prohibitory and regulatory legislation admits of, has resulted in, and will continue to result in the indiscriminate and unrestrained solicitation of custom and patronage upon such trains, cars, boats and vehicles and at and about such railroad depots and premises and upon public streets and sidewalks adjacent thereto, and the peace of the general public will be disturbed and the safety of the general public will be greatly and seriously endangered, and the gen ́eral public, but especially the traveling public, and more especially unaccompanied females arriving in the city of Los Angeles by rail, and otherwise, will be greatly annoyed, inconvenienced and harassed and their comfort, safety, welfare and health endangered thereby, for which said reasons this ordinance is urgently required for the immediate preservation of the public peace, health and safety, and the city clerk shall certify to the passage of this ordinance by a three-fourths vote of the city council and cause it to be published once in the Los Angeles Daily Journal, and thereupon it shall take effect and shall thereafter be in force." Before the expiration of 30 days after the passage of the ordinance appellant presented to respondent referendary petitions against the enactment. The petition in this matter alleges that these referendum petitions were in all respects according to law in form, and that they were presented to respondent in the manner required by law. It is also alleged that they contained the signatures of such a number of the qualified electors of the city as made it incumbent upon respondent to file and examine them and to certify and present them to the city council, these duties being required of respondent by the provisions of the city charter in proper cases. Upon due request therefor, respondent refused to perform the acts mentioned, and the it necessarily follows that for lack of such legislation there must have resulted, and it is equally true that there would have followed, an "indiscriminate and unrestrained solicitation of custom and patronage" upon the means of conveyance mentioned in the ordinance and at and about the places referred to in it. It appears to us that it would follow, as well, from the absence of such regulatory legislation in a large city, that the peace of the general public would be disturbed; that the safety of the general public would be greatly and seriously endangered; that the general public, and especially the traveling portion of it, and more especially women travelers, would be greatly annoyed, inconvenienced, and harassed, and their comfort, safety, welfare and health endangered. [1, 2] Therefore, was there, at the time of the passage of the attacked ordinance, no ordinance in force in Los Angeles upon the same subject? The assertion of the city council that there was not would ordinarily stand as conclusive. A city legislative body must always have the highest degree of knowledge as to what of its enactments have been repealed and what are still in force. When such a body, in the pursuit of its legislative duty, makes an assertion based upon that knowledge, the assertion demands the fullest respect and credence at the hands of the courts, unless its falsity be adequately demonstrated, if, indeed, the courts are not absolutely bound by it, which we need not now decide. Speaking on a somewhat similar subject and having in mind a principle which is equally applicable here, this court said in County of Los Angeles v. Dodge, 197 Pac. 403: filing of the petition in this matter by ap-visors or city council engaged in the exercise "When the Legislature or a board of super pellant was the outcome of the refusal. The question of the sufficiency of the petition for a writ of mandate turns upon two points: First, are the statements of fact made in the ninth section of the ordinance to be taken as true? Second, if they are so to be taken, do they, together with the subject-matter of the ordinance, show that it presented such a case or urgency as is contemplated by the above-quoted provisions of section 198g of the city charter? The statements of fact in section 9 which are principally of moment in treating the first question are those to the effect that, by reason of the repeal of certain designated ordinances, "there is now no ordinance of the city of Los Angeles in force or effect regulating" the matters which are the subject of the enactment sought by appellant to be set aside by the referendum. If this statement is true the assertions made immediately following it are necessarily true. To be more specific, if it be true that at the time of the passage of the ordinance now under consideration there was in force in Los Angeles no ordinance covering the same subject-matter, of legislative functions proceeds upon the assumption that the matter concerning which it acts is one affecting the public interest or designed to promote the general welfare, the assumption is conclusive upon the courts, unless it is plainly apparent to them that the view [entertained by the legislative body] is without just foundation." [3] Appellant's petition for a writ of mandate does not adequately controvert the assertion made by the council, granting for the sake of argument that it might have been controverted at all. The pleading merely "denies that at the time of the enactment" of the ordinance in question here "there was no ordinance of the city of Los Angeles in force and effect, or force or effect, regulating the solicitation of custom and patronage, or custom or patronage, in or about the railroad depots or premises, or upon public streets or sidewalks adjacent thereto, or regulating the solicitation of such custom and patronage upon trains, cars, boats, and vehicles, or upon trains, or cars, or boats, or vehicles operated as common carriers, or (202 P.) regulating the standing of vehicles upon depot grounds or premises or upon public streets adjacent thereto. Petitioner denies (54 Cal. App. 614) MCCORD v. MADDUX et al. (Civ. 3943.) that there ever was an absence of such leg- (District Court of Appeai, First District, Di islation of any nature, whatsoever or at all." There was no attempt to show, by affirmative allegation in support of petitioner's contention, what ordinances were in force upon the subject in question. In short, the petition treated the assertion of the council merely as if it were contained in a pleading of a private adversary in an action at law, not as the formal statement of a fact peculilarly within its knowledge made by a public legislative body in the performance of its duty. Such a treatment does not meet the exigencies of the occasion. The assertion of the council must stand as unimpeached and conclusive. vision 1, California. Oct. 20, 1921. Hearing Denied by Supreme Court Dec. 19, 1921.) 1. Appeal and error 1071(1)—Finding, if outside the pleading, held not to harm appellant. In an action by special administrator to set answer of the grantees alleged title from the aside a deed given by intestate in which the date of the deed, but did not allege, as was the fact, that the deed was placed in escrow to be delivered on death of grantor, finding of the court that title presently passed by such escrow delivery was not harmful to plaintiff appellant if outside the pleading, where he was fully aware of the fact. 2. Deeds 208 (5)-Conveyance placed in escrow, to be delivered, on death held to pass title. [4] Having arrived at this determination, the remaining question is easy of solution. It is, in fact, practically settled by what we In action by special administrator to set have said in discussing the first question, son, to be delivered to grantees on her death, aside a deed given by intestate to a third perfor we have already expressed the view that evidence held to show that intestate intended to the other matters stated in section 9 natural-presently grant the title to grantees, and not ly and inevitably follow from the assertion to exercise control over the deed. that there was not in force in Los Angeles, 3. Deeds 61-Present title may pass on deat the time of the passage of the assailed livery to third person to deliver on death of ordinance, any ordinance upon the same subgrantor. ject. Further, however, the ordinance now in question has already been before the first division of this court in a proceeding in which the point now before us, if not actually concluded, was in the mind of the court. It was there said: "The legislative body, presumably upon a sufficient investigation and knowledge of the situation existing, has determined that facts existed constituting an emergency, such that the peace and safety of the community, and particularly the traveling public, required that appropriate legislation be immediately enacted. The facts recited in the ordinance are facts which reasonably might be held to constitute such emergency." Ex parte Statham, 187 Pac. 986. A person may make a conveyance of property and place it in the hands of a third party, to be delivered to the grantee on the death of the grantor, and such delivery will be effectual tion is to make such delivery absolute, and to pass a present title if the grantor's intenplace it beyond his power thereafter to revoke or control the deed. Appeal from Superior Court, Napa County, Henry C. Gesford, Judge. Action by James H. McCord, as special administrator of the estate of Mary McCord, against Lillie E. Maddux and others. Judgment for defendants, and plaintiff appeals. Affirmed. McKannay & Hunt, of San Francisco, for appellant. Clarence N. Riggins, of Napa, for respond The courts have made frequent declaration concerning the harassing and annoying char-ents. acter of the unrestrained practices which it was the object of the ordinance in question to restrain and regulate (Depot C. & B. Co. v. Kansas City T. Ry. Co. [C. C.] 190 Fed. 212; Donovan v. Pennsylvania Co., 199 U. S. 279, 26 Sup. Ct. 91, 50 L. Ed. 1921. See, also, Redline T. Agency v. Southern Pac. Co., 3 Ops. and Ords. R. R. Comm. Cal. 526). We are satisfied that the ordinance was an urgency measure within the terms of section 198g of the Los Angeles charter. The demurrer was properly sustained. Judgment affirmed. RICHARDS, J. This appeal is from a judgment in favor of the defendants in an action brought by the plaintiff as special administrator of the estate of Mary McCord, deceased, to quiet title to certain real estate situate in the county of Napa, and to have canceled a certain deed from Mary McCord to Lillie E. Maddux and Anna A. Newell, two of the defendants in the action, which had been placed of record, and thus constitutes a cloud upon the title to said property, and which deed the plaintiff alleges the said decedent never made nor delivered to said We concur: FINLAYSON, P. J.; CRAIG, J. grantees. The answer of the defendants For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes denies title to said premises in Mary McCord at the time of her death, and alleges that said Mary McCord in her lifetime, and while the owner of said real estate, made, executed and delivered said deed thereto to the said grantees named therein, who had ever since been, and still were, the owners of the whole thereof. The cause went to trial upon the issues as thus presented, when certain evidence, to be hereafter adverted to, was educed. Upon its submission the trial court, after making certain formal findings, proceeded to find that Mary McCord, on or about the 5th day of October 1912, while the owner of the whole of said real estate, had freely and voluntarily made, signed, and acknowledged her deed in writing, whereby she granted and conveyed unto said Lillie E. Maddux and Anna Augusta Newell all of said property, and that on or about said date she had delivered said deed to one W. J. Blake, and then and there instructed said Blake to hold said deed during her lifetime, and upon her death to deliver the same to said grantees; that said Mary McCord reserved no power thereafter to revoke or control said deed, and intended at the time she so delivered it to said Blake to make said delivery absolute, and to place said deed beyond her power and control, and thereby divest herself of the title to said real estate, excepting a life estate therein; that said W. J. Blake held said deed pursuant to said instructions during the lifetime of said Mary McCord and upon her death delivered the said deed to said grantees. As conclusions of law from the foregoing findings of fact, the trial court found said defendants to be the owners of the property, and ordered judgment in their favor. From such judgment this appeal is taken. [1] The first contention of the appellant is that the trial court in making the foregoing findings had gone outside the issues in the case, to the plaintiff's injury. It is true that the defendants in their answer asserted complete title in themselves from and after the 5th day of October, 1912, the date of the execution of said deed, and had not pleaded nor relied upon an escrow delivery of the same to W. J. Blake as the source of their title. But in their answer elsewhere the defendants had denied the plaintiff's asserted right and interest in said property, and had generally averred title in themselves. This would have put the plaintiff upon proof of his own asserted title, and thus have created an issue which would have justified the findings of the trial court. The only ground for complaint on the part of the plaintiff and appellant would be that he was in some way misled to his injury by the findings of the court; but in this respect the record shows that he was at all times during, and even prior to, the trial of the cause fully aware of the circumstances surrounding the making and delivery of the deed which formed the sole basis of the defendants' assertion of ownership of the premises in question, and hence could neither have been misled nor surprised by the findings and conclusions of the trial court. [2] The next, and main, contention of the appellant is that the findings of the trial court to the effect that Mary McCord, at the time of the making, execution, and delivery to W. J. Blake of the deed in question, did and intended to divest herself of the title to the real estate therein described, are against the evidence, the contention of the appellant being that upon the undisputed facts in the case the findings of the court should have been that the grantor in said deed, by her said making and delivery of the same, did not intend to divest herself of the power to revoke said deed or control the title to the premises described therein, but only intended and attempted to make a testamentary disposition of the property, to become effectual at the time of her death. In order to test this contention, the facts of the case may be briefly recited: Mary McCord, on October 5, 1912, was, and for some years prior thereto had been, the owner and in possession of the real estate involved in this action, which consisted of a farm known as the "home place," and which at that time was in the possession of one James H. McCord, who was her son, and who was holding and cultivating the premises as her tenant. She was then 78 years of age, and was living with one or the other of her two daughters, the defendants herein. She had recently been subject to a severe illness, from which she was somewhat recovered. For several years prior to said date she had for her business agent one W. J. Blake, who was in the real estate and insurance business in St. Helena, and was also a notary public and justice of the peace. He held in fact her power of attorney, and attended to the details of her affairs, particularly with reference to the leasing and handling of the home place. On or about said last-named date she sent for Mr. Blake, who came to the Kibbler building in St. Helena, where she was staying with one of her daughters, and she there instructed him to prepare certain papers, consisting of a deed of gift of the home place, and also of a bill of sale of the personal property thereon, to her two daughters, Mrs. Maddux and Mrs. Newell. He returned to his office and prepared said documents for her signature, and took them to her in the Kibbler building, where she signed and acknowledged the same, and then gave them to him, with instructions to deliver them to Mrs. Maddux and Mrs. Newell upon her death. Mr. Blake took the two documents to his office, placing them in his safe. Within a few days thereafter Mary McCord requested her two daughters to go with her to the (202 P.) office of Mr. Blake, where, according to the [ McCord in the making and delivery of the testimony of Mrs. Newell, she said the papers deed in question to Mr. Blake was a question were, "and that she would hand them to us." of fact to be determined by the trial court in They went there on the following day, and the light of all the circumstances in the case, when they arrived at Mr. Blake's office Mrs. and that his conclusion thereon will not be McCord asked for the papers, in order, as she disturbed by the court upon appeal. It is stated, to hand them to her daughters. Mr. therefore interesting to see just what was Blake gave them to her, and she then handed decided in the case of Williams v. Kidd. them to her daughters, passing the papers to each of them and telling them what they were, after which she gave the papers back to Mr. Blake, and repeated her instructions to him to keep them safely and deliver them to Mrs. Maddux and Mrs. Newell after her death. There was a further transaction which shed some light upon this one. Mrs. McCord had a deposit in a local bank about which she had also consulted Mr. Blake at the time of the delivery to him of the papers above referred to, and he testified that she asked him to arrange the matter of her bank deposit so that Mrs. Maddux and Mrs. Newell might have her bank deposit upon her death, and he advised the opening of a joint account in the names of her two daughters and herself. This she did immediately after the transaction with reference to the deeds. Thereafter, and up to the time of her death in 1919, Mrs. McCord continued to live with one or the other of her said daughters. She also, with the aid of Mr. Blake, attended to whatever business was to be done with reference to the lease and change of tenants upon the premises in question, and payment of the taxes thereon. She also made sales of some small portions of the personal property thereon, such as a horse for $10, and some puncheons | for an unascertained price. She also paid the insurance upon the buildings on the property, and made or caused to be made some minor repairs thereon. The papers affecting the property remained uncalled for and unchanged in the hands of Mr. Blake until her death intestate in 1919. Within a few days thereafter they were delivered to the grantees by Mr. Blake and duly recorded. Upon these facts as above briefly recited, the appellant contends that the trial court should have found that Mary McCord, in making and delivering the deed in question to Mr. Blake, did not intend to vest the present or any title to the premises described therein, or to do other than attempt to make a testamentary disposition thereof, and that the findings of the court as to the existence and consummation of such an intention are not supported by the evidence in the case. In making this contention counsel for the appellant strongly relies upon the case of Williams v. Kidd, 170 Cal. 631, 151 Pac. 1, Ann. Cas. 1916E, 703. Singularly enough, the respondents also strongly rely upon the same case as supporting their contention, which is that the question as to the intent of Mary [3] The learned and lamented Justice Lorigan, who wrote the opinion in that case, laid down very clearly and correctly the law governing cases of this character. We cannot do better than to quote some excerpts from that opinion: "It is well settled," says the learned justice, "that a person may make a conveyance of property and place it in the hands of a third party to be delivered to the grantee named in it on the death of the grantor, and that such a delivery will be effectual to pass a present title to the property to the grantee if the intention of the grantor is to make such delivery absolute and place it beyond the power thereafter to revoke or control the deed. Where delivery is made under these circumstances and with this intention, it is fully operative and effective to vest a present title in the grantee, the grantor retaining only a life estate in the property, and the third party or depositary holds the deed as a trustee for the grantee named in it. Bury v. Young, 98 Cal. 451, 35 Am. St. Rep. 186, 33 Pac. 338; Moore v. Trott, 156 Cal. 353, 134 Am. St. Rep. 131, 104 Pac. 578. that, where a deed is deposited with a third "On the other hand, it is equally well settled party, to be handed to the grantee on the death of the grantor, unless this is accompanied by an intention on the part of the grantor that title to the property shall thereby immediately pass to the grantee, there is no delivery of the deed, and consequently no title is transferred. If the deed is handed to the depositary without any intention of presently transferring title, but, on the contrary, the grantor intended to reserve the right of dominion over the deed and revoke or recall it, there is no effective delivery of the deed as a transfer of title. So, too, if it be the intention of the grantor when he deposits a deed that it shall only be delivered to the grantee by the depositary after the death of the grantor, and that the title is to vest only upon such delivery after his death, then the deed is entirely inoperative as constituting an attempt by the grantor to make a testamentary disposition of his property. This may only be done by will executed as required by the law of wills of this state, and a deed, the purpose of which is intended to be testamentary, cannot be given effect. "It is essential to the validity of a transfer of real property that there be a delivery of the conveyance with intent to transfer the title, and the true test under which delivery is to be determined is in ascertaining whether in parting with the possession of the conveyance the title. If he did, there was an effective delivery grantor intended thereby to divest himself of of the deed. If not, there was no delivery. The solution of this question is grounded entirely on the intention of the grantor, and this essential matter of intention is a question of fact to be determined by the trial court from a con- | sideration of all the evidence in a given case bearing upon the question. Bury v. Young, 98 Cal. 451, 35 Am. St. Rep. 186, 33 Pac. 338; Kenniff v. Caulfield, 140 Cal. 34, 73 Pac. 803; Est. of Cornelius, 151 Cal. 552, 91 Pac. 329; Follmer v. Rohrer, 158 Cal. 757, 112 Pac. 544." Following a careful review of the facts in that case, which differ in certain essential respects from the facts of the case at bar, the learned justice continued: SAMPANES v. CHAZES. (Civ. 2333.) (District Court of Appeal, Third District, California. Oct. 19, 1921.) Judgment 143 (17)-No abuse of discretion in setting aside default judgment entered contrary to settlement. Where an affidavit and oral testimony in support of a motion, under Code Civ. Proc. § 473, to set aside a default judgment, showed that a complete settlement was entered into between the parties, and that plaintiff agreed to dismiss the action, but failed to do so, and that defendant did not learn of the default until some time after it was entered, the trial court did not abuse its discretion in granting the motion. "These matters, in the main, make up the evidence under which the court was to deter-1. mine whether, when Williams delivered the deed in question to Kidd, he intended thereby to pass a present title in the property to the grantee. The court found that he did not. This finding of the court, it is true, rests mainly upon inferences which it deduced from the facts and circumstances in evidence; but if these inferences were fairly and reasonably deducible from them, the finding must stand. This court cannot set aside the finding of the trial court unless it appears that there is no evidence to support it, or the evidence is so clearly preponderating against the finding as made that it can be said that there is no substantial evidence to sustain it. We are satisfied from a full consideration of the evidence that this cannot be said." From these extended excerpts drawn from that case it will be seen that the Supreme Court has clearly determined that the question as to the intention with which the grantor of real estate makes and delivers a deed thereof to a third person, with instructions to deliver the same to the grantee upon the death of the grantor, is a question of fact to be determined by the trial court from all the circumstances of the case, and that its determination of that fact, if it can be fairly drawn as a reasonable inference from evidence educed before the trial court, will not be disturbed upon appeal. The Supreme Court did not disturb the determination of the trial court in the case of Williams v. Kidd, nor do we think we should do so in the case at bar. From a careful review of the evidence in this case we are convinced that the inference could fairly and reasonably be drawn that the grantor in the deed in question intended by her act in making the same, in delivering it to Mr. Blake, in handing it to the grantees, and in explaining to them its purpose, in redelivering it to Mr. Blake with the instruction to keep it safely and deliver it to her two daughters upon her death, in leaving the said deed with its depositary for the seven remaining years of her life, in making no other or further attempt to dispose of the premises other than temporary uses consistent with a life estate therein, and in finally dying intestate, manifested an intention to transfer the title to the premises in question by delivery of the deed; and, the trial court 2. Appeal and error 935 (2)—Delay in moving to set aside default presumed satisfactorily excused, where parol proof not brought up. Where parol proof, supplementing an affidavit in support of a motion to set aside a default judgment, was not brought up, the presumption is that it furnished a complete and satisfactory excuse for any delay in instituting the proceedings, which was not sufficiently explained in the affidavit; all intendments being in favor of the validity of the trial court's action and the regularity of the proceedings therein. 3. Judgment 160-Affidavit of merits, In support of motion to set aside default, held sufficient. An affidavit, in support of a motion to set aside a default judgment, "that affiant has fairly and fully stated the facts of the case and those upon which he bases his defense," etc., is a sufficient affidavit of merits. 4. Judgment 160-Verified answer, denying all material allegations of complaint, held sufficient affidavit of merits on motion to set aside default. A verified answer, filed with a notice of a motion to set aside a default judgment, positively denying all the material allegations of the complaint, is a sufficient affidavit of merits. Appeal from Superior Court, Sacramento County; Peter J. Shields, Judge. Action by Andrew Sampanes against Sam Chazes. From an order setting aside a default judgment, and permitting defendant to answer, plaintiff appeals. Affirmed. Charles L. Gilmore, of Sacramento, for appellant. Ralph H. Lewis and A. B. Reynolds, both of Sacramento, for respondent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |