Code, provides that: "A grant cannot be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made." (Mowry v. Heney, 86 Cal. 471, [25 Pac. 17]; Lewis v. Brown, 22 Cal. App. 38, [133 Pac. 331].) As to the delivery to the other defendants, some question might arise from the evidence as to whether Franklin Avery in receiving the deeds from the grantor was acting as the agent of the grantor or as the agent of the grantees, but, as stated before, either inference would be warranted from the evidence, and the trial court has resolved the doubt in favor of the defendants by its finding.

This leaves for our consideration only the contention of appellant that the evidence does not warrant the finding that at the time the said deeds were executed and delivered by the grantor the said grantor was of sound and disposing mind. The evidence shows that the deeds were all executed on May 26, 1915, and that the grantor was judicially declared insane and ordered confined in the Agnews State Hospital for the insane on June 23, 1915. The testimony of Franklin Avery and the testimony of the notary public who made out the deeds at the request of the grantor, and before whom said deeds were executed, was to the effect that at the time the deeds were executed and delivered the grantor was of sound mind. It is true the record discloses contradictory testimony upon this question, and the appellant relies especially upon the record in the insanity hearing which was introduced in evidence in this case. [3] The judgment therein established the insanity of the grantor only as of the date of the judgment. It has been held that it is not conclusive as to even that fact against those who were not parties. (Den v. Clark, 10 N. J. L. 217, [18 Am. Dec. 417].) But be that as it may, it is clear that such judgment is not proof of insanity at a time prior to the date stated therein, for there is a legal presumption of sanity in regard to every man, and therefore proof of insanity at one time carries no presumption of its past existence. (Estate of Dolbeer, 3 Cof. Prob. Dec. 249.) [4] Appellants argue that as the certificates of the medical examiners attached to the judgment of the court stated, among other things, that the "present

attack began one and one-half months ago," the plaintiff may not introduce evidence contrary to this recital. The answer to this objection is that the statement of the medical examiners has not even the force of a judgment, and it is clearly not conclusive of the fact recited against persons not parties to the proceeding. Furthermore, it appears from the same certificate that the following question appearing thereon was left unanswered by the examiners: "Was the present attack gradual or rapid in its onset?" We therefore have in the record no statement by the examiners as to whether the insanity stated by them to have begun one and one-half months previously came on suddenly, rendering the subject incompetent from that time, or whether its effects were gradual and slow or intermittent, which latter conditions might be consistent with capacity to make the deeds at the time they were made. [5] For it is not every symptom or indication of insanity which will render one incompetent to dispose of his property. It has been said that if one is able to understand and carry in mind the nature and situation of his property, and his relations to his relatives and those around him, with clear remembrance as to those in whom and those things in which he has been mostly interested, and is capable of understanding the act he is doing and the relation in which he stands to the objects of his bounty, free from any delusion, the effect of disease, which might lead him to dispose of his property otherwise than he would if he knew and understood what he was doing, he has the capacity to dispose of his property. (Whitney v. Twombly, 136 Mass. 145; Estate of Motz, 136 Cal. 558, [69 Pac. 294]; Estate of Houston, 163 Cal. 169, [124 Pac. 852].) We cannot, therefore, disturb the finding of the trial court in regard to the competency of the grantor, and the judgment is affirmed.

Brittain, J., and Haven, J., concurred.

[Civ. No. 2831. First Appellate District, Division One.-July 7,

1919.]

THOMAS P. HALE, Appellant, v. LUCY PENDERGRAST et al., Respondents.

[1] NOTICE-INSTRUMENTS NOT ENTITLED TO RECORDATION.-An instrument not entitled to go upon record is not constructive notice although recorded.

[2] ID.-SALE OF LAND-REPURCHASE AGREEMENT-LACK OF ACKNOWLEDGMENT ATTACHMENT ΤΟ ACKNOWLEDGED NOTICE.-An agreement to repurchase land within a given time at the request of the vendee not acknowledged, either by the vendor or the vendee, is not entitled to be recorded. Neither does the fact that such repurchase agreement is physically attached to, and by reference made a part of, a purported notice, signed and acknowledged by the vendee, add to its function as imputing notice.

[3] VENDOR AND VENDEE - REPURCHASE AGREEMENT-VALIDITY OF. — A vendor and vendee may lawfully enter into an agreement giving the latter the option within a given time to require the former to repurchase the property.

[4] ID.

ASSIGNMENT OF NOTE AND MORTGAGE BY VENDOR-EXERCISE OF REPURCHASE OPTION RIGHT OF ASSIGNEE TO FORECLOSE.Where a person sells real property, taking a note and mortgage as part payment, and at the same time enters into a repurchase agreement, and thereafter, but prior to the exercise of the repurchase option, sells and assigns the note and mortgage to a third person who has no knowledge of the repurchase agreement, the latter may, upon default being made in the payment of the note, maintain an action against both the vendor and vendee to foreclose the mortgage on the property, notwithstanding that theretofore the latter has exercised her option to require the former to repurchase the property from her.

APPEAL from a judgment of the Superior Court of Mendocino County. J. Q. White, Judge. Reversed.

The facts are stated in the opinion of the court.

Theodore Hale and J. E. Pemberton for Appellant.

1. Record of instrument not entitled to be recorded as actual notice, note, 38 L. R. A. (N. S.) 400.

3. Validity and effect of agreement by vendor to repurchase, note, L. R. A. 1917C, 763.

W. D. L. Held and Mannon & Mannon for Respondents.

WASTE, P. J.-Plaintiff brought this action to foreclose a mortgage. Judgment was entered for the defendant and plaintiff appeals.

The defendant and respondent Waldteufel was the owner of the lands and premises in Mendocino County, described in the mortgage sought to be foreclosed. He agreed with the defendant and respondent Mrs. Pendergrast that he would sell and convey the said lands and premises to her, for the purchase price of ten thousand dollars, payable two thousand dollars in cash, and eight thousand dollars according to the terms of the promissory note and mortgage sued on in this action, and, as part of the same transaction, Waldteufel agreed with defendant Pendergrast that he would repurchase the said premises from her, for the sum of ten thousand dollars, at any time within one year from the date of the consummation of her purchase, if she should elect to so require.

Mrs. Pendergrast agreed with Waldteufel to purchase said premises from him on said terms, and on the twentyfifth day of August, 1916, Waldteufel conveyed said premises to her by a grant, bargain, and sale deed and she paid him therefor the sum of two thousand dollars, and made, executed, and delivered to him the promissory note for eight thousand dollars and mortgage which is sought to be foreclosed in this action. The note was payable in eight equal installments of one thousand dollars each, beginning one year after date, with interest from date at the rate of six per cent per annum, payable semi-annually.

As a part of the same transaction, defendant Waldteufel on the same day made, executed, and delivered to his codefendant the following receipt:

"August 25th, 1916.

"Received of Lucy Pendergrast the sum of two thousand dollars ($2,000) as first payment of the Waldteufel ranch. in Redwood Valley, Mendocino county, California, consisting of 70 acres of the former ‘Beasore ranch' (describing the boundaries thereof); also all personal property on said 70 acres (with certain exceptions), and growing crops also all water and water rights. Balance of $8,000.00 to be paid at the rate of $1,000 per annum with interest on de

ferred payments at six per cent per annum payable semiannually. Said J. A. Waldteufel agrees to buy said premises back from said Lucy Pendergrast at any time within one year for $10,000 if she so elects, but has no option to buy unless called upon to do so by her.

"(Signed) J. A. WALDTEUFEL.

"I agree to the above contract.

"(Signed) MRS. LUCY PENDERGRAST."

The lower court found that this receipt was duly acknowledged and entitled to record, and was duly recorded September 14, 1916. The manner of its recordation will be referred to presently.

On the thirty-first day of March, 1917, after the first installment of interest had been paid, defendant Waldteufel, for a good and valuable consideration, duly sold and assigned the note and mortgage of Mrs. Pendergrast to plaintiff, which assignment, the court found, was duly recorded in the office of the county recorder of Mendocino County. No actual notice to plaintiff of the collateral agreement to repurchase, made between the two defendants, is pleaded, or attempted to be proved. So far as the record discloses there was no notice, other than whatever constructive notice may be imputed to plaintiff, by the placing of record in the recorder's office of that document, in the manner hereinafter set forth. Waldteufel did not disclose to plaintiff the true situation until just before the foreclosure action was commenced.

On the eighth day of August, 1917, the defendant Pendergrast elected to, and did, require the repurchase of said premises by the defendant Waldteufel, under the terms of his agreement, and on said date Waldteufel accepted from Mrs. Pendergrast a deed of said premises, containing this clause: "This deed is made pursuant to instrument recorded in Book 147 of Deeds, page 292, records of said county, and the intention is to convey to the grantee all the property and right acquired by the grantors by that certain deed recorded in Book 146 of Deeds, at page 90, records of said county. The grantee assumes all the encumbrances on said property subject to all the equities and defenses of the grantors."

The first installment of the principal, one thousand dollars, was not paid when it became due, and plaintiff in