Howard, or any one claiming from him, ever made any inquiry as to the circumstances under which the deed to Hodgdon was executed by Rising, or the letter of attorney executed by Hodgdon to Rising. Under these circumstances the court is of opinion that Howard, and all those claiming under him, must be held to have had notice, when they took the deeds executed to them, of all the facts and circumstances, and the agreement under which the deed was executed under the letter of attorney by Rising to Turner and Hort, which deed was, in our opinion, valid, and transferred the title to them. The statute of frauds offers no difficulty in the case. The contract between Hodgdon and Rising became executed by the conveyance made to Turner and Hort in October, 1853, by Rising, under power from Hodgdon. After that time the statute of frauds could not be invoked by Hodgdon, or any one claiming it, even conceding, but not intending to hold, that the statute before that date would have been a bar to the specific execution of the contract referred to. As the case goes back for a new trial, it is proper to pass on some other questions raised on the record. The plaintiff offered to prove by a witness certain oral declarations of Hodgdon, made in the month of April, 1853, in disparagement of his (Hodgdon's) title to the property involved herein. This offer was made by plaintiff when making out his case, and was renewed in rebuttal. They were ruled out on. both occasions, and plaintiff excepted. The court committed no error in rejecting the offer when first made, for it did not then appear that the title had ever been in Hodgdon. But the defendants, in putting in their testimony, offered the deed of the thirtieth of March, 1853, executed by Rising to Hodgdon, by which the title was transferred to the latter. His declarations made after that time, while the legal title remained in him, in disparagement of his title, were admissible against him and all claiming under him. 1 Greenl. Ev. § 103; Code Civil Proc. § 1849. The legal title vested in him on March 30, 1853, and passed out of him by the deed executed by him through Rising under the letter of attorney to Turner and Hort, on the tenth. day of October, 1853. The declarations made in 1859, after the lastmentioned date, were not admissible. Those made in April, 1853, were admissible, and the court erred in excluding them. McFadden v. Wallace, 38 Cal. 51; McFadden v. Ellmaker, 52 Cal. 348. For the foregoing reasons the judgment is reversed, and the cause remanded for a new trial. Ordered accordingly. (2 Cal. Unrep. 498) BATH V. VALDEZ and others. (No. 9,938.)1 TITLE-ADVERSE POSSESSION Filed June 29, 1885. EVIDENCE. On a review of the evidence, held, that the plaintiff had not acquired title by adverse possession to the whole of the premises in dispute, and judgment ailirmed. Department 2. Appeal from superior court of the county of Los Angeles. Brunson, Graves & Chapman, for appellant. Bicknell & White, G. M. Holton, Howard & Roberts, and H. A. Barclay, for respondents. MYRICK, J. Action to quiet title. The court below decreed that plaintiff was the owner of an undivided one-half of the premises, and that certain of the defendants were the owners of the other undivided one-half-one-twelfth each; and that plaintiff had not acquired the interest of the defendants by adverse possession. We are of opinion that the findings are supported by evidence; therefore, we look to the findings, and the conclusions of law, and decree, to determine if any error was committed by the court in making the decree. In 1862 Julian Valdez had title to the premises as the common property of himself and his wife, Manuela. In 1863 Julian Valdez died intestate, leaving him surviving Manuela, his widow, and his mother, and several brothers and sisters, as his heirs. In April of that year the widow obtained letters of administration. In 1865 Manuela intermarried with one Chavez, and thereafter, in the same year, she and her then husband executed a deed of the premises to one Peppers, by which they remised, released, and quitclaimed "all that lot," describing a tract including the premises in controversy. Under this deed Peppers took and retained possession until, in July, 1872, she executed a grant, bargain, and sale deed to Burrows, and from Burrows the title comes, by mesne conveyance of grant, bargain, and sale, to plaintiff. Plaintiff's grantors were respectively in the undisturbed possession of the premises during the periods while they had title; they placed improvements on the property, received the rents, and had the entire enjoyment thereof. Plaintiff purchased in January, 1882, and this suit was commenced in October, 1882. court also found The "That the said plaintiff, his grantors, ancestors, and predecessors, from the fourth of October, 1865, have received all the rents, issues, and profits of the premises, paid all taxes that have been imposed thereon, and occupied the same, and that neither the said plaintiff nor his grantors or ancestors or predecessors, or any of them, ever gave any notice, actual or otherwise, to the defendants, or any of them, that he or they, or any of them, intended to or did or were claiming and holding the said premises, or any part thereof, adverse to the said Jose E., Brigido, Vincente, Juan, Felipe, and Maria de Los Angeles Valdez, and Guadalupe V. de Rocha, or either or any of them; nor was the said plaintiff, or the said Burrows or Roques, or the said Dassaud, or the said Goodwin, or any or either of them, ever heard to make or assert any 1 Reversed in banc. See 11 Pac. 724, 70 Cal. 350. claim to the land in controversy adverse to the said defendants Valdez or Rocha, or any of them, or under whom they claim, prior to the commencement of this action." From the marriage of the widow of Julian Valdez, in 1865, until 1882, nothing was done in the administration of the Valdez estate; but in 1882 Brigido Valdez, one of the brothers of the deceased, obtained letters, and such proceedings were had that in 1883, after the commencement of this action, distribution of the property was made by the superior court, sitting in probate,-one-half to Burrows, grantee of Manuela, and the other half to brothers and sisters of the deceased, one-twelfth each; the mother and one brother having died in the mean time. First, The court below based its decree on two propositions, viz.: the plaintiff had not acquired the property, as against the heirs of Julian Valdez, by virtue of the statute of limitations; and, second, he was estopped by the decree of distribution in probate from asserting that the Valdez heirs had no title. The first proposition alone is sufficient for the decision of this case. The widow of Julian Valdez, owning the undivided one-half of the property as survivor of the community, executed a quitclaim deed. Her grantee entered under that deed, and although that grantee and her successors in interest down to plaintiff have been in possession enjoying the property, (the later holders believing that they owned it entire,) yet they never "gave any notice, actual or otherwise, to the defendants, or any of them, that he or they, or any of them, [plaintiff and his predecessors,] intended to or did, or were claiming and holding the said premises, or any part thereof, adverse to the said Valdez heirs." With such facts it cannot be successfully asserted that the possession of plaintiff and his grantors was adverse to such heirs. This case is quite different from Unger v. Mooney, 63 Cal. 586. We have examined the various points presented by appellant, and find no material error in any matter affecting the judgment. Judgment and order affirmed. We concur: (67 Cal. 182) SHARPSTEIN, J.; THORNTON, J. BURKE v. EDGAR. (No. 9,981.) 1. MANDAMUS-SALARY OF DEPUTY COUNTY CLERK OF SAN FRANCISCO. A petitioner proceeding by mandamus to compel the auditor of the city and county of San Francisco to allow his claim for salary as deputy county clerk, must allege that he was appointed or assigned the position of court-room or register clerk, and an allegation that he acted in such capacity is not enough. 2. DE FACTO OFFICER-RIGHT TO SALARY. De facto public officers are not entitled to recover compensation or salary annexed to the office, as such salary is incidental to the title to the office, and not to its occupation or exercise, In bank. Appeal from superior court of the city and county of San Francisco. Dunne & Davidson and Joseph J. Dunne, for appellant. John L. Love, for respondent. THORNTON, J. Application for a writ of mandate to be issued to defendant, as auditor of the city and county of San Francisco, to compel him as such auditor to allow the claims of petitioner and his assignors for balance of salaries alleged to be due them as deputy-clerks of the clerk of the city and county above mentioned. It is alleged of some of these deputies that they severally performed services as deputy in the capacity of court-room clerk in a department of the superior court of the city and county aforesaid, and of others of them the same allegation is made of them severally as register clerk. It appears that each of them has received from the auditor a warrant for $150, in discharge of his salary as deputy, which has been regularly paid by the treasurer of the said city and county. It is claimed, and the court below so held, that the salary of a court-room or register clerk is fixed by law at $175 per month. It should be stated here that the salary of the other deputies of the county clerk is fixed at $150 per month or less, and that the claim in question in this case is for the difference of $25 per month between the $150 paid as above stated, and the $175 per month at which the salary was fixed. We think that the salary of a court-room and of a register clerk is fixed by the acts of the legislature passed on the thirteenth of February, 1880, and April 2, 1880, at $175 per month. St. 1880, 5, 20; see, also, Act February 5, 1872, (St. 1871-1872, 76.) In the view taken of this case, the constitutionality of the acts of 1880, above cited, may be conceded without deciding the point. It is nowhere averred, nor is it found, that the petitioner or his assignors were appointed or assigned to the position of court-room or register clerks. The act of April 5, 1880, authorizes the county clerk to assign to a deputy duties in, or in connection with, the superior court of his county, or city and county. The finding that each of the parties referred to acted in the capacity and only performed services. as the court-room clerk of a department, or as the register clerk of a department, of the superior court, is not a finding that they and each of them were assigned. It is at most a finding of evidence, and not of the fact of assignment. Facts and not evidence should be found. Especially should the fact of assignment be found, where the evidence as it appears in the finding is consistent with the fact that they acted in such capacity, and performed the services stated without any such assignment. It is consistent with the finding as made that each of the parties were de facto officers, and it is well settled de facto officer cannot recover the compensation or salary annexed to such office; that such salary is "incident to the title to the office, and not to its occupation and exercise." Dorsey v. Smyth, 28 Cal. 21; Stratton v. Oulton, Id. 44; People v. Potter, 63 Cal. 127. this state that a Conceding that the presumption invoked by appellant, stated in section 1963, sub. 14, Code Civil Proc., applies here, still the fact of assignment should be found. But we are of opinion that such presumption does not apply to the case of an officer prosecuting an action to recover his salary. In such case he must establish his title by proof of an appointment made as required by law. See cases just above referred to, and People v. Hopson, 1 Denio, 579, and cases there cited. This is not a case in which the judgment should be reversed, and the cause remanded for a new trial, for want of a finding upon a material issue, as no issue was joined on the main question in the cause, viz., that of an assignment by the county clerk to the positions above referred to. The views above expressed are conclusive of the case, and it is therefore unnecessary to pass on the other questions discussed herein. The judgment and order should be affirmed; and it is ordered accordingly. We concur: SHARPSTEIN, J.; Ross, J.; MYRICK, J.; MCKINSTRY, J. KASTEN v. PAXTON and others. (No. 9,900.) Filed June 30, 1885. EVIDENCE HELD INSUFFICIENT TO JUSTIFY DECISION. Department 2. Appeal from superior court of the county of Los Angeles. R. M. Widney, for appellants. Thos. B. Brown and A. W. Hutton, for respondent. SHARPSTEIN, J. The court finds that the plaintiff deposited with the defendant between July 21, 1878, and April 9, 1882, the sum of $15,697.82; that plaintiff has drawn on account of said deposit $10,872.95, leaving a balance of $4,794.87 due him on said account, for which judgment was entered in his favor. Appellants insist that the evidence is insufficient to justify the decision. After a careful examination of the evidence we have arrived at that conclusion. The evidence of the plaintiff shows that he kept no account of his transactions, but was under the impression that the state of his account with them was quite different from what their books showed it to be. He was giving them orders to buy and sell stocks for him, and when he found that he had thereby lost all the money he had in their hands, and more, too, he was very much disappointed. But he gave them his notes for the balance, which, by the account rendered to him by them, appeared to be due to them. On the one side we have the bare impressions of the plaintiff, and on the other the books of a business firm, corroborated by the person who kept them, and through whom the business of buying and selling stocks for plaintiff was transacted. There is no substantial conflict in the evidence, because the |