(67 Cal. 43)

SUPREME COURT OF CALIFORNIA.

BRANDON V. LEDDY.

(No. 7,760.)

Filed May 19, 1885.

DEED-PATENT AMBIGUITY-PAROL EVIDENCE TO EXPLAIN.

Where a deed, for description of the property, refers to a map, the map is to be considered with the deed in construing it, and if, from the face of such deed and map it appears that there are two lots to which the description in the deed equally applies, the ambiguity is patent, and resort cannot be had to parol, to show which lot was intended to be conveyed.

In bank. Appeal from the superior court of Santa Clara county. John Reynolds and S. O. Houghton, for appellant.

J. A. Yoell, for respondent.

Ross, J. On this appeal, which is from the judgment, the judgment roll alone is brought up. The action is ejectment, and both parties claim under one Carney, who, in 1848, was the owner in fee of the premises in controversy. The defendants also claim under a tax deed, and rely further on the statute of limitations. In 1851, Carney executed to one Rosaria Bernal, under whom the plaintiff claims, a deed purporting to convey to her "one certain lot or parcel of land lying and being in the county of Santa Clara and state of California, and in the city of San Jose, and described as follows: It being twenty varas of lot seven and thirty varas of lot six, it being a part of block four, range eight, as shown by plot of said city of San Jose, being fifty varas square." This deed was put on record in Santa Clara county. Prior to 1848 the then Pueblo de San Jose, which is the present city of San Jose, was laid off into blocks and ranges, and each block was surrounded by streets, and was subdivided into lots, each lot being 50 varas square, and each block containing at least eight lots. The blocks were numbered from one to four, commencing at San Fernando street and numbering southwardly, said San Fernando street being recognized and designated as the base line running easterly and westerly, each tier of blocks extending on both sides of the base line constituting a range, and the ranges being numbered from one to ten, commencing at the westerly side of the pueblo. Carney, at the time of his deed to Rosaria Bernal, was the owner of lots 6 and 7 in block 4, range 8, north of the base line, but he never was the owner of lots 6 or 7 in block 4, range 8, south of the base line.

The first question to be determined is whether or not the deed from Carney to Rosaria Bernal conveyed the 30 varas of lot 6, block 4, range 8, north of the base line; for, if it did not do so, the defendants have the legal title to the premises by reason of a deed executed by Carney to Martha Glasson on the twenty-ninth of March, 1854, and mesne conveyances from Glasson. The map referred to in the deed v.7p,no.2-3

from Carney to Rosaria Bernal must be considered as incorporated in it. The deed therefore shows upon its face that there are two lots to which the description equally applies. From the deed itself it cannot be ascertained which lot was intended to be conveyed, and as the ambiguity is patent, resort cannot be had to parol. Our conclusion is that the deed in question is void for uncertainty of description, from which it results that the legal title to the lot in dispute passed to Glasson in 1854, and subsequently, but before the commencement of this action, vested by mesne conveyances in the defendants. Judgment affirmed.

We concur: MORRISON, C. J.; McKINSTRY, J.; THORNTON, J.

SHARPSTEIN, J. I concur in the judgment.

(67 Cal. 41)

LEARNED V. CASTLE.

(No. 7,762.)

Filed May 19, 1885.

1. EQUITY-SPECIAL ISSUES To Jury-General Verdict.

In an action in equity a general verdict is not determinative of issues made by the pleadings, and must be disregarded.

2. NUISANCE-JURISDICTION OF DISTRICT AND COUNTY COURTS.

An action to prevent or abate a nuisance is an action in equity, and is within the jurisdiction of the district courts in California, which had conferred on them jurisdiction of "all cases in equity," notwithstanding the county courts at the same time had jurisdiction of "actions to prevent or abate a nuisance." These courts have concurrent jurisdiction of such matters.

3. JURISDICTION-SUPERIOR AND DISTRICT COURTS.

Under the provisions of the California constitution, 1879, the superior courts succeeded to, and took jurisdiction of, actions pending in the district courts, and, as no change was made as to the character of actions regarding nuisances, the superior courts properly take jurisdiction of those actions.

In bank. Appeal from the superior court of San Joaquin county. The opinion in department 1 appears in 4 PAC. REP. 191.

F. T. Baldwin, J. C. Campbell, J. H. Budd, and J. B. Hall, for appellants.

Terry & McKinne and W. L. Dudley, for respondents.

Ross, J. This action was commenced in one of the late district courts, while the late constitution was in force, to procure the abatement of alleged nuisances, and the recovery of damages alleged to have been occasioned the plaintiff thereby. A demurrer interposed to the complaint was overruled by the district court, and subsequently the case was tried in the superior court.

If the action is one in equity, the general verdict rendered by the jury in the court below is not determinative of the issues made by the pleadings, and the judgment must be reversed for a failure of the court to find upon such issues. Warring v. Freear, 64 Cal. 54. It was only because the action was a case in equity that the district court had jurisdiction of it. The constitution then in force gave the

district courts existing under it original jurisdiction "in all cases in equity," and to the county courts existing under it, it gave original jurisdiction "of actions to prevent or abate a nuisance." It was held here in a number of cases that the district and county courts had concurrent jurisdiction of such actions; the county courts by reason of the jurisdiction in terms conferred upon them by the constitution, and the district courts because of the jurisdiction conferred upon them "in all cases in equity." Courtwright v. Bear River Min. Co. 30 Cal. 576; Yolo Co. v. Sacramento, 36 Cal. 193.

The case at bar being one in equity when commenced, and pending in the district court, it would seem sufficiently clear that its character was not changed by the fact that the constitution of 1879 abolished the district courts and created superior courts. Under the provisions of that instrument the newly-created superior courts succeeded to the business depending in the district courts; and actions then depending, except as in the constitution otherwise provided, continued and remained unaffected by the adoption of the constitution. Article 22. There being nothing in the constitution of 1879 manifesting an intent to change the character of actions, pending at the time of its adoption in the district courts, for the prevention or abatement of nuisances, from cases in equity to actions at law, it follows that such actions retained their former characteristics notwithstanding the change of constitutions. This view renders it unnecessary to consider whether actions commenced in the superior courts for the prevention or abatement of nuisances, under the provision which gives to such courts original jurisdiction "in all cases in equity" and "of actions to prevent or abate a nuisance," are cases in equity or actions at law.

Judgment and order reversed, and cause remanded for a new trial.

We concur: MORRISON, C. J.; SHARPSTEIN, J.; McKINSTRY, J.; MYRICK, J.; MCKEE, J.; THORNTON, J.

(2 Cal. Unrep. 474)

PEOPLE v. POWELLSON. (No. 20,053.)

Filed May 21, 1885.

ENTICEMENT OF FEMALE FOR PURPOSE OF PROSTITUTION.
Conviction held not sustained by the evidence.

In bank. Appeal from the superior court of the city and county of San Francisco. Defendant was convicted in the lower court of enticement of female for purpose of prostitution.

C. B. Darwin, for appellant.

E. C. Marshall, Atty. Gen., for respondent.

BY THE COURT. The defendant was charged by indictment with taking, from certain individuals having the legal charge of her person, a female under the age of 18 years, for the purpose of prostitution,

under section 267, Penal Code. There was no evidence that the infant was taken from the charge or custody of the persons named in the indictment.

1

Judgment and order reversed, and cause remanded for a new trial.

(67 Cal. 53)

SAVINGS & LOAN Soc. v. THORNE and others. (No. 8,742.)

Filed May 22, 1885.

FINDINGS, JUDGMENT WITHOUT-VALIDITY OF WAIVER.

In an action tried by the court, where no findings are filed or waived, the judgment will be set aside on motion. Giving notice of motion for a new trial does not amount to a waiver of findings.

Department 2. Appeal from the superior court of the city and county of San Francisco.

Bennett & Wigginton, for appellants.

A. N. Drown, for respondent.

BY THE COURT. In this case a jury was waived, and trial had by the court. Findings were not filed or waived, and a judgment was entered in favor of the defendants. After the lapse of more than six months, plaintiff moved to have the judgment vacated on the ground above indicated. The motion was granted, and from the order granting it this appeal was taken.

In Dowd v. Clarke, 51 Cal. 262, this court said:

"There are no 'findings of fact' in this transcript, nor does it appear that such findings were waived in the court below, in any of the three modes pro-. vided for in section six hundred and thirty-four of the Code of Civil Procedure. Unless waived, a judgment cannot be permitted to stand, in the absence of findings of fact.”

Before giving notice of his motion to have the judgment vacated, the plaintiff gave notice that he would move for a new trial, and afterwards gave notice of his abandonment of that motion. Appellants insist that by giving notice of motion for a new trial plaintiff waived findings. The statute, however, enumerates the modes by which findings may be waived, and that is not one of them. The modes enumerated must be held to be exclusive. This case is not within the purview of section 473, Code Civil Proc.

Order affirmed.

(67 Cal. 54)

PEOPLE v. TIERNEY. (No. 20,043.)

Filed May 22, 1885.

RAPE-PARTICULARS OF COMPLAINT TO ANOTHER-EVIDENCE OF.

Evidence is inadmissible, in a prosecution for rape, of the particulars of a complaint made by prosecutrix shortly after the alleged commission of the offense. MYRICK, J., dissents.

In bank. Appeal from the superior court of Nevada county.
Cross & Simonds, for appellant.

E. C. Marshall, Atty. Gen., for respondent.

BY THE COURT. On the trial of the defendant, who was charged with the crime of rape, the prosecutrix was permitted, against the objection and exception of the defendant, to give in evidence the particulars of the complaint which she testified she made to Mrs. Kieley shortly after the occurrence. This was held erroneous by this court

in the recent case of People v. Mayes, 6 PAC. REP. 691. On the authority of that case the judgment and order are reversed, and the cause remanded for a new trial.

. I dissent: MYRICK, J.

(2 Cal. Unrep. 479)

SMITH V. SAN FRANCISCO. (No. 11,023.)

Filed May 23, 1885.

APPEAL DISMISSAL FOR FAILURE TO FILE TRANSCRIPT IN TIME.

Statement having been settled more than 40 days before the transcript of record was served and filed, time to file the same not having been extended, and no transcript having been served or filed until notice to dismiss the appeal had been served and filed, appeal ordered dismissed. THORNTON, J., dissenting. In bank. Appeal from superior court of the city and county of San Francisco.

John Lord Love, for appellant.

McAllister & Bergin, for respondent.

BY THE COURT. It appearing that the appeal herein was perfected and the statement settled more than 40 days before the transcript of the record was served and filed, and the time to serve and file said transcript not having been extended by stipulation or by order of the court, and no transcript having been served or filed until after the notice to dismiss the appeal herein had been served and filed, it is ordered that said appeal be, and the same is, hereby dismissed.

THORNTON, J., dissenting.