and the necessity of a special proceeding as a foundation for the system, creates a separate class of such registered lands and authorizes special provisions of law on the subject, applying only to such registered lands, the owners thereof or persons interested therein, or to the procedure whereby the system is to be inaugurated.

5. The claim is also made that the act violates the provision of section 24, art. 4, of the Constitution, that "Every act shall embrace but one subject, which subject shall be expressed in its title." The title of the act is "An act for the certification of land titles and the simplification of the transfer of real estate." St. 1897, p. 138, c. 110. The act makes it a felony to fraudulently procure a false certificate of title under the act, or to fraudulently obtain any false entry thereunder. Sections 111, 112. The county recorder is constituted the registrar, under the act, and required to perform the duties of registrar. Section 1. The official bond of the recorder is made to cover his duties as registrar. Section 2. The registrar is prohibited from practicing law. Section 4. The filing of the petition to establish title operates as a lis pendens. Section 11. The decree is made final and conclusive. Section 17. Liens are not to become effective on registered land until their entry on the duplicate certificate in the recorder's office. Sections 91, 92, 93, 94, and 95. Claims to registered lands cannot be obtained by adverse possession. Section 35. Four weeks' constructive notice is all that is required with respect to persons who are unknown. Section 13. These provisions relate to the subjects of felonies, county officers, county government, principal and surety, attorneys at law, judgments, liens, procedure, and adverse claims, respectively, and it is claimed that the act is void because none of them are mentioned in the title; and it is intimated that, if they were mentioned, the law would be contrary to the mandate of the Constitution that the act shall embrace but one subject. If the first proposition is well taken, it is certain that the second is also established; but the mere statement of the objection is almost sufficient to refute it. While it is true that none of the subjects thus designated are expressed in the title, they are all germane to the general subject there expressed, and, taken together, they compose a part of the general scheme and are appropriate to effect the main object of the law. Further examination would have disclosed a large number of such "subjects" in the body of the act, which are not mentioned in the title. The same criticism might be made of many acts on a general subject which have always been considered as valid. The act establishing the scheme is the appropriate place for provisions necessary to make It effective and symmetrical. If it were necessary to mention every subdivision of the general subject of an act in the title, to the

extent here claimed, our statutes would present a somewhat ludicrous appearance. The statement of the subject in the title would generally occupy almost as much space as the act itself. Furthermore, if subjects, as intended by the Constitution, must be so minutely subdivided, it would be impracticable to enact any comprehensive law on any general subject, by reason of the necessity of dividing it into so many separate acts. The provision must receive, and it has received, a more liberal construction. The word "subject" is given a broader meaning. People v. Mullender, 132 Cal. 217, 64 Pac. 299. All the provisions objected to as constituting a different subject are reasonably necessary as means for attaining the object of the act indicated by the subject which is expressed, and hence they are considered as included in the title, as subdivisions of the general subject there stated. People v. Parks, 58 Cal. 636; Ex parte Liddell, 93 Cal. 633, 29 Pac. 251; Hellman v. Schoulters, 114 Cal. 136, 44 Pac. 915, 45 Pac. 1057; People v. Linda Vista Irr. Dist., 128 Cal. 477, 61 Pac. 86; Deyoe v. Superior Court, 140 Cal. 476, 488, 74 Pac. 28, 98 Am. St. Rep. 73. We think the title to the act sufficiently expresses the subject to which it relates, and that it embraces but one general subject. We find no sufficient ground for holding the law unconstitutional. Let the writ of mandate issue as prayed for.

We concur: SLOSS, J.; HENSHAW, J.; ANGELLOTTI, J.; MCFARLAND, J.; LORIGAN, J.

(150 Cal. 793)

PEOPLE'S HOME SAVINGS BANK v. SHERMAN. (L. A. 1,610.) (Supreme Court of California. April 2, 1907.) 1. DISMISSAL AND NONSUIT-INVOLUNTARY DISMISSAL-FAILURE TO PROSECUTE.

In an action by a bank against a stockholder to collect a call for the balance of a subscription, it appeared that the bank continued in business for more than three years after its officers knew of its insolvency, without questioning the validity of the transfer by defendant of his shares to another, to be held in trust for defendant; that after the call was made plaintiff delayed until the last day possible to bring the action, in order to avoid the bar of the statute; that the action was brought in the wrong county, and plaintiff then waited three years before pressing for hearing a motion by defendant to transfer to the proper county, and more than a year after issue joined before taking any steps to bring the case to trial, during which time efforts were being made to adjust the case-a dismissal of the action was no abuse of discretion.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Dismissal and Nonsuit, §§ 104, 140, 141.] 2. SAME-HEARING AND DETERMINATION.

The superior court, in ruling on a motion to dismiss an action for want of diligence in prosecuting the same, might properly consider any facts appearing in the record of the case, whether the same occurred before the action was commenced or afterward.

3. APPEAL AND ERROR-REVIEW - SCOPE OF REVIEW.

In reviewing the action of the superior court on a motion to dismiss an action for want of diligence in prosecution thereof, the appellate court may take into consideration all facts appearing in the record of the case, whether the same occurred before the action was commenced or afterward.

In Bank. Appeal from Superior Court, Los Angeles County; D. K. Trask, Judge.

Action by the People's Home Savings Bank against M. H. Sherman. Appeal by plaintiff from a judgment dismissing the action. Affirmed.

Stratton & Kaufman and F. G. Finlayson, for appellant. John D. Pope, for respondent.

SHAW, J. On April 24, 1906, this cause, and a number of others, which had been decided by the district court of appeal, were transferred to this court for decision. The order was a general one, applying to all the cases, and was made in consequence of the fact that the destruction of the records of this court in San Francisco by the fire of April 18th, of that year, made it impossible for the court to examine a case within the time limited for making such order. In the district court an opinion was rendered, in part as follows: "Appeal from a judgment dismissing the plaintiff's action for want of diligent prosecution. On December 10, 1902, the defendant joined issue in the cause by filing his answer. The motion to dismiss was made December 22, 1903, one year and twelve days after issue joined. It is made to appear from the record that defendant became a stockholder in plaintiff corporation on the 29th of May, 1890, by subscribing for 300 shares of the capital stock of the par value of $100, of which subscription price he paid one-third, agreeing to pay the remaining two-thirds upon call. It further appears that on September 30, 1891, the corporation became insolvent, a fact well known to its directors and to defendant; but, notwithstanding this insolvency, the bank continued to do business until the 9th day of January, 1895, at which date it went into liquidation in accordance with the bank commissioners' act; that on the 30th day of September, 1891, when the bank was so insolvent, defendant transferred his shares of stock to one B. N. Pratt, without consideration, and Pratt thereafter held the stock in trust for defendant; that on September 30, 1895, plaintiff through its board of directors made a call upon the stockholders for the unpaid subscription; and that neither defendant nor Pratt paid the $20,000 unpaid upon the stock so standing in the name of Pratt. It further appears that on the 29th day of September, 1897, the complaint in this proceeding was filed against defendant in the city and county of San Francisco. It does not appear from the record that any summons was ever issued or served; but on the 7th of

February, 1899, defendant entered an appearance to said proceeding by general demurrer, and moved for a change of place of trial; that no proceedings were had upon said demurrer or said motion until the 17th day of June, 1902, on which date an order was made transferring the cause to Los Angeles county, the proper county, for trial; that thereafter, on October 3, 1902, the demurrer was overruled, and on December 10, 1902, issue was joined; that during the whole time from the commencement of the action up until September, 1903, persistent effort was being made by plaintiff, through its attorneys and officers, to effect a settlement and adjustment of their alleged claim, on which lastnamed date the terms of settlement were practically agreed upon by the parties, but never finally consummated, and on December 22, 1903, defendant gave notice of his intention to move for an order dismissing the action for failure of plaintiff to prosecute the same with reasonable diligence. This motion was heard on the 2d day of February, 1904, and granted. The question presented upon this appeal is whether the court abused its discretion in granting such order. Were the length of time between the negotiations for settlement and the granting of the motion alone to be considered, we should have no hesitancy in saying that the short lapse of time would not have justified the action of the court. In all of the cases cited, and of which we have made examination, notably Simmons v. Keller, 50 Cal. 38, and Kornahrens v. His Creditors, 64 Cal. 492, 3 Pac. 126, a much greater time elapsed between the joining of issue and the order of dismissal; and in Kornahrens v. His Creditors, supra, while only nine months had elapsed, there were circumstances taken into consideration in connection therewith which justified the court in its action. An examination of the entire record impresses us with the conviction that the court did not abuse its discretion in dismissing this proceeding under the circumstances of this case. The fact that a banking corporation continued to do business for more than three years after its officers knew of its insolvency, without questioning the validity of the transfer of stock to a third party, that after a call had been made it should delay until the last day possible to bring the action in order to avoid the bar of the statute, and then to bring such action in the wrong county, thereafter to Iwait three years before pressing for hearing the motion to transfer to the proper county, and more than a year after issue joined before taking any steps to bring the cause to trial, during all of which time constant and repeated efforts were being made to settle and adjust the case, may well have indicated to the trial court that the action was not brought in good faith, nor maintained with a view to having the court pass upon the rights of the parties, but that the process of the court was being used for the purpose of in-,

ducing or compelling a compromise and adjustment of a disputed liability. That this court would be warranted in reversing the judgment of the court in this case, a gross abuse of discretion should be made to appear, which, in our opinion, is not disclosed in this record. Allen, J."

Upon a reconsideration of the case, we are satisfied with the foregoing, and adopt it as a part of the opinion of this court. In response to the chief objection made in the petition for transfer to this court, we add the statement that the superior court, in ruling upon the motion to dismiss the action for want of diligence in prosecuting the same, could properly consider any facts appearing in the record of the case and bearing upon the question of diligence and good faith, whether the same occurred before the action was begun or afterwards, and that in reviewing the action of the superior court, and considering whether or not its discretion was properly exercised, the appellate court should also take such circumstances into consideration.

The judgment is affirmed.

We concur: MCFARLAND, J.; HENSHAW, J.; SLOSS, J.; ANGELLOTTI, J.; LORIGAN, J.

(150 Cal. 785)

KOYER v. WILLMON. (L. A. 1,575.) (Supreme Court of California. April 2, 1907.) 1. PARTNERSHIP - PURCHASE OF LAND-CON

TRACT.

Where plaintiff and defendant agreed to purchase certain real property, including the lot in question, on joint account, and to take the title in the name of S., who should hold it for the joint benefit of plaintiff and defendant, each paying one-half of the price, and each being the owner of an undivided one-half interest therein, the agreement constituted plaintiff and defendant partners in the enterprise.

2. SAME-ORAL AGREEMENT.

A partnership to buy, hold, and sell lands may be validly formed by parol.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, § 2.]

3. TRUST-CONSTRUCTIVE TRUST-PARTNERSHIP AGREEMENT-BREACH.

Where plaintiff and defendant were partners in the purchase and sale of certain land for their joint benefit, and defendant improperly purchased the lot in controversy, which was within the partnership agreement, in his own name, and with his own funds, over plaintiff's protest, plaintiff having furnished money for a portion of the expenses, and having agreed to pay his share of the purchase price, defendant held the land as trustee of a constructive trust for the benefit of the firm.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 153, 154.]

4 SAME-ENforcement-CONDITIONS PRECED

ENT-TENDer.

Where defendant purchased a lot in controversy in his own name, in violation of an agreement to purchase as the property of a firm of which plaintiff and defendant were members, and refused to recognize plaintiff's interest in the property, plaintiff was not bound to make a formal tender of one-half of the purchase

5. PARTNERSHIP OUTSIDE BUSINESS.

Where plaintiff and defendant agreed to purchase, hold, and sell certain land on joint account, the fact that plaintiff had a general partner, with whom he was engaged in the real estate business, did not disqualify him from entering into a particular partnership with defendant for the purchase and sale of the land in controversy for their joint benefit.

In Bank. Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge.

Action by A. S. Koyer against J. C. Willmon. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.

Jones & Weller (J. S. Chapman, of counsel), for appellant. O. B. Carter, for respondent.

SHAW, J. Plaintiff began this action to obtain a decree declaring that the defendant holds title to an undivided one-half of a certain lot 14, in block 93, fully described in the complaint, in trust for the plaintiff, for an accounting of the money advanced by the defendant in the purchase thereof, and to compel the defendant, upon payment to him by the plaintiff of the amount advanced on behalf of the plaintiff by him, to convey to plaintiff said one-half interest. The court below granted a nonsuit at the close of the plaintiff's evidence, and rendered judgment thereon in favor of the defendant. The plaintiff appeals.

The evidence is contained in a bill of exceptions. The complaint alleges that the plaintiff and defendant entered into an agree ment to purchase certain real property situat ed in San Pedro, in Los Angeles county, including the said lot 14, and that it was agreed between them that all of said property should be purchased on joint account and title thereto taken by one Lydia B. Shields, who should hold the same for the joint benefit of the plaintiff and defendant; that each should pay one-half of the purchase price therefor, and each should be the owner of an undivided one-half interest therein; that the lands consisted of two parcels, both of which it was agreed were necessary for the purpose for which the lands were to be purchased, one parcel being the said lot 14, and the other the remaining lands. It is further alleged that, in pursuance of the agreement, the plaintiff and defendant purchased the second parcel, and each paid one-half of the price thereof; that the defendant went to San Pedro to buy the lot 14, in pursuance of the agreement; that he did purchase it and paid the price therefor, but that, instead of taking the title in the name of Lydia B. Shields for their joint use, as agreed, the defendant caused the title to be conveyed to himself alone, and thereupon claimed the same as his own property, and has ever since claimed the whole of said lot as his own and asserted that the plaintiff has no interest therein, or in any part thereof. It is also averred that

the plaintiff has at all times been ready, able, and willing to repay to the defendant the one-half of the money expended by the defendant in buying said lot, that he tendered the same to the defendant before suit, and that plaintiff offers to deposit the same in court, upon the conveyance to him of an undivided one-half of the lot.

The effect of the agreement alleged was to make the plaintiff and defendant partners in the enterprise of buying and holding the property which was the subject of the agreement. It is not alleged that the agreement was in writing, and the evidence shows that it was made by parol, and not in writing. It is settled by the decisions in this state that a partnership for the purpose of buying, holding, and selling lands may be formed by an agreement resting in parol, only, and that such parol agreement is valid. Bates v. Babcock, 95 Cal. 479, 484, 30 Pac. 605, 16 L. R. A. 745, 29 Am. St. Rep. 133; Coward v. Clanton, 79 Cal. 26, 21 Pac. 359. See, also, Holmes v. McCray, 19 Am. Rep. 735, 51 Ind. 358; Snyder v. Wolford, 53 Am. Rep. 22, 33 Minn. 175, 22 N. W. 254.

Civ.

The existence of the partnership between them placed them in confidential relations toward each other, with respect to the property which was the subject of the agreement. Each occupied the position of a trustee to the other with regard to all the partnership transactions, including the transactions contemplated by the firm, and constituting the object or purpose for which the partnership was formed. When Willmon undertook to accomplish for the firm the purchase of lot 14, he was acting as agent and trustee of the plaintiff, and, in contemplation of law, the plaintiff was the beneficiary of that trust, with relation to his portion of the property. "In all matters connected with his trust, a trustee is bound to act in the highest good faith toward his beneficiary." Code, § 2228. He cannot "use or deal with the trust property for his own profit, or for any other purpose unconnected with the trust, in any manner." Civ. Code, § 2229. When Willmon succeeded in procuring the option to purchase lot 14, he was acting for the firm, and the right to purchase the property became trust property in his hands, or under his control. Under the principles above stated, he could not thereupon appropriate the trust property to his own use, nor deal with it otherwise than for the benefit of the partnership. The trust arising upon this transaction was not technically a resulting trust, and the decisions to the effect that a resulting trust does not arise unless the beneficiary has paid the price, or some other valuable consideration on the faith of the transaction, do not apply to the case. The trust imposed upon the defendant here is of the class known as "constructive trusts." It may be created in property, although the person sought to be charged as trustee bought and paid for it

with his own means, as where a guardian buys directly from his ward, or an administrator purchases from an heir the property of the estate. In such cases the beneficiary of the constructive trust may tender to the defendant and offer to pay into court for the trustee whatever may be found just and equitable, and demand a reconveyance from the trustee, to be delivered on payment of the money. The fact of a previous tender or payment is usually important only to the determination of the question whether the plaintiff or the defendant shall recover costs. Gray v. Dougherty, 25 Cal. 282. At the time Willmon obtained this lot, the other property had been purchased and paid for by the firm, and the plaintiff had assisted in obtaining information about the ownership of the lot in question, and had paid the railroad fare for the trip of Willmon to find the person holding the option, and had otherwise contributed to that part of the proposed purchase. The relations were such that Willmon could not take the property without allowing the plaintiff to share therein according to the partnership agreement. It was gained by the violation of a trust. Civ. Code, § 2224; Rose v. Hayden, 35 Kan. 106, 10 Pac. 556, 57 Am. Rep. 145; Case v. Carroll, 35 N. Y. 388; Manning v. Hayden, 16 Fed. Cas. No. 9,043.

Under the rules governing the consideration of evidence on a motion for nonsuit, the evidence was sufficient to sustain the plaintiff's case. The testimony of the plaintiff was to the effect that the parties decided to buy the whole of the property because of its frontage on the Bay of San Pedro and its supposed advantages for wharfage purposes, and lot 14 was necessary, as it enabled them "to control the situation there"; that they thereupon agreed to buy all the property for their joint use, and each should pay one-half the price; that they bought and paid for the other lots and had the title taken, as agreed, in the name of Lydia B. Shields; that there was some difficulty in finding the name of the owner of lot 14, but plaintiff ascertained it, and Willmon thereupon wrote to her at plaintiff's suggestion, and obtained an answer from her saying that she had given an option on it to some one in San Pedro, but not disclosing his name; that thereupon Willmon, at plaintiff's request, and at plaintiff's expense for railroad fare, made two trips to San Pedro for the purpose of finding the person holding the option; that upon the second trip he succeeded in finding the man, bought the property, paid for it with his own funds, took title thereto in his own name; and that he thereupon reported the fact to plaintiff, and declared that it was his own property, and that the plaintiff had no interest in that part of the transaction. Plaintiff thereupon "made it plain to Mr. Willmon that (he) wanted the property, and that (he) was ready to pay for it"; but Willmon told him he need not say anything more about it, that he was going to

keep the property, and walked out of the office where the conversation took place. The conduct of the defendant above recited made it unnecessary for the plaintiff to go further and make a formal tender of one-half the purchase money in furtherance of his claim, as a condition precedent to the right to maintain an action to enforce his rights. It is claimed that the decision of the court below was justified by the testimony of the plaintiff on cross-examination. At the close of the cross-examination, as it appears in the record, the plaintiff testified as follows: "The defendant and I were not partners during any of these transactions, but during all of said time Mr. Sherwood was and still is my partner in the real estate business." It is evident that the plaintiff was here speaking of a general partnership, and not of the special agreement with regard to the property in controversy, and that this testimony was not contradictory of, or inconsistent with, his previous testimony as to the facts concerning the agreement between himself and Willmon. The fact that he had a general partner, with whom he was engaged in the real estate business, did not prevent him from entering into a particular partnership with Willmon relating to a particular lot, or lots, of land, to buy and sell the same for their joint benefit, or to engage in any other joint enterprise concerning such lands. The motion for a nonsuit should have been denied.

The judgment is reversed, and the cause remanded to the court below for further proceedings.

We concur: ANGELLOTTI, J.; LORIGAN, J.; SLOSS, J.; HENSHAW, J.

(151 Cal. 52)

FELLOWS v. CITY OF LOS ANGELES et al. (L. A. 1,652.)

(Supreme Court of California. April 5, 1907.) 1. WATERS AND WATER COURSES PUBLIC WATER SUPPLY-STATUTORY PROVISIONSACTIONS-SUPPLY TO PRIVATE CONSUMERS.

Const. art. 14, § 1, and Act March 12, 1885, pp. 95, 97, 98, c. 115, §§ 1, 8, 10, declare that the use of all water appropriated for sale, rental or distribution is a public use. Under sections 8 and 10 of such act, corporations or persons engaged in furnishing water to the inhabitants of any county which have appropriated water to that use (other than to the inhabitants of a city, or town, or city and county), are required to distribute such water at the rates fixed by the board of supervisors of the county or as fixed by the corporations or persons, and, upon tender of such rates and demand therefor by any inhabitant who is entitled to water from such system, such person or corporation must furnish the inhabitant with water to the extent of his reasonable share of the available supply. Held, that if the place of distribution and use is outside of any city or town or city and county, the statute applies to the system, though the supply may be obtained from a natural source situated within the limits of some city.

2. ABATEMENT-GROUNDS-IMPROPER JOINDER OF REMEDIES-WAIVER.

In a proceeding to enjoin defendants from cutting off plaintiff's water supply and to com

pel them to furnish water to certain other premises belonging to plaintiff, where the facts are sufficient to justify relief by injunction as to one lot and by writ of mandamus as to the other, and the proper parties defendant are before the court for both kinds of relief and the demurrer to the complaint is upon the sole ground that it does not state a cause of action and hence does not present the objection that there is a misjoinder of causes, the superior court has jurisdiction to give relief by injunction and mandamus.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, § 505.] 3. WATERS AND WATER COURSES-ACQUIREMENT OF WATERWORKS BY CITY.

Where a city purchases land and water rights previously reduced to private ownership, the property is not relieved from the burden upon it by virtue of the appropriation of the water to public use, to which it was subject at the time of the purchase.

4. SAME.

A city after acquiring a water system cannot discontinue its operation, cease to furnish water to the persons theretofore receiving and entitled to receive it, retain title, possession, control, and management of all the property, and allow the water previously devoted to the public use to run to waste, unless there are circumstances which absolve it from the duty to furnish water.

Department 1. Appeal from Superior Court, Los Angeles County; Waldo M. York, Judge. Action by William Fellows against the city of Los Angeles and others. From a judgment for defendants, plaintiff appeals. Reversed.

Hazard & Harpham, for appellant. W. B. Mathews and Herbert J. Goudge, for respondents.

SHAW, J. This is an action to enjoin the defendants from cutting off the water flowing in a certain pipe to the plaintiff's premises, and to compel the defendants to furnish water to certain other premises belonging to the plaintiff. The court below sustained a general demurrer to the complaint, and thereupon gave judgment in favor of the defendants, from which plaintiff appeals.

The facts upon which plaintiff relies are as follows: The city of Los Angeles was the owner of a tract of land inside the city limits near the east boundary thereof, and nearly two acres in extent, on which were flowing springs and which was permeated with water. In 1858 it sold and conveyed this land to one Elijah Moulton without reservation of any water rights. In 1887 Henry T. Hazard was the owner of about 200 acres of land outside of the city boundary, but adjacent thereto, which he had subdivided into blocks, lots and streets, known as "Hazard's East Side addition to the city of Los Angeles." Hazard agreed with certain other persons that he and they would incorporate a water company to buy the Moulton land and the waters thereof, construct a pumping plant thereon and a reservoir near by, and that they would pump and store said waters and lay pipes for and operate a water system for the distribution and sale of said water for public uses; that Hazard should superintend