In Ex parte Ames (ubi sup.) Mr. J. Lowell seems to have inclined to the opinion that "a specific and definite security, unconditionally stipulated for in writing, may be given after a lapse of time and a change of circumstances." In re The Jackson Manufacturing Co., it is suggested that perhaps a security given on the faith of a contemporaneous oral promise to give a definite secur ity might be sustained, on the ground that the money advanced was so far a part performance of the contract as to entitle the creditor to a specific performance.

But the decisions in England and America are nearly uniform, that payment of the purchase-money is not of itself sufficient to take an oral promise to convey land out of the statute of fraud. Admission into possession, expenditure of money in meliorations of the estate, payment of increased rent, or the like, have always been required.

“I take it,” observes Lord Redesdale, "that nothing is to be considered as part performance that does not put the party into a situation that it is a fraud upon him unless the agreement is performed. For instance: if, upon a parol agreement, a man is admitted into possession, he is made a trespasser if there be no agreement.

*

*

*

*

"Payment of money is not part performance, for it may be repaid, and then the parties will be just as they were before, especially if repaid with interest. It does not put a man who has parted with his money into the situation of a man against whom an action may be brought; for, in the case of Foxcraft v. Lyster, which first led the way, if the party could not have produced in evidence the parol agreement, he might have been liable in damages to an immense extent. (Clinan v. Cook, 1 S. & L. 41.)

The learned editors of Leading Cases in Equity observe, in their note to Listre v. Foxcroft (Lead. Cases in Eq., vol. 1., part II., page 1054): "It is fully settled at the present time that payment of the purchase-money is not, of itself, sufficient to withdraw a parol agreement from the operation of the statute, because the money may be recovered back at law." And for this numerous authorities are cited.

If this be the law, it results that the oral promise made by the bankrupt, to give a mortgage on the distillery, created no equitable charge or lien upon it, and the contract was not one which a court of law or equity would enforce in invitum.

The creditor, therefore, had, by reason of that promise, no legal or equitable right to insist upon a preference over other creditors.

If he has chosen to postpone his demand that the promise should be executed until the bankrupt was in a situation where the law forbade him to fulfill it, he must accept the consequences of his own indulgence or neglect. Let a decree be entered accordingly.

Recent Bankruptcy Decisions.

ASSIGNMENT FOR BENEFIT OF CREDITORS.

WHAT IT PASSES: BADGE OF FRAUD.-An assignment for the benefit of creditors, of "all the goods, chattels, and effects and property of every kind, personal and mixed," does not pass the real estate to the assignee. In a sale by an insolvent vendor, inadequacy of price is evidence of fraud, and the ques tion of fraud on such sale should be left to the jury. Sup. Ct. Pennsylvania. Rhoads v. Blatt, 16 Nat. Bankr. Reg. 32.

ATTACHMENT.

LIEN OF ATTACHMENT ISSUED UNDER LAWS OF VERMONT.-Under the laws of Vermont an attachment of a debt by trustee process creates a lien on the funds in the hands of the trustee after service upon him, although no notice is given to the principal debtor. Such lien is a lien by attachment by mesne process, and will be saved when made the prescribed length of time before the commencement of the proceedings in bankruptcy. U. S. Dist. Ct. Vermont. In re Peck, 16 Nat. Bankr. Reg. 43.

JURISDICTION.

STATE COURT AND BANKRUPT COURT: HABEAS CORPUS.-Where a decree operating as a lien upon defendant's estate has been obtained in a State court, and the defendant afterward goes into bankruptcy, proceedings under State statute will not lie before a State officer against defendant for discovery of his estate similar to those given by section 5086 of the Revised Statutes of the United States; they must be taken in the bankruptcy court. Where such proceedings are taken before a State officer, and the bankrupt is imprisoned by him, he will be released on habeas corpus by a United States Court, where the decree of the State court is not for a fiduciary debt of the bankrupt. Section 5117 does not embrace the surety in a guardian's bond among those not released by a discharge in bankruptcy. U. S. Circ. Ct., E. D. Virginia. Ex parte Taylor, 16 Nat. Bankr. Reg. 40.

DESCENT SURVIVORSHIP.-The provisions of the Civil Code, section 1265, and of the Code of Civil Procedure, section 1474, are not statutes of succession or descent, but only declaratory of the operation and effect of the making and filing the declaration of homestead and the operation of the rule of survivorship.

IDEM.--Section 1265, as amended, has no application and does not impair or affect the rights which the wife acquires upon the filing of the declaration of homestead, notwithstanding the husband dies subsequently to the amendment. SECTION 1265, CIVIL CODE.-Construed.

SECTION 1383, CIVIL CODE.-Cited.

The deceased, and the appellant, his widow, on June 29th, 1873, filed, in due form, a declaration of homestead on the separate property of the husband. At that time section 1265 of the Civil Code was in force; afterward this section was amended by the Act of 1874, which was before the death of the deceased. The appraisers set apart a homestead to the widow, in fee. The Probate Court held that the Act of 1874 governed the case, and set the homestead off for a limited period.

Are the widow's rights in the homestead governed by the law in force when the homestead was created, or by the amended law passed thereafter, but previous to the death of the deceased?

RHODES, J., delivered the opinion of the Court.

Headen and wife, on the twenty-ninth day of June, 1873, filed a declara tion of homestead on the separate property of the husband. Headen died in August, 1875. The appraisers of the estate of Headen set apart a portion of the land described in the declaration of homestead, not exceeding $5000 in value, to the widow of the deceased; but the Probate Court ordered such tract to be set apart for her life only.

When the declaration of homestead was filed, the provisions of section 1265 of the Civil Code, respecting homesteads, as first adopted, were in force. They are in effect that from the filing of the declaration, if made by a married person, the "land is thereafter, by the spouses, held in joint tenancy; and on the death of either of the spouses, and subject to no other liability than such as exists or has been created under the provisions of this title, it descends to, and the title at one vests in the survivor. " The provisions of

the probate law then in force (Code C. P., Sec. 1474) was in accord with the Civil Code, and provided that on the death of the husband or wife the homestead should vest absolutely in the survivor.

There can be no question that the homestead property, to the extent of $5,000 in value, would have vested absolutely in the surviving wife, had the husband died while the above-mentioned provisions of the Codes were in force; but it is contended that the provision of the Civil Code, that the homestead property "descends to, and the title at once vests in the survivor," and the provision of the Code of Civil Procedure, that the homestead property "vests absolutely in the survivor" are in truth statutes of descent-or, as demonstrated in the Code, Statutes of Succession--and that upon the death of either spouse the title will go to the person entitled thereto, according to the statute of succession applicable to such property, in force at the time of the death of such spouse; that is to say, in accordance with section 1265, Civil Code, as amended in 1874, by which the title in this case would go to the heirs of the deceased husband, subject to the power of the Probate Court to assign the property, for a limited period, to the family of the decedent.

If those provisions of the Civil Code, that the property "descends to and the title vests at once in the survivor," and that of the Code of Civil Procedure, that the property "vests absolutely in the survivor," amount only to statutes of succession, then the position that section 1265, as amended in 1874, is applicable as a statute of succession, is correct. (Rich vs. Tubbs, 45 Cal. 34.) But if these provisions only declare the operation and effect of the making and filing of the declaration of homestead—merely define the interest which the spouses severally acquire and hold by virtue of such declaration-then the amendatory section has no application in this case, and does not impair or affect the right or title which the wife acquired upon the filing of the declaration of homestead.

It was provided by section 1265, Civil Code, before the amendment of 1874, that "the land is thereafter, by the spouses, held in joint tenancy." One of the necessary incidents of a joint tenancy is the right of survivorship-the jus accrescendi and the provision that, upon the death of one of the spouses, "the title at once vests in the survivor," adds nothing to the legal quality of the estate held by the spouses, but simply declares the result which must necessarily ensue upon the death of one of the joint tenants. The right of survivorship is the grand incident of a joint tenancy, and by its operation, where two or more persons are seized of a joint estate, the entire tenancy, upon the decease of one of them, remains to the survivors, and at length to the last survivor, and he shall be entitled to the whole estate, whatever it may be." (2 Black. Com. 184; Freeman on Co-tenancy, § 12.) The Code of Civil Procedure, section 1474, then in force, provided, as already remarked, that the homestead, upon the death of either spouse, "vests absolutely in the surviv or." This provision, and the other provisions of that and the two succeeding sections, are entirely consistent with the theory that the homestead survives to the surviving spouse.

There would be no room for doubt as to the proper construction of section 1265, Civil Code, were it not for the insertion, in the clause above cited, of the words "descends to." The Code has employed the word "succession"

66

in place of the word "descent," which had always been employed in the sratutes prior to the codes. The Civil Code, section 1383, defines succession as follows: "Succession is the coming in of another to take the property of one who dies without disposing of it by will," and in providing for the transmission of the estate by succession the Code declares that the estate "is succeeded to" by the heirs, 'is distributed to," or 'goes to," or comes to" them, and that the heirs "take," "share," or "inherit" the estate; but the word "descend" or "descent" does not appear to have been employed in that statute in defining the succession of the different classes of heirs to the estate. We are of the opinion that both the phrases "descend to" and "vest in" merely express the operation of the rule of survivorship which is necessarily incident to a joint tenancy, and that they do not furnish any other or different mode for the transmission of the estate.

It is proper to say that this construction is not in conflict with the doctrine of Rich vs. Tubbs, 45 Cal. 34 The fourth section of the Homestead Act of 1860, which was involved in that case, is clearly a statute of descent and distribution, as applicable to property which had been appropriated as a homestead. The Homestead Act of 1862, which provided that the homestead property should vest absolutely in the survivor, was not involved in that case, and it was unnecessary to determine whether the survivor took by descent or as the surviving joint tenant.

Order reversed and cause remanded for further proceedings in accordance with this opinion.

PRACTICE AND PLEADINGS.-Complainants bring suit upon an account against defendants, and aver that they "have duly presented their claim for the value of said vault, to the Board of Supervisors of said county of Alameda for allowance, and that said Board have rejected said claim. HELD, that the averment was insufficient; that under section 4072 of Political Code it should have stated the facts relied upon as constituting a due presentation, to enable the Court to determine whether it was properly presented.

IDEM. In all cases, except contracts, the performance of conditions precedent must be specially pleaded; a general allegation of performance is not sufficient.

BY THE COURT.

The Political Code, section 4072, prohibits the Board of Supervisors from considering a claim against the county, "unless an account, properly made out, giving all items of the claim, duly verified as to its correctness, and that the amount claimed is justly due, is presented to the Board within a year after the last item of the account occurred." No action can be prosecuted against the county on such demand, until it has been first presented to the Board of Supervisors for allowance, in the mauner required by the statute, and has been rejected. (Alden vs. County of Alameda, 43 Cal. 272.

The averment on this point in the complaint in the present action is, that