Cal.)

ent of the State Home for Feeble-Minded testified that she was (at the time of the trial) an inmate of his institution, and was feeble-minded. Objection was made to this evidence as bearing upon her condition six months after the alleged offense, and as not throwing light upon her condition at the time of the offense. A similar point is made upon the court's refusal to give an instruction embodying this objection. But, as the mental infirmity sought to be shown by the people was a long-standing one, evidence of its past, present, and continued existence was admissible as bearing upon her state of mind at the time of the occurrence. The judgment and order appealed from are affirmed.

1. Executors of an estate may appeal from an order requiring them to redeem decedent's land from a foreclosure sale.

2. A lower court has no authority to refuse to enforce a judgment on the ground that the supreme court, in rendering it, was acting under a misapprehension of the facts presented in the record.

Department 2. Appeal from superior court, city and county of San Francisco; J. V. Coffey, Judge.

In the matter of the estate of Solomon Heydenfeldt, deceased. From an order requiring them to redeem certain land from a foreclosure sale, the executors appeal. Affirmed.

Evans & Meredith and Hillyer & Jacobs, for appellants. T. M. Osment, for respondent.

TEMPLE, J. This appeal is by the executors from an order of the probate court requiring them to redeem certain land from a foreclosure sale. The testator, some time prior to his death, had executed deeds, which he delivered to Charles Ashton, to be delivered to the parties named upon his death. In his will he recognized and confirmed these deeds as a provision made for certain of his children who were the grantees named in the deeds. He also provided that his debts should be paid out of his unproductive property. Before he made and delivered the above deeds to Ashton, and before the making of the will, he had mortgaged portions of the property described in some of the deeds to secure an indebtedness of his own, amounting to about $40,000. Upon a former appeal (106 Cal. 434, 39 Pac. 788) we held that it was the intent of the testator to exonerate the mortgaged property to the extent of his unproductive property, or, at least, that these mortgage debts were part of the 1 Rehearing denied.

713

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indebtedness which he directed his executors to pay from that property. The respondent moves to dismiss the appeal on the ground that the executors are not parties aggrieved. The motion is based upon a line of decisions beginning with Bates v. Ryberg, 40 Cal. 463. It was there said: "The heirs and devisees or legatees interested in an estate are made parties to the proceedings for a distribution. Any one of them feeling aggrieved may appeal from the final order. The executor, however, does not represent any of these par ties, as against the others, and, if they are satisfied with the distribution, he cannot complain because some have received less than they are entitled to. He cannot litigate the claims of one set of legatees as against the others at the expense of the es-tate." I think there has been a disposition to carry the doctrine of that case beyond its legitimate scope, and further than it should be carried on principle. An administrator or an executor is a trustee of an express trust. He is authorized to sue or to be sued without joining with him the beneficiaries of the trust, but the suits which may thus be brought are suits affecting the trust, and not those in which he is individually interested. Among his beneficiaries are creditors. He not only may, but it is his duty, to defend the estate from all unjust and illegal attacks made upon it which affect the interests of heirs, devisees, or legatees or creditors. cannot be kept out of such litigation upon the claim that he is not personally injured. In fact, if that were the nature of his grievance, he ought not to litigate at the expense of the estate. When, however, he has admin istered the estate, and under the statute has called all parties interested into court by a proper notice and petition, his only remain. ing duty is to deliver the estate over to those designated by the court. The administration has then served its purpose, and the claimants, including creditors, are specially noti fied and called into court. They are then to protect their own rights, and it is no part of the duty of the administrator to decide between them. If he were to take sides with one claimant as against another, and his views were not sustained, it would result that he has been making an assault upon the estate of his real beneficiary at his expense. and in the interest of the spoiler. I canno' see that it matters that a claim is made against the estate under the will, or by one who claims to be an heir, or a part of the family of the deceased, and as such entitled to an allowance. If it may diminish the estate to be finally distributed, or may make the fund from which the creditors are to be paid insufficient for that purpose, the administrator is interested, and, in the event of an adverse ruling, is a party aggrieved. Indeed, although it has been held that the persons who are likely to be distributees may be heard in some matters pending the administration, yet no doubt the logical con

clusion would be that the administrator is specially intrusted with the duty and power to defend the rights of all beneficiaries until distribution. The case of Roach v. Coffey, 73 Cal. 281, 14 Pac. 840, is in strict accord with these views. That was really a special proceeding in the distribution of an estate. In some cases the rule laid down in Bates v. Ryberg, supra, has been carelessly applied, but I think the court has never intended to push that doctrine beyond the limits above defined. The motion to dismiss is denied.

There was an appeal to this court from a former order refusing to direct the executors to pay the mortgage debt which has since been foreclosed, and under which the petitioner's property was sold. See 106 Cal. 434, 39 Pac. 788. This court reversed the order refusing to order the executors to pay the mortgage debt. It then became necessary to ascertain the rights of the parties under the will of Solomon Heydenfeldt, and in so doing all the questions here involved were presented and were passed upon except that which is presented as to whether, upon the evidence, the court was justified in finding that there was sufficient unproductive property to enable the executors to redeem the mortgaged premises. The order appealed from was made to carry into effect the judgment rendered by this court. The only question that can properly be raised is whether the order was warranted by the judgment of this court. If the supposed defect in the deed from Heydenfeldt would be a reason for denying the relief asked for now, it was equally a reason for denying the relief asked for in the former proceeding, and so in regard to the alleged nondelivery of the deed. All the facts were then in the record affecting the questions which are in this record, and, if this were not so, these questions could not now be raised. No supposed errors in the judgment rendered here can be raised in a proceedng to enforce it in the court below. And certainly the eminent counsel who presented this appeal knew that it was not proper to resist the execution of a judgment of this court on the ground that the judgment was reached through a misapprehension of the facts presented in the record. The attention of this court was called to the alleged mistakes in a petition for a rehearing, and this court determined that there was nothing in the claim which called for a reconsideration of the case. The only question presented on this record which can be deemed an open one is whether the evidence justified the finding that there was sufficient unproductive property to pay the mortgage debt. The court so found, and I think the evidence justified the finding. It is not a very easy question to decide, for it involves a determination of the question as to what is unproductive property. The appellants have had about six years to perform this trust. unusual amount of litigation will no doubt excuse some delay, but since the decision of this court as to their duty the delay may be

An

held almost contumacious. It would require. under any circumstances, & pretty clear show ing to justify us in deciding that the probate court has abused its discretion, and, considering the nice questions of fact to be determined, it would be a task of unusual difficulty in this case. I cannot say, from the evidence, that appellants have not sufficient funds to enable them to redeem the premises belonging to the petitioner, and surely there is sufficient unproductive property in their hands to enable them to redeem all. The order is affirmed.

(117 Cal. 577) HIBERNIA SAVINGS & LOAN SOC. v. LEWIS et al. (S. F. 309.) (Supreme Court of California. July 16, 1897.) In bank.

PER CURIAM (BEATTY, C. J., not partici pating). This cause was submitted to department 1, and on January 23, 1897, the following decision was rendered (see 47 Pac. 602).

Thereafter, upon appellant's motion and showing that the order of submission had been improvidently made, and that he had been de prived of the opportunity orally to argue his case, the judgment was vacated, the order of submission set aside, and the cause was orally argued before the court in bank, and submitted. After due consideration, we are satisfied that the opinion heretofore rendered in department is sound. For the reasons therein sei forth, the order appealed from is affirmed.

(117 Cal. 594)

LOS ANGELES FARMING & MILLING CO. V. THOMPSON et al. (L. A. 182.)1 (Supreme Court of California. July 22, 1897.)

RES JUDICATA-DIRECTING VERDICT. 1. In an action to recover possession of land claimed by plaintiff under a patent granted in pursuance of a decree of confirmation by the board of land commissioners, such decree is conclusive against the government and all parties claiming under it by title subsequent.

2. Where plaintiff's title to the lands claimed by it was conclusively established, and it could not have been found otherwise than that the tract in possession of defendants was within the boundaries of the patent under which plaintiff held, it was proper to direct a verdict for plaintiff.

Department 1. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge. Action by the Los Angeles Farming & Milling Company against one Thompson and certain others. From a judgment on a verdict directed for plaintiff', and from an order denying a new trial, eight of the defendants appeal. Affirmed.

Z. Montgomery, for appellants. S. M. White and Graves, O'Melveny & Shankland, for respondent.

HARRISON, J. This action was brought against a large number of defendants to re Rehearing denied.

,this record, so long as it remains unvacated, is conclusive, and it is equally conclusive against parties claiming under the government by title subsequent." In More v. Steinbach, 127 U. S. 70, 8 Sup. Ct. 1067, the plaintiff's claimed under a patent of the United States issued to Manuel Antonio Rodrigues De Poli, which recited the proceedings taken before the land commission; the filing of a petition for the confirmation of his title to a tract of land known as the "Mission of San Buena Ventura," his claim being founded upon a sale made on the 8th of June, 1846, by the then governor of the department of California; the decree of confirmation of that claim by the board of land commissioners, and its affirmance by the district court and the supreme court on appeal. It was contended by the defendants that the sale to Poli of the ex-Mission of San Buena Ventura was illegal and void, and that hence no title passed to the patentee on its confirmation, and U. S. v. Workman, supra, was cited in support of this contention; but the court said: "It does not follow that there were not exceptional circumstances with reference to the sale to Poli which authorized the governor to make it. We are bound to suppose that such was the case, in the absence of any evidence to the contrary, from the fact that the validity of his claim under it was confirmed by the board of land commissioners, by the district court of the United States, and by this court on appeal. The question of its validity was thereby forever closed, except as against those who might be able to show a prior and better title to the premises."

The appellants also contend that the court erred in directing the jury to find a verdict in favor of the plaintiff. The correctness of this ruling depends upon whether there was any evidence before the jury which would have authorized a different verdict. If upon the trial of an issue there is any conflict in the evidence, or if different inferences of fact may be drawn from the evidence, it is the function of the jury to determine the issue; but if, upon all the evidence in the case, only one conclusion or finding can be made, it is immaterial whether the jury make that conclusion or finding by direction of the court or upon their own deliberation. The verdict must be in accordance with the evidence, and cannot be given from conjecture, or at the arbitrary discretion of the jury; and if the evidence is such that the court would be bound to set aside a verdict in favor of one party as contrary to the evidence, the matter becomes a question of law to be ruled upon by the court, and it is not required to submit the case to the arbitrament of a jury, but may direct a verdict in accordance with its ruling upon the question of law. To authorize a verdict in its favor, the plaintiff was required to establish its title to the lands described in the complaint, and to show that at the commencement of the action the defendants were unlawfully in the possession of some portion thereof.

The patent from the United States estab

lished the title of the patentee to the lands embraced within the survey contained therein, and it was admitted at the trial that whatever title to the property described in the complaint passed from the United States by the patent had become vested in the plaintiff. The defendants sought to show at the trial that there had been no actual survey upon the ground of the tract described in the patent, and that for this reason the patent was invalid; but a patent is an instrument of too solemn a character to be disregarded by reason of evidence of this character. Its issuance by the government foreclosed all collateral attack upon the regularity and sufficiency of any of the steps or proceedings upon which it depended. It was a declaration by the government, as was said in Beard v. Federy, supra, that the claim asserted "is correctly located so as to embrace the premises as they are surveyed and described." The survey set forth in the patent had been made in 1858 by Henry Hancock, and in December, 1870, a resurvey of the rancho had been made by one Reynolds for the purpose of the aforesaid suit in partition. The description in the complaint is according to the Reynolds survey, and in 1892, after the commencement of the present action, the rancho was again surveyed by one Ensign, by whose testimony it was shown that the map or plat of the Reynolds survey was a correct delineation of the land described in the patent. It was shown upon the cross-examination of this witness that there were certain variations in the courses and distances given in the Hancock survey from those given in the Reynolds survey, and that some of the monuments named in the Hancock survey could not be found. The defendants also introduced a "comparative map," on which had been platted the lines of the several surveys of Hancock, Reynolds, and Ensign, according to the courses and distances given in their field notes, and which indicated a discrepancy in a certain part of the tract of nearly half a mile in extent. From these facts they contend that Hancock did not make a survey upon the ground according to the courses and distances given in the patent, and that the discrepancy between the several surveys shows that the description of the land given in the patent is so indefinite as to render it void. Whether a particular parcel of land is within the lines of a survey is a question of fact to be shown by evidence, but whether the lines of a survey which purport to describe a tract of land in a deed sufficiently define the land to be conveyed, is to be determined by the court when the deed is offered in evidence. The field notes of a survey are not limited to the courses and distances set forth therein, but include also the monuments referred to, and all the objects mentioned by which the lines of the survey can be ascertained. All of these make up a description in words by which a map or picture of the tract as it appears upon the surface of the earth may be placed upon paper, and presented to the eye. If there is any discrepancy between the monuments and

the courses and distances, the monuments must prevail; and, if these monuments can be ascertained, the lines connecting them will be the lines of the tract, irrespective of their variation from the lines given by the courses and distances. The rancho in question contains upward of 116,000 acres, has 44 exterior lines of boundary, many of them several miles in length, and situated in a mountainous and uncultivated region. It is not to be expected that the lines of any two surveyors in tracing these boundaries according to their courses and distances merely would exactly coincide, or that the measurement and direction between the monuments would, in all instances, be the same. See Adair v. White, 85 Cal. 313, 24 Pac. 663. But the description is sufficiently definite if the entire body of field notes afford sufficient data for its location. It may be added that the lands in the possession of the defendants, and which they claimed were not within the boundaries of the lands claimed by the plaintiff, are far within the lines of the patent as shown by the plat of either of these surveys. From the evidence before the jury it could not have been found otherwise than that the tract of land described in the complaint was within the boundaries of the patent. The possession by the defendants of a portion of the lands within the tract described in the complaint was admitted by their answers. Their denial that they unlawfully entered upon the lands, or that they unlawfully withhold possession from the plaintiff, puts in issue only the character of their possession, and their affirmative allegation that they each entered upon 160 acres of the lands claimed by the plaintiff, and that the lands so entered upon by them are within the boundaries of the land claimed by the plaintiff, but that the plaintiff has no title thereto by reason of its being outside of the boundaries of the grant which was originally confirmed to Eulogio De Celis, relieved the plaintiff from the necessity of further proof of their possession. As they did not designate the particular tracts of which they alleged that they were in possession, there was no reason for a separate verdict in reference to each defendant, but the plaintiff was entitled to a verdict for the possession of the entire tract upon showing that it had title to all the land which it claimed in the complaint. This showing, as we have seen, was made by the introduction of the patent and the testimony with reference to the lines of the survey therein contained. The judgment and order are affirmed. We concur: TEMPLE, J.; VAN FLEDT, J.

(117 Cal. 568)

TOMLINSON ▼. AYRES et al. (S. F. 520.) (Supreme Court of California. July 16, 1897.) FINDINGS OF FACT-PRESUMPTION OF WAIVER— PLEADING NONPAYMENT-REVIEW ON

APPEAL-CHATTEL MORTGAGE.

1. There being no findings of fact, it will be presumed they were waived, the contrary not appearing.

2. Nonpayment is sufficiently pleaded by the allegation in a complaint to foreclose mortgage that the note is "wholly owing and unpaid.'

3. On appeal from judgment, only matters shown by the judgment roll can be considered.

4. A chattel mortgage on property other than that included in the list made by Civ. Code, § 2955, the subject of such a mortgage, is valid against a purchaser, with notice, from the mortgagor.

Commissioners' decision. Department 2. Appeal from superior court, Humboldt county; E. W. Wilson, Judge.

Action by Edwin Tomlinson against Willlam Ayres and others. Judgment for plaintiff. Defendants appeal. Affirmed.

H. L. Ford and J. F. Coonan, for appellants. E. P. Campbell, for respondent.

CHIPMAN, C. Action to foreclose two chattel mortgages given to secure payment of certain two promissory notes executed by defendants William and W. S. Ayres. Both notes were made payable October 24, 1894. The mortgaged property consisted of a printing office plant used in conducting the newspaper called the Western Watchman, situated in a certain building in the city of Eureka, Humboldt county, "located on the west side of G street, in said city, * * together with all the right, title, and interest of the said mortgagors of, in, and to the building in which said newspaper is now printed and published, and being on the west side of G street in said city * • * [same location as the said plant]." The Western Watchman Publishing Company was alleged to claim some interest in a portion of the property, and was made a defendant. The complaint is verified. The defendants William and W. S. Ayres demurred to the complaint on various grounds, but withdrew the demurrer, and answered, admitting the execution of the notes and mortgage as alleged, but denied "that the whole of said sum and interest is wholly owing and unpaid from defendants," as alleged in the complaint. These defendants also filed a cross complaint, in which they set out that they executed and delivered to plaintiff the notes and mortgages declared upon in the complaint, and that thereafter, and before the commencement of the action, plaintiff became indebted to them for subscription to the Western Watchman. The defendant the Western Watchman Publishing Company answered, denying that the sums claimed to be due on the notes, or any sums, were unpaid. It set up as a separate defense that about September 24, 1894, the defendants William and W. S. Ayres agreed to sell to it the mortgaged property, and on January 6, 1896, the said agreement was fully consummated "by proper bill of sale in writing, signed and executed by them"; that the sale was in good faith, and with notice to plaintiff; and that this de fendant is the lawful owner and possessor of the property, and its title is superior to plaintiff's. The court gave judgment of foreclosure for plaintiff. There are no findings