Whether or not appellant had any lawful authority to maintain the excavation and trap-door at all is a somewhat doubtful question; but the weight of authority seems to be to the point that he had not. There is no evidence in the case of any custom, nor does it appear whether or not appellant had the fee to any part of the street. Judge Dillon, in his work on municipal corporations, states what seems to be a fair summing up of the authorities on the subject. At section 699, speaking of the right to make "openings in sidewalks," he says: "If the fee of the street is in the municipality in trust for the public uses, as it frequently is, it extends to the whole street, including the sidewalk; and the adjoining lot-owner would, it seems clear, have no right, as against the public, or the municipality charged with the control of the streets, to appropriate them to this use. . . . . If the fee of the street is in the adjoining owner, as it frequently is, the question as to the rightfulness of such a use of the sidewalk may not be so plain; and yet even in this case the public right must be paramount to individual interests, and the rights of the public are not limited to a mere right of way, but extend, as we have shown, to all beneficial uses, as the public good or convenience may from time to time require. The correct view would seem to be that all rights of this character must come from legislative declaration or municipal license, express or implied from general usage."

....

Appellant showed no right from legislative declaration, municipal license, or general usage.

But if there be any principle upon which there could be based a right of appellant to maintain the excavation and trap in the absence of any municipal action upon the subject, that right would disappear before an ordinance of the city, which was introduced in evidence by respondent. The ordinance was passed in July, 1880, and was a re-enactment of a similar ordinance passed in May, 1866. The first part of section 6 of said ordinance is as follows: "No person shall construct, or cause or suffer to be constructed, under the sidewalk adjoining any premises belonging to him, or in his possession or under his control, any area or vault, except in conformity with the following specifications." Then follows a large number of specifications, which provide with particularity how such vaults and their coverings shall be constructed,—no one of which does appellant show a compliance with. They provide for the use of stone, brick, and iron, and against the use of

wood. In the latter part of the section it is provided as follows: "No aperture through the sidewalk into a vault shall exceed a superficial area of twenty-four square feet. Every such aperture shall be covered with an iron cover, and shall be securely closed when not in actual use." It affirmatively appears that the covering or trap-door of the vault of appellant was wooden, and that a few days before the accident he had employed a man to repair it with wooden planks. It appears, therefore,—1. That appellant had no authority of law to maintain the structure; and 2. That its maintenance was in direct violation of law.

Moreover, an excavation in the sidewalk of a populous street of a city, with a movable cover, liable to be removed by any careless or mischievous passer-by, is so dangerous a pitfall as to be, in its character, of the nature of a nuisance; and when not authorized by law, it would be a hard rule to require an innocent party injured thereby to prove that the injury was not caused in part by the act of a third person. No such rule is applicable to the facts of this case.

It appears that a few days before the accident, appellant employed a Mr. Krone to make a few repairs to the house situated on appellant's premises, and also to repair one of the planks on the trap-door in the sidewalk, -all to cost six dollars.

There is no evidence that any act or negligence of Krone contributed to the accident; but appellant, assuming, we suppose, that Krone's negligence might have so contributed, invokes the principle that the owner of premises is not responsible for the negligence of an independent contractor. But if such a trivial contract could bring that principle into action in any case, it would not, under the views herein expressed, be a defense in the case at bar.

Appellant's specific objections to the refusal of the court to grant a nonsuit, and to the giving and refusing of certain instructions to the jury, simply raise, in various forms, the questions above discussed. We think that the nonsuit was properly denied, and that the case was correctly and fairly given to the jury.

There was no error in the instructions that "plaintiff, if entitled to a verdict, is entitled to damages for her pain and suffering, both bodily and mental."

Judgment and order affirmed.

SHARPSTEIN and THORNTON, JJ., concurred.

Hearing in bank denied.

CONTRIBUTORY NEGLIGENCE IN VOLUNTARILY PASSING OVER Street KnowN to be DangeroUS BY REASON OF ICE UPON IT: Schæfler v. Sandusky, 31 Am. Rep. 533; City of Erie v. Magill, 47 Id. 739; City of Quincy v. Bacher, 25 Id. 278. The fact that one's attention while passing along a public street is arrested by some object of interest or curiosity, causing him to stop, or not to give attention to his immediate surroundings, does not present such a case of contributory neglect as to preclude his recovery for injuries received: Hussey v. Ryan, 54 Id. 772. For cases brought to recover for injuries suffered from falling into holes in streets or sidewalks, see City of Montgomery v. Wright, 47 Id. 422; Bruker v. Town of Covington, 35 Id. 202. A landlord is not answerable if the hole or excavation was made by permission of the city, covered in a safe and substantial manner, and the injury arose through the act of a third person, whereby the stone supporting the cover of the hole was broken, of which act the landlord had no knowledge: Wolf v. Kilpatrick, 54 Id. 672.

FOR EXCAVATION MADE BY CITY in or near a public highway, and left unguarded, it is answerable for injuries sustained by a child, who, while at play, fell into such excavation: City of Indianapolis v. Emmelman, 58 Am. Rep. 65.

FOR OBSTRUCTION OR EXCAVATION IN PUBLIC STREET, made by the lotowner, and not licensed by the municipal authorities, he is answerable, irrespective of the question of his negligence. "The public are entitled to an unobstructed passage upon the streets, including the sidewalks of a city, but a structure such as that proved in this case was an obstruction. It was suffi cient for the plaintiff to prove that in passing along the sidewalk he was injured by this structure, which was appurtenant to defendant's premises": Clifford v. Day, 81 N. Y. 56.

RIGHT OF ONE USING STREETS OF CITY AS PLAY-GROUND, as where a child was injured while rolling a hoop, or playing tag, to recover for injuries sustained from defects in a street has been questioned, on the ground that the use was one not contemplated by law. But it is believed that the using of streets for purposes of play or recreation will not defeat the recovery of an injured person, unless, taken with other facts, it shows that he was guilty of contributory negligence: City of Chicago v. Keefe, 55 Am. Rep. 860, and note. LIABILITY OF MUNICIPAL CORPORATION FOR NON-REPAIR OF STREETS: See note to Browning v. Springfield, 63 Am. Dec. 350-355, and to Perry v. City of Worcester, 66 Id. 434-442.

PALMER V. HOWARD.

[72 CALIFORNIA, 293.]

UNDER EXECUTORY CONTRACT OF SALE RESERVING TITLE UNTIL PAYMENT is made, a bona fide purchaser from the vendee acquires no valid claim to the property.

POLICY OF LAW IS AGAINST UPHOLDING SECRET LIENS AND CHARGES to the injury of innocent purchasers and encumbrancers for value.

MORTGAGES. The provisions of the law concerning mortgages cannot be evaded by mere shuffling of words.

INSTRUMENT IS MORTGAGE, no matter what the parties may characterize it, where it clearly appears therefrom that for all practical purposes the ownership of the property is intended to be transferred and a lien for the purchase price reserved to the seller.

INSTRUMENT IS MORTGAGE, AND NOT EXECUTORY CONTRACT OF SALE, where it recites the loan of certain articles, that if the price set against them is paid they shall belong to the borrower, otherwise to the lender; that notes or drafts given are not to be considered payments till paid; that the borrower agrees to pay the prices named; that the property is not to be removed from a designated lot without the assent of the lender; and that if the borrower fail to meet any of the payments, the lender may take the property and dispose of it, rendering to the borrower all surplus after paying the price agreed upon, etc.

ACTION of claim and delivery. Judgment for plaintiffs.
Levi Chase, for the appellant.

W. J. Hunsaker, for the respondents.

By Court, HAYNE, C. The plaintiff delivered to one St. Clair and wife certain personal property, under a writing, of which the following is a copy:

"SAN FRANCISCO, March 26, 1885. "D. PARKER ST. CLAIR AND WIFE, San Diego, Cal.:- Borrowed and received of Palmer and Rey, 405-407 Sansome Street, San Francisco, the following articles in good order. If the price set against them is paid, as per memorandum below, the property is then to belong to said borrower; otherwise, it remains the property of Palmer and Rey. Notes and drafts, or renewals of the same, if given, are not to be considered payment until they are paid. In the mean time the borrower is to keep the property in good order, and agrees to pay the price as per memorandum below, keep the property sufficiently insured for the benefit of the said Palmer and Rey, depositing the policy of insurance with them, and may use the property free from any other charge.

"Said property is not to be removed from lot L, in block thirty-six (36) in the city of San Diego, Cal., without the writ

ten consent of Palmer and Rey. Should said borrower fail to meet any of the payments at the time specified, or to keep the property satisfactorily insured or in good order, then Palmer and Rey may take the said articles and dispose of them to the best advantage, rendering to said borrower all surplus, if any, after paying the price agreed upon and the expenses of removal and sale."

Then follows a list of the articles, and a specification of the installments of the price, amounting in all to $2,295.45.

The St. Clairs paid but one installment of the price, and did not keep the property insured, but mortgaged the same to the defendant for $925, and subsequently left for parts unknown.

The question is as to the effect of the agreement quoted.

It is settled in this state that even bona fide purchasers from the person to whom personal property is delivered, under an executory contract of sale, get no valid claim to the property: Kohler v. Hayes, 41 Cal. 455; Hegler v. Eddy, 53 Id. 598. This is in accordance with the great preponderance of authority elsewhere: Harkness v. Russell, 118 U. S. 663. The reason is, that in such cases the title to the property does not pass, and the maxim, Nemo plus juris, etc., applies.

But in applying this rule, it must be remembered, in general, that the policy of the law is against upholding secret liens and charges to the injury of innocent purchasers or encumbrancers for value, and in particular, that mortgages of personal property are permitted only in certain specified cases, and then only upon the observance of certain formalities, designed to insure good faith, and to give notice to the world of the character of the transaction. These provisions as to mortgages cannot be evaded by any mere shuffling of words. Where it is clear from the whole transaction that for all practical purposes the ownership of property was intended to be transferred, and that the seller only intended to reserve a security for the price, any characterization of the transaction by the parties, or any mere denial of its legal effect, will not be regarded. The question, it is true, is one of intention; but the intention must be collected from the whole transaction, and not from any particular feature of it.

In the present case, it seems to us that the intention must be taken to have been to transfer the ownership of the property, reserving a security for the price, and nothing more. The possession was delivered. The promise to pay was absolute: