SPECIFIC PERFORMANCE (Continued). in the capacity of an agent rather than as a principal. (Luft v. Arakelian, 463.) 3. ASSUMPTION OF OBLIGATIONS INCURRED BY AGENT INSUFFICIENT RATIFICATION. The fact that the owner, while repudiating the acts and conduct of the alleged agent, offered in one or two instances to assume some of the smaller and comparatively inconsequential obligations incurred by the alleged agent under similar contracts, did not constitute a ratification of the contract. (Id.) STATE LANDS. See School Lands. STATUTE OF FRAUDS. See Agency, 7. STATUTE OF LIMITATIONS. MONEY BORROWED BY DIRECTORS FROM CORPORATION-REPAYMENT UPON ACCOMPLISHMENT OF PURPOSES OF LOAN.-Where money belonging to a corporation is borrowed by two of its directors for certain purposes upon an agreement to repay the same when the purposes should be accomplished, and the corporation ratifies the transaction, the statute of limitations does not commence to run against the corporation's right to recover the money from the time the money was obtained, but from the time that the purposes were plished. (Pleasant Valley Hotel Co. v. Henderson, 76.) accom See Contract, 4-7; Criminal Law, 58; Quieting Title, 4; Specific STOCK AND STOCKHOLDERS. See Corporation. STREETS, ROADS, AND HIGHWAYS. See Municipal Corporations, 3, 4. SUBPOENA. See Deposition, 3, 4. SUMMONS. JURISDICTION.-Under the pro 1. SERVICE OF COPY OF COMPLAINT visions of section 410 of the Code of Civil Procedure, the service of a copy of the complaint with the summons is essential to give the court jurisdiction. (McGinn v. Rees, 291.) 2. VARIANCE BETWEEN COMPLAINT AND COPY SERVED MINOR DIFFERENCES DEFAULT JUDGMENT - JURISDICTION-VACATION OF JUDGMENT UNWARRANTED. The setting aside of a default judgment for want of jurisdiction on the ground that the defendant was not served with a copy of the complaint on file in the action, as required by section 410 of the Code of Civil Procedure, is unwarranted, where there existed only minor differences between the complaint SUMMONS (Continued). on file and the copy served, the most important of which was the omission from the copy of one of the names of the defendants contained in the filed complaint, and the summons served contained the omitted name. (Id.) 3. REMEDY OF DEFENDANT.-Under such circumstances, if the defendant desired to test the sufficiency of the service, she should have appeared and by an appropriate motion raised the question, instead of waiting until judgment was taken against her and then claiming it was a nullity because of such differences. (Id.) 4. SETTING ASIDE SERVICE OF SUMMONS-PREJUDICE OF SUBSTANTIAL RIGHTS.-A motion to set aside the service of a summons will be denied unless it is shown that the substantial rights of the defendant are affected. (Id.) 5. AMENDMENT OF RETURN OF SUMMONS-SERVICE ON DEFENDANT SUED UNDER FICTITIOUS NAME- JUDGMENT.-Where a complaint names fictitious defendants, and process is served upon a person not named in either the complaint or summons, and default judgment is entered against the person so served, without amendment, it is the duty of the court to permit the plaintiff thereafter upon motion to amend the return of proof of service of summons so as to make it show that the person served was the person sued under the fictitious name. (Id.) 6. DEFENDANT SUED UNDER FICTITIOUS NAME-JUDGMENT — FAILURE TO SUBSTITUTE TRUE NAME-IRREGULARITY-APPEAL.-Where a defendant is sued under a fictitious name and served with process, the failure to amend the complaint so as to state his true name, is but an irregularity for which the judgment against him may be reversed on appeal. (Id.) 7. MOTION TO AMEND RETURN OF SUMMONS-GROUNDS NOT STATEDFAILURE TO OBJECT-APPEAL.-Where a motion to amend the return of summons fails to state the grounds upon which the motion was based, and no objection to the hearing of the motion is made on that ground, the objection cannot be made for the first time on appeal. (Id.) SURETY. SURETYSHIP-BOND FOR PERFORMANCE OF DUTIES OF SALES AGENTSETTLEMENT OF SHORTAGE UNKNOWN TO SURETIES-FRAUD-STATUTE OF LIMITATIONS.-Where the sales agent of a book selling and distributing corporation, who had given a bond for the faithful performance of his duties, upon becoming indebted to the corporation in a considerable sum of money, made a settlement with the corporation without the knowledge of the sureties on the bond, by turning over to the corporation certain securities, and later it was discovered that the securities had been embezzled by such agent and SURETY (Continued). the corporation lost the benefit of them, such fraudulent acts of the agent did not extend the time to sue the sureties on the bond, and an action brought more than four years after the obligation to pay the money arose is barred by the statute of limitations. (Rudin v. Rea, 665.) See Justice's Court. TAXATION. - REIM 1. QUIETING TITLE-VOID TAX DEED CONDITION OF RELIEF BURSEMENT OF PURCHASER AT TAX SALE.-Where the owner of property comes into equity asking equitable relief to remove or cancel a tax deed or sale as a cloud upon his title, or to obtain a judgment which will in effect invalidate such sale or deed, the court should refuse any relief except upon the condition that he first repay to the tax purchaser, or his grantee or assignee, the taxes, penalties, interest, and costs justly chargeable upon the land and which the purchaser has paid at the sale, or afterward upon the faith of it, with legal interest from the time of such payment, less rents received, if any, if the purchaser has been in possession, regardless of the fact that the assessments and levies of taxes were void on account of numerous defects and irregularities. (Squires v. Estey, 287.) 2. RIGHT OF REIMBURSEMENT-EQUITY.-The right of the purchaser of a tax title upon his deed being declared invalid to recover the amount paid out by him for taxes, penalties, costs, interest, and charges, rests upon equitable principles, and is not dependent upon section 3898, subdivision 5, of the Political Code, as amended in 1913. (Id.) 3. ASSESSMENT INSUFFICIENT DESCRIPTION-CONFLICTING MAPS.-An assessment of lots for the purposes of taxation as lots 1, 2, and 3 in block 132 of the town of Bakersfield, without reference to any map, is void for insufficient description, where it is shown that there is but one block 132, and three recorded maps of the town, upon each of which the lots are delineated in different parts of the block. (Houghton v. Kern Valley Bank, 496.) 4. PURPOSES OF DESCRIPTION.-The purposes to be subserved by the description are to enable the owner to discharge his land from the lien of the assessment by paying the same, and also, in case the land shall be sold to satisfy the lien, that bidders may know what land is offered for sale, and that the purchaser may receive a sufficient conveyance. (Id.) TENDER. See Landlord and Tenant, 20, 21. TRUST. 1. CONSTRUCTIVE TRUST-BREACH OF PROMISE TO CONVEY REAL PROPERTY.—Where a wife being severely ill and not expecting to live makes a deed of gift of real property to her husband upon his express oral promise that he would in turn execute a deed of gift of the property to a niece of the former husband of the grantor and place the same in escrow to be delivered upon his death, his failure, to perform his promise impresses the property with a constructive trust in favor of the niece. (Hillyer v. Hynes, 506.) 2. ACTION TO ENFORCE PROMISE-STATUTE OF LIMITATAONS.-An action to enforce such a promise is one to recover real property and is therefore subject to the five year limitation provided by section 318 of the Code of Civil Procedure. (Id.) 3. FOLLOWING OF FUNDS-RIGHT OF EQUITABLE OWNER.-The equitable owner of trust funds may follow them into the hands of all persons who acquire them with notice of the trust. (Keeney v. Bank of Italy, 515.) 4. MINGLING OF TRUST FUNDS WITH INDIVIDUAL MONEYS-PRESUMPTION.-Where a trustee has mingled trust funds with his individual moneys, drawing upon the aggregate from time to time, it will be conclusively presumed both against him and his creditors and persons claiming under him, that the residue thereof is attributable to the trust so far as may be necessary to keep the money intact. (Id.) 5. BANKING LAW-APPLICATION OF DEPOSIT TO DEBT DUE BANKWHEN UNAUTHORIZED.-Where a bank has notice of the equitable rights of a third person in money derived from a check deposited to the account of one of its depositors, it is not at liberty to apply it in satisfaction of an individual indebtedness of the depositor to the bank. (Id.) 6. DEPOSIT OF CHECK-FORM OF INDORSEMENT FORM OF ACCOUNT— CONSTRUCTIVE NOTICE OF TRUST FUNDS.-Where a depositor carried an account with a bank under the designation “H. P. Platt, Trustee," which he used generally, depositing therein his own funds and any others he might receive as agent or trustee for other persons, and such practice was known to the bank, the deposit of a check bearing the indorsement "Pay to H. P. Platt, agent, or order," was sufficient to put the bank upon inquiry as to the rights of third parties in the money represented by the check; and the form of the account also placed upon the bank the duty of inquiring as to the rights of third persons in the funds composing the account before it could appropriate them in payment of a debt due the bank from the depositor. (Id.) 7. NATURE OF TRANSACTION CONSTRUCTIVE NOTICE TO BANK NOT AVOIDED BY.-Assuming that the deposit of a check made payable to a depositor as agent and transferred and credited to his account TRUST (Continued). constituted a sale of the check to the bank, such view of the transaction would not avoid the effect of constructive notice to the bank given by the form of the check, for its proceeds when placed to the credit of the account equitably belonged to the depositor's principals, of which the bank had the same notice as of their rights in the check itself. (Id.) 8. PURCHASE OF REAL PROPERTY-PAYMENT OF CONSIDERATION BY ANOTHER AGREEMENT NOT TO SELL OR ENCUMBER VALIDITY NOT AFFECTED. The trust which is presumed to result under section 853 of the Civil Code where a transfer of real property is made to one person, and the consideration therefor is paid by or for another, is of necessity one by which the grantee would be bound not to sell or encumber the property to the injury of the person for whose benefit the trust was presumed to arise; and the mere fact that the parties had understood or agreed that such would be the effect and terms of the trust relation would not in any way militate against the creation or validity of the trust. (Milloglav v. Zacharias, 561.) 9. TRANSFER OF REAL PROPERTY—AGREEMENT TO SUPPORT-BREACH-RESULTING TRUST.-Where a confidential relationship exists between two persons and one of them purchases real property and causes it to be conveyed to the other upon the agreement that the latter would care for, support, and maintain the former for the balance of his natural life, and thereafter the latter refuses to carry out the agreement, a resulting trust arises in favor of the former. (Id.) 10. CHANGE OF FORM OF SAVINGS BANK ACCOUNT.-Where a depositor in a savings bank in carrying out her repeatedly expressed desire to so arrange her account that her sister with whom she had lived, and who had taken care of her in her invalid condition for many years, might, during their joint lives, draw on the account and receive the residue upon death without probate, handed the pass-book to her niece with instructions to take it to the bank and have the account changed in such a manner as to carry out her desires, and the bank, after being directed in writing by the depositor to add the sister's name to the account, entered the account in the book as subject to the check of either or the survivor of them, and the book was thereupon returned to the depositor, who, after examining it, expressed herself as greatly satisfied with the change, a trust was thereby created in the deposit for the benefit of the sister. ( (Williams v. Savings Bank of Santa Rosa, 655.) 11. RIGHT TO DEPOSIT UNDER BANKING ACT.-Such a case also comes within the purview of section 16 of the Bank Act of March 1, 1909 (Stats. 1909, pp. 86-90), as amended in 1911 (Stats. 1911, p. 1003), making such persons joint owners in the deposit with the right of survivorship. (Id.) |