The record-union., 1898-06-13
quire in the property from some other

pialn language authOrlZeS the transfer
of such an estate as she held in said
property. Section 500 of the Civil Code
says: Future interests pass by sue
cession, will and transfer, in the same
manner as present interests" And Sec
ton S64 of the Civil Code, hereinbefore
quoted, specifically provides that the
title remaining in the author of trust
may be transferred and devised by him,
subject to the trust; and Section $50
of the same code provides that a
grantee or devisee of the author of the
trust acquires a legal estate in the
property as against all persons except
the trustees and those lawfully claim
ing under them
These views are sustained by the Su-
preme Court of this State in the case of
In re Walkerly, 1OS CAL, 627-64S where
it is said: 1T may be first suggested
that all expectant estates, whether
vested in interests or contingent with a
vested right, or entirely contingent
pass by succession, will and transfer,
like present estates and interests
From the foregoing authorities the in
dubitable conclusion follows, that Eda
M. Krigbaum, at the date of her mort
l'gage to the plaintiff, had a transfer
able interest or estate in the lands in
question, and that the same was sus-
ceptible of being mortgaged, because
Section 2947 of the Civil Code provides
as follows: Amy interest in real prop
erty which is capable of being trans
ferred may be mortgaged."
SECOND.
This brings us to the consideration Of
the question of the effect upon the
Ia fr - I,
agreement made between Eda M. Krig-
baum and her brother, Peter j. Huels-
man, on June II, 1897.
1t will be remembered that said
agreement was made long after the
execution of the deed of trust, and some
six months after the execution Of the
mortgage to the plaintiff; that 1t con
tanned several covenants to the effect
that each of said parties was the owner
of an undivided one-half interest in
the lands described therein, which is
the same property described in the deed
of trust and in plaintiffs mortgage;
that no mention was made in said
| agreement of the existence of the deed
of trust or of the rights of the parties
Hereunder. OF these covenants, that
which is most contradictory of the
Peter j. Huelsman, and which plain
tiff contends is tantamount to re-
| conveyance by him to his sister, is
copied in full in the statement Of facts
in this opinion. The gist of said cove
| nant is that he admits that Eda NJ
Krigbaum is "the full and equal owner
of one-half of said real estate, and all
of the improvements upon the same"
Tn, 1fl IL, ~ j
agreement is sufficient to vest the title
in said lands in Eda M. Krigbaum, the
plaintiff cites Section 1871 Of the Code
! of Civil Procedure, which reads as fol-
| lows: mo estate or interest in real
property, other than for leases for a
| term not exceeding one year, nor any
| trust or power over or concerning it, or
| in any manner relating thereto, can be
| created, granted, assigned, surrendered,
or declared, otherwise than by opera
| tion of law, or a conveyance, or other
instrument in writing, subscribed by
the party creating, granting, assigning,
| surrendering, or declaring the same,
| or by his lawful agent thereunto au-
| thorized by writing
| Plaintiff insists that the agreement
under consideration is IAN instrument
| interest in the property to be vested
in Eda NJ. Krigbaum within the mean
ing of the section of the code last above
quoted. 1 am unable TO concur in this
contention. A careful scrutiny Of the
said agreement discloses that the object
and intention of the parties in it's exc
cution was to create lien on said prop
erty for the benefit of Peter ]. Huels-
man, and to arrange between the par
ties for the application of the rents
and profits of said land to the payment
and discharge of such lien. None of
the terms usually employed in drafting
ccnveyances, such as grant assign
or transfer have been used in said
writing, nor is there to be found
therein single sentence or expression
| indicating an intention by the parties
to pass or transfer the title, one to the
| other.
| The rule is too we'll settled to require
the citation of authority that, in the
Interpretation of contracts. it is the
duty of the court to give effect to the
| intention of the parties, and, where the
contract has been reduced to writing
the intention Of the parties is to be Ge-
termined from the writing alone AS
I have before stated, the intention of
the parties does appear from this writ
| ing. Whether they have successfully
accomplished the object and intent
which they had in view, in the execu-
ton of the agreement, is not involved
in this proceeding. 1t certainly IS rer-
fectly plain that they did not intend
| that said agreement should be a deed
and for the court to determine that said
agreement reconveyed the title which
Peter j. Huelsman acquired under said
deed of trust would be. in effect, max
ing an agreement for the parties which
they have not made themselves, and
never intended to make.
I therefore conclude that said agree
ment of June II, 1897, SO far as the
plaintiff is concerned, did not affect the
title to the land in question.
| 1t follows from the foregoing views
| that plaintiff is entitled to the usual
| decree foreclosing her mortgage, as to
| all interest which the mortgagors
| owned in the premises at the date of
| the mortgage, as well as all interest
subsequently acquired, and that the
prayer of the ross-complanant, that
his title be quieted as against the plain
tiff. be denied Plaintiff will prepare
findings in accordance herewith.
JOSEPH w. HUGHES,
Judge of the Superior Court.