Barry v. All Persons Claiming, Etc.

[436]

HENSHAW, J.

This is an action to quiet title under the McEnemey Act. Walter A. and J. W. Barry appeared as defendants and answered. Judgment passed for plaintiff. In their answer they attack the validity of the deed under which plaintiff claimed title, upon the ground that its execution had been procured through undue influence, and that it was given without consideration. No evidence to sustain these contentions was offered at the trial, and it appeared further that this was not the only nor yet the principal source of plaintiff’s title. Upon this appeal the appellants make the point, for the first time, that the deed to which reference has been made, is void as an attempt to create an estate to commence

in futuro.

This is the sole proposition urged, and the only case from this state offered in support of it is that of

Hawes

v. Stebbins, 49 Cal. 369.

Hawes

v.

Stebbins,

as the slightest inspection of the case will disclose, grew out of facts and conditions existing prior to the adoption of the code provisions changing the rule, and its decision was governed by the well-recognized common-law rule resting for its origin in delivery of seisin. That rule has long since been abrogated in this state. Indeed, it was abrogated at the time

Hawes

v.

Stebbins

was decided and reference in the opinion is made to the fact in the following language : “The remedy, if one be needed, should be provided by statute, for it would then be prospective in its operation, and it has, in fact, been furnished by section 767 of the Civil Code.” Section 767 of the Civil Code provides in terms that “A future estate may be limited by the act of the party to commence in possession at a future day, either without the intervention of a precedent estate or on the termination, by lapse of time or otherwise, of a precedent estate created at the same time.” (See, also, Civ. Code, sec. 773.) In