In Missouri it is said: "Here is an attempt of a man, apparently, to tie up his own property under a trust in such a manner that himself, as owner, may be enabled to enjoy the income and set his creditors at defiance. This is a thing which the law does not allow. A man cannot own property or money and not own it at the same time." McIlvaine v. Smith, 42 Mo. 58, 97 Am. Dec. 295. It follows from these authorities that if, upon the facts we have stated, the effect is that Walter Magee transferred, or caused to be transferred, his interest in the original trust property, or his segregated share thereof, to the last-named trustees upon a trust which provides that the income therefrom shall be paid to himself free from all claims of creditors, it would be contrary to the policy of the law, the property would remain his own notwithstanding said disposition and would be subject to execution against him in the same manner as any other property interest. The respondents concede that the qualifications to the doctrine exists as above stated, but claim that the transaction in question was not simply a disposition by Walter himself of his own property. The argument is that the original trust deed vested the property in the trustees for the life of the beneficiaries subject to the contingency that the trust might be sooner terminated, and thereby created contingent remainders in the property from the time of the happening of such contingency until the death of the beneficiaries, or some of them, that the contingent remainder of Walter is the property which constitutes the corpus of the new trust, that being a contingent remainder it was not a vested estate in Walter (Civ. Code, §§ 693697), and could not become vested, during the lives of the beneficiaries, until the termination of the trust, that this could not be accomplished except by the voluntary act of persons other than Walter, that is, by three of the beneficiaries acting under the provision of the deed, or by all parties having any interest, that any of the other persons "might withhold consent to any unanimous arrangement, except upon conditions which he elected to impose," that the agreement and judgment carrying it out was made upon the condition that Walter's segregated rights and interest should be free from claims of his creditors, and that this condition imposed by them, and which they had a right to exact, constituted a consideration moving from them for the arrangement and settlement, a consideration of a substantial character and sufficient to uphold the new trust as one created by persons other than the spendthrift beneficiary, and to make it valid and free from the claims of his creditors. erty pays a consideration therefor out of his own estate or property, he cannot claim the benefit of a declaration of trust making it free from the claims of his creditors. Whatever may be the consideration moving from others, the trust cannot be allowed to free the property from the claims of creditors, where the consideration for the conveyance to the trustee or, as in this case, the entire trust property constituting the source of the income, is contributed by the beneficiary himself. Thus in Missouri, a husband surrendered his estate by curtesy in his wife's land in order to take under the provision of his wife's will giving her real and personal property in trust for the payment of the income to the husband, the same to be free from the claims of his creditors. The court said that the doctrine of spendthrift trusts prevails because a creditor is not defrauded where the owner of property "so disposes of it that the object of his bounty, who parts with nothing in return," has an income therefrom free from liability for his debts, and added: "In the case at bar the beneficiary did part with something in return. But for his compliance with the express condition in the will, by by deed, as the petition recites, duly recorded, the surrender of his curtesy in his wife's estate the income provided for his use would never have become his. This stands confessed by the demurrer. He therefore occupies the attitude of a purchaser of that income. * * * Regarding, then, the defendant in the light of a pur chaser of the income bestowed upon him by the will of his wife, and not as the mere recipient is subject to the claims of his creditors, and subof her bounty, it must be ruled that such income ject in this proceeding." Bank of Commerce v. Chambers, 96 Mo. 459, 10 S. W. 38. Here the contribution of Walter was more than a mere consideration for the creation of the trust in his favor; it constituted the entire subject-matter. It is true that the other parties might have refused to consent and could have prevented the creation of the trust. But they had no interest whatever in the share of Walter under the original trust. Under that trust such share was subject to the claims of Walter's creditors. They gave nothing to him by the termination of the trust except to cause his contingent interest to vest immediately. The transaction took nothing from them. In the Missouri case last mentioned, the wife created the trust voluntarily out of her own property, real and personal, and the surrender by the husband of his curtesy right in her land was essential to enable him to avail himself of her bounty, yet it was held that this constituted a consideration which took the case out of the rule allowing spendthrift trusts. In this case more was necessary, both the consent of the others and the devolution of the interest of Walter upon the new trustees were The doctrine that one cannot by any device essential; but it is true here, as there, that make his own property free from the claims he gave a valuable consideration for the benof his own creditors is based, not upon tech-efits of the trust, a consideration which, at nical grounds, but upon sound reasons of pub- the time he gave it, was subject to his debts, lic policy. The cases go so far to declare and he is therefore in the attitude of a purthat, if the donee or grantee of such prop-chaser of the income and of the property from when such disposition can be made without material injury to the rights and interests of other tenants. which it is derived. The fact that his interest | convey the title in fee to such land in severalty in the original trust was a future and not a vested interest is not material to the doctrine. It was his property (Civ. Code, §§ 669, 688, 693), it was not free from the demands of creditors, and it was disposable by him (Civ. Code, §§ 699, 1044). Public policy does not permit him to put it beyond reach of his creditors while he has the beneficial use of it himself. [4] The contention of the respondents that the complaint is defective because it does not allege that there was any intent on the part of any of the parties to defraud the creditors of Walter cannot be sustained. The doctrine we are enforcing does not depend upon fraudulent intent. The liability of the property to the claims of creditors comes from the fact that the disposition was ineffectual so far as it attempted to exempt the property from liability for his debts, and because, as to creditors, it remained his own property, so far as his creditors are concerned, and not because of any intent to defraud in the creation of the trust. [5] Lastly, it is asserted that the demurrer was properly sustained because of a defect of parties, in that Eva J. Shaw, who, it appears, has an interest in the trust to the extent of the debt owing to her, which is not shown to have been discharged, is not made a party. We do not consider this a sufficient cause for the sustaining of the demurrer. If the plaintiff, by the execution sale, obtained any interest whatever in the property, he was entitled to have it transferred to him or protected in some manner, by the judgment of the court. In any event, whether he took it absolutely by transfer on the books, or otherwise, inasmuch as Eva J. Shaw was not made a party to the suit, he would take it subject to her interest, and the judgment would in no manner prejudice her. In such cases, although she is a proper party, she is in no sense a necessary party, and the court could proceed to judgment without her presence. We are therefore of the opinion that the demurrer was improperly sustained. The judgment is reversed. We concur: SLOSS, J.; LAWLOR, J. [Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 265-273; Dec. Dig. 78.] 2. TENANCY IN COMMON 41, 45-CONVEYANCES BY TENANT-EFFECT. tenant in common acquires all the interest of A grantee of a specific parcel of land from his grantor in the special tract, but the conveyance does not sever the special tract so far as other tenants in common are concerned; hence one tenant in common cannot convey an easement in the common land which is good against any other than himself. [Ed. Note. For other cases, see Tenancy in Common, Cent. Dig. §§ 121, 135-137; Dec. Dig. 41, 45.] 3. APPEAL AND ERROR 877(2) ENTITLED TO ALLEGE ERROR. A tenant in common, who did not join in conveyances by his cotenants, and whose share was unaffected, cannot complain of errors on partition with relation to the conveyance of ed, and it being immaterial whether the consuch special tracts; his rights not being affectveyances carried the fee or only an easement. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3563, 3564; Dec. Dig. 877(2).] 4. APPEAL AND ERROR ENTITLED TO ALLEGE ERROR. 877(2)—PERSONS A tenant in common cannot, where the ac tion for partition was not delayed, complain of the opening of the case and the admission of proof of conveyances of special locations, made after suit was begun and which were not mentioned in any pleading on file; such tenant's rights not being affected. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3563, 3564; Dec. Dig. 877(2).] 5. ABATEMENT AND REVIVAL 47 TRANSFER OF SUBJECT-MATTER-REOPENING CASE. Under Code Civ. Proc. § 385, declaring that in case of transfer of interest the action may be continued in the name of the original party, a tenant in common who, pending an action for partition, conveyed his interest, may move to reopen the case for the benefit of his grantees. [Ed. Note. For other cases, see Abatement and Revival, Cent. Dig. §§ 239-244; Dec. Dig. 47.] 6. PARTITION 71-ACTIONS-FINDINGS. In partition, where some of the tenants had conveyed specific parcels, findings that the grantees owned contiguous lands on which they had made improvements, and that the specific parcels conveyed were convenient to the enjoyment of such contiguous land, are immaterial and cannot be made the basis of objection by a tenant not joining in such conveyances, where there was nothing in the judgment requiring the EAST SHORE CO. v. RICHMOND BELT referee to consider such facts in making the RY. et al. (S. F. 6781.) (Supreme Court of California. Feb. 28, Rehearing Denied March 27, 1916.) 1916. 1. PARTITION 78-MODE OF PARTITIONALLOTMENT. Under Code Civ. Proc. § 764, declaring that in making partition the referees shall allot the share of each of the parties so as to embrace as far as practicable the improvements made by such cotenant, the referees should not only allot to a cotenant that part of the common land on which he has made valuable improvements, but should also set apart a specific tract to the share of a cotenant who has undertaken to partition, for such facts are immaterial; the grantee of a special parcel being entitled to have the same set off to him out of the share of his grantor if it can be done without injury to the other tenants. [Ed. Note. For other cases, see Partition, Cent. Dig. § 194; Dec. Dig. 71.] 7. PARTITION MAKING. 79-OBJECTIONS-TIME FOR Where a party to a partition suit desires to object to findings of immaterial facts, such objections should be made on the report of the referee. [Ed. Note. For other cases, see Partition, Cent. Dig. §§ 224, 225; Dec. Dig. 79.] 8. PARTITION -SALE. Under Code Civ. Proc. § 763, declaring that, if it appears that the property or any part of it is so situated that partition cannot be made without great prejudice, the court may order a sale thereof, there is a presumption that land held in common can be equitably divided, and a tenant contending for a sale has the burden of showing that allotment would prejudice the interest of the owners. 77(4)-MODE OF PARTITION | for railroad or terminal purposes." During the progress of the suit, and before the decision in the court below, some of the common owners made deeds purporting to convey to third persons, in severalty, the whole title to other specific parcels of the common land. After the evidence was closed and the cause was submitted, the court, on motion of plaintiff, opened the case and allowed proof to be made of these conveyances. This was done over the objection of the appellant. The [Ed. Note. For other cases, see Partition, Cent. Dig. § 223; Dec. Dig. 77(4).] 9. APPEAL AND ERROR 1011(1)-REVIEW-court found as a fact that the land was susFINDINGS. A finding on conflicting evidence that land was subject to partition will be upheld on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. 1011(1).] 10. PARTITION ALLOTMENT. 77(3) RIGHT TO MAKE That lands held in common were tidelands useful to the adjacent highland as a means of access to navigable waters, but that parts were more valuable than others, does not show that such lands were incapable of partition by al lotment. ceptible of division between the common owners without material injury to their interests. Thereupon it made an interlocutory judgment of partition, declaring the interests of the respective tenants in common, setting forth also the said several conveyances of entire parcels thereof to third persons, and describing said parcels, and appointing three persons as referees to make the partition. With respect to the specific parcels conveyed in whole title, the judgment directed that each such parcel be charged against and deducted from the share of the common owner who made the conveyance, that such common owner should be allotted only the interest remaining in him after such deduction, and that each person so receiving a conveyance of a parcel in Action by the East Shore Company for whole title should have such parcel set apart partition of lands against the Richmond Belt to him, provided the same could be done Railway Company and others and J. Good- without material injury to the rights and inwin Thompson. From a judgment of parti-terests of other tenants in common who did tion, the defendant last named appeals. Af-not join in such conveyance. From this interlocutory judgment, the defendant J. Goodwin Thompson appeals. [Ed. Note. For other cases, see Cent. Dig. §§ 219-222; Dec. Dig. Partition, 77(3).] Department 1. Appeal from Superior Court, Contra Costa County; R. H. Latimer, Judge. firmed. Nowlin & Fassett and Morrison, Dunne & Brobeck, all of San Francisco (Ernest K. Little, of San Francisco, of counsel), for appellant. Richard Bayne, of San Francisco, for respondent Richmond Belt Ry. Cushing & Cushing, of San Francisco, for respondent Joseph G. Hooper. Johnson & Shaw, of Oakland, for respondent San Pablo Quarry Co. E. B. Taylor, of Martinez, for respondent Frances C. Barker. Platt Kent, of San Francisco, for respondent Standard Oil Co. E. W. Camp, of Los Angeles, for respondent Atchison, T. & S. F. Ry. Co. Alfred Sutro, of San Francisco, for respondent California Wine Ass'n. H. A. Mosher, in pro. per. M. R. Jones and Pillsbury, Madison & Sutro, all of San Francisco (A. D. Plaw, of San Francisco, of counsel), for respondent East Shore Co. SHAW, J. The action was for. partition of lands. The Richmond Belt Railway had obtained from the East Shore Company, before the action was begun, a deed purporting to convey to it, in severalty and entirety, certain strips or parcels of the common land. The deed stated that the strips were conveyed "as and for a right of way" for a railroad "to have and to hold all and singular the said premises, right and privilege unto" the said grantee "so long as the same shall be used [1] Certain principles have been established in this state concerning the rights of the parties where one tenant in common has conveyed, in whole title, a part of the common land, which principles control the decision in this case. They are well stated in the following extracts from our decisions: "A suit in partition under our Code is, in its nature and essence, equitable, and the court in its decree, proceeding to do what is 'equitable, just, and proper,' will not only allot to a cotenant that part of the common land upon which he has valuable improvements, but will also set apart a specific tract to the share of a copartner who has undertaken to convey the title in fee to such tract in severalty, so that the grantee may have that which is justly his, when such disposition of the land can be made without material injury to the rights and Emeric v. interests of the other cotenants."" Alvarado, 90 Cal. 456, 27 Pac. 360. Substantially the same doctrine is stated in each of the two decisions in Gates v. Salmon, the first reported in 35 Cal. 576, 95 Am. Dec. 139, and the other in 46 Cal. 361, and in section 764, Code of Civil Procedure. [2] Another rule is stated in the first case, at page 588, where the court says, with respect to a conveyance of such special tract: "The grantor, before his conveyance of the special tract, held his undivided interest therein subject to the contingency of the loss of it, if on the partition of the general tract the special tract should be allotted to one of his co For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tenants. The grantee, then, acquires all the interest of his grantor in the special tract, and that interest is a tenancy in the special tract in common with the cotenants of his grantor, but his conveyance did not sever the special tract from the general tract, so far as the cotenants are concerned, and the general tract is therefore liable to a partition so far as the cotenants of the grantor are concerned, as it would be had the conveyance of the special tract not been made." In pursuance of this doctrine, it was held in Pfeiffer v. Regents, 74 Cal. 156, 15 Pac. 622, that one tenant in common could not by his conveyance create an easement in the common land which would be good against any of the tenants other than himself. [3] A large portion of the brief of the appellant is devoted to an endeavor to show errors with relation to the conveyances of special tracts located within the common land by tenants other than himself. With respect to all of these, it need only be said that the appellant, since he did not join in the conveyances, and since his share cannot be affected in any injurious manner by anything done under the decree with respect to these specific parcels, has no interest in the question, and the errors, if any, are immaterial to him and insufficient to authorize the reversal of the judgment, upon his appeal. This was decided in Gates v. Salmon, 46 Cal. 375. Referring to a conveyance by Theodocia, one of the tenants, of a specific parcel of the common land, the court said: "The other original tenants in common, and their grantees, whether of undivided interest or of special locations, are unaffected, either in the amount of their interests, or their rights or equities, in respect to the partition, by the question whether Theodocia did or did not convey any of the special locations. The question concerns only those who claim under her." The same rule renders it immaterial whether or not the deed above mentioned to the Richmond Belt Railway conveyed the title in fee, or only an easement. Whether it was a fee or an easement, it affected only the interest of the grantor, the East Shore Company, in the common land, and no partition could justly be made under the decree herein which would make any disposition to the grantee of that easement that would be prejudicial to the interests of the other tenants in common. [4] The appellant objects to the action of the court in opening the case and permitting proof of some conveyances of special locations, which were made after the suit was begun and which were not mentioned in any pleading on file. The same principle applies to this objection. None of these conveyances was made by the appellant, and as they involve only the relative rights of the grantees and grantors in the share set apart by the partition to the grantors and cannot, under the decree, in any respect injure the appellant, the ruling of the court thereon is one which he cannot question. It is immaterial to him whether the causes of action of these grantors, existed when the action was begun or not. Perhaps if the procedure resorted to had resulted in a delay of the decision of the case which worked injury to the appellant in its practical operation, he might be allowed to make an objection; but no injury of this kind is suggested or claimed. The opening of the case caused a delay of only a few weeks, and it does not appear that the appelant was at all prejudiced thereby. [5] In this behalf it is urged that the motion to reopen the case was made by the East Shore Company, originally one of the tenants in common, and he claims that by its conveyances it had parted with its entire interest. From this he argues that a motion made by one not having any interest should not have been entertained. But our Code specially provides that, where the right of action is transferred during the pendency of an action thereon, such action may be continued in the name of the original party or in the name of the transferee, in the discretion of the court. Code Civ. Proc. § 385. It follows therefore that the East Shore Company had the authority to make the motion, if not in its own interest, then in the interest of its grantees. It may be added that the respondents dispute the statement that the East Shore Company had transferred its entire interest. [6, 7] The court, among other things, made findings that certain of the grantees of specific parcels above referred to owned other lands contiguous to such specific parcels, not within the land to be partitioned, upon which contiguous tracts they had made valuable improvements, and that the special parcels conveyed by the tenants in common to them, respectively, were convenient to the enjoyment of the contiguous lands and for the use and protection thereof. The appellant claims that the evidence is insufficient to support these findings. We think this is an inquiry upon which we need not enter. There is nothing in the judgment that requires the referees to consider these facts in making the partition. The facts are not mentioned in the judgment. They are wholly immaterial to the judgment and should not be considered by the referees. The grantee of each parcel is entitled to have the same set off to him out of the share of his grantor, if it can be done without injury to the other tenants in common. The fact that he owns contiguous land which will make his ownership of the specific parcel more advantageous to him cannot justify the allotment thereof to him, if to do so would in fact materially injure another tenant in common. If it does not injure such other tenant, then he has no reason to complain of such finding. In any event, the time for objection because of the consideration of such facts, if they are considered, is when the report of the referees is made to the court. It will not be presumed that the referees will jury of any other tenant in common, in view | owned by plaintiff and defendants, respecof the declaration in the judgment that no partition respecting such special parcels can be made to the injury of another tenant in common. [8, 9] The remaining contention of the appellant is that the finding of the court that the land is susceptible of partition without prejudice to the owners is not supported by the evidence. The provision of the Code on the subject is that: "If it appears by the evidence, whether alleged in the complaint or not, that the property or any part of it is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale thereof; otherwise, upon the requisite proofs being made, it must order a partition according to the respective rights of the parties as ascertained by the court." Code Civ. Proc. § 763. The presumption is that land held in common tenancy can be equitably divided between the parties by allotting to each a tract in severalty, equal to his interest in the whole, measured by value. It is only where the contrary "appears by the evidence" that a sale may be ordered. Hence, a tenant who, upon appeal, contends for a sale, instead of a partition as ordered by the court below, must show that it appears by the evidence that a partition would prejudice the owners. The burden of proof to show such prejudice rests on him. This was expressly decided in Mitchell v. Cline, 84 Cal. 418, 24 Pac. 164. A finding on the subject is governed by the well-established rule that, where it is given upon a substantial conflict in the evidence, it is conclusive on appeal. [10] The appellant admits that competent witnesses testified that an equitable partition of the land among the parties could be made. He relies on other testimony to the effect that the land consisted of a series of tideland lots and was useful to the adjacent higher land as a means of access therefrom to navigable water, and that it was worth more to them for that purpose than to any one else. We are at a loss to perceive how this renders the lots incapable of an equitable division by allotment. Even if it is true, as argued by appellant, that owing to its proximity to centers of population or commerce, or to the different uses to which the adjacent higher land is devoted, some portions of the common land would be of far more value than other portions for this purpose, no reason appears why the referees cannot as well take account of this, as of other elements of value, in making the partition. The decision in McGillivray v. Evans, 27 Cal. 96, and subsequent cases regarding the same property, that water used for mining purposes, running in a ditch and owned by several persons as tenants in common, in differing interests, one party having the first right to 20 inches in times of high water, and to only one-fourth of the flow in low water, not exceeding 20 inches, the remainder being tively, in the proportion of two-fifths to threefifths, was not susceptible of a just mechanical division, has no application to this case. It lays down no rule applying to all easements, not even to all rights to the flow of water. And even if it did, the circumstances bear no resemblance to those here appearing. We find no cause in the circumstances shown which would justify this court in overthrowing the finding. The interlocutory judgment is affirmed. In re CUTTING'S ESTATE. (Supreme Court of California. Feb. 28, 1916. after making a will, the testator marries and Under Civ. Code, § 1299, providing that if, the wife survives him, the will is revoked, unless provision has been made for her by mared in such way therein as to show an intention riage contract or by the will, or she is mentionnot to make such provision, an antenuptial will standing alone containing no provision for, nor mention of, testator's wife, is revoked by his marriage and death leaving her surviving him. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 469-478; Dec. Dig. 191.] 2. WILLS 201-PUBLICATION-EFFECT OF CODICIL. Under Civ. Code, § 1287, providing that the execution of a codicil referring to a previous will republishes the will as modified by the codicil, an antenuptial will may be republished by the execution of a codicil, notwithstanding section 1299, providing that an antenuptial will voked by his marriage and death leaving her making no mention of testator's wife is resurviving, and that no other evidence to rebut the presumption of revocation must be received. [Ed. Note. For other cases, see Wills, Cent. Dig. § 500; Dec. Dig. 3. WILLS CODICIL. 201.] 201-PUBLICATION-EFFECT OF An instrument "hereby affirming my will," except as herein modified, and declaring the following to be a codicil to testator's last will, followed by the provisions modifying the will, republishes the will, though it was an antenuptial will making no provision for testator's wife, and he died leaving his wife surviving. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 500; Dec. Dig. 4. WILLS 201.] 202-REPUBLICATION - CONSTRUCTION-WILL AND CODICIL. An antenuptial will, as modified by a postnuptial codicil, stands as if it were but one testamentary intention expressed in a single will made after marriage as of the date of the codi cil. Under Civ. Code, § 1321, providing that all the parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole, an instrument executed by a testator affirming his will, except as there For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |