the appellant insisted upon the trial of the cause and now insists that said organization was not of such character and purposes as to bring it within the class of organizations forbidden and condemned by the terms of the Criminal Syndicalism Act. It was upon this branch of the case that the larger part of the evidence adduced on behalf of the prosecution upon the trial of this cause was presented. It is the appellant's contention that the admission of a very large portion of such evidence designed to show the pernicious activities of other organizations with which the Communist Labor Party of California was affiliated, or regarding which, or the membership of which, it from time to time by resolution or otherwise expressed its approval and sympathy, was highly prejudicial to the defendant's case, particularly in view of the fact that as is claimed her knowledge of and participation in these baneful activities was not sufficiently shown. As to the propriety of the admission of such evidence as tending to show the character and purposes of the Communist Labor Party of California there can be no further doubt, in view of the very full discussion of this subject in the case of People v. Taylor, supra, and of the determination of the supreme court therein. As to the knowledge which the defendant had and of her participation in the aims, expressions, and activities of the Communist Labor Party of California there can also be no doubt, in view of the admitted intelligence of the defendant and of her participation in the drafting of the resolutions and formulation of the constitution of the organization itself. That this defendant did not realize that she was giving herself over to forms and expressions of disloyalty and was, to say the least of it, lending her presence and the influence of her character and position as a woman of refinement and culture to an organization whose purposes and sympathies savored of treason, is not only past belief but is a matter with which this court can have no concern, since it is one of the conclusive presumptions of our law that a guilty intent is presumed from the deliberate commission of an unlawful act. (Code Civ. Proc., sec. 1962.)

As to the appellant's only remaining contention with relation to the alleged misconduct of the district attorney upon the examination of a juror, we have examined the

record and do not find that the episode complained of was of such prejudicial character or consequence as to justify a reversal of the case.

Judgment affirmed.

Tyler, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 24, 1922.

Lawlor, J., and Lennon, J., dissented; Shurtleff, J., was absent.

[Civ. No. 3852. First Appellate District, Division Two.-April 26,

1922.]

FRED H. CASE, Appellant, v. N. EGAN, Respondent. [1] MORTGAGE AGREEMENT OF GRANTEE TO PAY INDEBTEDNESS NONLIABILITY OF GRANTOR-RIGHT OF MORTGAGEE TO ENFORCE PAYMENT. Where the grantor of real property is not personally liable for a mortgage debt, a stipulation in a deed from him to his grantee that said grantee shall pay, personally, the mortgage indebtedness will not be regarded in law or equity as a contract intended for the benefit of a third person within the meaning of section 1559 of the Civil Code, so as to entitle such third person to enforce the same.

APPEAL from a judgment of the Superior Court of Alameda County. Fred V. Wood, Judge Presiding. Affirmed.

The facts are stated in the opinion of the court.

Geo. M. Naus and Chester H. Case for Appellant.

Fred B. Mellmann for Respondent.

LANGDON, P. J.-This appeal is from a judgment against the plaintiff, following an order sustaining a general

demurrer to the amended complaint without leave to amend after the plaintiff had declined to amend.

The complaint alleges, in substance: On August 4, 1913, Claude Scheelk made and delivered to George W. Austin his promissory note for $1,450, secured by deed of trust to certain real property; that the said note was assigned by said Austin to Case, the plaintiff here; that there has been a default in the payment thereof when due; that the real property conveyed by said deed of trust was transferred by Scheelk to Covington, by Covington to Faulkner and by Faulkner to Egan, the defendant here. With reference to the successive transfers of this property the complaint alleges: "Plaintiff is informed and believes, and therefore alleges that neither said Covington nor said Faulkner personally assumed the payment of said promissory note, or the indebtedness secured by said deed of trust, but that each of said transfers was made subject to said deed of trust without assumption of personal liability by the transferee." But it is alleged that in the transfer from Faulkner to defendant Egan the grant contained the following: "Subject to a deed of trust in the sum of fourteen hundred and fifty (1450) dollars . . . which the party of the second part hereby assumes and agrees to pay." It is alleged that on July 7, 1919, the trustees under the deed of trust sold the property; that after applying the proceeds of the sale to the debt, there was a deficiency of $1,966.40, for which judgment is asked against the defendant upon the ground that she agreed in writing that she would personally assume and pay the obligation of said promissory note.

[1] As admitted by both parties, the sole question presented upon this appeal is: "Is defendant Egan relieved from direct liability to the plaintiff upon her assumption of and agreement to pay the amount secured by the note and deed of trust by the circumstance that her grantor, Faulkner, was not himself personally liable therefor?"

Appellant's position is that the liability of the transferee of real property to the mortgagee or beneficiary under a deed of trust, springs, in this state, from two independent code rules, i. e., sections 2854 and 1559 of the Civil Code. Counsel, however, admit that under section 2854 of the Civil Code it is essential that the grantor of the property be himself personally liable for the debt secured thereby

before his grantee can be held liable by the mortgagee. This is because under that section the mortgagee must be "a creditor" of the grantor, and he cannot be a creditor of the grantor unless the grantor is personally liable to him for the debt. It is, therefore, admitted that if the rights of appellant depended solely upon that section of the code the demurrer was properly sustained.

However, the appellant, in a most comprehensive and scholarly brief, seeks to have this court declare that the plaintiff has stated a cause of action under the provisions of section 1559 of the Civil Code; that under said section. personal liability of the grantor is a wholly immaterial circumstance in determining the liability of the grantee. Whatever may be our view as to the logic of appellant's arguments upon this question and his acuteness in differentiating the cases in this state which are opposed to his contention, we feel bound by the expressions of the rule in the following cases: Biddel v. Brizzolara, 64 Cal. 354 [30 Pac. 609]; Alvord v. Spring Valley Gold Co., 106 Cal. 547 [40 Pac. 27]; Ward v. De Oca, 120 Cal. 102 [52 Pac. 130]; Williams v. Naftzger, 103 Cal. 438 [37 Pac. 411]; Sherwood v. Lowell, 34 Cal. App. 365, 377, 378 [167 Pac. 554]; Page v. Chase Co., 145 Cal. 578, 585 [79 Pac. 278]; Andrews v. Robertson, 177 Cal. 434, 437 [170 Pac. 1129].

While some of these cases do not expressly decide the precise question presented here, we are of the opinion that it is the general doctrine of them all that where the grantor of real property is not personally liable for a mortgage debt, a stipulation in a deed from him to his grantee that said grantee shall pay, personally, the mortgage indebtedness will not be regarded in law or equity as a contract intended for the benefit of a third person within the meaning of section 1559 of the Civil Code, so as to entitle such third person to enforce the same. The reasoning inducing this conclusion is set forth in the case of Vrooman v. Turner, 69 N. Y. 280, 283 and 284 [25 Am. Rep. 195] which was one of the cases relied upon by our supreme court in the case of Biddel v. Brizzolara, supra. The other cases herein cited and which are binding upon us, either expressly announce this doctrine or they are in entire harmony therewith.

The demurrer to the complaint should have been sustained. The judgment is affirmed.

Nourse, J., and Sturtevant, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 22, 1922.

All the Justices concurred.

Shurtleff, J., was absent and Richards. J., pro tem., was acting.

[Crim. No. 858. Second Appellate District, Division One.-April 26,

1922.]

THE PEOPLE, Respondent, v. ALFREDO MANDEVIL et al., Appellants.

[1] CRIMINAL LAW-ASSAULT WITH DEADLY WEAPON ALIBI EVIDENCE-VERDICT.-In this prosecution for the crime of assault with a deadly weapon with intent to murder, although there was unequivocal testimony supporting the defense of an alibi, there was ample evidence to establish the identity of the defendants as the individuals who participated in the assault upon the complainant and to support the verdict of guilty.

APPEAL from a judgment of the Superior Court of San Bernardino County. J. W. Curtis, Judge. Affirmed.

The facts are stated in the opinion of the court.

Albert D. Trujillo for Appellants.

U. S. Webb, Attorney-General, and John W. Maltman, Deputy Attorney-General, for Respondent.

JAMES, J.-Defendants were convicted of the crime of assault with a deadly weapon with intent to murder. They have appealed from the judgment of imprisonment.