The herald., 1896-09-20
versy are included in the calls Of certain
deeds of the city and Of Mott & johnson

versy are included in the calls Of certain
deeds of the city and of Mott & Johnson
to plaintiff.
1t is argued that the title became vest
ed in plaintiffs husband as community
property. On March 20, 1875, plaintiff
made a deed to one Leonis, and appel.
liant claims that by this deed she divest-
premises. In 1882 the successors in in
terest of Leonfs made deed to seven
persons, called in the deed trustees of
the Grace M. E. church," and a church
was erected on the site. Such title as
passed by the deed has never been con-
veyed to the incorporated church. 1t
was said by respectable court that a
church edifice occupied for the purpose
of religious worship by a society which
had become incorporated, and not used
in any other way OF by any particular
individual, must from the very nature
and necessity of the case be adjudged
to be in actual occupancy of the corpO-
ration" 1t Is not necessary in the pres
ent case to carry the doctrine so far. The
order denying a new trial should be af-
firmed; a result to occasion, under the
circumstances appearing, some degree Of
regret; but it serves to accentuate the
propriety of ascertaining the title to
realty before rather than after UNDER
taking it's improvement.
A SPLIT JUDGMENT.
In the suit of Jane Mason McCully, ad-
ministratrix of the estate of James L.
Mason, deceased, VS.. Andrew ]. O'Con-
nor, receiver of the Consolidated Nation
al bank of San Diego, the action was to
recover, upon a certificate Of deposit,
$4,000, upon which certain payments had
been made, leaving balance of $6168.9 30,
as principal and interest. Also to re-
cover $1S41.24 due Mason on an open ac-
count.
The lower court gave judgment for
plaintiff upon the open account, to be
paid out of the assets of the bank, and
against plaintiff upon the amount due
upon the certificate of deposit, for tho
reason that plaintiff had not said GER
tificate Of deposit in her possession, and
is not entitled to possession, and Is not
able to surrender the same for cancella-
ton, and for the reason that plaintiff
did not present the certificate to the de-
PENDANT receiver at the time of present.
ing her claim for the sum due thereon
against the assets of the bank
The court rules that If plaintiff was
entitled to recover upon the certificate,
no bond, security or indemnity was NEG
esary from her to the defendant, who
held the certificate. The portion Of the
judgment appealed from should be re-
versed. says the court, and the lower
| court directed to enter judgment in ia
vor of appellant for the sum found due
upon the certificate of deposit. with in
terest, and to be enforced in like man.
ner and payable upon like terms with
the Judgment rendered in favor Of APP
pellant for the residue of her demand.
A TECHNICAL POINT.
A motion to dismiss an appeal in the
case of Rosario Niosi VS.. Empire Steam
laundry and Frank Stout, for the fail
ure of appellant to file his points and
| authorities within the time required by
the rules of the court, has been denied
by the supreme court.
| The points and authorities should have
been filed not later than June /, 1896 The
motion to dismiss was made on June 70.
and the points and authorities were pre-
| scented before the hearing of the motion.
| The delay was the result of misunder-
| standing. and, as no hardship is worked
| to defendant, the motion, as stated. has
| been denied. '''
AN UNASSIGNED CERTIFICATE.
The action of Jane Mason McCully. as
administrative of the estate of James T..
, Mason, deceased, to recover possession
| from George H. Cooper. the defendant.
| of a certificate of deposit, issued by tho
| Consolidated National bank of San
Diego, for $4,000. dated April, 1892, pay
able to Mason, and upon which was in.
dorsed a credit of $4,000, resulted in judg-
! ment for defendant, from which and the
order denying a new trial appeal was
taken.
The question involved on appeal was