs. Electa Mills. In response to this application, Thalheimer called on Pettit & Co., discussed the terms of the loan, and subsequently visited the property, that he might exercise his individual judgment concerning the expediency of the loan. He was satisfied with the property, and Pettit & Co., furnished him an abstract of the title, which he submitted to a lawyer for examination. The title was satisfactory. It is now important to state the connection of one Joseph Pettit with the transaction. It would appear that he originally called on Pettit & Co. concerning the loan to Mrs. Mills, and that it was through his suggestion that Pettit & Co. began the transaction. When the loan had been agreed on between Thalheimer and Pettit & Co., the brokers made out the security, and the note which was the evidence of debt, and evidently undertook to attend to their execution, either through themselves or Joseph Pettit, with whom they were dealing, and to present them in a completed form to Thalheimer, who would pay over the money when he got these instruments. There is a good deal of controversy in the case as to the relation which Joseph Pettit bore to the respective parties. It is enough to say that, whatever may have been his situation, Thalheimer was in no manner connected with him, and in no wise responsible for the part which he played in the transaction. On the 25th of April, 1885, the mortgage and the note, executed, apparently, by the borrower, Mrs. Mills, were given to Thalheimer by Pettit & Co., and he gave them a check, payable to their order, for the amount of the loan. They assumed the distribution of the money, and received it for the papers which they surrendered. This check which was thus delivered to Pettit & Co., payable to their order, was not indorsed by them to the order of the apparent borrower, Mrs. Mills, but, at the request of Joseph Pettit, was cashed by them, and they turned over the money to Joseph, less sundry sums in which he was indebted to a third party, Shepard, and to these brokers, by way of commissions, debts,