Volume 1 — California Superior Court Reports

<p>1. JOINT TENANCY — TITLE VESTS AT CREATION, NOT AT DEATH OP TENANT.</p> <p>The title to property vests at the creation of a joint tenancy, where created by deeds at their dates respectively, and upon the death of either joint tenant the property remains, not becomes, the property of the survivor, and therefore nothing remains to pass at the death of one of the joint tenants, so the surviving joint tenant receives no transfer and acquires no other right than before.</p> <p>2. TAXATION — JOINT TENANCIES — SUCCESSION TAX MUST BE AT CREATION. NO TAX AFTER VESTING.</p> <p>Conceding that the right of succession is a mere privilege which the state may tax, when the privilege has ripened into a right it is too late to impose a tax on joint tenancies which did not exist at the time of their creation, or at least when the privilege had ripened into a right, to-wit, the running of the Statute of limitations which statute is a merit-nous defense.</p> <p>3. TAXATION — JOINT TENANCY — VESTING IN INTEREST — SUCCESSION.</p> <p>It is the vesting in interest which constitutes the succession in joint tenancy, and the law in force at the time determines the liability.</p> <p>4. CONSTITUTIONAL LAW — TAKING PROPERTY FOR PUBLIC USE — SUCCESSION TAX — JOINT TENANCY.</p> <p>Where a joint tenancy was vested in 1909 and another in 1912 and one of the joint tenants died in 1920 the statute of 1917 providing for a transfer tax upon joint tenancies ■could not impose such tax since the survivor had a vested .-right which the legislature could not thereafter lawfully destroy, impair or burden under the guise of a succession tax and thus take private property for public use without compensation.</p> <p>5. STATUTES — CONSTRUCTION — COURTS WILL LOOK BEHIND ACT TO FUNDAMENTAL FACT..</p> <p>Courts will always look behind an act of the legislature to find the fundamental fact, and are not bound by mere forms in construction of statutes.</p> <p>6. TAXATION — SUCCESSION TAX STATUTE FOR JOINT TENANCIES NOT RETROACTIVE.</p> <p>The statute of 1917 providing for joint tenancies succession tax is not intended to be retroactive.</p> <p>7. TAXATION — JOINT TENANCY — LEGISLATURE. CANNOT TAX SUCCESSION AS ACCRUING AT DEATH.</p> <p>The legislature has no right to levy a tax as accruing by reason of the death of the joint tenant notwithstanding that it might have the right to levy a tax upon the creation of the joint tenancy payable at death of one joint tenant.</p>

In the matter of the Guardian’s application for discharge after filing receipt from Ward and before filing and settlement of final account. Application denied.

<p>1. PRINCIPAL AND AGENT. AUTHORITY — WRITING —STRICTLY CONSTRUED.</p> <p>Where owner and broker entered into a contract of employment by written agreement, under Code Civ. Proc. See. 1973 and Civil Code Sec. 1624, the execution thereof under Sec. 1625 supercedes all preceding negotiations or stipulations concerning its matters, and where the terms and conditions of sale, and employment were all mentioned in unambiguous and certain language the contract must be strictly construed and no different terms inserted or added thereto, Sec. 2315.</p> <p>2. BROKERS — AGREEMENT — AUTHORITY TO SELL PERSONAL PROPERTY.</p> <p>Although land brokers may have led defendant in replevin to believe when purchasig the orchard, that she was entitled to the personal property thereon, the sale by the owner must be measured and determined, wholly and exclusively, by the recitals in the broker’s agreement and the deed, there being no other contract between vendor and purchaser, and broker’s agreement, not mentioning the personal property, even though brokers allowed purchaser to take possession thereof.</p> <p>3. REPLEVIN — EVIDENCE — BROKER’S AUTHORITY TO SELL TO DEFENDANT.</p> <p>In vendor’s replevin action against purchaser, evidence held not to warrant or justify broker in selling the property in question or to show that vendor held brokers out as clothed-with any such authority.</p> <p>4. PRINCIPAL AND AGENT — AUTHORITY — DUTY OF ONE DEALING WITH AGENT.</p> <p>A pers.on dealing with an agent is under a duty to ascertain what power or authority has been bestowed upon' him. by the principal, and purchaser, defendant in replevin, should have ascertained broker’s authority as to sale of personal property before paying for the property.</p> <p>5. PRINCIPAL AND AGENT — LIMIT OF WRITTEN AUTHORITY — PURCHASER CHARGED WITH KNOWLEDGE.</p> <p>Where broker’s authority is required to be in writing, a1 purchaser is charged with knowledge of that fact, and of the limitations upon broker’s power contained in such writing.</p>

Petition by widow of Art Lamoureux deceased, to have entire setate exceeding $1500 but not more than $2500 set aside to her under Code Civ. Proc. Sec. 1469. Petition denied.

<p>1. COURTS. PROBATE — WAIVER OF OBJECTION TO JURISDICTION — CLAIM FOR TAX MONEY ADVANCED ON HOMESTEAD.</p> <p>Where husband administering the estate of deceased wife had set set aside to him for five years a homestead, and married again and his present wife on settlement of final account, presents to the court her claim for money advanced for taxes, ■etc., on such homestead, the court has jurisdiction to determine her claim, and an objection thereto was waived by all parties submitting themselves to the court’s jurisdiction.</p> <p>2. EXECUTORS AND ADMINISTRATORS — REIMBURSEMENT OF ADMINISTRATOR’S WIFE FOR MONEY SPENT FOR ESTATE.</p> <p>Where husband administering deceased wife’s estate married again and present wife advanced her separate property for taxes, interest on note and other purposes of the estate, she is entitled to reimbursement of such moneys, with simple interest thereon.</p> <p>3. HOMESTEAD — TENANT TO PAY TAXES.</p> <p>Where a homestead for five years was set off to husband administering deceased wife’s estate, he was not on final settlement, entitled to reimbursement for money paid for taxes thereon during homestead tenancy, it being the duty of the homestead tenant to pay them.</p> <p>4. HOMESTEAD — TENANT LIABLE FOR TEMPORARY IMPROVEMENTS.</p> <p>Where a homestead for five years was set off to husband administering deceased wife’s estate he was liable personally for the expenses of papering, painting, tinting, etc., rooms in house during his occupancy of same under the homestead and his claim thereof on final settlement of account cannot be allowed.</p> <p>5. HOMESTEAD — FEE OWNER LIABLE FOR PERMANENT IMPROVEMENTS.</p> <p>Where a homestead for five years was set off to husband administering deceased wife’s estate, he was on final settlement of account entitled to reimbursement for the permanent improvements, that is the costs of sewer ordered by the municipality, which should be paid by the estate as owner in fee and not by the homestead tenant.</p>

<p>1. GAMING — VENDING MACHINE HELD GAMBLING DEVICE.</p> <p>A vending machine which always deposits one package of chewing gum for the player and on some plays also a number of checks redeemable in merchandise, although it indicates before deposit of coin what will be received on that play, though not what will be received on the following play, appeals to the gambling instinct to take a chance on beating the machine and its use is prohibited by Penal Code Sec. 330a.</p>

<p>1. BILLS AND NOTES — NON-NEGOTIABLE — INDORSEMENT MERELY TRANSFERS TITLE.</p> <p>The indorsement in blank and delivery of a non-negotiabl® note, secured by a mortgage, together with the mortgage, with.out further act by the payee, merely transfers title.</p> <p>2. BILLS AND NOTES — NON-NEGOTIABLE — INDOR-SER’S LIABILITY — CONTRACT.</p> <p>Payee’s indorsement of a non-negotiable note is not a guaranty by the indorser, and he is not charged as the indorser of a negotiable note, unless there is an understanding or agreement of the parties that the indorser shall be so liable.</p> <p>3. BILLS AND NOTES — NON-NEGOTIABLE — INDOR-SER’S LIABILITY — AGREEMENT.</p> <p>If indorser of a non-negotiable note is by agreement or understanding liable; the indorsee must demand payment front the maker at maturity and give the indorser notice of such demand on non-payment as in the case of a negotiable note.</p> <p>4. BILLS AND NOTES — NON-NEGOTIABLE — COMPLAINT AGAINST INDORSER.</p> <p>A complaint to foreclose a mortgage securing a promissory note does not state a cause of action against the payee indorsing in blank, where it does not allege presentment to or demand for payment upon the maker or notice thereof and of non-payment upon the indorser prior to suit, since a mere in-dorsement would only transfer title to such non-negotiable note and indorsement under contract to be liable requires demand and notice.</p>

<p>1. COUNTIES — CIVIL SERVICE — OFFICERS ACTIVITY IN POLITICS.</p> <p>A campaign by the Chief Deputy Treasurer of Los Angeles County for the office of County Supervisor is a violation of Charter, Art. IX, Sec. 43, prohibiting persons in classified civil service from taking part in political campaigns further than to vote and express opinions privately.</p> <p>2. COUNTIES — CIVIL SERVICE — OFFICER CANNOT CAMPAIGN FOR SELF.</p> <p>Charter Art. IX, Sec. 43 prohibiting persons in classified civil service from participating in political campaigns further than voting and expressing opinions privately does not permit such persons to campaign for themselves.</p> <p>3. WORDS AND PHRASES — “TAKING PART IN POLITICAL CAMPAIGNS”.</p> <p>An endeavor to elect any one, including one’s self, to public office is a “taking part in a political campaign,” in view of Webster’s definition that a political campaign is an. organized series of operations or a systematic effort to influence voters, etc., carried on before an election.</p> <p>4. STATUTES, CONSTRUCTION — EXPRESSED INTENTION.</p> <p>The rule that statutes are to be construed harmoniously whenever possible, when applied to a contention that a general code section and a particular charter section are in conflict does not require an interpretation at variance with the law makers’ plainly expressed intention.</p> <p>6. COUNTIES. CIVIL SERVICE — POLITICS — CHARTER NOT IN CONFLICT WITH STATUTES.</p> <p>Political Code Section 58 providing that “Every elector is eligible to office for which he is an elector, except where otherwise specially provided, etc.,” does not, in view of the exception, conflict with Charter Art. IX, Sec. 43, prohibiting persons in the classified civil service from political activities other than voting and privately expressing an opinion.</p> <p>6. COUNTIES — CIVIL SERVICE — POLITICAL ACTIVITIES — DISQUALIFICATION.</p> <p>Charter Art. IX, Sec. 43 merely tells persons in classified, civil service not to campaign while continuing in office and-does not disqualify for holding office and so does not conflict with Pol. Code, Sec. 58 making electors eligible to offices for’ which they are electors.</p> <p>7. CONSTITUTIONAL LAW — FREE SPEECH — CIVIL SERVICE — OFFICERS FORBIDDEN TO CAMPAIGN.</p> <p>Charter Art. IX, Sec. 43 prohibiting persons in classified, civil service from political activities other than voting and privately expressing opinion is a proper disciplinary measure and does not conflict with Const. Art. 1, Sec. 9, providing that' “Every citizen may freely speak, write and publish his senti-. ments on all subjects * * * * and no law shall be passed to restrain or abridge the liberty of speech or of the press”.</p> <p>8. CONSTITUTIONAL LAW. CIVIL SERVICE — POLITICS —CAMPAIGNING FOR SELF.</p> <p>Charter Art. IX, Sec. 43 prohibiting persons in classified civil service from political activities other than voting and ex.pressing opinions privately is not unconstitutional for not making an exception or distinction where such person campaigns for himself.</p>

<p>1. INTOXICATING LIQUORS — SEARCH WARRANT-MUST DESCRIBE AUTOMOBILE.</p> <p>To authorize a deputy sheriff to stop and search an automobile in the enforcement of the Wright Act, the search warrant must particularly describe the automobile to be searched, and the property sought in view of Const. Art. I Sec. 19 and Pen. Code. 1525.</p> <p>2. SEARCHES AND SEIZURES — NO GENERAL RIGHT TQ SEARCH AUTOMOBILES.</p> <p>No general right exists to stop automobiles and search them without a warrant.</p> <p>3. INTOXICATING LIQUORS — SEARCHES WITHOUT WARRANT — KNOWLEDGE OR INFORMATION — REASONABLENESS.</p> <p>To authorize an officer to search an automobile without a warrant, in the enforcement of the Wright Act, he must be in possession of such knowledge from the employment of his own senses or from information actually imparted to hint by another as to caiuse him, honestly and in good faith, acting with reasonable discretion, to entertain the belief that intoxicating liquors are being transported therein in violation of law.</p> <p>4. INTOXICATING LIQUORS — SUBJECT OF REASONABLE SEARCHES AND SEIZURES.</p> <p>Intoxicating liquor is a proper subject of search and seizure, but Const. Art. I Sec. 19 and Pen Code Sec. 1525 prohibits unreasonable searches and seizures.</p> <p>5. SEARCHES AND SEIZURES — WARRANT MUST CONFORM TO CONST. AND STATUTE.</p> <p>A search warrant must conform strictly to the constitutional and statutory provisions for its issuance.</p> <p>6. SEARCHES AND SEIZURES — WARRANT TO SEARCH ALL PASSING CARS NO PROTECTION TO OFFICER;</p> <p>A warrant which attempts to authorize the search of any or all automobiles passing over a certain street or road would be without force and effect and of no protection what-so-ever to the officer in view of Const. Art: I Sec. 19 and Pen: Code Sec. 1525.</p> <p>7. CONST. LAW. SEARCHES AND SEIZURES ON STATE HIGHWAYS — RESTRICTION ONLY BY STATE CONST.</p> <p>The only restriction upon searches and seizures of automobiles by state officers upon state highways is. in Const. Art. I. Sec. 19, prohibiting unreasonable searches and seizures and what constitutes and an unreasonable search and seizure is always a judicial question, determinable from the circumstances.</p> <p>8. CONST. LAW — LEGISLATURE — REASONABLE SEARCH — JUDICIAL QUESTION.</p> <p>The legislative body is without authority to determine what is a reasonable search and each case must stand upon its own facts.</p> <p>9.SEARCHES AND SEIZURES — REASONABLE — OFFICER MUST DETERMINE AT HIS PERIL.</p> <p>The officer making the search without a warrant must in each instance determine at his peril whether the search is a reasonable one.</p> <p>10.INTOXICATING LIQUORS — RIGHT OF SEARCH INCIDENT TO ARREST — PRUDENCE.</p> <p>The rule permitting an officer to search a motor vehicle whenever he, either from circumstances or from information on which a reasonable prudent man would act, has, probable and reasonable grounds to believe that liquor is being transported therein seems evolved from the rule that the right of search is an incident to a lawful arrest', plus the courts’ recognition of the fact that unless officers have such right the law will be made nugatory.</p>