which a judgment can be legally enforced un- be a stay of execution pending the determinader our law is through the process of the tion of the appeal. We are asked to make court by which the judgment is given. It an order requiring further security of the thus appears that in such a case as the one applicant as a condition to the maintenance before us the law expressly declares that the of the stay which has already been given by execution of the judgment shall be perma- the law. This is asked upon the ground that nently stayed pending appeal upon the giving the amount fixed by the judge as the amount of the undertaking prescribed by section 945, of the undertaking is not sufficient to comthat is, an undertaking in such sum as may pletely protect respondents in the event of "be fixed by the judge of the court by affirmance. Admitting that there is no statwhich the judgment was rendered or order utory authority for such action on the part made," except only when there is a failure of this court, it is urged that the court has of sureties to justify as required by section the inherent power to so protect a respond948, or an order made by such judge for a ent from loss by reason of the appeal. Learnnew bond under the circumstances specified ed counsel say that "there is no statutory dein section 954. There is no room for doubt, nial of such power," and that a court's inin view of the language of the statutory pro-herent power can sometimes be invoked in vision, that it was the intention of the Legis- cases for which the Legislature has failed to lature to provide for a permanent stay pend- make provision. We are clearly of the opining appeal upon the giving of such an under-ion that in the provisions of law we have altaking. The judge of the court by which the ready referred to there is a statutory denial judgment was given or order made was final- of any such power. Those provisions in efly to fix the amount of the undertaking, such fect practically say that upon the giving of amount as in his judgment would secure the the judge of the lower court the execution the undertaking in the amount prescribed by respondent against waste and loss of the of the judgment shall be stayed until the devalue of the use and occupation of the prop- termination of the appeal, save in the inerty. His order in this respect was to be an adjudication as to the amount of security of Civil Procedure. The statute so providstances specified in section 948 and 954, Code to be given to effect a permanent stay pending appeal, described in Doudell v. Shoo, 158 ing, we necessarily have a “statutory denial Cal. 50, 109 Pac. 615, as "the statutory stay of power" as to any tribunal to affect the of proceedings." The law declares, in sub- stay given by the law. The situation in this stance, that when the security so required is regard is the same as in the cases covered once given, the status, in so far as the mat- by section 949, Code of Civil Procedure, in ter of stay pending appeal is concerned, is which no bond is essential to stay the judgirrevocably settled, save as it may be affect-ment, but as to which it is provided that ed by proceedings in the trial court under the mere "perfecting of an appeal section 948 or section 954. The fact that the Legislature has made provision in section 954 for the requirement by the lower court of a new bond when a surety or sureties become insufficient, or the original bond is lost or

stays proceedings in the court below upon the judgment or order appealed from," thus expressly commanding a stay pending appeal and completely denying power in any court to order otherwise. Has an appellate court

destroyed, but emphasizes what the language inherent power under such circumstances to of sections 945 and 946, already referred to, require an appellant to give such security as clearly shows in this regard. It is to be it deems necessary to the protection of a doubted whether the order of the judge fix-respondent, as a condition to a maintenance ing the amount of such undertaking is appeal- of the stay thus given by the law? Over able. If it be conceded, as claimed by re- and over again this court, as to cases so spondents, that it is not appealable, we sim-covered by section 949, has regarded the ply have a case where the Legislature has statute as entirely settling the matter of stay. designated that officer as a tribunal to de- and granted supersedeas without requiring termine that question, and has provided no security, solely because the law gave that mode by which his conclusion may be reviewed, thus making his decision conclusive, precisely the situation that has been held to exist with relation to the justification of the sureties when excepted to under section 948. See Boyer v. Superior Court, 110 Cal. 401, 42 Fac. 892; Kreling v. Kreling, 116 Cal. 458, 48 Pac. 383. Certainly there is no authority in this court to review the action of the judge in such a proceeding as the one before us.

effect to the appeal, entirely regardless of the question whether respondent might suffer injury by reason of the stay. The same is true as to cases covered, as is this, by section 945 (see Boyer v. Superior Court, 110 Cal. 401, 42 Pac. 892; Kreling v. Kreling, 116 Cal. 458, 48 Pac. 383), cases in which the Legislature has provided for security in an amount to be fixed by a designated tribunal, viz. the judge of the court by which the What then is the situation here? We have judgment was given or order made. No dean appeal from a judgment as to which the cision of this court has been cited that can be law provides that, by virtue of what has been held to sustain the proposition that, where done, the giving of a proper undertaking in the statutes fully cover such a matter as the

[Ed. Note.-For other cases, see Escrows, Cent. Dig. § 7; Dec. Dig. 4.]

5. DEEDS 58(4)—DELIVERY TO THIRD PERSON FOR DELIVERY ON PAYMENT-DEATH OF GRANTOR.

herent power to make provision contrary to delivery in escrow, where there was no prior or the statute. The whole course of our de- contemporaneous contract of sale of the land cisions is opposed to any such view, and we of which the delivery of the deed was to be the consummation. do not understand learned counsel for respondents to contend to the contrary; their theory being that the matter is not one which is in fact covered by the statute. The controlling effect of the statute in such a matter was clearly recognized by this court in such cases as Cluness v. Bowen, 135 Cal. 660, 67 Pac. 1048. In that case it was said that the restriction of section 1176, Code of Civil Procedure "takes the case at bar out of the rule declared in Hill v. Finnigan, 54 Cal. 493, as applicable to ordinary civil. cases with respect to which there is no such restriction."

2. FRAUDS, STATUTE OF 116(5) REALTY BROKERS-NECESSITY FOR WRITTEN AUTHORITY TO SELL.

By Civ. Code, § 1624, subd. 5, an agent's authority to make a contract to sell his principal's land is not valid, unless in writing and signed by the principal.

Where the grantor of land delivered her deed to a third person to be held until payment of the purchase money by the grantees, prior to such payment, or part thereof, the delivery was nothing but an offer or proposal which the grantor had the legal right to withdraw, her death terity of the third person to accept payment and minating and revoking the offer and the authordeliver the deed, the third party being only a voluntary agent of the grantor to hold the deed subject to her order.

[Ed. Note. For other cases, see Deeds, Cent. Dig. § 134; Dec. Dig. 58(4).]

6. ESCROWS 4-DELIVERY IN ESCROW. Where, after the grantor of land deposited her deed with a third party for delivery to the grantees upon their payment of the price, the grantees consented that the third party might retain the deed until they were ready to pay, the deed was not converted into a valid escrow; no consideration having passed, and the grantees remaining without beneficial interest until payment.

[Ed. Note. For other cases, see Escrows, Cent. Dig. § 7; Dec. Dig. 4.]

7. GIFTS 18(1)-GIFT INTER VIVOS--LACK OF CONSUMMATION.

Where the owner of land, to effect a gift of money, made a deed to the land and deposited it with her prospective donee under instructions to deliver to the grantees only upon payment of $3,000 for the land, which the donee should keep, previously to payment or tender of the money by the grantees, no right vested in the donee to the money.

[Ed. Note.-For other cases, see Gifts, Cent. Dig. §§ 29, 30, 32, 33; Dec. Dig. 18(1).] Department 1. Appeal from Superior Court, City and County of San Francisco; Geo. A. Sturtevant, Judge.

Action to quiet title by Patrick Holland, administrator of the estate of Mary A. Holland, deceased, against Julia McCarthy and others. From a judgment for defendants, plaintiff appeals. Reversed.

W. E. Cashman, of San Francisco (R. M. [Ed. Note.-For other cases, see Frauds, Stat- F. Soto, of San Francisco, of counsel), for ute of, Cent. Dig. §§ 255, 256, 260; Dec. Dig. appellant. William A. Kelly, of San Francis116(5).] co, for respondents.

3. FRAUDS, STATUTE OF 108(4) RANDUM"-DEED.

"MEMO

A deed, deposited with a third person for deSHAW, J. The plaintiff appeals from the livery to the grantees upon their payment of judgment below. The complaint states a the price for the land, which recited a consider- cause of action to quiet title to a lot in San ation of $10, was not a memorandum of the Francisco. In addition to the usual allegagrantor's oral contract to sell for $3,000 sufficient to satisfy the statute of frauds. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 220; Dec. Dig. 108(4).

For other definitions, see Words and Phrases, First and Second Series, Memorandum.]

tions it states that the defendant McCarthy has in her possession a deed signed and acknowledged by the decedent Mary A. Holland, purporting to convey the lot to the McDermotts, but that said deed had never been delivered. The prayer is for judgment quieting title, and for the delivery up of the deed for The deposit of a deed with a third person to cancellation. The court gave judgment that be delivered to the grantees upon payment of the McCarthy delivered the deed to the Mc price for the land fixed by the grantor is not a Dermotts, upon the payment by them to her

4. ESCROWS 4 DELIVERY DEPOSIT FOR DELIVERY ON PAYMENT.

For other cases sec same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of $3,000 to be kept by her for her own use, and declaring that when the money was paid and the deed so delivered the McDermotts would be the owners of the lot, and that the plaintiff has no interest in the lot, either as administrator of said estate or otherwise.

Carthy) the $3,000 when she (McCarthy) gave them the deed. Nothing further was said or done then or afterward relating to the sale or to the completion thereof. Mary A. Holland died on May 7, 1911.

[1] The instrument signed by Mary A. HolThe facts relating to the title and to said land, addressed to Sala & Sala, was not a deed may be briefly stated. On April 20, valid contract by her to sell the lot to the 1911, Mary A. Holland was the owner of the McDermotts, or to any other person. Sala lot. On that date A. G. Sala, James W. Do- & Sala were real estate brokers. At most, herty, and the defendant Julia McCarthy that instrument merely authorized them called on her at her home. Doherty was a to find a suitable purchaser, without bindnotary public. Mary A. Holland, in the ing the owner to make a sale if a purchaser presence of the other three persons, then sign- were found, and we do not say that it is ed the deed in controversy and acknowledged valid for that purpose. It did not authorits execution before Doherty as notary public, ize Sala & Sala to make a contract of sale who thereupon made and attached to the for Mary A. Holland to any person. Grant v. deed his official certificate to that effect. Ede, 85 Cal. 420, 24 Pac. 890, 20 Am. St. Rep. Mary A. Holland then handed the deed to 237; Swain v. Burnette, 89 Cal. 569, 26 Pac. Julia McCarthy, saying to her that it should be delivered by her to the McDermotts upon the payment of the sum of $3,100, and that when she received the $3,100 she should give $100 to Sala for his commission and keep the $3,000 for herself. The deed was in the usual form. It purported to convey the lot, in consideration of $10, to James E. McDermott and Mary McDermott, husband and wife. After this disposition of the deed Mary A. Holland signed and delivered to Sala an instrument in writing as follows:

1093.

[2] From the propositions last stated, it follows that the contract between Sala & Sala and the McDermotts was not binding on Mary A. Holland. It does not even purport to bind her or to be made in her behalf, or as her contract, but even if it did, it would be invalid, so far as she is concerned, for the reason that the brokers had no authority in writing to make a contract of sale for her. An agent's authority to make a contract to sell the land of his principal is not valid unless it is in writing and signed by the principal. Civ. Code, § 1624, subd. 5. It may be added that there is no evidence that they, or either of them, had from her even verbal authority to make such contract for her.

[3, 4] The only foundation, therefore, for the claim that the McDermotts, or Julia McCarthy, had any right or interest in the lot, or its proceeds, lies in the delivery of the deed to Julia McCarthy. This deposit, as we have seen, was not made in pursuance of any prior contract between Mary A. Holland and the McDermotts, or McCarthy, for

"San Francisco, Cal., April 20, 1911. "Received of Jas. and Mary McDermott the sum of three hundred and ten dollars, being deposit on account of thirty-one hundred dollars, the purchase price of the property this day sold to them and subject to the owners approval, sit- the sale of the lot. It was not done to carry uate * * (then follows the description of out any such contract, oral or written, for, the lot in controversy and certain provisions for so far as appears, none had been made. sixty days time to examine title, and that the price was to be paid in cash on tender of a deed conveying good title). Sala & Sala. "A. G. Sala.

There is no evidence that any such agreement was made at the time of the deposit. The McDermotts were not present at that time, and none of those present was authorized to act or contract for them, or either of them, or assumed to do so.

The case, then, stands thus: Mary A. Holland was willing to sell the lot for cash at the price of $3,100, and, apparently, she

desired to do so and make a gift of the proceeds to Julia McCarthy. She was, as we may infer, informed that the McDermotts were willing to buy the lot at that price. Thereupon she executed this deed purporting to convey it to them and deposited it with McCarthy, with instructions to her to deliver it to the grantees on payment of $3,100, and to keep the money for herself, except the $100 to be paid to Sala. The

pay the price on delivery of the deed was a sufficient memorandum to satisfy the statmade afterwards and to the depositary only. It does not appear that it was ever communicated to Mary A. Holland, the owner, or that the depositary had any authority from the owner to make any contract or agreement concerning the lot except to deliver the deed upon payment of the $3,100, none of which was ever paid. In this condition of the affair Mary A. Holland died.

ute of frauds is supported by citations to Cagger v. Lansing, 57 Barb. (N. Y.) 421, and Rutenberg v. Main, 47 Cal. 214. The decision in Rutenberg v. Main does not discuss the question. The decision in Cagger v. Lansing was made by the New York Supreme Court, but in the Court of Appeals the case was reversed, and it was there decided, as indicated by the above quotation from 43 N. Y. 550, that the deed did not constitute a sufficient memorandum in writing to take the case out of the statute. But, however this may be in some cases, it cannot be successfully claimed that the deed involved in the present case is sufficient for that purpose. It was introduced in evidence and, as stated, it shows a consideration of only $10. Therefore, instead of being a memorandum of the contract on which defendants rely, it is utter

cited, and we have found none where the deposit of a deed with a third person to be delivered to the grantee only upon payment of the price fixed by the grantor, has been sustained as an escrow, where there was no prior or contemporaneous contract of sale of which the delivery of the deed was to be the consummation.

The case is similar in principle to Fitch v. Bunch, 30 Cal. 212. Mrs. Fitch, the owner, deposited with Norton a deed to Bunch to be kept by Norton, pending negotiations for a sale of the land to her by Bunch and to be delivered to Bunch on the order of her agent, if the sale was agreed upon. She declined to make the sale, but an order was given to Norton, by her agent, for the delivery of the deed. Before that order was given she sued Norton to enjoin such dely inconsistent therewith. No case has been livery. Discussing the effect of the deposit as a valid delivery in escrow, the court said: "Not only must there be sufficient parties, a proper subject-matter and a consideration, but the parties must have actually contracted. The grantor must have sold and the grantee must have purchased the land. A proposal to sell, or a proposal to buy, though stated in writing, will not be sufficient. The minds of the parties must have met, the terms have been agreed upon, and both must have assented to the instrument as a conveyance of the land, which the grantor would then have delivered, and the grantee received, except for the agreement then made that it be delivered to a third person, to be kept until some specified condition is performed by the grantee, and thereupon to be delivered to him by such third person. The actual contract of sale on the one side, and of purchase on the other, is as essential to constitute the instrument an escrow, as that it be executed by the grantor; and until both parties have definite ly assented to the contract, the instrument executed by the proposed grantor, though in form a deed, is neither a deed nor an escrow; and it makes no difference whether the instrument remains in the possession of the nominal grantor or is placed in the hands of a third person, pending the proposals for sale or purchase."

A similar question arose in Cagger v. Lansing, 43 N. Y. 550. Speaking of the effect of a deed on deposit as a memorandum satisfying the statute of frauds, the court said:

[5, 6] We are not here concerned with the case of deeds put in escrow for subsequent delivery upon the happening of a future event with regard to which the grantee has no causative function and in which the delivery is absolute, the grantor retaining no right of recall or revocation, and where the transaction is not to consummate a contract of sale, but for the purpose of effecting a gift. Such transactions are governed by a different rule, and a contract is not an essential part thereof. Here no right to revoke or recall was expressed as a condition at the time the deed was handed to Julia McCarthy. But, as no part of the consideration was paid, this was not necessary. Mary A. Holland had the right to recall the deed at any time before the grantees paid the money specified. Until that event, Julia McCarthy was nothing more than a voluntary agent of the grantor to hold the deed subject to her order. Only upon the payment of the price or some part thereof would the grantees have a beneficial interest sufficient to make delivery irrevocable. Prior to such payment the delivery was nothing but an offer or proposal which the grantor had the legal right to withdraw. Her death In Cannon v. Handley, 72 Cal. 144, 13 Pac. terminated and revoked the offer and the 315, it is said that an oral contract of sale authority of Julia McCarthy as her agent is sufficient to make a deed deposited in pur- subsequently to accept the money and delivsuance thereof an escrow, and that the deed, er the deed. Seibel v. Higham, 216 Mo. 132, deposited in pursuance of such oral contract, 115 S. W. 987, 129 Am. St. Rep. 502. At the is a sufficient note or memorandum in writ-time of her death she had not parted with ing subscribed by the party to be charged the title nor bound herself to do so, and it to satisfy the statute of frauds and render the contract valid and enforceable. In that case there was a prior oral contract of sale. The statement that a deed so deposited was

"No one will contend that a contract for the sale of land, executed by the vendor, is binding upon the purchaser, unless the contract is delivered to and accepted by the purchaser as a valid subsisting contract. A delivery in escrow cannot bind the purchaser, although he verbally promises to perform the condition. Until performance and acceptance by the purchaser, he is at liberty to abandon the contract."

at once descended to and vested in her heirs free from any claims of the defendants. The consent of the McDermotts, after its deposit, that Julia McCarthy might retain the deed

until they were ready to pay the money, did not convert the deed into a valid escrow, for no consideration passed and they remained, as before, without beneficial interest, and with nothing more than an unaccepted offer awaiting their acceptance. No interest could vest in them sufficient to make the escrow beyond recall without payment by them of

some consideration.

Suit by Malcolm Baxter, Jr., against Charles A. Boege, wife, and others. Judg ment for defendants, and plaintiff appeals, and defendants move to dismiss the appeal. Motion denied, and judgment affirmed.

A. W. Ashburn, of Los Angeles, and H. C. Head, of Santa Ana, for appellant. Williams & Rutan, R. Y. Williams, and A. W. Rutan, all of Santa Ana, and F. C. Spencer, of Anaheim, for respondents.

heirs of Christina E. Romer, brought a suit MELVIN, J. Plaintiff, as assignee of the in equity to avoid the effect of a deed by which the defendant Chester Spencer, as ad

[7] The transaction did not vest in Julia McCarthy any right to the $3,000. It was to be paid by the McDermotts. Inasmuch as the transaction was inchoate and vested in the McDermotts no right until they paid or tendered the money, it necessarily follows that no right vested in the defendant Mc-ministrator of the said Christina E. Romer's Carthy. There was, at best, nothing more in estate, sought to convey certain real property her favor than a mere intention on the part of the said estate to one Emma M. Hunter. of the decedent to give her the money in the Respondents Charles A. and Louise Callow event that it was paid, which intent she did Boege and George Vandenberg are claimants not carry out in her lifetime. Our conclusion to the title of Emma M. Hunter under subis that the court erred in giving the judgment sequent conveyances. All of the said respondappealed from, and that, upon the facts dis-ents demurred to plaintiff's amended comclosed by the evidence, the plaintiff is enti-plaint. Their demurrers were sustained, and, tled to judgment.

The judgment is reversed.

plaintiff declining to amend, judgment was entered accordingly against him and in favor of the three respondents. This judgment was that plaintiff take nothing as against respondents; that respondents be awarded costs; and that as to them the action be dismissed. The defendant Chester Spencer filed a demurrer to the amended complaint, but the record reveals no action thereon by the court. Answers were filed by German-American Bank, Frank L. Eastman, and Minnie H. Eastman. The bank asserted a lien upon the property as mortgagee of Emma M. Hunter, and the Eastmans based their claim of interest in the property upon a mortgage in their favor by the Boeges.

[1] Plaintiff has appealed from the judg

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 484, 486-493; Dec. Dig.ment, and respondents have moved to dismiss ~~79(1).]

2. EXECUTORS AND ADMINISTRATORS 29(2)

--APPOINTMENT-VALIDITY.

Bill by one heir attacking appointment of administrator is demurrable if it recites application by another heir for appointment of the appointee.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 178; Dec. Dig. ~29(2).]

3. EXECUTORS AND ADMINISTRATORS -APPOINTMENT-VALIDITY.

29(2)

Bill by one heir, attacking appointment of administrator, showing that deceased intestate was a nonresident, and that her husband nominated the administrator, does not reveal any right to attack that appointment collaterally by suit to avoid administrator's deed for minor irregularities in signatures to application for appointment, since it shows the jurisdiction and appointment and actual action at the court's direction, and is, as against collateral attack, conclusive as to due appointment.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 178; Dec. Dig. 29(2).]

the appeal upon the ground that no final judgment has been entered, and that therefore the attempted appeal is not from an appealable judgment. We are of the opinion that the motion to dismiss the appeal should be denied. Respondents insist that, since no judgment will be regarded as final unless all necessary issues of law and fact have been determined and the case completely disposed of (citing Freeman on Judgments [4th Ed.] § 34), plaintiff can have no right of appeal until all of the defendants shall have suffered some sort of judgment against them or in their favor. There is no question of the correctness of the rule announced by Judge Freeman, but it does not apply to this case. Appellant cites Stockton Combined Harvester & Agricultural Works v. Glen's Falls Ins. Co., 98 Cal. 557, 33 Pac. 633, which was an action on a contract, in which defendant answered and filed a cross-complaint, which plaintiff answered. Judgment was entered upon the issues raised by the cross-complaint and the answer thereto, which were tried