paid on a contract of which the consideration has wholly faile,d) and the successful termination of an action to rescind it. In either case the contract is rendered incapable of enforcement, the judg ment being a bar to any future action." In the case of Glock v. Howard & Wilson Colony Co., 123 Cal. 10, the court, in discussing the remedies for a breach of contract upon the part of the vendor, says: "Treating the vendor's breach as an abandonment, he (the vendee) may himself abandon it, when, the contract having thus come to an end, he may sue at law to recover what he has paid, in an action for money had and received; for, the contract being at an end, the vendor holds money of the vendee to which he has no right, and to repay which, therefore, the law implies his promise.”" (See, also, Chatfield v. Williams, 85 Cal. 518; Duncanson v. Walton, 111 Cal. 516; Hooe v. O'Callaghan, 8 Cal. App. Dec. p. 715.)

Moreover, we are of the opinion that the facts alleged in the complaint and admitted or found by the court to be true, constituted a rescission under subdivision 5 of section 1689 of the Civil Code. When defendant refused to perform the covenants of the contract on his part, and plaintiff, instead of asserting his rights thereunder, acquiesced in and assented to such repudiation and demanded the return of the money paid, such facts were sufficient to constitute a rescission of the contract by consent of the parties. It, therefore, follows from what has been said that the finding of the court as to want of rescission on the part of plaintiff, as well as the fact that plaintiff, within ninety days following the execution of the contract, made no tender of the balance of the purchase price, are facts wholly immaterial and do not affect plaintiff's right to recover upon the findings herein.

Under the circumstances disclosed by the record, it would be grossly unjust and inequitable to permit defendant to retain the money so received, particularly in view of the fact that he has not parted with anything of value constituting a consideration for the $2,000, and could not compel specific performance against plaintiff on account of being unable to comply with his part of the contract. "In such a case, there is a complete failure of the consideration, and the vendor has no more right to keep the purchaser's money than he would have to compel specific performance of the contract.” (Maupin on Merchantable Title to Real Estate, sec. 238a.)

The judgment is reversed and the cause remanded, with instruc tions to the trial court to render judgment upon the findings in favor of plaintiff in accordance with the prayer of his complaint. SHAW, J.

We concur:

ALLEN, P. J.
TAGGART, J.

Civil No. 634. Second Appellate District. July 21, 1909. LOUIS KLEINPETER and ELIZABETH KLEINPETER, Plaintiffs and Respondents, v. ANDREW R. CASTRO, Defendant; AMERICAN BONDING COMPANY OF BALTIMORE (a Corporation), Defendant and Appellant.

NOTARY PUBLIC-FALSE CERTIFICATE OF ACKNOWLEDGMENT-EVIDENCE-PROOF OF UNTRUTH OF CERTIFICATE FINDINGS OF SUFFICIENTLY SUPPORTED "PREPONDERANCE OF PROBABILITIES".-Proof in an action on a notarial bond for damages sustained from a false certificate of acknowledgment to a deed, that the owner did not sign the same, of unsuccessful inquiry for the imposter at the address given by him, and that another person by the same name residing in the city in which such acknowledgment was taken did not sign and knew no other person by his name in the county, constitutes some evidence tending to controvert the truth of the certificate, and taken in connection with the "preponderance of probabilities", fairly deducible from other circumstances, is sufficient to support a finding of falsity.

ID.-ID.-ID.-ID.-KNOWLEDGE PECULIAR TO NOTARY-SHIFTING OF BURDEN OF PROOF-SLIGHT EVIDENCE.-Only slight evidence is required to shift the burden of proof, where the facts as to the identity of the imposter are peculiarly within the knowledge of the notary.

ID.-ID.-CHECK FOR PURCHASE MONEY-PAYMENT BY BANK-LIABILITY.-The fact that the payment for such property was made by check and the bank paid the same upon a forged indorsement upon sufficient identification, does not render the bank liable for the loss due to the negligence of the notary.

Appeal from the Superior Court of Los Angeles County-George H. Hutton, Judge.

For Appellant-Haas, Garrett & Dunnigan.

For Respondents-Gray, Barker & Bowen.

Defendant Castro was a notary public whose official bond was made by the defendant American Bonding Company of Baltimore. The action was instituted against Castro as principal and American Bonding Company as surety upon this bond to recover damages alleged to have been sustained by plaintiffs as the result of a false certificate of acknowledgment to a deed made by Castro as such notary. Castro was not served with process, his whereabouts being unknown; neither was his testimony produced at the trial.

Judgment was given in favor of plaintiffs against the Bonding Company, from which defendant prosecutes this appeal upon the judgment roll and a bill of exceptions.

The court, among other things, found: That the certificate of the notary was false and that the true name of the person who signed and acknowledged the deed was other than the name signed thereto.

Says appellant, "upon the sufficiency of the evidence to support these two findings the merits of this appeal depend".

The deed purported to be a grant of a lot to plaintiffs, and appellant concedes that the person who executed it was not the owner thereof, but that he, whatever his name, so far as the ownership of the property is concerned, was an impostor for the time being personating the true owner of the lot. At the time of the transaction the real estate in question, consisting of lot 13, block 23, Park tract, in Los Angeles, was owned by George A. Peterson,

a resident of Oakland, California. In September, 1905, a party unknown to them called at the office of Justice, Moss & Company, real estate agents in Los Angeles, stated that his name was George A. Peterson, that he owned the lot in question and desired to sell it, and showed them a certificate of title to the property theretofore obtained by him from the Title Insurance & Trust Company of Los Angeles, together with certain tax receipts which he claimed he had just paid. Negotiations were entered into, as a result of which this firm of agents took an option on the property at the price of $1100, and soon thereafter effected a sale thereof to plaintiffs for $1500. This impersonator of the true owner described himself as being a waiter or cook at a hotel in San Pedro, and gave his postoffice address as San Pedro, directing that letters be addressed to a certain postoffice box at that place, and in response to letters so addressed called upon the agents from time to time pending the consummation of the sale. He protested against making the deal through an escrow and objected to payment of the money by check. In making the purchase plaintiffs deposited with the Title Insurance & Trust Company the amount of the purchase price, instructing the company to pay the same upon title to said lot vesting in them. At the same time the real estate agents left with the company for delivery a deed to said lot, wherein plaintiffs were made grantees, which purported to be signed by George A. Peterson, the acknowledgment to which was duly certified by defendant Andrew R. Castro, reciting therein that the person executing the deed was personally known to him. The escrow holder in carrying out the instructions paid to the agents by check $400 and delivered to them a check for the balance of the purchase price of the property payable to the order of George A. Peterson, which check was given to the signer of the deed, who presented the same to the bank on which it was drawn, and, upon being identified by a member of said real estate firm, received payment thereof; since which time, so far as disclosed by the record, his whereabouts have been unknown. The deed described the grantor therein solely as "George A. Peterson, unmarried", and there is no evidence touching the question as to whether the impostor was single or married. George A. Peterson, the owner of the lot, did not sign or acknowledge the deed. There is no direct evidence showing when or how Castro met the impostor, though the members of the firm of Justice, Moss & Company testified that his office was near theirs and it was their custom to send him notarial work. Upon discovery of the fraud, some two years afterward, search and inquiry was made for a George A. Peterson at San Pedro, but no one was found who had ever known such person. There was also testimony given by one of that name, a resident of Los Angeles (not the impostor nor the owner of the lot) that he knew of no other than himself in Los Angeles bearing the name of George A. Peterson, and that he had not signed or acknowledged the deed..

Defendant offered no evidence to show that the name of the person who signed and acknowledged the deed was George A. Peterson. but relied solely upon the certificate as furnishing prima facie proof of such fact. The evidence controverting the truth of the certificate

in this respect must of necessity be of a negative character. Undoubtedly, there are a great many persons bearing the name of George A. Peterson, and appellant's position is that it devolved upon plaintiffs to show that the person who appeared before the notary was not some member of this numerous family. In support of this contention, counsel cite Overacre v. Blake, 82 Cal. 77. That was an appeal upen the judgment roll, and the court held there was nothing in the findings justifying the deduction made by the trial court to the effect that the certificate was untrue, and as disclosed by the findings there was an utter failure to show that the person who signed the instrument did not in truth and in fact bear the name signed thereto. The controlling point, however, on which the opintoa in that case is based, was that the party seeking to recover upon the bond introduced the impostor to the notary, thus vouching for his identity, and the court held that by reason of such fact she was estopped from recovering upon the bond. In neither aspect does Overacre v. Blake have any bearing upon the case at bar.

The trial court found that George A. Peterson did not sign the deed and that the certificate in this regard was false. There was some evidence, however meagre, tending to establish this fact. It was conclusively shown that the owner whose name was George A. Peterson did not sign the deed, and that some inquiry was made at San Pedro, where the impostor received his mail and claimed to be employed at the time of the transaction, for George A. Peterson, with the result that no one was found who had ever known him, and that another person by the name of George A. Peterson, residing in Los Angeles, testified that he did not sign the deed and knew no other of that name in Los Angeles county; all of which constituted some evidence tending to controvert the truth of the certificate, and, taken in connection with the "preponderance of probabilities" (Murphy v. Waterhouse, 113 Cal. 473; Hutson v. Railway Co., 150 Cal. 705), fairly deducible from other circumstances connected with the transaction, satisfied the trial court of the fact found. As to whether or not the name of the impostor who forged the deed was in truth George A. Peterson and known to the notary were facts peculiarly within his knowledge. Under these circumstances, plaintiffs should not be required, in order to shift the burden of proof, to produce other than slight evidence. (Barnard v. Schuler, 110 N. W. Rep. 966; Joost v. Craig, 131 Cal. 504; People v. Lundin, 120 Cal. 308.)

There is no merit in the suggestion that plaintiff's' remedy for the loss sustained is against the bank which paid the check. The money was paid pursuant to plaintiffs' direction to the person who received it. They were, by reason of the false certificate, deceived as to his identity, which fact was the proximate cause of the loss. No intervening negligence of any one contributed to it. The facts in Hatton v. Holmes, 97 Cal. 208, cited in support of this contention, bear no analogy to the case at bar. The check there was payable to the order of Maria J. Keifer and delivered to one Jenkins, who forged her endorsement thereon and presented it to the bank, which, without inquiry, negligently paid it. The court held that, assuming the check was given upon a forged mortgage, the certificate of acknowledgment

to which was false, nevertheless the direct cause of the loss was the forged endorsement of the name of the party to whom it was made payable.

The judgment is affirmed.

We concur:

ALLEN, P. J.

TAGGART, J.

SHAW, J.

Civil No. 622. Second Appellate District. July 21, 1909. ZENDA MINING AND MILLING COMPANY (a Corporation), Plaintiff and Respondent, v. W. W. TIFFIN, Defendant and Appellant.

JUDGMENT TRANSFER OF CONTRACT RIGHTS IN REAL PROPERTY PRIOR TO DOCKETING OF JUDGMENT-PAYMENT OF PURCHASE PRICE BY TRANSFEREES-ABSENCE OF LIEN.-No interest is acquired in property to which the lien of a judgment will attach, where it appears that all the rights in such property under a contract to purchase were, prior to the docketing of the judgment conveyed to third persons, who paid the purchase price therefor.

ID.-ID.-ID.-ID.-PURCHASER AT JUDICIAL SALE-NOTICE-VOLUN TARY PURCHASER.-A purchaser at a sale under execution issued to enforce payment of such judgment, acquires no title in such interest, where he has actual knowledge of the record of such conveyance, and of the possession of such third persons.

ID.-PURCHASE FOR ANOTHER SUBSEQUENT CONVEYANCE--ABSENCE OF LIEN. Whenever one is a mere conduit, as where he purchases property in his name as the agent of another, with the latter's funds, and subsequently conveys to him, there is no interest to which a judgment lien can attach.

ID.-ID.-ID.-NAKED LEGAL TITLE-ABSENCE OF LIEN. The lien of a judgment creates a preference over subsequently acquired rights, but in equity it does not attach to the mere legal title to the land as existing in the defendant at its rendition to the exclusion of a prior equitable title in a third person.

ID. TRUST-PAYMENT OF PURCHASE PRICE BY THIRD PERSON.— Where land is purchased in the name of one person, and the consideration is paid by another, the land will be held by the grantee in trust for the person furnishing the consideration.

Appeal from the Superior Court of Kern County-Paul W. Bennett, Judge.

For Appellant-Thos. W. Scott, Kemp & Collier.

For Respondent-Waterman & Wood.

On November 28, 1903, defendant Tiffin had docketed in Kern county a deficiency judgment against George W. Cummings. On September 25, 1905, claiming that Cummings had, after the docketing of the judgment, acquired an interest in certain mining property situated in Kern county, the title to which then stood in the name of plaintiff, to which the lien of his judgment had attached, defendant had an execution issued and caused the same to be levied upon said mining property and sold to satisfy said judgment so docketed against Cummings. At the sale defendant became the purchaser thereof; whereupon, plaintiff brought this action to quiet title.