SUPREME COURT OF CALIFORNIA.
No. 8,523.

ANTHONY, Adm'x, etc., v. CHAPMAN ET AL.

In Bank. Filed February 18, 1884.

A RECITAL IN A DEED THAT THE CONSIDERATION THEREFOR WAS PAID by the grantee is presumptively true. Such presumption may be overcome by parol evidence, but to have that result, the evidence must be full, clear, and satisfactory. The evidence in this case in support of a finding that the consideration for the conveyance of the property in question was not made by the grantee named in the deed, reviewed, and held not to comply with these requirements.

AN EXECUTOR WHO STATES in his petition for letters testamentary, and in the inventory of the estate, that certain property belonged to the testator, is not estopped from afterwards claiming such property as his own.

AN AUTHENTICATED COPY OF THE RECORD OF A DEED IS PRIMA FACIE EVIDENCE of the genuineness, due execution, and delivery of the original deed.

APPEAL from a judgment of the superior court for Santa Clara county, entered in favor of the defendants, and from an order denying the plaintiff a new trial. This was an action of ejectment brought by the administratrix of the estate of Mary A. Smith. The plaintiff claimed title by virtue of a conveyance from one Bird. The defendants claimed that such conveyance was made to Mary A. Smith, in trust for J. P. Smith, who paid the consideration therefor, and under whom they derived title. The further facts appear in the opinion.

Moore, Laine & Johnston, for the appellants.

Burt & Pfister, for the respondent.

SHARPSTEIN, J. The most important question presented by the record is, whether the finding that the consideration for the conveyance from Bird to Mary A. Smith was furnished by J. P. Smith is justified by the evidence. The deed recites that the consideration was paid by Mary A. Smith, the grantee therein, and while the express declarations of the deed, in that respect, may be controlled by parol proof alone, it is well settled that such evidence must be full, clear, and satisfactory. Nothing appearing to the contrary, the presumption is that the consideration was paid by the grantee in the deed; and while this presumption may be overcome by parol evidence, to produce that result such evidence must be of the character above stated.

In this case there is no direct evidence that the purchase price of the demanded premises was paid by J. P. Smith, or that the money paid therefor had ever belonged to him. There is evidence tending to prove that he was at one time possessed of means sufficient to pay said purchase price, and that Mary A. Smith was not. But there is no clear or positive evidence of this. Aside from evidence of her circumstances before she came to this coast, there is nothing beyond what some of the witnesses testify to her having said to them, in loose conversations, more or less remote from the date of said purchase, to indicate that she was not able to pay for it with her own money. In Willis v. Willis, 2 Atk. 71, it is said: "There is another way of taking a case out of the statute, and that is by admitting evidence, within the rules laid down by this court, to show the trust, from the mean circumstances in the pretended owner of the real estate or inheritance which make it impossible for him to be the purchaser." But there is nothing in the evidence introduced

by the defendant which makes it appear impossible or even incredible that Mary A. Smith was the purchaser of the premises conveyed to her. It does not appear that any of the witnesses professed to be familiar with her circumstances, or to have stood in any such relation to her as would naturally make them conversant with her affairs.

One witness testified to conversations with Mary A. Smith, in which she said "Smith had lost considerable money by not taking her advice. He then told her that in the future she might manage his business, as she had a better head than he had. * * * She said it was easier transacting business to have it done in her name. It was Mr. Smith's money that was used all the time. She said she never did anything, however, without consulting Mr. Smith. She never claimed to have the exclusive ownership of the property." It does not appear at what time this conversation was had, or that the property in controversy, or the purchase of it was even alluded to in it. Another witness testified that Mary A. Smith told him "she had everything in her own name, because, as a general thing, the women were smarter than the men." And further, that she never conveyed the idea to him that it was her husband's money exclusively that bought the property; and he (witness) "supposed it belonged to both of them." It does not appear what property the witness alluded to. But he said: "After the purchase of the Bird tract, we didn't have much talk.”

* *

After stating that in all cases of this character the facts "must be proved with great clearness and certainty," Mr. Perry, in his work on trusts, says: "For this purpose, all competent evidence is admissible, as the admissions of the nominal purchaser and grantee in the deed and even circumstantial evidence, as that the means of the nominal purchaser were so limited that it was impossible for him to pay the purchase money. But loose and equivocal facts ought not to control the evidence of deeds:" Sec. 137. We are unable to find in this record any evidence of admissions, made by Mary A. Smith, that J. P. Smith furnished the money which was paid for the purchase of the demanded premises. Nor is it made clear by the evidence that her means were so limited that it was impossible for her to pay the purchase money. The facts relied on to establish her inability, as we view them, are "loose and equivocal," clearly insufficient to overcome the evidence of the deed.

This conclusion is based wholly on the evidence relied upon to establish a resulting trust. If there was a conflict of evidence as to who actually paid the purchase money of the property, we could not disturb the finding on that question. But there is not. There is no direct evidence that Mary A. Smith did not pay it, or that her circumstances were such that she could not; or that she ever admitted that J. P. Smith paid it.

The alleged trustee and beneficiary are dead. Both died before the commencement of this action. And the evidence in support of the alleged trust consists mainly of verbal statements and admissions made by the alleged trustee: In Kennedy v. Kennedy, 57 Mo. 71, the court said: "That evidence of verbal statements and admissions alleged to have been made by a deceased person in regard to the ownership of the money which forms the basis of such trust is, unless supported by strong corroborative evidence, as, for instance, that the claimant's money was placed in the hands of the deceased for investment, wholly insufficient.' Otherwise but little reliance could be placed in deeds.

The appellant contends that by representing in his petition for letters

testamentary of the will of Mary A. Smith, that said property belonged to her estate; and filing an inventory of her estate, which included said property, J. P. Smith was estopped from afterwards claiming that it was his own. In Carter v. McManus, 15 La. Ann. 676, the court says: "That admissions made by an executor or administrator in the course of judicial proceedings are made for the benefit of the estate represented by him, and do not conclude his individual right by way of estoppel." Another case, very much in point, is Werkheiser v. Werkheiser, 3 Rawle, 326. The facts in this case fall short of what is required to constitute an estoppel.

The objection to the introduction of a duly certified copy of the record of a deed from Thomas Edmonds, jun., to Robert J. Bell," on the ground that it was irrelevant and immaterial, and that there was no proof as to the genuineness, due execution, or delivery of the original deed," was properly overruled. The authenticated copy of the record was prima facie evidence of the genuineness, due execution, and delivery of the original deed.

Judgment and order reversed.

MORRISON, C. J., and McKINSTRY, ROSS, MYRICK, and THORNTON, JJ., concurred.

No. 10,898.

PEOPLE V. WHEELER

Department Two. Filed February 19, 1884.

INFORMATION-FILING OF.-A district attorney is authorized to proceed against a defendant by an information charging him with the crime of an assault with a deadly weapon, after an examination and commitment by a magistrate.

SUMMONING A JURY.-An order of the court directing the clerk "to draw the names of thirty-five good and lawful men," to be summoned from the body of the county, is a substantial compliance with sections 214 and 215 of the code of civil procedure.

MISCONDUCT OF DISTRICT ATTORNEY DURING ARGUMENT.-It is not misconduct sufficient to warrant a reversal for the district attorney to address the defendant personally during his argument, advance towards and point his finger at him, saying, "You sought this trouble with him [referring to the prosecuting witness], and made a cowardly attack upon him."

IMMATERIAL ERROR.-A judgment of conviction will not be reversed for an immaterial

error.

INSTRUCTIONS CONCERNING INSANITY, IF ERRONEOUS, will not authorize a reversal when there was no evidence that the defendant was insane.

WHEN A DEFENDANT IS A WITNESS IN HIS OWN BEHALF, the court may instruct the jury that in weighing his evidence they must consider the circumstances under which he testified, and his interest in the result.

APPEAL from a judgment of the superior court for Modoc county, convicting the defendant for an assault with a deadly weapon. During his argument the district attorney addressed the defendant personally, advanced towards and pointed his finger at him, saying, "You sought this trouble with him [referring to the prosecuting witness], and made a cowardly attack upon him." This was excepted to and assigned as error. The further facts appear in the opinion.

J. J. May and E. V. Spencer, for the appellant.

Attorney general, for the respondent.

MORRISON, C. J. Defendant was tried on an information for the crime of an assault with a deadly weapon with intent to commit murder. Ver

dict of guilty, as charged; motion for a new trial and denial thereof; appeal from judgment and order denying new trial. Numerous errors are assigned on this appeal, which will be briefly examined by the court.

1. The first point is that there was error in the refusal to set aside the information. In our opinion the information was good and was filed in a proper case. There had been an examination and commitment of the defendant by a magistrate, and that was sufficent to authorize the district attorney to proceed against him by information: Const., art. 1, sec. 8.

2. The second assignment is that there was error in summoning a jury. We do not think the objection well taken. The court made an order directing the clerk "to draw the names of thirty-five good and lawful men," to be summoned, etc. This was a substantial compliance with the law, and the jury was properly formed: C. C. P., secs. 214, 215.

3. In the third place it is claimed that there was misconduct on the part of the district attorney. The record fails to show any such misconduct as would justify this court in disturbing the judgment.

4. The fourth objection, conceding that the same is well taken, is too slight and unimportant to call for a reversal of the judgment.

5. The fifth point presents an objection to the charge of the court on the subject of insanity. In reference to this objection it is sufficient to say that there was no evidence that the defendant was insane.

6. The last assignment of error challenges another part of the charge. The defendant was a witness on his own behalf, and the court told the jury that in weighing his evidence they must consider the circumstances under which he testified, being the defendant in the case, and having such important interests dependent upon the result of the case. There was no error in this part of the charge, and it was very properly given: People v. Morrow, 60 Cal. 146.

Judgment and orders affirmed.

MYRICK, SHARPSTEIN, and THORNTON, JJ., concurred.

No. 10,892.

PEOPLE . HOLLIS.

Department One. Filed February 20, 1884.

NO APPEAL LIES FROM AN ORDER IN A CRIMINAL ACTION DISMISSING THE SAME for want of prosecution. Such attempted appeal may be either dismissed or stricken from the calendar.

APPEAL from an order of the superior court for the city and county of San Francisco. The defendant was charged by information with having published a libel against one William Hale. The further facts appear in the opinion.

Allorney general, for the appellant.

George W. Tyler, for the respondent.

The COURT. The appeal is by the people from an order dismissing the action for want of prosecution. Such an order is not appealable: Pen. Code, sec. 1238. When an attempt is made to appeal from an order which is not appealable, this court has sometimes stricken the cause from the calendar, because not brought here by the attempted appeal, and sometimes dismissed the formal appeal.

Appeal dismissed.

No. 9,116.

ROUGH v. BOOTH.

Department Two. Filed February 23, 1884.

TRANSFER OF CAUSE TO FEDERAL COURT.-An order of the lower court refusing a motion to transfer the cause to the federal court can not be reviewed on an appeal from the judgment alone.

THE BOND REQUIRED ON SUCH TRANSFER MUST BE SIGNED by the principal.

APPEAL from a judgment of the superior court for Siskiyou county. The opinion states the facts.

W. H. H. Hart, for the appellant.

Gillis and Edgerton, for the respondent.

The COURT. The appeal in this case was taken from the judgment alone. On the appeal, the plaintiff seeks to review an order of the court below denying his motion that the cause be transferred to the federal court. Under section 670, code of civil procedure, the petition and bond for transfer and the order thereon do not constitute a part of the judgment roll; and there being no bill of exceptions, and no exception, we have nothing before us for consideration but the roll itself. Even if the proceedings for removal were before us for decision, we should consider the bond insufficient, it not being signed by the principal. This was one of the reasons stated by the court for denying the motion; and we think the ruling correct.

No error appearing, the judgment is affirmed.

MYRICK, THORNTON, and SHARPSTEIN, JJ., concurred.

No. 9,117.

ROUGH v. SIMMONS.

Department Two. Filed February 23, 1884.

JUDGMENT AFFIRMED ON THE AUTHORITY OF ROUGH V. BOOTH, No. 9,116, supra.

APPEAL from a judgment of the superior court for Siskiyou county. The facts presented were the same as those in Rough v. Booth, No. 9,116, supra.

W. H. H. Hart, for the appellant.

Gillis and Edgerton, for the respondent.

The COURT. On the authority of Rough v. Booth, No. 9,116, supra, opinion this day filed, the judgment is affirmed.