004 CO p .r- THE NOTARY'S MANUAL A LUCID AND CONCISE TREATMENT OF THE DUTIES OF NOTARIES PUBLIC, TOGETHER WITH FORMS OF CERTIFICATES OF ACKNOWLEDGMENT AND GENERAL LEGAL INFORMA- TION WITH WHICH ALL NO- TARIES SHOULD BE FAMILIAR. PRICE $.75. ADDRESS W. H. PYBURN, SALINAS, CAL. SALINAS, CAL.: N. G. WYATT, BOOK PUBLISHER. 1897. Copyrighted in 189' by W. H. Pyburn. PREFACE. The serious consequences which may follow the negligent performance of the official duties of notary public; the uncertainty which prevades a large class of< these officers concerning the proper execution of these duties, together with a moderate desire to accumulate the sinews of war, furnish the sole excuse for the publication of this modest volume. Little will be found in its pages that is not already known to the veteran notary, but to the novice and to him who is seldom required to exercise his notarial functions, it is believed a short treatise, of conven- ient size, embracing* matters about which every notary should be informed, as well as numerous cor- rect forms, of certificates of acknowledgment, etc., will prove useful. There is also included considerable general infor- mation concerning Deeds, Homesteads, Chattel Mort- gages, Wills, Mortgages of Real Estate, Negotiable Instruments, Landlord and Tenant, Bills of Sale and Partnership, each of which subjects is treated under a separate head. The Fee-bill now in force is alsoi included. This book has been prepared with reference to the laws of California solely. INDEX. Abandonment; See Homesteads Affidavits and depositions p 17 Definitions, sec. 21 Notary's powers, sec 22 How taken, sec. 23 In what cases, sec. 24 Caption and Certificate, sec. 25 Transmission, sec. 26 When may be used sec. 27 Fees, sec. 28 Acceptance; See Protesting Commercial Paper Acknowledgments, p 13 Object and effect of, sec. 14 How t^ken, sec. 15 Certificate, sec. 16 Title passes without, sec. 17 Identity of person, sec. 18 By corporations, sec. 19 Liability for defects, sec. 20 Adverse Possession; See Miscellaneous Attorney; See Wills Bank Note; SeeNegotiable Instruments Bill of sale, p 53 Definition, sec. 86 Nature of, sec. 87 Validity and requisites, sec. 88 Bills of Exchange; See Negotiable Instruments Bona Fide Purchaser; See Deeds, Mortgages, Chattel Mortgages, Bill of Sale, Negotiable Instruments. Cancellation; See Wills Certificates; ^ee Acknowledgments Chattel Mortgages, p 34 Property subject of, sec. 58 Execution and form of, sec. 59 vSecond mortgage; penalty, sec. 60 Crop Mortgage; continuance of, sec. 61 Recording, necessity of, sec. 62 Check; See Negotiable Instrument Codicil; See Will Commercial Paper; See Negotiable Instruments Community Property; See Deeds, Homesteads, Wills Mortgages Condition; See Deeds Consideration: See Negotiable Instruments Construction; See Deeds, Wills Conveyances; See Deeds, Bill of Sale Corporation; See Acknowledgment Covenants; See Deeds Declaration; See Homesteads Deeds, p 25 Kinds of, sec. 39 Definitions, sec. 40 Of community property, sec. 41 Of the homestead property, sec. 42 I Execution of, sec. 43 Delivery, sec. 44 Acknowledgment, sec. 45 Construction of, sec. 46 Delivery; See Deeds, Negotiable Instruments Demand; See Bill of Sale, Negotiable Instruments Description; See Deeds Escrow; See Deeds Evidence; See Presumptions Executor; See Wills Fee Bill, Page 65 Foreclosure; See Mortgages Forms; See Acknowledgments Good Faith; See Bona Fide Purchaser Good Will; See Miscellaneous Head of Family; See Homesteads Homesteads, p 29 Kinds of, sec. 47 How Created, sec. 48 Who may select, sec. 49 From what property selected, sec. 50 Exempt from claims, sec. 51 INDEX. iii. Value, limit of, sec. 52 Where excessive, sec. 53 Liens on, sec. 54 Abandonment, sec. 55 Conveyance or incumbrance of, sec. 56 Disposition on death, se'c. 57 Intention; See Deeds. Landlord and Tenant, p 50 Relation of, sec. 80 Rights of the parties, sec. 81 Term of hiring, sec. 82 Rent, how payable, sec. 83 Termination of tenancy, sec. 84 Notice to quit and ousting, sec. 85 Miscellaneous; Page 58 Minors; Page 58 Mortgages of Real Property, p 43 Definition of, how created, sec. 71 Lien of, extends to what, sec. 72 What interests subject of, sec. 73 Assignment of, sec. 74 Release, limitations, redemption, sec. 75 Miscellaneous, sec. 76 Negotiable instruments, p 48 Definition of and kinds, sec. 77 Negotiability, meaning of, sec. 78 Consideration, sec. 79 Delivery and limitations, sec. 79 Notary Public, Page 7 Origin of office, sec. i Appointment and number, sec. 2 Term of office, sec. 3 Qualifications, sec. 4 Jurisdiction, sec. 5 Duties, sec. 6 Resignation, sec. 7 Records, sec. 8 Bond. sec. 9 Certificate, transmission of, sec. 10 IV. INDEX. Liability, sec. n Acting without qualifying, sec. 12 Fees, sec. 13 Partnership, p 55 Definition and nature of, sec. 89 The property of, sec. 90 Authority denied partner, sec. 91 Profits and losses, sec 92 Liability to third person, sec. 93 Dissolution, sec. 94 Presumptions; See Miscellaneous Promissory Note; See Negotiable Instruments Protesting commercial paper, p 22 Notary's duty, sec. 29 Presentment for acceptance, sec 30 Presentment to drawee, sec. 31 Time of, sec. 32 Acceptance .sec. 33 Presentment for payment, sec. 34 Place of, sec. 35 Protest, what is, sec. 36 Protest, applicable to what, sec. 37 Form of, sec. 38 Recording; See Deeds, Bill of Sale, Homestead, Chattel Mortgages, Mortgages Re-delivery; See Deeds. Specific Performance; See Miscellaneous. Statute of Limitations; See Acknowledgments, Ne- gotiable Instruments Title; See Deeds Wills, p 38 Who may make, sec. 63 Kinds of, sec. 64 Definitions, sec. 65 Execution of, witnesses, sec. 66 Custody of, sec. 67 What property subject of sec 68 Cancellation and revocation, sec. 69 Executor, attornev, interpretation, sec. 70 CHAPTER I. ORIGIN Of OFFICE AND APPOINTMENT TO, 1. Origin of office. 2. Appointment and number, 3. Term of office. 4. Qualifications requisite. 5. Jurisdiction of officer. / Origin of Office. The office of Notary Public is of ancient origin* In Europe as early as the beginning of the ninth century notaries were appointed by the Prankish kings and by the Popes. They were common in the Roman Republic and are now fixtures in probably every countiy of the world. 2. Appointment]and Number. In California, as in most of the States, ^the power to appoint notaries is lodged in the Governor, and commissions are granted usually upon petition to him. Formerly only a limited number of notaries could be appointed for each of the counties, but since the Amendment of 1893 there has been no restriction as to number except as to counties of the first class which are limired to sixty each. 8 ORIGIN OF OFFICE AND APPOINTMENT TO. j. Term of Office, A notary public now holds office for the term of four years from and after the date of his commission. Prior to the Amendment of 1889 he held for two years only. 4. Qualifications Requisite. To be eligible to appointment as notary public the applicant must be at least twenty-one years of age; a citizen of the United States, of this State, and for six months a resident of the county for which he asks to be commissioned. The Amendment of 1891 makes women possessing these qualifications eligible to appointment to this office. County officers and their deputies, except District Attorneys and Treas- urers are not eligible. 5. Jurisdiction of Officer. The official acts of a notary public are valid only when done within the county for which he is com- missioned, and any attempted exercise of his official duties outside of such county would be absolutely void. Even though his certificate of acknowledg- ment purports to have been made in the proper county, still if it be established that the acknowledg- ment was in fact taken elsewhere, the acknowledg- ment would be invalid. DUTIES, POWERS AND FEES. CHAPTER II. DUTIES, POWERS AND FEES. 6. General Duties. 7. On Resignation. 8. Certified Copy of Records. 9. Official Bond, 10. Transmission of Certificate. 11. Liabilities on Official Bond. 12. Acting Without Qualifying-penalty. 13. Fees. 6. General Duties. The duties of notary public are prescribed by Sec. 794 of the Political Code as follows: When requested, to demand acceptance and pay- ment of foreign, domestic and inland bills of ex- change, or promissory notes, and protest the same for non-acceptance and non-payment, and to exercise such other powers and duties as by the law of nations and according to commercial usages, or by the laws of any other state, government or country, may be performed by notaries. To take the acknowledgment or proof of powers of attorney, mortgages, deeds, grants, transfers and other instruments of writing executed by any person and to give a certificate of such proof or acknowledg- ment, indorsed on or attached to the instrument. To take depositions and affidavits, and administer oaths and affirmations, in all matters incident to the duties of the office, or to be used before any Court, judge, officer or board in this State. To keep a record of all official acts done by him. To keep a record of the parties to, date and char- acter of every instrument acknowledged or proved before them. IO DUTIES, POWERS AND When requested, and upon payment of his fees therefor, to make and give a certified copy of any record in his office. To provide and keep an official seal, upon which must be engraved the arms of this State, the words "Notary Public" and the name of the county for which he is commissioned. (The notary's name may be included.) To authenticate with his official seal all official acts. 7. On Resignation. If any notary die, resign, is disqualified, removed from office or removes from the county for which he is appointed, his records and all his public papers must, within thirty days, be delivered to the Clerk of the county, who must deliver them to the notary's successor when qualified. 8. Certified Copy of Records. Every notary having in his possession the records and papers of his predecessor in office may grant certificates or give certified copies of such records and papers, in like manner and with the same effect as such predecessor could have done. 9. Official Bond. Each notary must execute an official bond in the sum of five thousand dollars, which bond must be approved by the judge of the Superior Court of his county, and filed and recorded as other official bonds of county officers. (With the County Recorder.) (The County Clerk will furnish blanks on appli- cation.) DUTIES, POWERS AND FEES. 10. Transmission of Certificate . Each notary, so soon as he has taken his official oath and filed his official bond must transmit a cer- tificate of the facts, under the hand and seal of the County Clerk, together with a copy of his official oath signed by him with his own proper signature, to the office of the Secretary of State. (In practice the Clerk usually transmits these documents.) //. Liabilities on Official Bond. For the official misconduct or neglect of a notary public he and the sureties on his official bond are liable to the parties injured thereby for all the dam- ages sustained. 12 ~~ Acting Without Qualifying -Penalty. Every person who exercises any function of a public office without taking the oath of office or with- out giving the required bond is guilty of a misde- meanor. (Sec. 65 Penal Code.) /j. Fees. The fees of a notary allowed by law are as follows: For drawing and copying every protest for the non-payment of a promissory note, or for the non- payment or non-acceptance of a bill of exchange, draft or check, $2.00. For drawing and serving every notice of non- payment of a promissory note or of the non-payment or non-acceptance of a bill of exchange, order, draft or check, |i.oo. For recording every protest, fi.oo. For drawing an affidavit, deposition or other paper, for which provision is not herein- made, for each folio (loo words,) 30 cents. 12 DUTIES, POWERS AND FEES. For taking an acknowledgment or proof of a deed or other instrument, to include the seal and the writ- ing of the certificate, for the first two signatures $1.00 each and for each additional signature 50 cents. For administering an oath or affirmation, 50 cents. For every certificate, to include writing the same and the seal, $1.00. ACKNOWLEDGMENTS. 13 CHAPTER III. ACKNOWLEDGMENTS. 14. Acknowledgment; object and effect of, 15. How taken; use of interpreter. 16. Certificate and seal; amendment of. 17. Title passes without; exception. 18. Identity of person; how established. 19. Acknowledgments by corporations. 20. Liabilities for defects; limitations. 14. Acknowledgment; Object and Effect of. The acknowledgment of an instrument and the notary's certificate serve two purposes only, the first of which is to permit the instrument to be recorded, and the second of which is to allow of its introduction in evidence without further 'proof of its execution. 75. How Taken; Use of Interpreter. To take an acknowledgment it is only necessary that the grantor subscribe the instrument and de- clare to the notary that he knows its contents and that he acknowledges its execution. If the language spoken by the grantor is not understood by the notary an interpreter may be called and sworn to coi- rectly translate the proceedings, and the acknowledg- ment may thereupon be taken through the interpre- ter. The fact that it was taken through an inter- preter should be stated in the certificate. Prior to the Amendment of 1891 it was necessary in taking the acknowledgment of a married woman to examine her separate and apart from her husband, but since the adoption of that amendment the acknowledgment of a married woman may be taken in the same manner as that of any other individual. If the grantor be a widow, widower or unmarried per- son it is advisable that the certificate show that fact. T4 ACKNOWLEDGMENTS. r6. Certificate and Seal; Amendment of. Certificates of acknowledgment should be sub- stantially the same as the forms which appear in this book as they are all correct, and it should be remem- bered that a certificate has no validity unless im- pressed with the notary's seal. There are two essen- tials, aside from jurisdictional recitals, which posi- tively must appear on every certificate of acknowl- edgment; these are, that the instrument was in fact acknowledged, and by the identical individual by whom it purports to have been executed. After making his return the notary's function with reference to the acknowledgment of an instru- ment ceases, and he cannot amend his certificate. 77. Title Passes Without Acknowledgment; Ex- ception. Ordinarily the acknowledgment of an instrument imparts no additional validity to it. An unacknowl- edged deed, when delivered, passes the title as com- pletely as if it had been acknowledged. It s good as against the claims of an attaching creditor of the grantor, but until it is acknowledged and recorded it is void as against subsequent innocent purchasers or incumbrancers in good faith for value, and as against judgments affecting the title, unless the conveyance is recorded prior to the recording of notice of action. A lease for a term not exceeding one year is good against all. Prior to the Amendment of 1891 an acknowledg- ment was a necessary part of the execution of any deed by a married woman, but it is no longer necessary ex- cept in the single instance of the sale or incumbrance of the homestead of a married person. Section 1242 of the Civil Code yet provides that in executing an incumbrance upon or sale of a homestead by a mar- ried woman the acknowledgment is a part of the exe- cution itself. AC K N O W 1< K 1> G M K N T S . 1 5 Jt must be reuiembered, however, that while an unacknowledged deed, when delivered, will pass title, except in case of a homestead, still it is not entitled to be recorded until duly acknowledged and certified. iS. Identity of Person; How Established. If the person whose acknowledgment is to be taken be not personally known to the notary, the acknowl- edgment must not be taken or certified until after the notary has heard sworn testimony from at least one credible witness that the person whose acknowl- edgment is to be taken is the identical person he re- presents himself to be. If the one to whom a deed or mortgage is to be made introduces the grantor or mort- gagor to the notary and the acknowledgment is then taken, the one making the introduction cannot com- plain of a mistake as to identification. In case tes- timony is heard the certificate should show the fact that the identity of such individual was established by sworn proof. (See form No. I.) ig. Acknowledgments by Corporations. The acknowledgment of a corporate transfer may be made by the president or secretary of the corpora- tion, and Form No. II should be used. 20. Liability for Defects; Limitations. The law of this State makes a notary liable on his official bond for any damages sustained through a negligent performance of his duties. The liability of the bondsmen is not exhausted by a first recovery but extends to each official act of the notary. The statute of limitations which would bar a recovery for such damages commences" to^ run^f roin the date of the performance of the negligent act and not from the date of the discovery of the negligence. 16 Where a deed or mortgage has been subscribed and delivered, but not acknowledged, an action may be maintained to compel its acknowledgment. If the certificate of acknowledgment is defective an action may be maintained to reform and correct it. AFFIDAVITS AND DEPOSITIONS. 17 CHAPTER IV. AFFIDAVITS AND DEPOSITIONS. 21. Affidavits and depositions; definitions of. 22. Powers in taking depositions. 23. How taken. 24. In what cases taken. 25. The caption and certificate. 26. Transmission of deposition. 27. When may be used. 28. Fees. 2T Affidavits and Depositions. Definitions of. An affidavit is a written declaration, under oath, made without notice to the adverse party. A deposition is a written declaration, under oath, made after notice to the adverse party, for the pur- pose of enabling him to attend and cioss examine. An affidavit is usually in a narrative form, while a deposition is taken by question and answer. 22. Powers in Taking Depositions. The attendance of the person whose deposition is to be taken is secured by the service of a subpoena issued and signed by the notary, after the party de- siring the taking of such deposition has made an affi- davit showing that the case is within Section 2021 of the Code of Civil Procedure. A notice that the deposition is to be taken must be served upon the adverse party five days before the day set for the taking of the deposition, and to this time must be added one day for each twenty-five miles of the distance of the place of the taking of the deposition from the residence of the person to whom notice is given. Upon showing good cause a judge may provide, by order, for a shorter notice. A copy of the affidavit above mentioned must be served 18 AFFIDAVITS AND DEPOSITIONS. with the notice to the adverse party, and if the time of notice has been shortened, a copy of the order shortening it must also be served. The taking of the deposition should begin at the hour and upon the day fixed; particularly so if only one of the parties attends. In the absence of one of the parties the notary has no authority to postpone the taking of the deposition to some other hour or day. The notice usually provides that the taking of the deposition will commence upon a day certain and if not completed on said day, then that it will be con- tinued from day to day until completed. In the ab- sence of a provision in the notice that if it is not com- pleted on the day named that the taking will be con- tinued from day to day until completed, the notary must complete the examination on the particular day named, and has no authority to finish the examina- tion on the next or a subsequent day. If both parties are present and consent to a post- ponement or continuance it may be had, but without such consent it would be irregular. The notary ought not to be related to either of the parties, or interested in the proceedings in which the deposition is taken. Neither should he be related to the attorneys in the case, nor should he bs the clerk or assistant of such attorneys. The adverse party may rightfully object to the taking of the deposition by a notary occupying any of these relations; the objection should be made before the examination actually commences, and if over-ruled, should appear in the body of the deposition, and it is probable that the deposition taken under such circumstances would not be received in evidence at the trial of the case. Section 1991 of the Code of Civil Procedure appar- ently gives to the notary authority to punish a wit- ness for contempt for disobedience of a subpoena, re- fusal to be sworn, refusal to answer or refusal to sub- AFFIDAVITS AND DEPOSITIONS* 19 scribe an affidavit or deposition when required, but \ve have found no case where a notary has attempted the exercise of tnis authority and as he is purely a ministerial officer while taking a deposition it is prob- able the Courts would not uphold an order made by him punishing a witness for contempt. In Lezinsky vs. Superior Court, 72 Cal., 510, it was held that the Court in which the action was pending had no power to punish a witness for refusal to obey a notary's subpoena. 23. Depositions; How Taken In taking a deposition the witness should first be sworn to speak the truth, the whole truth and noth- ing but the truth. The exact words of the witness should be written unless the parties agree to have the deposition taken in a different manner. If an objec- tion be made to a question asked, the objection should be taken down as made. If the witness de- clines to answer a question, that fact and the reason assigned should also appear. If a party has any objection to the FORM of a question he must make it at the time such question is asked or he will not be permitted to urge it when the deposition is offered in evidence. The party at whose instance the exami- nation is had should begin it and the adverse party may then cross-examine. The parties to an action frequently prepare ques- tions and cross- questions which are settled by the Court and the necessity of counsel attending the ex- amination is thus avoided. The questions and cross- questions so settled are forwarded to the notary and he personally conducts the examination by asking of the witness the questions and cross-questions and writing the respective answers. After the writing of the deposition in any case is completed it should be carefully read to the witness, 20 AFFIDAVITS AND DEPOSITIONS. who should sign it after making any corrections he desires, after which he should be again sworn to the effect that the facts therein stated are true according to the best of his knowledge and belief. The notary's jurat, including seal, should then be placed below the witness' signature. If the parties agree, a depo- sition may be taken by a shorthand writer and after- wards transcribed and the transcript may then be read to the witness and corrected, signed and sworn to by him. 24. In what cases taken. Depositions may be taken in the following cases. 1. When the witness is a party to the action or proceeding, or an officer or member of a corporation which is a party to the action or proceed ing, or a per- son for whose immediate benefit the action or pro- ceeding is prosecuted or defended. 2. When the witness resides out of the county in which his testimony is to be used. 3. When the witness is about to leave the county where the action is to be tried, and will probably con- tinue absent when his testimony is required. 4. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend. 5. When the testimony is required upon a motion or in any other case where the oral examination of the witness is not required. 6. When the witness is the only one who can establish facts or a fact material to the issue; pro- vided that the deposition of such witness shall not be used if his presence can be procured at the time of the trial of the cause. 7. When the applicant presents a verified peti- tion to the Superior Court. a. That he expects to be a party to an action in AFFIDAVITS AND DEPOSITIONS. 21 a Court in this State, stating the names of the parties whom he expects will be adverse. b. That the proof of some fact is necessary to perfect the title to property in which he is interested or to establish marriage, descent, heirship or any other matter which may hereafter become materal to establish, though no suit may at the time be antic- ipated, or, if anticipated, he may not know the parties to such suit. 25. The Caption and Certificate. The caption and certificate should be substantially the same as forms numbered X and XI respectively. 26. Transmission of. After completing a deposition it should be placed in an envelope or wrapper, sealed, and directed to the clerk of the Court in which the action is pending or to such person as the parties, in writing, may agree upon: it should be delivered by the notary person- ally to the person agreed upon or forwarded by mail or by some safe private opportunity. 27. When may be Used. When a deposition has been once properly taken it may be read by either party in any stage of the same action or proceeding, or in any other action be- tween the same parties upon the same subject, and is then deemed the evidence of the party reading it. 28. Fees. For his services in taking depositions the notary may collect fifty cents for each witness sworn, thirty cents for each folio of loo words and one dollar for the certificate. The party at whose instance the dep- osition is taken should pay all charges of the notary. 22 PRESENTING AND PROTESTING PAP" EPS, CHAPTER V. PRESENTING AXD PROTESTING COMMERCIAL PAPER- 29. Duties of Notary concerning. 30. Presentment for acceptance; how made, 31. Presentment to joint drawee. 32. Effect if not seasonably presented, 33. Acceptance; how made, 34. Presentment for payment. 35. Presentment for payment; place of, 36. Protest; what is. 37. Protest; applicable to what. 38. Form of protest. 29. Duties of Notary Concerning, A notary public, when requested, must demand acceptance and payment of all classes of bills of ex- change or promissory notes and protest the same. jo. Presentment for Acceptance; How Made. At any time before a bill of exchange is payable the holder may present it to the drawee for accep- tance, and if acceptance is refused the bill is dishon- ored. The holder of such bill of exchange may request a notary public to present the same for acceptance. Presentment for acceptance should be made as near as may be in the following manner: a. The bill must be presented by the holder or his agent. b. It must be presented on a business day and within reasonable hours. c. It must be presented to the drawee, or if he be absent from his place of residence or business, then to some person having charge thereof or employed therein. PRKSfcVflN'. AM) I'ROTKSTING i'APKRS. 2.} (1. The drawee on such presentment may post- pone his acceptance or refusal until the next day. If the drawee have no place of business, or if his place of business or residence cannot with reasonable dili- gence be found, presentment for payment is excused and the bill may be protested for non-acceptance. j/. Presentment to Joint Drawee, Presentment for acceptance to one of several joint drawees and refusal by him dispenses with present- ment to the others. 32. Effect if not Seasonably Presented, When a bill of exchange is payable at a specified time after sight, the drawer and endorsers are exon- erated if it is not presented for acceptance within ten days after the tin e which would suffice, with ordin- ary diligence, to forward it for acceptance unless pre-- sentment is excused* .,*?. A&epiancc} How Made. An acceptance of a bill must be made in writing by the drawee or by an acceptance for honor, and may be made by the acceptor writing his name across the' face of the bill with or without other words. j^ h Presentment for Payment ', If a bill of exchange is by its terms payable at a particular place and is not accepted on presentment it must be presented at the same place for payment when presentment for payment is necessary. J5. Presentment for Payment; Place of. A bill of exchange, accepted, payable at a partic j ular place, must be presented at that place for pay- ment when presentment for payment is necessary, mid need not be presented elsewhere, 24 PR ES BATING AND PROTESTING PAPERS. 36. Protest; What is. A protest is an instrument in writing giving a lit- eral copy of the bill of exchange with all that is written thereon, or annexing the original, stating the presentment and the manner in which it was made; the presence or absence of the drawee or acceptor, as the case may be; the refusal to accept or to pay or the inability of the drawee to give a binding accep- tance; and in case of a refusal, the reason assigned, if any. 37. Protest; Applicable to What. A protest applies to all negotiable instruments such as bills of exchange, promissory notes, checks, bank-notes, certificates of deposit, etc. 38. Form of Protest. For the proper form of protest, see Form No. XII. DEEDS. 25 CHAPTER VI. DEEDS. 39. Kinds of. 40. Definitions and difference. 41. Of community property. 42. Of the homestead. 43. Execution of. 44. Delivery and re-delivery. 45. Certificate of acknowledgment. 46. Construction of. 39. Kinds of. There are various kinds of deeds in ordinary use, but the effect to be given to any deed usually de- pends on its character as being a grant, a quitclaim or a warranty deed. 40 Definitions and Difference. A quitclaim deed conveys to the grantee all of the present title held by the grantor. If the grantor be absolute owner of the property, his quitclaim deed will pass the whole title to the grantee. A grant deed conveys not only the title held by the grantor, but also any title he may subsequently acquire from any third party. By a grant deed the grantor does not guarantee or undertake that he has the title which his deed purports to convey, but whenever in a conveyance the word "grant" is used, the law implies two covenants on the part of the grantor, unless such covenants are expressly ex- cluded by the terms of the deed. These implied covenants are, first that previous to the execution of such conveyance the grantor has not conveyed the same estate or any right, title or interest therein to any person other than the grantee; second that such estate is at the time of the execution of such .26 DEEDS. conveyance, free from incumbrances done, made or suffered by the grantor or any person claiming under him. (Incumbrances here referred to idclude taxes, assessments and all liens upon real property.) Such covenants extend from the grantor and his heirs to the grantee, his heirs and assigns. (See Sections 1113 and 1114 Civil Code.) A warranty deed is better than any other kind, for by it the grantor warrants that at the date of the conveyance he owns the title that such conveyance purports to convey, and he usually agrees to defend the title conveyed" against all litigation involving such title. If title based upon such deed fails the grantee has his action against the grantor. There are also conditional deeds and escrows. A conditional deed is one which has attached to it some condition upon the happening of which the title vests in the grantee. An escrow is a deed placed in the possession of some person other than the grantee to be delivered to the grantee upon the happening of some specified con- tingency or event. 41. Of Co m m u n ity Property . Separate property consists of all property owned by either spouse before marriage, and also all acquired afterwards by gift, bequest, devise or des- cent, with the rents, issues and profits thereof. All other is community property. In 1891 the Legislature enacted a law which pro- vides that the husband cannot make a gift of the community property or convey the same without a valuable consideration unless the wife in writing con- sent thereto. In the recent case of Spreckels vs. Spreckels (decided March 23d, 1897,) the Supreme Court decided that this act is unconstitutional as to all community property acquired prior to the passage of the act, and strongly intimates that it is unconsti- tutional in its entiretv. If the act be conceded to be DKKDS, 27 constitutional, however and there is, in fact, a valu- able consideration paid for the title to community property, the conveyance need be signed only by the husband, but as the question of consideration is always open for investigation by the Courts, regard- less of the recitals of the deed, buyers of real prop- erty now usually require the wife's signature. The amendment of 1891 referred to does not apply to mortgages of the community property (except of the homestead) and a mortgage executed by the husband alone is good. Propeity conveyed to a married woman is pre- sumptively her separate property, and this presump- tion is conclusive in favor of a purchaser or incum- brancer in good faith and for a valuable considera- tion. jj. Of the Homestead. The homestead of a married person cannot be con- veyed or incumbered unless the instrument by which it is conveyed or incumbered is both executed and acknowledged by and both husband and wife. Note the distinction made between a conveyance or incum- brance of a homestead and that of any other prop- erty: The deed of any other property passes title without acknowledgment but in the case of a home- stead the acknowledgment is an essential part of the execution itself, and without acknowledgment n:> title passes. 43. Execution of Deeds. The manner of taking the acknowledgment and of making the certificate have been stated hereto- fore (see Chapter III.) The description of the property should be suffi- cient to enable it to be located and identified without considerable trouble. Tf the property is known by 28 any particular name, as for instance "The McKirihoii Ranch" such description will be sufficient, but it is advisable and more satisfactory to give a more par- ticular description. 44. Delivery and Re -delivery. A deed does not take effect until it has been de j livered, and a re-delivery of the same instrument by the grantee to the grantor will not pass the title back to the grantor, neither will a destruction of the paper, A new deed must be executed ffom the grantee to the grantor. A grant duly executed and delivered is presumed to have been delivered at its date. It cannot be delivered to the grantee conditionally. There may be a constructive delivery to a strangef for the grantee where the latter's assent is shown or hiay be presumed. 45. Certifitate of Acknowledgment* The forms of certificates of acknowledgment found at the end of this book are all correct and can be implicitly relied upon. 46. Construction of Deeds . Deeds are construed or interpreted by the same rules applicable to other written instruments. The intention of the parties is to be sought and adopted providing the express terms of the instrument are hot thereby contradicted. If two clauses of a deed are absolutely irreconcilable the first clause will pre- vail. The recital of consideration in a deed is hot con- clusive. Any legal consideration may be named and in case of dispute the true consideration may be shown. A deed reciting no consideration is as effec- tive as any other. iiOM ESTEADS. ^M CHAPTER VIL HOMESTEADS. 47. Kind of. 48. How Created and of What Consists^ 49. Who May Select. 50. From What Property Selected. 51. Exempt from what Claims* 52. Value, Limit of. 53. Proceedings Where' Value Excessive'; 54. Liens ofi. 55. How Abandoned. 56. How Conveyed or Incumbered; 57. Disposition on Death. 47. Kinds of. There are two kinds of homesteads, one taken urj fonder the United States Land Laws; the other is what is commonly known as a State Homestead. 48. flow Created and of what Consists. A State Homestead consists of the dwelling housg in which the claimant resides and the land on which the same is situated. It is created by executing and acknowledging a declaration of homestead and re- cording the same in the office of the County Recor- der of the County in which the land is located. The declaration must contain a statement showing that the person making it is the head of a family; or when the declaration is made by the wife, showing that her husband has not made siich declaration and that she 1 therefore makes the declaration for their joint benefit. Second: A statement that the person making it is residing on the premises and claims them as a home- stead. Third: A description of the premises, and Fourth. An estimate of their actual cash value, Which must not exceed five thoussnd dollars where 30 MOM KSTKADS. the declarant is the head of a family, or one thousand dollars when the declarant is not the head of a fam- ily. 49. Who may Select, A homestead of the value of one thousand dollars may be selected by a person other than the head of a family by the execution, acknowledging arid record- ing of a declaration of homestead showing that he (or she) is lesiding on'the premises and claims them as a homestead: a description of the premises and an estimate of their actual cash value which, as stated before, is limited to one thousand dollars. The head of a family includes: i. The husband when the claimant is a married person. 2. Every person who has residing on the premises with him or her and under his or her 'care and maintenance either his or her minor child or minor grandchild or the minor child of his or her deceased wife or hus- band, or a minor brother or sister, or the minor child of a deceased brother or sister. 3. A father, mother, grandfather or grandmother. 4. The father, mother, grandfather or grandmother of a deceased husband or wife. 5. An unmarried sister or any other of the relatives mentioned who have attained the age of majority and are unable to take care of or support themselves. 50. From What Property Selected. If the claimant be married, the homestead may be selected from the community property, or the sep- arate property of the husband, or, with the consent of the wife, from her separate property. A home- stead cannot be created on an undivided inteiest in land. An unmarried person \vho is the head of a family may select from any of his property. Mort- gaged property may be homesteaded, but the mort- HOMESTEADS. 31 gage will be unaffected provided it is recorded prior to the recording of the declaration of homestead. Separate lots, if used together, may be included in a homestead. j/. Exempt From What Claims. The homestead is completely created when the declaration is filed for record, and then becomes ex- empt from claims of every kind and character, ex- cept: i. Judgments obtained before the declaration was filed for record and which constitute liens upon the premises. 2. Debts secured by mechanics, con- tractors, artisans, architects, builders, laborers of every class, material-mens' or vendors' liens upon the premises. 3. Debts secured by mortgage on the premises executed and acknowledged by husband and wife, or by an unmarried claimant. 4. Debts secured by mortgage on the premises executed and recorded before the declaration of homestead was filed for record. A declaration of homestead made and recorded after the levy of an attachment will defeat the attachment. A crop grown on a homestead is not exempt from attachment. A United States homestead is exempt from all debts created prior to the issuance of the patent, but is not exempt from debts created afterwards. 52. Value, Limit of. The homestead of the head of a family must not exceed in value five thousand dollars, and that of any other person must not exceed one thousand dollars. There is no limit, however, as to quantity of land selected. If the declaration should state the value incorrectly, as for instance f 7000.00, it would still b good as to the value allowed by law. 32 HOMESTEADS. 33. Proceedings Where Value Excessive. If the value of a homestead in fact exceeds that allowed by law, the holder of a judgment for money may levy upon the homestead, have it appraised by appraisers appointed by the Court, and either divide the property, setting apart to the homestead claim- ant sufficient to equal the statutory exemption and applying the balance to the satisfaction of the judg- ment, or if it would not be advisable to divide the property it may be all sold and an amount of money equal to the statutory exemption paid to the home- stead claimant, in whose hands it is exempt to the same extent as a homestead but only for the period of six months. 54. Liens on. The homestead is liable to street assessment, me- chanics' and laborers' liens the same as other prop- erty. 55. How Abandoned. A homestead can be abandoned only by a declara- tion of abandonment, or a grant thereof, executed and acknowledged. I. By the husband and wife, if the claimant be married. 2. By the claimant, if un- married. A declaration of abandonment becomes effectual when filed in the office where the homestead is recorded, and not before. Removal from the prem- ises does not constitute an abandonment. A second declaration while the first homestead exists, would be void. 56. How Conveyed or Incumbered. The homestead of a married person can not be conveyed or incumbered unless the instrument by HOMESTEADS. 33 which it is conveyed or incunibered is executed and acknowledged by both husband and wife. 57. Disposition on Death. If the homestead is selected from the community property or from the separate property of the person selecting or joining in the selection of the same, it vests, on the death of the husband or wife, absolutely in the survivor. If it is selected from the separate property of one who does not consent thereto, it vests in the heirs of such non-consenting owner upon his death, but may be set apart for a limited period to the family. 34 CHATTED MORTGAGES. CHAPTER VIII. CHATTJJI, MORTGAGES. 58. Property Subject of. 59. Execution and Form of. 60 Second Mortgage; Penalty. 61. Crop Mortgage; Continuance of . 62. Recording; Necessity For. 58. Property Subject of. As between the immediate parties to a chattel mortgage, any personal property is the subject of such mortgage, but when the rights of creditors or innocent purchasers or incuinbrancers are concerned a chattel mortgage is invalid if it be made upon any kind of property other than the following: First Locomotives, engines and other rolling- stock of a railroad. Second Steamboat machinery, the machinery used by machinists, foundrymen and mechanics. Third Steam engines and boilers. Fourth Mining machinery. Fifth Printing presses and material. Sixth Professional libraries. Seventh Instruments of surveyors, physicians and dentists. Eighth Upholstery, furniture and household goods. Ninth Oil paintings, pictures and works of art. Tenth All growing crops, including grapes and fruit. Eleventh Vessels of more than five tons burden. Twelfth Instruments, (negatives, furniture and fixtures of a photograph gallery. CHATTEL MORTGAGES. 35 Thirteenth The machinery, casks, pipes, tubes, and utensils used in the manufacture or storage of wine, fruit brandy, fruit syrups, or sugar, also wines, fruit brandy, fruit syrup, or sugar, with the cooper- age in which the same are contained. Fourteenth Pianos and organs. Fifteenth Iron and steel safes. Sixteenth Neat cattle, horses, mules, swine, sheep and goats, and the inciease thereof. Seventeenth Harvesters, threshing outfits, hay presses, wagons, farming implements, and the equip- ments of a livery stable, including buggies, carriages, harness, robes. Eighteenth Abstract systems, books, maps, papers, and slips of searchers of records. Nineteenth Raisins and dried fruits, cured or in process of being cured. Also, all boxes, fruit-graders, drying-trays and fruit-ladders. Property other than that above enumerated may be hypothecated, but in order to make the transac- tion valid as to creditors there must be a delivery of the property, and it is then called a pledge. There is no distinction between an ordinary chattel mort- gage ana a pledge except that in the case of a pledge the possession of the property must be delivered to the pledgee, while in the case of a chattel mortgage the possession may remain with the owner of the property. The pledging of property does not re- quire the formal execution of an instrument in form a chattel mortgage, It may be accomplished by oral agreement and without the execution of any paper whatever. 59. Execution and Form oj. A mortgage of personal property is void as against creditors of the mortgagor and subsequent pur- 36 CHATTEL MORTGAGES. chasers and incumbrancers of the property in good faith and for value unless: i. It is accompanied by the affidavit of all the parties thereto that it is made in good faith and without any design to hinder, delay or defraud creditors. 2. It is acknowledged, certified and recorded in like manner as grants of real prop- erty. It is to be noted here that the recording of a chat- tel mortgage is of importance. A mortgage of real property, if not recorded, is good against the claims of an attaching creditor of the mortgagor, but not so in the case of a chattel mortgage. Even it' the attaching creditor has personal knowledge of the ex- istence of a chattel mortgage against the property he seeks to attach, still, if the mortgage has not been in fact placed on record the creditor may levy upon and hold the property as against the holder of the mort- gage. A mortgage of live stock will cover the in- crease if expressly so provided, but not otherwise. 60. Second Mortgage; Penalty. Where personal property has been mortgaged and the mortgage is still subsisting, the Penal, Code makes it larceny for the mortgagor to sell, transfer or fur- ther incumber said property or any part theieof, or to cause the same to be sold, transferred or further incumbered to a third party, unless said third party shall be first informed of the existence of the prior mortgage and unless the prior mortgagee shall be first informed, in writing, of the intended sale, trans- fer or incumbrance and of the name, and place of residence of the party to whom the sale, transfer or incumbrance is to be made. 61. Crop mortgage; Continuance of. The oidinary form of chattel mortgage may be CHATTEL MORTGAGES. 37 used for a crop mortgage. The lien of a mortgage on a growing crop continues on the crop after severance, whether remaining in its original state or converted into an >ther product, so long as the same remains on the land of the mortgagor. A fraudulent removal of the crop will not defeat the mortgage. One can mortgage his undivided interest in a crop, and a crop mortgage is valid if made before the crop has been planted, 62. Recording; Necessity for. As between the parties, it is not necessary that a chattel mortgage be recorded, but unless recorded it is void as against attaching creditors of the mort- gagor and also as against subsequent purchasers and incumbrancers in gojd faith and for value. CHAPTER IX. WILLS. 63. Who may make. 64. Kinds of. . 65. Definitions. 66. Execution of; Witnesses. 67. Custody of. 68. What Property Subject of. 69. Cancellation of, and Revocation. 70. Executor; Attorney, Interpretation etc. 63 Who May Make. Every person over eighteen years of age, of sound mind, may make a will. A married woman may dispose of her separate estate by will without her husband's consent. 64. Kinds of. There are three kinds of wills: Olographic, nun- cupative and attested. 65. Definitions. An olographic will is one entirely written, dated and signed by the testator himself. It is subject to no other form. It needs no witness and must not be made on paper having any printing or writing what- ever upon it. The use of a letter sheet having the name of the place where the will is to be made printed upon it will invalidate and avoid the will. A nuncupative will is not required to be in writing nor to be attested with any formalities, but the estate bequeathed must not exceed in value $1000.00. Such will is verbal; two witnesses who were present are re- quired to prove it, one of whom must have been asked WILLS. 39 by the testator to bear witness that it was his will, and the deceased must have been at the time in military service in actual peril and fear of death, or he must have been in expectation of immediate death from an injury received the same day. An attested will is one subscribed by the testator in the presence of and subscribed by two witnesses. 66. Execution of; Witnesses. The last paragraph indicates the manner of exe- cuting an olographic or nuncupative will. An attested will must be executed as follows and not otherwise. i. It must be subscribed at the end thereof by the testator himself, or some person in his pres- ence and by his direction must subscribe his name thereto. 2. The subscription must be made in the presence of the attesting witnesses or be acknowl- edged by the testator to them to have been made by him or by his authority. 3- The testator must at the time of subscribing or acknowledging the same, de- clare to the attesting witnesses, that the instrument is his will, and 4. There must be two attesting wit- nesses, each of whom must sign his name as a wit- ness at the end of the will, at the testator's request and in his presence. The right to dispose of property by will being purely statutory, the statute must be strictly followed and any material departure will be fatal to the val- idity of a will. A mistake by one of the witnesses in writing his name will avoid the will. It is not enough that the witnesses may know that the document is a will; the testator must declare to them that it is his will, but is not essential that each witness should be present or hear the declaration made to the other witness. Any devise or legacy to a subscribing wit- 40 ness is void unless there are two other competent sub- scribing witnesses. Creditors of the testator may be witnesses to his will. A codicil to a will should be ex- ecuted with the same formalities as the will itself and when executed it has the effect to republish the will as modified by the codicil. The signature of the tes- tator to his will may be by mark or cross properly witnessed, but the witnesses must be able to write and must subscribe their names. 67 . Custody of. A nuncupative will must be offered for probate within six months after the testamentary words were spoken, but the words or the substance thereof must have been committed to writing within thirty days after they were spoken. An olographic or attested will may remain in the custody of the testator or in that of any other person. 68. What Property Subject of. A married woman may dispose of all of her sepa- rate estate by will without the consent of her hus- band and may alter or revoke her will in like manner as if she were single. She cannot dispose of any share of the community property if the husband be still living. A married man may dispose, by will, of one-half of the community property only. Any kind of property may be disposed of by will. 69. Cancellation of and Revocation. A written will may be revoked; I. By a written will, or other writing of the testator, declaring such revocation, and executed with precisely the same for- malities as a will. 2. By being burned, torn, can- celled, obliterated ordestroyed with the intent and for the purpose of revoking the same, by the testator W 1 1,1,8. 41 himself or by some person in his presence and by his direction. When a will is cancelled or destroyed by any other person than the testator, the direction of the testator and the fact of such in j ury or destruction must be proved by two witnesses. Where a will is executed in duplicate its revocation may be made by revoking one of the duplicates. A prior will is not revoked by a subsequent will unless the latter con- tains an express revocation, or provisions wholly in consistent with the terms of the former will, but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will. The destruction, cancellation or revocation of a second will does not revive the first will unless it ap- pears by the terms of such revocation that it was the intention to revive the first will, or unless the first will is duly republished. If after making a will the testator marries and his wife survives him, the will is revoked unless provision is made for her in the will or by marriage contract, or unless she is mentioned in the will in such way as to show an intention not to provide for her. If the wife does not survive the testator the same rule applies if there is issue of such marriage. If the wife survive and the issue be born after the death of the testator or before his death, the same rule ap- plies as to the issue. The revocation of a will re- vokes all codicils. It is not necessary to provide in a will that a child shall receive a dollar or any other amount in order that the will stand.1 lit is sufficient that the child be mentioned by name and the state- ment made that no provision is made. A devise of real property passes all the title owned by the testa- tor at his decease. A devise to any charitable, or be- nevolent society or to any person in trust for chari- 42 WILLS. table uses must not exceed one-third of the estate of any one who has legal heirs, taking such devises col- lectively, and any such disposition of property can be made only by a duly executed will made at" least thirty days prior to the testator's death. 70. Executor; Attorney, Interpretation, Etc. The testator may nominate any person selected by himself to be executor or executrix of his will. If he does not nominate an executor the person who would be entitled to administer in the absence of a will will be entitled to letters of administration. A will which makes no disposition of property what- ever, but simply appoints an executor is valid, and such person would be entitled to administer the es- tate. The testator may request his executor to em- ploy particular attorneys to probate the will but such request is not at all binding upon the executor and he may select his own attorneys. A will is inter- preted the same as other written documents, but if two clauses in a will are absolutely irreconcilable the last will prevail. A devise of the residue will pass all property not otherwise effectually devised by the will. If any prior attempted disposition of property be for any reason invalid, such property will pass to the one to whom the residue is devised. Legacies are due and deliverable at the expiration of one year after the testator's death, and annuities commence at his death unless expressly provided otherwise. An authority to an executor to appoint an executor is void. Before he qualifies the executor may pay funeral charges and take necessary measures for the preservation of the estate. Legacies bear interest from the time they become due except legacies for maintenance or to the testator's widow which bear interest from the testator's decease. MORTGAGES OF REAL PROPERTY. 43 CHAPTER X. MORTGAGES OF REAL PROPERTY. 71. Definition of; How Created. 72. Lien of Extends to What. 73. What Interest may be Mortgaged. 74. May be Assigned. 75. Release, Limitations, Redemption, Etc. 76. Miscellaneous. 77. Definition of; How Created. A mortgage is a contract by which specific prop- erty is hypothecated for the performance of an act, without the necessity of a change of possession. Every transfer of an interest in property, other than in trust, made only as security for the performance of another act is deemed a mortgage If it is of per- sonal property and possession is delivered it is deemed a pledge. A mortgage can be created, re- newed or extended only by writing, executed with the formalities required in the case of a grant of real property. A mortgage is usually dependent upon a pro- missory note but not always. Unless there is con- tained in the mortgage an express agreement that the maker is personally bound, or unless there is a note accompanying the mortgage, the maker of the mortgage is not personally bound to perform the act for which the mortgage is security, and in case of a foreclosure of such a mortgage the maker would not be liable personally for any deficiency between the amount due on the mortgage and the amount for which the property was sold. If there is, however, a note or an express promise on the part of the maker he will be personally liable for any deficiency which appears by the sheriff's return of sale. 44 MORTGAGES OF R EAI< PROPERTY. 7^. Lien of Extends to What. The lien of a mortgage is special unless other- wise expressly agreed, and 'is independent of pos- session. A mortgage is a lien upon everything that would pass by a grant of the property. The mort- gagor has a right to use the mortgaged property in the usual way and is entitled to the rents, issues and profits until foreclosure, but he may not do any act which will substantially impair the mortgagee's security. Any title which the mortgagor acquires subsiquent to the execution of the mortgage inures to the mortgagee as security for the debt, therefore, if at the time of the execution of a mortgage on real property the mortgagor does not own it and he sub- sequently gets the title from the true owner, such title will be deemed security for the debt. 7j. What Interest May be Mortgaged. Any interest in real property which is capable of being transferred may be mortgaged. An undivi- ded interest, a remainder, reversion or contingent re- mainder may be mortgaged. 7^. May Be Assigned. A mortgage may be assigned and the assignment recorded, but if there be a note as the basis of the mortgage and an innocent party pays value for the note, his claim to the money is superior to the holder of the assigned mortgage. The assignment of the debt secured by a mort- gage carries with it the mortgage without any formal assignment of the mortgage, and the mortgage can be enforced by the holder of the debt or note. A re- newal of a note secured by mortgage does not renew MORTGAGES OF 'REAI, PROPERTY. 45 the mortgage and if the security is to be preserved a new mortgage must be executed. 75. Release, Limitations, Redemption, Etc. A mortgage may be released by an entry on the margin of the record, or by the execution and record- ing of a regular release duly acknowledged. There may be a partial release pf the mortgage. The stat- ute of limitation bars a note or mortgage made in this State four years from the date it becomes due, arid on a demand note, the statute commences to run as soon as the note is delivered. Otherwise if payable a certain time after demand. Both real and personal property may be included in a single mortgage, but to make such mortgage valid so far as the personal property is concerned, that is as to creditors, it should be executed the same as a chattel mortgage. Within one year from a sale of property under foreclosure proceedings it may be redeemed by pay- ment of the full a mount due together with one per cent, per month interest. 76 . Miscella neous . Several distinct parcels of land may be included in one mortgage. A man may mortgage his property to secure "an- other's debt. Payment of the debt discharges the mortgage. Mortgage of the fee operates upon a subsequently acquired title. Mortgage is barred when debt is barred. Foreclosure proceedings may be maintained for a default in the payment of interest or a default in the 46 MORTGAGES OF REAL PROPERTY. payment of any installment of the principal. An action on the debt cannot be maintained (that is without foreclosing the mortgage) unless without any act of the morta^ee the security has become valueless. It is not enough that prior incumbrances make the security worthless. In the absence of an express agreement the mortgagee has no right of possession of the mortgaged property until the ex- piration of one year from th^ date of sheriff's sale. In case there is no redemption, the mortgagee has his right of action against the mortgagor for the rents, issues and profits of the property during the year. A foreclosure suit must be brought in the county where the land is situated and counsel fees for fore- closure are allowed only when so provided by note or mortgage. One who acquires property subject to a mortgage does not thereby assume the payment of it and is not bound personally to pay it unless he expressly agrees to do so. If he assumes its payment he will be liable for any deficiency judgment which may be rendered. In order to uphold a transfer 'by a mortgagor to a mortgagee of mortgaged property in satisfaction of the debt it must appear that the transaction was fair, free from undue influence, oppression and fraud and that the price was adequate. A mortgage to secure future advances is valid. The mortgage may give the mortgagee power to sell, but he may still bring foreclosure proceedings if he so elects. A deed, absolute in form, maybe shown to have been intended as security for money and therefore to be a mortgage. MORTGAGES OF REAI, PROPERTY. 47 An agreement by which the mortgagor agrees to pay the taxes levied on the mortgage is unconstitu- tional and void, and the making of such an agree- ment causes the mortgagee to forfeit all interest on his note and mortgage. One who has actual notice of a prior unrecorded mortgage or deed is not protected as an innocent purchaser. If he gets notice prior to the actual pay- ment of his money the holder of the unrecorded deed will hold the titie. 48 NEGOTIABLE INSTRUMENTS. CHAPTER XL NEGOTIABLE INSTRUMENTS. 77. Definition of and Kinds. 78. Meaning of Negotiability. 79. Consideration; Delivery. Limitations. 77. Definition and Kinds. A negotiable instrument is a written promise or request for the payment of a certain sum of money to order or bearer. It must be made payable of money only and without any condition not certain in fulfillment. There are six classes of negotiable in- struments, namely: Bills of Exchange, Promissory Notes, Bank Notes, Checks, Bonds and Certificates of Deposit. 7& Meaning of Negotiability. A negotiable instrument is good for its face in the hands of any innocent holder. A written prom- ise to pay a certain sum of money continues to be negotiable until the same has become due. It then ceases to be negotiable and any person acquir- ing it thereafter takes it subject to any defenses which could have been urged against it in the hands of the original holder. If there was in fact no con- sideration for its execution, if it was fraudulently procured or if there was a consideration which has failed, either would be a defense to an action on the promise after it has ceased to be negotiable. One who obtains it, however, before it is due takes it re- lieved of any inherent defect unless he had in fact actual notice of such defect, so would one acquiring it from the latter. NEGOTIABLE INSTRUMENTS. 4Q 79. Consideration; Delivery. Limitations. As between the parties to a written promise there must have been a valid consideration for its execu- tion, otherwise it is invalid. But in the hands of an innocent purchaser, without notice, it would be valid. The promise takes effect upon its delivery and not before, and is barred at the expiration of four years if made in this state, (two years if made elsewhere) after it becomes due. There are no days of grace in California. A negotiable instrument need not be dated and it need not recite "for value received." If there is a provision in a promissory note that an attorney's fee shall be allowed in case of action, this renders it non-negotiable and subject to any defense which could have been urged against the original holder. A written instrument is presumed to have been based upon a consideration. Every signer upon the face of a promissory note is liable as a maker. A bank note remains negotiable after it has been paid by the maker. A lost note may be sued on just the same as an existing one. 50 LANDLORD AND TENANT, CHAPTER XII. I,ANDI,ORD AND TENANT. 80. Relation of. 81. Rights of the Parties. 82. Term of Hiring. 83. Rent, how Payable. 84. Termination of Tenancy. 85. Notice to Quit and Ousting. 80. Relation of. The relation of landlord and tenant does not ad- mit of dispute by the tenant of the landlord's title to the premises except where the tenant is already in possession of the premises at the time of the creation of the tenancy and has been induced to accept a lease by fraudulent representations of the landlord. 81. Rights of the Parties. The lessor of a building intended for the occupa- tion of human beings, in the absence of an agree- ment to the contrary, must put it into a condition fit for such occupation, and repair all subsequent dilap- idations which render it untenantable except where such deteriorations or injuries are occasioned by the ordinary negligence of the tenant. If, after notice to the landlord to repair dilapidations which the laws require him to repair he neglects for a reasona- ble time to comply, the lessee, if such repairs do not require an expenditure of more than one month's rent, may repair the same himself and deduct the expenses from the rent, or he may vacate the prem- ises and be discharged from further payment of rent or performance of other conditions of his lease. It is the duty of a tenant to notify his landlord of AND TENANT. 51 any proceedings affecting the possessions of the property. 82. Term of Hiring. The term of hiring of real property is left to the agreement of the parties. For agricultural purposes property may be leased for not exceeding ten years and town or city property not exceeding twenty years. A lease of real property, other than lodgings and dwelling houses, in places where there is no usage to the contrary, is, in the absence of agreement, pre- sumed to be for one year from its commencement. A hiring of lodgings or a dwelling house, where there is no specified term, is presumed to be for such length of time as the parties adopt for the estimation of rent. For instance a hiring at a monthly rate is presumed to be for one month; a hiring at a weekly rate is presumed to be for one w r eek. In the absence of any agreement respecting either the length of time or the rent the hiring is presumed to be monthly. If a lessee of real property remains in possession thereof after the expiration of the hiring and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month, when the rent is payable, not in any case on year. 83. Rent; How Payable. When there is no usage or contract to the con- trary rents are payable at the termination of the holding when it does not exceed one year. If the holding is by the day, week, month, quarter or year, rent is payable at the termination of the respective periods as it successively becomes due. 52 LANDLORD AND TENANT. 84. Termination of Tenancy. Where a tenancy is for a fixed and determinate time, as for instance for a particular month or year, the tenancy is terminated by the mere lapse of the time and no notice is required to determine the ten- ancy. If, however, the term is for an indefinite time, as, for instance a renting at a monthly rate, there being no agreement as to how long the term -shall be, such a tenant is known as a tenant at will and in order to terminate his tenancy there must be given to him a thirty days' notice in writing in terms, terminating the tenancy. 85. Notice to Quit and Ousting. Where a tenancy has terminated by mere lapse of time where the tenancy was for a fixed period an action to oust may be based upon a three days' no- tice to quit and surrender the possession. In cases of a tenancy at will as above illustrated there must be a thirty days' notice to qnit and then a three days' notice to quit. BILL, OF SALE. 53 CHAPTER XIII. Bllyl, OF SALE. 86. Definition. 87. Nature of. 88. Validity and Requisites. 86. Definition. By a bill of sale is usually understood a contract by which personal property is sold and transferred. It may be oral or in writing, and recording a bill of sale imparts no additional validity to it. 87. Nature of. The subject of a sale must be property the title 'to which can be immediately transferred from seller to buyer. One who sells personal property, whether it was in his possession at the time of sale or not, must put it into a condition fit for delivery and de- liver it to the buyer within a reasonable time after demand, unless he has a lien thereon. Personal property sold is deliverable at the place where it is at the time of sale or agreement to sell; if it is not yet in existence it is deliverable at the place where it is produced. Transportation is at the buy- er's risk and expense. The title to personal property, sold or exchanged, passes to the buyer whenever the parties agree upon a present transfer and the thing itself is identified, whether it is separated from other things or not. 88. Validity and Requisites. As above indicated a bill of sale of personal prop- erty may be either oral or in writing. As between the parties to a bill of sale there need be no delivery 54 BII.I, OF SAI,E. of the possession of the property sold, but concern- ing the rights of attaching creditors, or of purchasers without notice, from the seller while the seller re- mains in possession of the property it is absolutely indispensable to the validity of the sale that there should be an immediate and continued change of the possession of the property. The change of pos- session required varies with the class of propeity sold. It is required that the change shall be such as would be ordinarily made of the kind of property which is the subject of sale, and it will depend alto- gether upon the character of the property and its situation in determining what will be a sufficient immediate delivery and a continued change of pos- session. The change should be such as would be likely to notify the public that there has been a sale of the property. Acknowledging and recording the bill of sale will not add to its validity in the slightest degree. Property may be bought and then leased to the seller, but there should still be a period of time when the property passed in possession from the seller to the buyer. One who sells the good will of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city or part thereof so long as the buyer or any person de- riving title to the good will from him carries on a like business therein. If any limits of territory ex- ceed this the agreement may still be enforced as far as it is legal. No other restraint of trade or business is permitted in this state. PARTNERSHIP. 55 CHAPTER XIV. PARTNERSHIP. 89. Definition and Nature of. 90. The Property of. 91. Authority Denied Partner. 92. Profits and Losses, How Shared. 93. Liability to Third Persons. 94. Dissolution. 89. Definition and Nature of. Partnership is the association of two or more per sons for the purpose of carrying on business to- gether and dividing its profits between them. A partnership can be formed only by the consent of all the parties thereto and therefore a new partner can not be admitted into the partnership without the consent of every existing member thereof. go. The Property of. The property of a partnership consists of all that is contributed to the common stock at the formation of the partnership and all that is subsequently ac- quired thereby. The interest of each partner ex- tends to every portion of the partnership property, and any property, real or personal, which is acquired with partnership funds is presumed to be partner- ship property. gi. Authority Denied Partner. A partner as such, has not authority to do any of the following acts unless his copartners have wholly abandoned the business to him or are incapable of acting. i. To make an assignment of the partnership property or any portion thereof to a creditor or to a 56 PARTNERSHIP. third person in trust for the benefit of a creditor or of all creditors. 2. To dispose of the good will of the business. 3. To dispose of the whole of the partnership property at once, unless it consists entirely of mer- chandise. 4. To do any act which would make it impossible to carry on the ordinary business of the partner- ship. 5. To confess a judgment. 6 To submit a partnership claim to arbitration. 7. To do any other act which is not necessary to the carrying on of the partnership business in the ordinary manner. 92, Profits and Losses; How Shared. All profits made by a general partner in the course of any business usually carried on by the partnership belong to the firm. In the absence of any agreement on the subject the shares of partners in profits or losses are equal, and an agreement to divide the profits of a business implies an agreement for a corresponding division of the losses unless it is otherwise expressly stipulated. A partner is not entitled to any compensation for services rendered by him to the partnership, unless there be a special agreement to the contrary. pj. Liability to Third Persons. Every general partner is liable to third persons for all the obligations of the partnership, jointly with his copartners. Any one permitting himself to be represented as a partner is liable to third persons who on the faith of such representations have given credit to the partnership. PARTNERSHIP. $7 Formation of. If a partnership proposes to carry on business under a fictitious name, or a name not showing the names of the partners it is required that a certificate showing the proposed name, the general nature of the business to be transacted, the names of all part- ners and their residences, the amount of capital con- tributed by each and the time of commencement and ending of such partnership (which certificate must be acknowledged by all the partners) be filed in the office of the county clerk and recorder of the county in which the principal place of business is to be located. Otherwise the partnership can not bring suit upon any of its contracts. If no certificate is filed any claim or contract may still be assigned to a third peison and a suit maintained in his name. The firm names "Smith & Jones" or "McKinnon & Mul- cahy" are not fictitious within the meaning of the above provision, if such are the real names of the partners 94* Dissolution. If no term is prescribed by agreement for its duration a general partnership continues until dis- solved by a partner or by operation of law. It may be dissolved, ist. By lapse of the time pre- scribed by agreement for its duration. 2d. By the expressed will of any partner if there is no such agreement. 3d. By the death of a partner. 4th. By the transfer by one partner of his interest to one not a partner. 5. By war or tbe prohibition of commer- cial intercourse between the country in which one partner resides and that in which the other resides, 6th. By a judgment of dissolution. 58 MJSCKLLAXKOUS. MISCELLANEOUS. The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded. Intervening Sundays and holidays should all be counted. Every person who has actual notice of circum- stances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact. A minor can not give a delegation of power, nor under the age of eighteen make a contract relating to real property or any interest therein, or relating to any personal property not in his immediate possession or control. A person entirely without understanding has no power to make a contract of any kind, but he is liable for the reasonable value of things furnished to him necessary for his support or the support of his family. A conveyance or other contract of a person of un- sound mind but not entirely without understanding, made before his incapacity has been judicially de- termined, may be rescinded by him. A minor or person of unsound mind, of whatever degree, is civilly liable for a wrong done by him, but is not liable for exemplary damages unless at the time of the act he was capable of knowing that it was wrongful. Agreements for the sale and purchase of real property ought always to be in writing. An oral agreement to buy or sell real property can not be enforced, even where part payment has been made, except in peculiar cases where a refusal to carry out MISCELLANEOUS. 59 the agreement would work a fraud on the one not in default, as for instance, where the buyer has entered into possession of the premises and made valuable improvements. The writing must be certain as to persons, price and subject matter. The description of the property should be accurate. One who hasbeen in the undisputed possession of real property for five years and who has paid the taxes assessed thereon for that length of time ac- quires title to the property. If no taxes have been assessed on the property the adverse possessor never- theless acquires the title. The law requires only that he should pay the taxes levied. Where the statute of limitations has run against a claim, an action may still be maintained thereon, and unless the defendant presents the defense of the statute judgment may be recovered. If he does not answer the complaint a default judgment on an out- lawed claim is valid against the defendant. Where a claim on contract has outlawed the bar of the stat- ute cannot be removed and the debt revived except by an acknowledgment of the indebtedness by the debtor in writing signed by him. Where a debt has been paid by a discharge in insolvency it may be revived by a subsequent prom- ise of the insolvent to -pay it, and such promise need . not be in writing. Wherever, by law, a contract is required to be in writing, it can not be executed by an agent unless his authority as agent is also in writing. Where the law makes a presumption conclusive, courts must follow it. If it is not made conclusive the courts must still be bound by it unless it is over- come by proof. The following are conclusive pre- sumptions; I. A malicious and guilty intent, from the delib- 60 MISCELLANEOUS. crate commission of an unlawful act, for the purpose of injuring another; 2. The truth of the facts recited, from the recital in a written instrument between the parties thereto or their successors in interest by a subsequent title, but this rule does not apply to the recital of a con- sideration ; 3. Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it; 4. A tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation ; 5. The issue of a wife cohabiting with her hus- band, who is not impotent, is indisputably presumed to be legitimate; 6. The judgment or order of a court, when de- clared by law to be conclusive; but such judg- ment 01 order must be alleged in the pleadings if there be an opportunity to do so; if there be no such opportunity, the judgment or order may be used as evidence ; 7. Any other presumption which, by statute, is expressly made conclusive. All other presumptions are satisfactory, if uucon- tradicted. They are denominated disputable pre- sumptions, and may be controverted by other evi- dence. The following are of that kind: 1. That a person is innocent of crime or wrong; 2. That an unlawful act was done with an un- lawful intent; MISCELLANEOUS. 6l 3. That a person intends the ordinary conse- quence of his voluntary act; 4. That a person takes ordinary care of his own concerns; 5. That evidence willfully suppressed would be adverse if produced; 6. That higher evidence would be adverse, from inferior being produced; 7. That money paid by one to another was due to the latter; 8. That a thing delivered by one to another be- longed to the latter; 9. That an obligation delivered up to the debtor has been paid; 10. That former rent or installments have been paid when a receipt for later is produced; TI. That things which a person possesses are owned by him. 12. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his ownership; 13. That a person in possession of an order on himself for the payment of money, or delivery of a thing, has paid the money or delivered the thing accordingly; 14. That a person acting in a public office was regularly appointed to it; 15. That official duty has been regularly per- formed ; 16. That a court or judge, acting as such, whether in this state or any other state or country, was acting in the lawful exercise of his jurisdiction; 17. That a judicial record, when not conclusive, 62 MISCELLANEOUS. m , the day and year in this certificate first above written. Notary Public in and for the County of , State of California. form No. 6. HUSBAND AND WIFE. STATE OF CALIFORNIA,) COUNTY OF . J v On this day of in the year one thousand eight hundred and ninety , before me, , a No- tary Public in and for said County and State, residing therein, duly commissioned and sworn, personally appeared, -^ and wife of said known to me to be the persons described in, whose names are subscribed to and who executed the within instru- ment, and they acknowledged to me that they execu- ted the same. In witness whereof, I have hereunto set my hand and affixed my offi- cial seal at mv office in the FORMS OF CERTIFICATES. 8l County of , the day and (Notarial Seal.) year in this certificate first above written. Notary Public in and the County of , State of California. Form No. 7. MARRIED WOMAN. STATE OF CALIFORNIA.) COUNTY OF J On this day of in the year one thousand eight hundred and ninety before me, , a No- tary Public in and for said County and State, residing therein, duly commissoned and sworn, personally ap- peared the wife of known to me to be the per- son described in, whose name is subscribed to and who executed the within instrument, and she ac- knowledged to me that she executed the same. In witness whereof, I have hereunto set my hand and affixed niy official seal at my office in the County of the day and (Notarial Seal.) year in this certificate first above written. Notary Public in and for the County of -7-' State of California. Form No. 8. INTERPRETER. STATE OF CALIFORNIA,) , ( COUNTY OF | Si On this day of in the vear one thousand 82 FOB MS OF CERTIFICATES. eight hundred and , before me [name of notary] a Notary Public in and for said county, residing therein, duly commissioned and sworn, personally ap- peared [names of individuals executing instrument] known to me to be the person described in, whose name -subscribed to, and who executed the within instrument, and acknowledged to me through [name of interpreter] a competent and reliable in- terpreter, sworn by me, that he executed the same. In witness whereof I have herenuto set my hand and affixed my official seal, at my office in said [Notarial Seal.] county of -, the day and year in this certificate first above written : , Notary Public in and for the County of , State of California. Form No.