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Respondent claims that the Act cited was equal in its operation, because it levied a tax of fifty cents on each one hundred dollars of property subject to taxation,-and denies that certain persons and property are excused from its payment. In answer to the point that the personal judgment was erroncous, the rule laid down in Lewiston vs. Swan, 33 Cal., 483, is cited: "That if it appears from the Sheriff's return that the proceeds are insufficient to satisfy the amount due, judgment can then be declared against the defendaat.

George Cadwallader, attorney for defendant and appellant. P. Dunlap, attorney for plaintiff and respondent.

OPINION BY THE COURT.

Action to recover delinquent taxes, levied by the Act of March 28, 1874 (Statutes 1873-4, p. 745) for the twentyfourth and twenty-fifth fiscal years.

The tax is attacked on the ground that it violates section II, Article I of the Constitution—“ All laws of a general nature shall have a uniform operation ;" and also section 13, Article II-" Taxation shall be equal and uniform throughout the State." The objection cannot be sustained, for the statute purports to levy a tax upon all property in the State, subject to taxation for each of those fiscal years.

The Constitutional provision that "All property in this State shall be taxed in proportion to its value, to be ascertained as directed by law," does not require the value of the property to be ascertained after the passage of the Act fixing the rate of taxation. That requirement is satisfied by the ascertainment of the value of the property as directed by law; and the Legislature may levy the tax, either before or after the value of the property is ascertained, without any violation of the fundamental rules upon which taxation is based, or indeed any rule of sound financial policy.

No portion of the property liable to taxation for those fiscal years is exempted from taxation. The provision in the Act, that the several amounts which have been paid on the property, in pursuance of a previous invalid levy of taxes, should be credited as a payment, pro tanto, of taxes levied by this Act, does not amount to an exemption of such property from taxation; and if that provision of the Act should be construed as intending that such property would be exempt from taxation, the provision should be void, because in violation of the Constitutional provision that all property in the State shall be taxed in proportion to its value.

We see no error in the proceedings or judgment,

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An agreement by parol to make a purchase,—and subsequent parol agreement to transfer to a third party the benefit of the same, not within Statute of Frauds. Any benefit derived from said third party from such transaction renders him liable on his contract to pay for the same.

STATEMENT OF FACTS.

On his opening statement to the jury plaintiff was nonsuited. From this statement it appears that one Richardson was the owner of real estate for which the plaintiff made a parol agreement to purchase for $200,000. Plaintiff not being able to raise that sum, made a subsequent parol agreement with defendant, for a certain sum, to give him the benefit arising from this bargain, whereupon Richardson, by his direction, executed a deed to defendant for the property, but after getting the deed defendant refused to pay anything to plaintiff whereupon the latter brought his action upon the implied promise to pay what the purchase was reasonably worth. Upon these facts the Court below non-suited the plaintiff on the authority of Mayer vs. Child,-holding that the plaintiff's right of purchase from Richardson was void, because the same was not in writing, and consequently there was nothing for plaintiff to assign to defendant,—and therefore there was no consideration for any promise by defendant to pay anything to plaintiff.

Appellant claims that Mayer vs. Child, upon which plaintiff was non-suited in the Court below is no authority for respondent, and that the moment that Richardson performed his agreement by conveying to defendant, the defect was cured, defendant deriving as much benefit from it as if the agreement had been in writing. It is contended that the general principle is, that although a contract may be within the Statute of Frauds, or void from any cause, yet that after it has been performed it becomes valid: Pico vs. Cuyas, 47 Cal., 179; Grove vs. Hodges, 55 Pa. St., 516; Abel vs. Douglas, 4 Denio, 311; Storm vs. U. S., No. 23, Oct. Term, 1876, U. S. Sup. Court.; Adams vs. Honness, 52 Barb., 334.

Pringle & Hayne, attorneys for plaintiff and appellant.
Jarboe & Harrison, for defendant and respondent.

OPINION BY THE COURT.

The case of the plaintiff is not like that of Mayer vs. Child (47 Cal., 142), as supposed by the Court below. In that case the vendor of the stock repudiated the alleged contract, and so the transaction turned out to be of no benefit to the defendant there. But here the defendant did obtain an advantage, and acquired the title to a large property by means of the contract made by him with McCarthy, and upon which this action is brought.

We think that the views expressed by Lord Chief Justice Best, in Seaman vs. Price (10 Moore), and by the Supreme Court of the State of Missouri, in Kratz vs. Stocke (42 Mo., 351), are appropriate to the case before us, and upon the principles maintained in those cases the judgment below should be reversed here.

Judgment reversed and cause remanded for a new trial. Remittitur forthwith.

RHODES, J., expressed no opinion.

[No. 2490.]

[Filed March 27, 1878.]

DORN vs. HOWE.

VALIDITY OF HOMESTEAD CLAIM.-Actual residence at the time of filing the declaration necessary to constitute a homestead.

STATEMENT OF FACTS.

Plaintiff's title to the premises in dispute is derived from certain sales made under execution. Defendant sets up that the same were at the time of execution of such sales a homestead, the only question therefore presented by the record is, was defendant's claim of homestead a valid one.

The Court below found that at the time of filing of defendant's claim of homestead he was not residing on the land designated.

J. K. Alexander and S. M. Swinnerton, attorneys for plaintiff and appellant.

W. H. Webb, attorney for defendant and respondent.

OPINION BY THE COURT.

The defendant was not residing on the premires in controversy at the time the declaration of homestead was filed. An actual residence thereon at the time of the filing of the declar

ation is required by the statute (Civil Code, sec. 1263). The statute has been so construed here in several cases-the latest of which is Babcock vs. Gibbs (No. 5669), at the last October Term.

Judgment reversed and cause remanded, with directions to render judgment for the plaintiff, in accordance with the prayer of the complaint.

[No. 5666.]

[Filed April 2, 1878.]

ESTATE OF FREY.

MISNOMER.-Letters testamentary issued to a party other than named in the order of Court, declared to be void. The party acting under the same not entitled to commissions in the settlement of the estate. A testator has power to dispose of only one-half of common property. A surviving wife, by receiving letters testamentary, and by taking under the will, does not thereby renounce her right to half the common property. The facts appear in the opinion.

OPINION BY THE COURT.

The letters testamentary issued to Jacob Frey were unauthorized and void, for the reason that the order directed letters to be issued to the petitioner, Joseph Frey.

The letters testamentary issued to Jacob Frey being void, he was not entitled to commissions, fees or charges as an executor in the settlement of the estate of said testator.

If the property in this case was common property (on the argument it was so conceded), the testator had power to make a testamentary disposition of only one-half thereof, subject to the payment of debts, and the remaining half would vest in the surviving wife of the testator. The surviving wife, by applying for and receiving letters testamentary, and by claiming and taking under the will, will not be deemed to have renounced her rights to the one-half of the property as common property.

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

[No. 5587.]

[Filed March 26, 1878.]

SNOW vs. KIMMER.

TRESPASS.-WHEN ACTION CANNOT BE MAINTAINED.-When defendants are

in adverse possession-claiming the right of possession-the plaintiff cannot maintain action for trespass.

OPINION BY THE COURT.

The findings show that at the time of the commission of the alleged trespasses the defendants were in the adverse possession, claiming the right to the possession of the tract of land upon which the alleged trespasses were committed, and still continued in possession at the time of bringing the action.

Under these circumstances the plaintiff cannot maintain an action of trespass, or a bill to prevent the commission of supposed acts of trespass on the premises by the defendants. Judgment affirmed.

[No. 5469.]

[Filed March 27, 1878.] STANWAY vs. RUBIO.

STATEMENT OF FACTS.

The plaintiff, Stanway, deraigned title from one Miguel Moro, who with others, agreed with Geo. Dalton and Manuel Abril, parties of the first part, to purchase section 9, of township 2 south, range 13 west, in the county of Los Angeles, as lieu lands from the State, and when a patent for the same was obtained, to execute deeds, in severalty, to said parties, for any or all of said lands which might be occupied and in possession of the parties of the second part. The defendant, Rubio, was not made a party to this agreement, but claims title through a party who purchased from Abril.

J. D. Bicknell and J. R. McConnell, attorneys for plaintiff and appellant.

Lindley & Thompson, for defendant and respondent.

OPINION BY THE COURT.

At the trial plaintiff claimed to deraign title from Moro, who, so far as the record shows, never had any right, interest or estate in the demanded premises. The lands in controversy are neither included within the fences or inclosures of any of the parties of the second part to the agreement of April 9, 1868, nor within the lines of the respective possessions of said parties as surveyed by Hansen, County Surveyor, or as indicated by the green lines upon the Hansen map.

Judgment and order denying new trial reversed, and cause remanded for a new trial. Remittitur forthwith.

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