all his property. He was worth in round numbers $100,000, and the gifts amounted to only about one-fourth of that sum.

It is difficult to know what value to attach to the findings (27 and 28) that the Shorbs, by reason of their previous acquaintance, sympathy, attentions, etc., but "not otherwise," could "easily influence and control" the deceased, "but not so as to deprive him entirely of his free will;" for it is expressly found that the said defendants did not use any influence to procure the gifts in question. It is expressly found that "neither the defendant Mattie L. Shorb nor the defendant A. S. Shorb importuned or solicited said Harris to transfer or deliver to Mattie L. Shorb either the check for five hundred ($500) heretofore referred to, or the check for twelve hundred eighty-eight and 25-100 dollars, ($1,288.25,) heretofore referred to, or the said certificate of deposit for twenty-five thousand dollars ($25,000) issued by the Merchants' National Bank of Tacoma;" and all the averments of the complaint as to a conspiracy by defendants to obtain and use undue influence over the deceased are expressly negatived by the findings. If the said findings (27 and 28) mean anything more than that defendants merely had that influ ence which comes from kindness and affection, and which is not "undue," then they are not supported by the evidence, and are inconsistent with other findings. But, under any view that may be taken of them, it is. clear that the one pivotal question in the case is, was deceased on July 3d of unsound mind, and incapable of making a gift? Under the foregoing views, we do not deem it necessary to discuss the other questions presented in the record. The judgment and order appealed from are reversed, and the cause remanded.

We concur: DE HAVEN, J.; FITZGERALD, J.

(5 Cal. Unrep. 759)

MESERVE et al. v. POMONA LAND & WA-
TER CO. et al. (No. 19,112.)
(Supreme Court of California. Oct. 10, 1893.)
HARMLESS ERROR.

Where the record shows that evidence offered by plaintiff was admitted subject to defendant's objections, plaintiff cannot complain of the subsequent failure of the court to rule on the objections.

Department 2. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge.

Action by E. A. Meserve and others against the Pomona Land & Water Company and others. There was a judgment in favor of defendants, and plaintiffs appeal. Affirmed.

Chapman & Hendrick and Edwin A. Meserve, for appellants. Olney, Chickering & Thomas, for respondents.

PER CURIAM. The plaintiffs claim to own, and to be entitled to divert and use upon their lands, 567-10,000 of all the waters flowing in and from the San Antonio canyon, which is located partly in Los Angeles county and partly in San Bernardino county; and they brought this action to have their title to the part of the said waters, so claimed by them, quieted, as against the defendants. The answer denied all the material averments of the complaint, and set up in bar of the action the statute of limitations. The court below found the facts and gave judgment in favor of the defendants, and the plaintiffs appeal from an order denying their motion for a new trial. The findings cover all the issues, and the principal contention of the appellants is that they were not justified by the evidence. The evidence set out in the statement is oral and documentary, and, while much of it is only briefly stated in substance, it still extends over more than 150 pages of the printed transcript. The facts of the case are numerous, and in many respects complicated, and to state them so they could be intelligently understood would require a long opinion, which would never be of use in any other case. Counsel on both sides have argued the questions presented at great length, and with marked ability; but to follow them, and state their points, would subserve no useful purpose. It is enough

to say that, after carefully going over the record, we think the evidence must be held sufficient to justify the findings, and hence that they cannot be disturbed on appeal.

The statement contains but one specification of errors of law occurring at the trial, and that is as follows: "The court erred in not ruling upon the objections interposed by the plaintiffs to the introduction of evl dence in this case, where the rulings of the court were reserved." The action of the court, complained of, is this: The plaintiffs offered in evidence a certain written agreement, and the defendants objected to it "on the ground that it was an agreement between other parties, and was incompetent, irrelevant, and immaterial. The Court: It will be allowed, subject to your objection, and passed upon hereafter." It is said for appellants: "If the court ever ruled upon this question, it nowhere appears; and we say that the court erred in not ruling, and that we are entitled to a new trial for that reason." The word "plaintiffs," in the specification, should probably be read "defendants," for otherwise the specification would not be at all applicable. Assuming, however, that the specification is sufficient, and no ruling was made by the court upon the objections of defendants, still no error prejudicial to the plaintiffs is shown. They offered the written agreement, and the court admitted it in evidence, and, so far as appears, did not afterwards exclude it. Presumptively,

therefore, they got all the benefit from the agreement which they were entitled to, and have nothing now to complain of. It follows that the order appealed from must be affirmed, and it is so ordered.

MESERVE v. POMONA LAND & WATER CO. (No. 19,113.)

(Supreme Court of California. Oct. 10, 1893.) Department 2. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge.

Action by Edwin A. Meserve against the Pomona Land & Water Company for damages and an injunction. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Chapman & Hendrick and Edwin A. Meserve, for appellant. Olney, Chickering & Thomas, for respondent.

PER CURIAM. This is an action to recover damages, and for an injunction. The defendant had judgment, and the plaintiff appeals from an order denying his motion for a new trial. The case, in every material respect, is like the one just decided, numbered 19,112. 34 Pac. Rep. 508. The two cases were submitted at the same time, and on the same briefs, and must be decided in the same way. For the reasons stated in the opinion in the other case, the order appealed from in this case must be affirmed, and it is so ordered.

(99 Cal. 672)

CAVANAUGH v..JACKSON. (No. 18,119.) (Supreme Court of California. Oct. 10, 1893.)

ADVERSE POSSESSION-PAYMENT OF TAXES.

Code Civil Proc. § 325, provides that one claiming title by adverse possession must have paid all the taxes during the five years of his adverse occupancy. Held that, the adverse claimant having paid the taxes for that number of years, it was immaterial that some of the taxes during that time had also been paid by the original owner.

Department 1. Appeal from superior court, Siskiyou county; J. S. Beard, Judge.

Action by Joseph Cavanaugh against Sam. uel Jackson for the recovery of realty. Judgment for defendant. Plaintiff appeals.

Affirmed.

H. B. Warren and Gillis & Tapscott, (T. M. Osmont, of counsel,) for appellant. Brown & Farraher, for respondent.

GAROUTTE, J. This is an action for the recovery of real estate. The defendant set up title by adverse possession, and his claim was held to be well founded by the trial court. The sole question arising upon this appeal rests upon the construction of that provision of the statute which declares that, before the plaintiff can be deprived of his title by an adverse occupation, the party in possession must "pay all the taxes, state, county, or municipal, which have been levied and assessed upon such lands." Defendant's occupation dates from 1881, and the court found as a fact that the land in controversy was assessed to him, and the taxes

thereon paid by him, every year from the date of its occupation down to and including the year 1887. The court also found that the same land was assessed to plaintiff for the years 1885, 1886, and 1887, and the taxes paid by him for those years.

never

As an element entering into the creation of defendant's title, the payment of all taxes levied upon the land during the five years' term of occupation is necessary, but it was intended by the lawmaking power that he should pay the taxes for any stated year more than once. Having had the land. assessed to him, and having paid the taxes levied thereon, we think he has fulfilled the conditions of the statute, and that it is immaterial as to the number of times the land may have been assessed to, and the taxes paid by, other parties. If it had been intended by the legislature, in enacting this provision of the statute, that no title by adverse possession could be created against the true owner as long as he paid the taxes upon the land, it was very easy for that body to have so provided. But the provision is not so worded. It does not require the owner to do anything, but requires the claimant, in order to secure the benefit of the statute of limitations, to do something, namely, to pay the taxes upon the land. Illinois has a provision of law quite similar to the one under present investigation, and it is there held (Bolden v. Sherman, 101 Ill. 489) that, in case of double payment of the taxes for any one year, priority of payment prevails. That court has also held that the statute of limitations begins to run from the date of the payment of the taxes, and not from the date of the possession or occupation. But in Brown v. Clark, 89 Cal. 196, 26 Pac. Rep. 801, this court declined to follow that rule, and neither are we, in the present case, willing to hold that priority of payment by the true owner of itself nullifies the time which has actually run, and starts anew the statute. We see no great necessity for the enactment of the provision in the first instance. If for the purpose of giving notice to the true owner that, perchance, an adverse claimant has appeared upon the scene, his payment of the taxes as notice of that fact is entirely insignificant when compared to the circumstance of his open and notorious possession of the land. Whatever may be the object and purpose of the law, it should receive a reasonable construction, and to hold that priority of payment by the true owner of itself defeats the occupant's plea of the statute of limitations would be an unreasonable construction. If such were the law, upon the first day that taxes became due and payable it would result in a scramble at, or a race to, the tax collector's office by the respective parties to secure priority of payment. The destruction of old titles and the creation of new ones would thus be dependent upon the strongest man or fleetest horse. We do not

think the provision should be so strictly construed against the adverse claimant as the foregoing illustrations would suggest. Even if the collector should arbitrarily refuse to receive the taxes from the party in possession, if properly tendered, we do not think his title would be jeopardized by his failure to make the payment. There is reason in the law, and impossible things are not demanded. In the present case the court has found that the taxes were paid by defendant. This satisfies the statute, and it is ordered that the judgment be affirmed.

I concur: BEATTY, C. J.

HARRISON, J., (concurring.) State and county taxes can be assessed upon the same property but once for the same fiscal year. "Nothing in this Code shall be construed to require or permit double taxation." Pol. Code, § 3607. The assessment which forms the basis of the taxes must be upon the property, and the assessor "must assess such property to the persons by whom it was owned or claimed, or in whose possession or control it was, at 12 o'clock M. of the first Monday of March next preceding; but no mistake in the name of the owner or supposed owner of real property shall render the assessment thereof invalid." Section 3628. There is no authority for making more than one assessment upon the same parcel of land, even though different claimants may return it to the assessor in their lists. "Lands once described on the assessment book need not be described a second time, but any person claiming the same, and desiring to be assessed therefor, may have his name inserted with that of the person to whom such land is assessed." Section 3657. When the taxes upon a parcel of land have been once paid the burden is removed, and there no longer remains any tax to be paid. Such payment may be made by any person claiming an interest in the land, and the effect of such payment will be to discharge the land from the burden of the tax, and, as there is thereafter no obligation upon any one to pay the tax, no right can be acquired by making a payment of the amount of the tax to the tax collector. Section 325, Code Civil Proc., requires that one who seeks or claims to obtain title by adverse possession shall have paid "all the taxes, state, county or municipal, which have been levied and assessed upon such land during the five years of his adverse occupancy." If, when he offers to make a payment to the tax collector, the tax which has been levied has been already paid, he cannot comply with one of the requirements of the statute, and must fail to acquire a title by adverse possession. There is no hardship in this construction. If the owner of the land pays the taxes as they fall due, there is no reason why his title should be impaired by a subsequent payment by an

other. The statute makes the payment of taxes as important an element as actual occupancy of the land for the purpose of gaining a title by adverse possession, and the burden is upon the claimant to do the acts required to create the adverse title. He should be as vigilant in paying the taxes as in holding possession of the land. He is seeking to gain the title of another through statutory authority, and it is for him to see that he does all of the acts which the statute requires. In the present case the court finds that each party paid the taxes on the land for a portion of the period required to create an adverse possession. The evidence is not before us, so that we can determine therefrom which payment was first in time; but, as the court rendered its judgment in favor of the defendant, we are at liberty to assume that the evidence upon which it made its findings showed that the payment by the defendant was prior to that made by the plaintiff. It was incumbent upon the appellant to show that any error was committed by the court in rendering its judgment, and if there is any ambiguity in the findings they are to receive that construction which will sustain, rather than defeat, the judgment. I therefore corcur in affirming the judgment.

(100 Cal. 18)

CITY OF LOS ANGELES v. CITY BANK. (No. 19,090.) (Supreme Court of California. Oct. 10, 1893.) MUNICIPAL CORPORATIONS DEPOSIT OF CITY FUNDS AGREEMENT WITH BANK-RECOVERY OF INTEREST.

Plaintiff, the city of Los Angeles, in pursuance of section 44 of its charter, (Act Jan. 31, 1889,) authorizing the deposit of the city funds in such bank as would agree to pay the highest rate of interest, appointed defendant bank the city depository for the ensuing year, and deposited the city funds therewith. Before the expiration of the year, the state supreme court decided that said section of the charter was void, and thereupon plaintiff withdrew from defendant the amount deposited by it. Held, in an action for the interest accrued on such deposit, that since under the previous decision, the contract for the payment of interest was void, and the making of it constituted a felony, plaintiff could not recover thereunder. Commissioners' decision. In bank. Appeal from superior court, Los Angeles county; Lucien Shaw, Judge.

Action by the city of Los Angeles against the City Bank to recover interest on money deposited by plaintiff with defendant. From a judgment for plaintiff, defendant appeals. Reversed.

Burnett & Gibbon, for appellant. C. McFarland, for respondent.

SEARLS, C. The forty-fourth section of the city charter of the city of Los Angeles provided a mode by which the funds of the city should be deposited in such bank of deposit of the city as would pay the highest

rate of interest thereon, etc. St. 1889, p. 467. Pursuant to such section of the charter a contract was, after due notice, on the 10th day of March, 1890, entered into by and between the plaintiff and defendant, by which the former appointed the latter the depository of the public money of said city for the term of one year from the date of the agreement. The city agreed that the city treasurer should deposit with the bank defendant the public moneys then on hand, and all that should come to his hands during the term. Defendant agreed to pay interest on the deposit at the rate of three-eighths of one per cent. per month; interest to be paid monthly, and to be computed on daily balances. The contract was executed by the mayor on behalf of the city, and by the defendant. On the same day a city ordinance was duly passed by the council, and approved by the mayor, appointing the bank the depository of the public funds, and directing the treasurer to deposit the same accordingly. The public moneys were thereupon deposited with defendant until the interest thereon amounted to $9,721.54, according to the contract. Before the expiration of the year, section 44 of the city charter was, in the case of Yarnell v. City of Los Angeles, 87 Cal. 603, 25 Pac. Rep. 767, decided unconstitutional and void by this court. Thereupon the money was withdrawn from the bank, except the accrued interest, which was not paid, although afterwards demanded. The defendant is a commercial bank, engaged in the transaction of a general banking business, and receives money upon deposit, upon which it pays no interest, except in special cases, and upon specific contracts therefor. The cause was tried by the court without the intervention of a jury, written findings filed, and judgment entered thereon in favor of plaintiff for $9,721.54, and interest thereon from April 24, 1891, at 7 per cent. per annum, amounting in the aggregate to $10,165.74. Defendant appeals from the judgment and from an order denying a motion for a new trial.

The complaint contained three causes of action,-one upon the special contract, a second upon an account stated, and the third for money had and received by defendant to plaintiff's use. A demurrer was interposed by defendant to each of the causes of action, and sustained as to the first, and overruled as to the other two. The findings negative the right of plaintiff to recover upon the account stated, and the judgment is based upon the count for money had and received to the use of plaintiff. The question as to whether or not there was an account stated between the parties, upon which respondent has dwelt in the brief on file, need not be considered. That question is foreclosed by the action of the court below, which found against respondent on that point, and from which no appeal has been taken. The real question involved may be

stated thus: (1) Plaintiff and defendant entered into a contract, which they in fact deemed valid, but which was illegal. (2) By that contract, defendant was to receive the public moneys, and pay interest thereon, for one year. (3) At the end of 10 months, plaintiff, on discovery of the illegality of the contract, demanded and received all the moneys deposited, but without any interest. (4) Can plaintiff, under- such circumstances, recover the interest, in an action for money had and received?

A special agreement to pay interest gives a right of action to recover the interest whenever, under the contract, it becomes due. It is a part of the contract, and may be enforced either separately, or in connection with other obligations of the same contract; but, when it is not specially contracted for, it is but an incident of the contract or obligation upon which it depends, and cannot be recovered in a separate action after payment of the principal. In such cases, except as provided by statute, it is recovered, not as interest eo nomine, but as damages for the detention of the principal debt, or for failure to discharge the obligation. Bible Soc. v. Wells, 68 Me. 572. In that case it was said: "If, by the terms of a contract or a bequest, a party is entitled to interest, undoubtedly an action may be maintained to recover it, even after the principal has been paid. But when the contract or bequest is silent as to interest, so that, if it can be recovered at all, it can only be recovered as damages, an action to recover it cannot be maintained after payment of the principal." In Tillotson v. Preston, 3 Johns. 229, it was said, in a case where interest was not specially contracted for, that, "if the plaintiff has accepted the principal, he cannot afterwards bring an action for the interest." Seag. Dam. (Sth Ed.) § 338; Fake v. Addy, 15 Wend. 76; Southern Cent. R. Co. v. Town of Moravia, 61 Barb. 180; Tenth Nat. Bank v. Mayor, etc., of New York, 4 Hun, 429. Wherever the question of the application of payments is left in doubt, the law will apply them first to the extinguishment of interest due at the date of payment, and the rule we have mentioned has no application. In the present instance, no such doubt arises. It was stipulated at the trial that the first cause of action in the complaint states correctly the history of the transaction between the city and the City Bank, but defendant objected to its relevancy. The objection was overruled, and the statement admitted in evidence. That statement is, in part, as follows: "That there is now due said city of Los Angeles, from said defendant, the City Bank, for interest upon the public moneys deposited with said bank as aforesaid, the sum of $9,721.54," etc. Again, M. D. Johnson, the city treasurer, as a witness on behalf of plaintiff, testified as follows: "Witness received every cent that was claimed to be due the city, except these items of interest;" and, further, "at the time the