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ately paid back again to the account or for the use for which the credit is given." (2 Morse on Banks and Banking, sec. 451; Oddie v. National City Bank, 45 N. Y. 735, [6 Am. Rep. 160]; Bartley v. State, 53 Neb. 310, 337, [73 N. W. 744]; American Exchange Nat. Bank v. Gregg, 138 Ill. 596, [32 Am. St. Rep. 171, 28 N. E. 839]; First Nat. Bank v. Burkhardt, 100 U. S. 686, [25 L. Ed. 766]; City Nat. Bank v. Burns, 68 Ala. 267, [44 Am. Rep. 138].) "The giving of credit is practically the same as paying the money to the depositor and receiving the cash again on deposit." (2 Morse on Banks and Banking, sec. 569.) "When a check on itself is offered to a bank as a deposit, the bank has the option to accept or reject it, but if it is received as a deposit, there being no fraud or lack of good faith and the check being genuine, and is credited to the depositor, it will operate as a payment." (7 Cyc. 1008.) The rule is the same where the holder of the check obtains credit by having the bank certify the check; the drawer is discharged. (5 Am. & Eng. Ency. of Law, 1055.) The fact that the Safe Deposit Company was insolvent at the time of these transactions, they having been made in good faith and the insolvency being unknown to all the other parties, does not change the effect of the conduct of the Bank of Ogden in taking credit with the Safe Deposit Company instead of demanding payment. (First Nat. Bank v. Currie, 147 Mich. 72, 82, [118 Am. St. Rep. 537, 11 Ann. Cas. 241, 9 L. R. A. (N. S.) 698, 110 N. W. 499].) "An indorsee may always insist that the conditions requisite to make his undertaking enforceable shall be strictly complied with, namely, presentment for payment and notice of dishonor." (Id.) The drawer of a check has the same rights. (Civ. Code, sees. 3177, 3254, 3255.) The presentation of the check and the acceptance of credit instead of payment was a waiver of payment. The railway company did not authorize the taking of credit. That act created the relation of debtor and creditor between the Safe Deposit Company and the Ogden bank and satisfied the check. The railway company cannot be held responsible because of the fact that, unknown to both parties, the Safe Deposit Company was insolvent and has been unable to pay, and has not paid, its debt to the Ogden bank. The fact that the railway company was aware of the custom of the Utah company to collect checks by creating such indebtedness, instead of exacting payment, does not make the rail

way company a guarantor of that indebtedness nor otherwise responsible for its payment.

The plaintiff insists that "the giving of a check upon an insolvent bank is not a payment of the debt for which it is taken." This may be admitted. A check is never a payment of the debt for which it is given until the check itself is paid or otherwise discharged, unless expressly agreed to be taken in payment. (Morse on Banks and Banking, secs. 543, 544.) But here the checks, though not agreed to be taken as payment, were satisfied by the taking of credit therefor. This satisfaction exonerated the railway company, regardless of the solvency or insolvency of the drawee.

The finding that the Safe Deposit Company could and would have paid the checks in cash, had payment been insisted on, conceding it to be material, is based on inferences which we cannot say are unreasonable, even if we could inquire into such matters. Hence we cannot disturb the finding.

That

The fact that Brown was president of the Safe Deposit Company and also treasurer of the railway company, and that he had, as president, personal knowledge of the insolvency of the Safe Deposit Company, does not make that knowledge imputable to the railway company. He did not control the money of the railway company, nor cause it to be deposited in the Safe Deposit Company, nor have power to do so. matter was controlled by the latter's board of directors. The duties of Brown as treasurer of the railway company gave him no knowledge of the insolvency of the Safe Deposit Company. His knowledge was not communicated to the former, and therefore cannot be charged to it. (Lothian v. Wood, 55 Cal. 159, 162; Wittenbrock v. Parker, 102 Cal. 93, 102, [41 Am. St. Rep. 172, 24 L. R. A. 197, 36 Pac. 374]; Iverson v. Metropolitan etc. Ins. Co., 151 Cal. 746, 750, [13 L. R. A. (N. S.) 866, 91 Pac. 609]; 2 Cor, Jur. 863.)

Plaintiff also invokes section 1533 of the Civil Code, relating to novation. A novation is the substitution of a new obligation for an existing one. (Civ. Code, sec. 1530.) The clause of section 1533 relied on provides that a rescission of a contract of novation may be made, when an order of a third person "is accepted in satisfaction," if at the time the order is received the third person on whom it is drawn is insolvent and the fact is unknown to the creditor. The checks of the railway company were not given as payment nor "accepted

in satisfaction" of its debt. They were given merely as a convenient mode of payment, and were to operate as payment and satisfaction only in the event that they were paid or otherwise satisfied. The giving and acceptance of the checks was, therefore, not a novation. The only novation that took place was that between the Ogden bank and the Safe Deposit Company when the former accepted the obligation of the latter in the place of and in discharge of the checks. To that novation the railway company was not a party. A rescission thereof by the two banks and the plaintiff could not place the railway company in statu quo, nor revive its extinguished liability on the checks. Section 1533 has no application to the case.

It is also contended that since, under section 3255 of the Civil Code, the drawer of a check is exonerated by delay in its presentment only to the extent that he suffers injury thereby, and as the Safe Deposit Company was, at the time of presentment, and ever since has been, hopelessly insolvent, the railway company has suffered no injury by the delay and is not exonerated. This argument loses sight of the fact that the arbitrator has found that payment could have been made if it had been insisted on. But in any event the section applies only to a case where there has been delay in presentment, not to a case where there was a presentment to the drawee and credit with the drawee was accepted in lieu of cash.

We find no other points deserving of notice.
The judgment and order are affirmed.

Sloss, J., and Lawlor, J., concurred.

[L. A. No. 3828. Department Two.-January 3, 1917.]

MARY F. FRANCIS, Appellant, v. WEST VIRGINIA OIL COMPANY (a Corporation), Respondent.

UNLAWFUL DETAINER-CONTRACT FOR SALE OF LAND-VENDEE IN DEFAULT NOT A TENANT AT WILL.-A vendee in possession of land under a contract of sale, who has defaulted in the payment of an installment of the purchase price, does not become a tenant at will subject to removal by the summary method of a suit in unlawful detainer.

ID.-ACTION ONLY LIES WHEN RELATION OF LANDLORD AND TENANT EXISTS. The action of unlawful detainer can be maintained only where the conventional relation of landlord and tenant subsists between the parties. In other words, the action is limited to those cases in which the tenant is estopped to deny the landlord's title. ID. EVIDENCE OF TITLE OF DEFENDANT.-While the validity of titles may not be tried in unlawful detainer proceeding, evidences of title are admissible to show the character or extent of the possession claimed by the defendant.

ID. IMPLIED RIGHT OF POSSESSION UNDER CONTRACT.-A contract for the sale of land may by implication give the vendee the right to immediate possession even where it contains no express provision to that effect.

ID.-CONTRACT FOR SALE OF OIL LAND-RESTRICTION AGAINST REMOVAL OF PIPES AND CASINGS.-A provision in a contract for the sale of oil lands, that the vendee should not remove or cause to be removed any of the pipe or casing in any well drilled on the property, and that in the event of a forfeiture of the right to purchase, the casings and derricks should revert to the vendor, gives the vendee the right of possession and occupancy of the property by implication.

APPEAL from a judgment of the Superior Court of Kern County. J. W. Mahon, Judge.

The facts are stated in the opinion of the court.

Matthew S. Platz, and C. E. Arnold, for Appellant.

George E. Whitaker, for Respondent.

MELVIN, J.-Plaintiff appeals from an adverse judgment. By her pleading Mary F. Francis alleged that in the month of September, 1911, defendant had gone into possession of

certain land in Kern County with her knowledge and acquiescence as her tenant at will; that on May 2, 1912, she had served notice requiring the West Virginia Oil Company to vacate the premises, but that said corporation had refused to accede to her demand. She alleged her right to the possession of the land and prayed for its restitution.

Defendant admitted possession and refusal to surrender the land to plaintiff but denied the alleged tenancy at will.

At the trial it clearly appeared that the defendant had gone into possession after the execution of certain contracts of sale. The first of these contracts was made by Mrs. Francis and Mr. E. S. Good. The latter assigned all of his rights under this agreement to the West Virginia Oil Company and in January, 1912, a new writing was executed by plaintiff and that corporation ratifying the assignment and substituting the West Virginia Oil Company as vendee in Mr. Good's place. This agreement called for the payment of stipulated sums at stated times, and the plaintiff in her testimony said that she had received fifteen thousand dollars on the purchase price and six hundred dollars by way of interest. It was also in evidence that the defendant had expended something more than eighty-five thousand dollars in developing oil on the property.

It seems to be the theory of the plaintiff that when the defendant corporation defaulted in one of the payments on the purchase price it at once became a tenant at will subject to removal from the land by the summary method of a suit in unlawful detainer. In this she is in error. The true rule with reference to the existence of the relation of landlord and tenant necessary to support an action in unlawful detainer is thus expressed in Jones on Landlord and Tenant, section 563:

"The action of unlawful detainer can be maintained only where the relation of landlord and tenant subsists between the parties to the action, and hence it becomes material to determine whether parties stand in that relation to each other. While it is not necessary to show an express demise or letting of lands to sustain the action, the facts must show impliedly at least that the defendant occupies as tenant of the plaintiff and this must be something more than a mere quasi tenancy. It is sometimes said that one who is in possession of lands under a contract for a sale is a tenant at will to the owner. This is true in a restricted sense only. He is a tenant at will just as a mortgagor after condition broken is a tenant at will of

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