to the bank and the taxes, and that W., H., and of grant, bargain, and sale, subject to the the firm should each pay one-third of the in- mortgage held by the bank, and also 1,000 terest and taxes, to be repaid after discharging shares of water stock supposed to be appurthe mortgage debt before the proceeds of the McNutt accepted the sale of the land were applied to the other trusts tenant to the land. declared. The beneficiaries failed to pay the conveyance with the understanding in parol interest on the mortgage debt, and the mortgage between him and the town company that he was foreclosed, and the land purchased by the bank, and thereafter defendant purchased from would take, hold, and dispose of the land on W. and H. their interest in the trust and obtain- certain trusts which he should thereafter deed from the bank an assignment of its certificate clare in writing. On October 10, 1903, he of purchase. Complainants, who have acquired made such written declaration. It recited the cross-complainant's interest in the trust, seek to have the land sold free from any claim under conveyance to him, and also the adoption of the mortgage sale, and the proceeds distributed resolutions by the town company intended as provided in the trust declaration upon their to fix certain trusts on the property, being: paying one-third of the taxes and interest on the First, a trust in favor of John Wolfskill of mortgage debt, and a fair proportion of the principal, and cross-complainant, the trustee, asks $10 per acre; second, a trust in favor of L. the same judgment. Held, that under the trust P. Hansen of $10 per acre; and, third, a trust any sales of the lands were to be made prior to in favor of Smith, McNutt & Hannon for the foreclosure of the mortgage, and, as complainants were equally at fault with W. and H. in whole amount of the residue for which said failing to pay interest and taxes, they thereby lands and water stock might be sold by him abandoned the trust, and the foreclosure of the after paying and discharging from the promortgage ended all relationship between the ben- ceeds of such sales the debt of the bank and eficiaries except that between them and the T. Company as creditors, so that complainants were interest thereon, the taxes on said lands, the entitled to the lands or the proceeds only after expenses of sale, $10 per acre to Wolfskill, satisfaction of all prior claims, including those and $10 per acre to Hansen, and declared of W. and H. that he held the lands subject to said trust. This was followed by this preamble and condition, viz.: "But, whereas, the said debt to the said San Gabriel Valley Bank, together with accumulations of interest thereon and certain taxes against the said lands, remain Action by George H. Smith and another unpaid and are a first lien against the said against Cyrus F. McNutt, as trustee, and oth-lands in my hands; and, whereas, the rents ers, in which defendant named filed a cross-and income from the said lands have not complaint. From a judgment sustaining demurrer to complaint and cross-complaint, plaintiffs and cross-complainant appeal. Affirmed. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 293-301; Dec. Dig. § 148.*] Department 1. Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge. George H. Smith and Joseph E. Hannon, for appellants. C. F. McNutt and John J. North, for respondents. ANGELLOTTI, J. This is an appeal from a judgment entered upon sustaining demurrers to an amended complaint and to a crosscomplaint, in an action wherein plaintiffs and cross-complainant McNutt seek the same judgment. hitherto been sufficient to keep down such interest and taxes; and, whereas, the same must be kept down to prevent the foreclosure of the said mortgage and the sale of such lands for such taxes: I hereby make it a condition in the declaration of the said trusts in favor of the said Wolfskill, the said Hansen and the said Smith, McNutt & Hannon, that they shall, from time to time as the same is needed for the purpose of keeping down said interests and taxes, pay to me, or to said bank, and upon such taxes, sums of money sufficient to keep the same fully paid, as they shall respectively from time to time, become due and payable, that is to say, the said Wolfskill shall furnish one-third of such sums of money, the said Hansen one-third and the said Smith, McNutt & Hannon onethird, the said sums of money to be reimbursed to the several parties, with interest, next after the payment of said mortgage and of all taxes due, before any of the proceeds of the sales of said lands shall be applied to the other trusts herein declared; and if at any time there is sufficient income from the rents of said lands to pay said taxes and interest and to reimburse the said parties for moneys advanced upon that account, the same shall be used as soon as received for such On May 17, 1901, the Lake View Town Company, a corporation, hereinafter designated the "town company," was the owner of the lands involved in this proceeding, being lots in Riverside county aggregating 1,000 acres scattered throughout the extent of a larger body of arable lands, comprising some 6,000 acres. The land of the town company was subject to a mortgage held by the San Gabriel Valley Bank, hereinafter designated as the "bank," securing the payment of $5,000, with interest. The town company was also indebted to John Wolfskill and to L. P. Hansen, and to the law firm of Smith, McNutt & Hannon (composed of the plaintiffs | purposes." and cross-complainant). To provide for the McNutt delivered this written declaration payment of such indebtedness, it conveyed to Hansen, who received it on behalf of himthe land on May 17, 1901, to McNutt, by deed self and the other beneficiaries, all of whom For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Plaintiffs seek by this action an accounting on the part of the land company as to the amounts expended by it in acquiring its certificate of purchase, and a determination of the amount of the portion thereof which they shall pay, by way of contribution, to extinguish the lien of such certificate, and also an injunction preventing the commissioner from executing any deed on such certificate, and further a decree providing for the execution of the trust by the trustee. As we have before stated, the trustee asks practically the same judgment. agreed thereto, and it was duly recorded in the bank, by contribution of any portion of the office of the county recorder of Riverside the expenses incurred in so doing, and claims county. The beneficiaries failed to furnish to hold said certificate of purchase just as the trustee with money wherewith to pay the any purchaser who had no interest in the interest on the indebtedness secured by the trust would hold the same. mortgage held by the bank, and such interest was therefore not paid. The mortgage falling due by reason of such nonpayment, the bank brought its action to foreclose the same, and this action resulted in a judgment fixing the amount due, directing a sale by defendant Harvey Potter, appointed commissioner for that purpose, and "foreclosing the equity of redemption" of McNutt as successor of the town company. The judgment was affirmed by this court. On April 3, 1907, the commissioner duly sold the mortgaged property, the bank being the purchaser, for the sum of $7,806.31, which was the amount then due under the judgment. The commissioner thereupon executed and issued a certificate of sale to the bank, as such purchaser. Thereafter and prior to July 18, 1907, one A. B. Miller, It may be conceded for the purposes of this acting for defendant the "Nuevo Land Com- decision that plaintiffs had such an interest pany," a corporation, hereinafter designated in this land as would have given them the as the "land company," purchased from right to obtain such relief as would practicalWolfskill and Hansen their respective inter-ly constitute a redemption thereof, even though ests in said trust, and on July 18, 1907, for a recited consideration of $9,050, obtained from the bank an assignment of the certificate of purchase executed by the commissioner. On July 24, 1907, Miller assigned said certificate and the claims or interests of Wolfskill and Hansen to the land company. The property is now of such value that it could be sold in parcels, "and, as contemplated by the scheme of said trust," for enough to pay all the "trust debts." The foregoing constitutes substantially the case made by the amended complaint and the cross-complaint to which demurrers were sustained. they may not have been entitled to redeem under the statutory provisions relating to redemption. It may be that it could be held that they were substantially the owners thereof, subject to the prior claims of the bank, Wolfskill, and Hansen, and that a court of equity might be warranted in requiring a conveyance to them by the land company upon payment of the amounts due on such prior claims. However this may be, plaintiffs are seeking no such relief by this action, and their amended complaint does not state a cause of action in that behalf. The same equitable principles that might authorize the granting of such relief to plaintiffs would put Wolfskill and Hansen in the position of creditors having superior claims to plaintiffs, who were entitled to redeem for the protection of those claims, and would require, as a condition of such redemption by plaintiffs, the payment by them of the whole amount properly paid in making the purchase, with interest, and also the amounts due on account of the Wolfskill and Hansen claims. Plaintiffs Smith and Hannon, who have acquired all of the interest of McNutt, claim the right against the land company, as the successor in interest of their alleged co-beneficiaries, Wolfskill and Hansen, to be admitted to a participation in all rights acquired by such land company by reason of its purchase of the certificate of sale, and insist that, upon payment by them to the land company "of their just share to reimburse the said defendant of its necessary outlay to relieve and release the said land and said water stock from the lien and burden of the said mortgage and sale made under the decree foreclosing the same," the trustee should be re- We are of the opinion that at the time of quired to execute his trust by selling the the purchase of the certificate by the land property free of any claim under the mort- company, successor of Wolfskill and Hansen, gage and sale thereunder, and to distribute there was no such relation existing between the proceeds of such sales in the manner pro- it and plaintiffs as would give plaintiffs the vided by the declaration of trust. They have right to have the purchase held to be one made no offer to the land company to do any-made for the benefit of the so-called “trust.” thing more than pay one-third of the interest The general principles relied on by plaintiffs that has accrued on the mortgage debt and one-third of any taxes "that should have been paid by the debtor in the said mortgage," and "a fair proportion of the principal." The land company denies the right of plaintiffs to become entitled to the benefit of its act in in this regard, applicable in such cases as those of joint tenants, tenants in common, and generally persons placed in a situation of trust or confidence with respect to the subject of its purchase, may be freely conceded to be correctly stated by them in their briefs. as creditors of the town company having a lien on the land involved here for the amounts due them respectively, subject to the claim of the bank, and plaintiffs, on the other hand, as being entitled to the land or its proceeds after full satisfaction of all prior claims, including those of Wolfskill and Hansen. We know of no equitable considerations that would warrant the granting of any greater this land upon payment by them of all prior claims. As already said, they have shown no disposition to do this, and the complaint and cross-complaint make no case in this behalf. We are therefore of the opinion that the ruling of the court sustaining the demurrers was correct. The judgment is affirmed. We concur: SLOSS, J.; SHAW, J. (156 Cal. 718) DEMPSEY v. UNDERHILL et al. (DESERT 1. DIS An order dismissing an action for delay in prosecution is appealable as a final disposition of the case. language of Chancellor Kent in Van Horne | tween Wolfskill and Hansen, on the one hand, v. Fonda, 5 Johns. Ch. (N. Y.) 407, "it is not consistent with good faith, nor with the duty which the connection of the parties, as claimants, of a common subject, created, that one of them should be able, without the consent of the other, to buy in an outstanding title and appropriate the whole subject to himself and thus undermine and oust his companion," the one acquiring such outstanding title will not be allowed to retain it for his own ex-relief to plaintiffs than to permit them to take clusive benefit. But, of course, this principle can have no application in the absence of the relationship which constitutes the whole reason for its existence. In the case at bar it appears clear to us that whatever obligations of this nature may have existed as to Wolfskill and Hansen prior to the foreclosure of the mortgage, if any, such obligations were absolutely terminated by such foreclosure and the sale thereunder. The declaration of trust makes it apparent that it was the intention of all the parties that, so far as any sales of the lands by the trustee were concerned, such sales were to be made prior to any foreclosure of the mortgage. Such sales were to be primarily for the purpose of paying the mortgage claim, and the beneficiaries were not to be called upon to advance any portion of the principal due thereon. It was expressly made a condition of the declaration in favor of the three beneficiaries that they should each advance one-third of such sums as should be necessary to pay interest on the mortgage debt and taxes, in order to prevent the foreclosure of the mortgage and the sale of the land for taxes. This they did not do as to amounts necessary to pay interest on the mortgage debt, and the mortgage was consequently foreclosed. Plaintiffs failed in this behalf, as well as Wolfskill and Hansen. No reason whatever is assigned for such default on plaintiffs' part. It is simply alleged that the beneficiaries failed to furnish the money wherewith to pay such interest. It cannot be assumed that Wolfskill and Hansen were unwilling to furnish their portion of this money had plaintiffs been willing to furnish theirs, and of course they could not be held derelict in failing to pay their portion if plaintiffs were unwilling to pay their own one-third. So far as appears by the complaint and crossCampbell, Metson & Campbell and F. E complaint, plaintiffs entirely abandoned their Barton, for appellant. M. W. Conkling and part of the arrangement in a most essential C. W. Pendleton, for respondent and interparticular, and Wolfskill and Hansen in fail-vener. ing to make the necessary advances were not guilty of any bad faith or of any act inconsistent with any duty devolving on them by reason of the arrangement between the parties. Under these circumstances, the consequent foreclosure of the mortgage, which renders it impracticable to execute the trust in the manner designed, terminated all relationship between the various beneficiaries except the relationship that may have existed be Error, Cent. Dig. § 471; Dec. Dig. § 78.*] Any error in denying plaintiff's motion to dismiss a complaint of intervention for delay in prosecution is harmless, where the court on its own motion dismissed the entire action on the same ground, and plaintiff did not appeal from the latter order. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 1061.*] Department 1. Appeal from Superior Court, Kern County; J. W. Mahon, Judge. Action by C. F. Dempsey against J. H. Underhill and others, in which the Desert Mining Company, a corporation, intervened. From a judgment dismissing the action for delay in prosecution, plaintiff appeals. Affirmed. ANGELLOTTI, J. This is an appeal by plaintiff from a judgment dismissing an action for the reason that the same was not brought to trial within five years after issue joined by answer between the intervener and plaintiff. The action was one commenced September 24, 1900, to quiet plaintiff's title to an undivided interest in certain mining claims as For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes against certain persons named as defendants. The defaults of all these persons were entered in the year 1901, the last of such defaults having been entered on October 15, 1901; but no judgment has ever been given as against any of said defendants. By leave of the court the Desert Mining Company filed its complaint in intervention on October 26, 1900, claiming all of the property as against both plaintiff and defendants. Plaintiff's demurrer to this complaint in intervention was overruled, and he filed his answer thereto on November 24, 1900. On September 25, 1906, plaintiff gave notice of a motion to be made for an order dismissing the action in intervention on the ground that the issues tendered by the intervener had not been brought to trial within five years after the plaintiff had filed his answer, and that such neglect had not been due to any stipulation of the parties in writing or otherwise. Code Civ. Proc. § 583. This motion was heard on November 26, 1906, and the facts stated as grounds therefor shown to exist. On December 6, 1906, the lower court made its order denying plaintiff's motion to dismiss the action in intervention, and adjudging that "the said action and the whole thereof be and the same is hereby dismissed, for the reason that the same was not brought on for trial within five years." This order, which constituted a final judgment within the meaning of the provisions of the Code touching appeals, and which finally and entirely disposed of the whole case (see Marks v. Keenan, 140 Cal. 33, 73 Pac. 751), was entered June 6, 1907, and plaintiff appealed therefrom within six months thereafter. Pen. Code, § 246, providing that every person undergoing a life sentence in a state prison, sault with a deadly weapon, or by any means or who with malice aforethought commits an asforce likely to produce great bodily injury, is punishable with death, is not violative of Const. art. 1. § 6, prohibiting "cruel or unusual punishment," as the infliction of the death penalty by any methods ordinarily adopted by civilized people is neither a cruel nor unusual punishment, unless it be so disproportionate to the offense for which it is inflicted as to shock the moral sense of the people. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3304-3309; Dec. Dig. § 1213.* For other definitions, see Words and Phrases, vol. 2, pp. 1765-1767; vol. 8, p. 7624.] 2. CONVICTS (§ 5*)-CRIMES-TRIAL-READING INFORMATION TO JURY-EVIDENCE. Pen. Code, § 1093, subd. 1, providing that It may be seriously questioned whether the where the information charges a previous conlower court was warranted by the facts stat-viction, and the defendant has confessed the ed in dismissing plaintiff's action as to the same, the clerk in reading it shall omit therefrom all that relates to such previous conviction, defaulting defendants. But plaintiff makes and section 1025, providing that when a defendno complaint in his briefs on this score. The ant is charged with a previous conviction, and sole points are: (1) That the intervener nev- pleads not guilty and admits the previous coner perfected its intervention as provided by must not be read to the jury, nor alluded to on viction, the charge of the previous conviction the law and therefore has no standing in the the trial, refer only to the trial of offenses where litigation; (2) that the complaint in interven- the prior conviction is alleged to enable the tion did not state a cause of action; and (3) when there is no prior conviction, and do not court to impose a greater punishment than that the court erred in denying plaintiff's mo- apply to trial of a person who, while undertion to dismiss the action in intervention. going a life sentence, commits an assault, and Solely for the purposes of this appeal we may which is made punishable by death by Pen. concede that all of these points are well under the latter section enters a general plea of Code, 246; and, where a person prosecuted made, but we are nevertheless utterly unable not guilty, it puts in issue the question of his to see why a reversal of the judgment of dis- conviction upon which judgment of life imprismissal should be had on account thereof.onment was given, and his admission of that fact in his arraignment will not relieve the disThe effect of the judgment of dismissal was trict attorney from necessity of proving it on necessarily to dismiss the intervener's action, the trial. the very thing plaintiff was seeking to have done by his motion. While denying plain- | tiff's motion, the court on its own motion made an order which granted all that plaintiff asked in regard to the intervener. So far as the disposition of the intervention is concerned, plaintiff has nothing substantial to complain of. If the court erred in denying his motion, it was error without prejudice. [Ed. Note. For other cases, see Convicts, Dec. Dig. § 5.*] 3. CRIMINAL LAW (§ 1169*)-APPEAL-HARMLESS ERROR-ADMISSION OF EVIDENCE. On the trial of a person who, while undergoing a life sentence, committed an assault which under Pen. Code, § 246, is punishable by death, the admission in evidence to show the former conviction, in addition to the certified copy of the judgment of former conviction, of the judgment roll, including, in addition to a copy of the judgment, the information, a copy of the minutes of the plea or demurrer, and a copy of the minutes of the trial, if unnecessary to prove the former conviction, the certified copy of the judgment being in evidence, did not prejudice defendant. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3137-3143; Dec. Dig. § 1169.*] reading matter was revoked. Held, that questions on cross-examination as to his reasons for depriving him of reading matter and his mattress, as well as for putting him on bread and water, were improper, as the state had no right to show by specific acts that defendant was incorrigible. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 948; Dec. Dig. § 268.*] 4. CONVICTS (§ 5*)-CRIMES-TRIAL-ADMISSI- 10. CRIMINAL LAW (§ 11701⁄2*) — APPEAL BILITY OF EVIDENCE. On the trial of a person who, while undergoing a life sentence, committed an assault, which under Pen. Code, § 246, is punishable by death, the record of the former commitment is admissible. [Ed. Note. For other cases, see Convicts, Dec. Dig. 5.*] 5. CONVICTS (§ 5*)-CRIMES - INFORMATION DESCRIPTION OF WEAPON. In a prosecution under Pen. Code, § 246, providing that every person undergoing a life sentence in a state prison who, with malice aforethought, commits an assault "with a deadly weapon or instrument" is punishable with death, an allegation in the information that the assault was with a deadly weapon is sufficient, without specifying the nature of the weapon. [Ed. Note. For other cases, see Convicts, Dec. Dig. 5.*] HARMLESS ERROR-ADMISSION OF EVIDENCE. In a prosecution for assault with a deadly weapon by one who was undergoing a sentence of life imprisonment, it was admitted that defendant had been kept in solitary confinement in the incorrigible ward for more than eight years before committing the assault. Held, that improper cross-examination by the state of the warden of the penitentiary as to his reasons for depriving defendant of some of his privileges was harmless. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3133; Dec. Dig. § 1170%2.*] 11. WITNESSES (§ 269*)-CROSS-EXAMINATION. In a prosecution for assault with a deadly weapon by one who was undergoing a life sentence, in which the defense was insanity, an employé at the prison, examined as a witness for defendant, testified that defendant was confined in the dungeon for a time, having been put there on the day of the assault, and subse 6. CRIMINAL LAW (8_373*)- ASSAULT WITHquently was carried back to the incorrigible DEADLY WEAPON-EVIDENCE-INFORMATION -ADMISSIBILITY. In a prosecution under Pen. Code, § 246, making an assault with a deadly weapon, by a person undergoing a life sentence, punishable by death, evidence is admissible to show the use of two weapons, and is not objectionable as tending to show the commission of two offenses, where the evidence showed only one assault in which both weapons were used. [Ed. Note.--For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. § 373.*] 7. CRIMINAL LAW (§ 678*)—TRIAL-ELECTION AS TO OFFENSE. Where, in a prosecution for assault with a deadly weapon, the evidence tends to show one assault in which two weapons were used, such evidence does not tend to show two or more distinct offenses for each of which defendant might be prosecuted, and therefore the district attorney need not elect which of two offenses he would rely on as constituting the offense charged. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 1580-1583; Dec. Dig. § 678 Indictment and Information, Cent. Dig. §§ 425-437.] 8. CRIMINAL Law (§ 1167*)—APPEAL AND ER BOR-HARMLESS ERROR-VARIANCE. an information In a prosecution under charging assault with a deadly weapon, evidence that the assault was committed with two weapons is not prejudicial variance. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1167.*] cells and put in a strait-jacket. Held, that fendant had been placed in the dungeon shortly testimony elicited on cross-examination that dethere about a month or six weeks, and that subafter his arrival at the prison, and remained sequently he was again confined in the dungeon, was improper cross-examination. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 949-954; Dec. Dig. 269.*] In a prosecution for an assault with a deadly weapon by one who was undergoing a life sentence, in which the defense was insanity, an employé of the prison testified on direct examination by defendant that defendant was confined in the dungeon on the day of the assault, and subsequently carried back to the incorrigible cells and put in a strait-jacket. Held, that the error in allowing the witness to testify on cross-examination that defendant had been placed in the dungeon after his arrival at the prison, and that on a subsequent occasion he had been placed in the dungeon for a month or six weeks, and on a third occasion was also placed in the dungeon, was harmless; it being admitted that defendant had been kept in solitary confinement in the incorrigible ward for more than eight years prior to the assault. Cent. Dig. 88 3137-3143; Dec. Dig. § 1169.* Where, in a criminal prosecution of a convict for assault with a deadly weapon, the defense was insanity, and defendant's counsel was allowed full latitude in showing conversations between defendant and others, sustaining an objection to a question to a witness who testified to many conversations as to one conversation, which was not shown or claimed to be important, is not prejudicial error. 9. WITNESSES (§ 268*) - CROSS-EXAMINATION. In the prosecution of a person who, while undergoing a life sentence, committed an as sault, one defense was insanity at the time of the alleged assault, and the warden of the prison in which defendant was confined testified as to the conditions surrounding defendant while the witness was warden; the object being to show such conditions as might produce insanity. He testified that during all of the time during which he was warden defendant was kept in solitary confinement in the incorrigible ward, and prohibited from communicating with others, and not permitted to receive visitors, that during a portion of the time he was deprived of his mattress, and at one time the permission to have For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.*] 14. CRIMINAL LAW (§ 354*)-INSANITY-EVI DENCE. In a prosecution in which the defense was insanity, an employé of the state prison in |