"In determining the question as to whether the slanderous words charged were spoken about or concerning the plaintiff, it is proper for you to consider whether, at this time, when these words were alleged to have been spoken, Lachman knew the person of the plaintiff or not, and if he did not know the person of the plaintiff at this time, how could he have referred to her, and how could he have pointed her out as the subject of his accusation?" This is justly criticised as being argumentative, and instructing the jury upon the weight of testimony. By it they are in effect told that if the defendant did not know the plaintiff personally, he could not have referred to her or pointed her out as the object of the accusation contained in his language which is the matter of complaint. At least it is fairly susceptible of this construction, and may have misled the jury.

The other portions of the court's charge which are objected to were not improper, in view of the declaration of this court as to the right of the trial judge to state the testimony given in a cause to a jury as "tending to prove" a matter. People v. Perry, 4 Pac. Rep. 572; People v. Vasquez, 49 Cal. 560.

For the error committed the judgment and order should be reversed and cause remanded.

We concur: SEARLS, C.; BELCHER, C. C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are reversed, and cause remanded.

(2 Cal. Unrep. 574)

WHITE V. DOUGLASS. (No. 9,612.)

1. EVIDENCE-FINDINGS.

Filed November 26, 1885.

Evidence held to support the findings and judgment.

2. REGENTS OF UNIVERSITY OF CALIFORNIA-INSTRUCTIONS FOR SALE OF LAND. Instructions to the land agent of the University of California, directing him to receive applications for surveyed land, in accordance with a designated plan, whether they emanate from the board of regents or not, if subsequently recognized and enforced by them, will be held to be the instructions of the board.

Commissioners' decision.

Department 1. Appeal from superior court, county of San Joaquin.

David S. Terry and George A. Nourse, for appellant.

J. H. Budd and W. L. Dudley, for respondent.

SEARLS, C. This is an action to determine a contest between applicants for the purchase of land from the state of California, as provided for under sections 3414-3416 of the Political Code. The cause was tried by the court, a jury having been waived, and judgment was rendered upon written findings in favor of plaintiff, from which, and from an order denying a new trial, defendant appeals. It is objected to the first finding of the court that the evidence shows without conv.8P,no.12-51

flict that no purchase of the land described in the complaint, or any portion thereof, was made by plaintiff from Pico, but that an agreement was made to purchase over 1,000 acres of land, including the land in controversy, provided the claim of Pico to the Moquelemos grant was confirmed by the supreme court of the United States; that plaintiff was in possession long before the date of such contract, and had improved the land prior thereto, and that neither his entry nor improvements were made under said contract. The finding of fact, standing by itself, seems liable to the criticism aimed at it, but when taken in connection with other facts, as found by the court, the reason of the objection fails.

The findings, as a whole, embody a history of plaintiff's connection with the land, his acts of control over it, improvements made thereon, contracts for the purchase thereof from Andreas Pico, his failure to obtain title under such contract, the reason of such failure, and his subsequent application to purchase through the regents of the University of the State of California. For convenience, as we suppose, the findings are divided into 19 sections, and numbered consecutively from 1 to 19, and a part of the subject-matter which might with propriety have been included in No. 1 is embodied in No. 5, and the two findings, read together, properly state the facts deducible from the evidence, touching the attempted purchase from Pico. The fifth finding is in the following language:

"That in fact said purchase of said land by plaintiff from said Pico was a conditional one, and said Pico agreed in and by the agreement of purchase thereof to repay to plaintiff said sum of $1,560, in case the claim of said Pico to said land, as a part of said Mexican grant called Moquelemos,' should not be finally confirmed."

Had this last finding been attached to the first, it would have met the objection aimed at the former. Separated from it, we cannot see that it loses its potency as a fact in the case.

The seventh finding of fact, among other things, finds that the rules and regulations of the board of regents of the university required all applications for land granted by congress for the use of an agricultural college to accompany such application with an affidavit containing, among other things, a statement that there were no occupations of nor settlements upon the land sought to be purchased other than that of the applicant, and that the affidavit of defendant contained no such statement. It is objected to this finding that it was the land committee of the board of regents, and not the board, who promulgated the regulations in evidence dated April 9, 1871. The instructions purport to emanate from the board of regents, and are addressed to H. A. Higley, land agent of the university, directing him to received applications for surveyed land in accordance with previous instructions, but to so change the required affidavit as to read, etc. There is also in evidence a resolution of the board of regents dated June 15, 1871, providing for the additional affidavit required

by the regulations of April 9, 1871, in cases of applications made prior to the date of said last-named instructions. These proceedings show that the instructions of April 9, 1871, were recognized, acted upon, and enforced by the board of regents, and whether originally formulated by the board as such, or by a committee, is not important. The essential thing is that they were put forth, published to the world, and acted upon, as the instructions governing their subordinates, and applicants for the purchase of university lands, so called. Defendant's application to purchase was filed February 26, 1874, and was accompanied with the affidavit herein before mentioned, a copy of which is set out in the complaint herein.

According to the eighth finding, "the board of regents of said university never accepted said defendant's said application to purchase, and said land was never located in said United States land-office, Stockton district, for defendant's benefit." The only evidence in the bill of exceptions on the subject is that of A. J. Moulder, land agent of the university, who says:

*

"I cannot remember what I did in reference to the defendant's application, but the presumption is violent that I did in that case what I always did in similar cases, and what it was my duty to do; that is, applied to the register of the land-office of the Stockton district, to select that particular tract of land as a portion of the 150,000 acres agricultural grant assigned by the legislature to the university."

If the land was in fact ever entered, or application made therefor, at the Stockton land-office, the fact was one which could have been so easily proven, and the records of the land-office, constituting, as they would, conclusive evidence on the point, in the absence of such proof we are not surprised that the court, upon the uncertain evidence set out, found as above stated.

There was no evidence that the board of regents of the university ever accepted defendant's application to purchase, or in any way passed upon his application, or did or performed any act or thing in the premises, save and except through their land agent, who received his application to purchase, and $296.33 as part of the purchase price which it was usual to exact when an application was filed.

This disposes of all the grounds upon which the motion for a new trial was based. The facts as found by the court warrant the judgment entered, and we are of opinion the judgment and order denying a new trial should be affirmed.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(68 Cal. 116)

BARROILHET V. ANSPACHER and others. (No. 8,391.)

Filed November 27, 1885.

1. SHERIFF'S SALE-STATUTE OF LIMITATIONS.

A person claiming under a purchaser at execution sale of real estate may maintain ejectment, and his action, commenced within five years after he was entitled to a deed, is not barred by the statute of limitations, though the sheriff's sale took place more than five years before the commencement of such action.

2. RESULTING TRUST-CONSIDERATION PAID FOR ANOTHER.

Where, on a transfer of real property to one person, the consideration is paid for another, a trust results in favor of the person for whom the consideration is paid; and it is not necessary that the consideration should have been paid by him.

3. CESTUI QUE TRUST IN POSSESSION-LACHES.

A cestui que trust, under a trust resulting from the fact that the consideration at a sale of the land was paid for him, if in possession, is not guilty of laches in not asserting his rights against the holder of the legal title out of possession.

Commissioners' decision.

Department 1. Appeal from superior court, county of Alameda. J. M. Rothschild and J. E. McElrath, for appellant.

Curtis H. Lindley, for respondent.

BELCHER, C. C. This is an action to quiet title to a block of land known as block No. 5, in the town of Livermore, in Alameda county. By their answer the defendants set up the statute of limitations, and then certain facts under which they claimed that the plaintiff held the title to the land in trust for them. The case was tried, and judgment rendered in favor of the plaintiff, and the appeal is from that judgment and an order denying a motion for new trial.

The facts out of which the case arose are as follows: In March, 1875, A. D. Splivalo owned this block No. 5 and other parcels of land in Alameda county. E. M. Derby had a judgment against Splivalo for $347.30, which was a lien upon all such lands. The defendants, Phillip and Simon Anspacher, wished to purchase block No. 5 for $1,800, but desired that it should be first released from the lien of this judgment. Thereupon Splivalo, the Anspachers, Derby and E. B. Mastick, his attorney, had a conference, at which Derby virtually agreed to release block No. 5 from the lien of his judgment upon the payment to him of $150. The Anspachers then paid Splivalo the purchase price of the block, $1,800, took a deed of it, dated March 17, 1875, and at once went into possession, and have been in possession of it ever since. Splivalo afterwards paid Derby the $150, but, instead of releasing the block from the lien, he simply credited the money upon his judgment. In August, 1875, an execution was issued on the judgment, and on the twenty-second day of November following the block in question, and eight other blocks of land in the town of Livermore, were sold thereunder and bid in by Derby in satisfaction of the amount still remaining due on his judg ment. In May, 1876, just before the time the redemption expired,

Splivalo, Anspacher, Pardini, who were interested in one of the blocks sold, and Derby, met at Mastick's office to discuss the situation. It was found that the amount of money necessary to redeem all the property sold was $412, and it was agreed that Anspacher's block, No. 5, Pardini's block, and one or two other blocks should be redeemed or released from the sale. As the most convenient way of effecting this release it was suggested that the title to all the property sold be put in the name of the plaintiff, and that he then make the deeds of release. This was agreed to, and thereupon Splivalo and Mastick went to see the plaintiff about it. Splivalo informed the plaintiff how they proposed to put the title to the property in his name, how many blocks had been sold, and that block No. 5 and three other blocks were to be deeded over by him to the parties to whom they really belonged and whose names were given to him. The plaintiff replied, "Do whatever you please," and then agreed to deed the blocks over as requested. After this interview, and on the twenty-seventh day of May, Splivalo drew his check for $412 on the plaintiff, who was a banker, and with whom he already had an overdrawn account, and then went with the check to the plaintiff's bank and drew the money on it; the money so drawn being charged up to his account. Splivalo then went back to Mastick's office and paid him the $412 and took from him a receipt reading as follows:

"E. M. Derby vs. A. D. Splivalo.

"$412 Received of A. D. Splivalo $412, in full for redemption of land sold under execution, issued in the above-entitled case.

[Signed]

"E. B. & J. W. MASTICK,
"Attorneys for E. M. Derby.

Mastick immediately paid the money over to Derby.
Splivalo testified:

"I paid the money just before the time for redemption expired, but it was not to redeem. It was for the purpose of getting an assignment of all the property in the name of Barroilhet, who owned all the other blocks in dispute. The assignment was not made on that day, because Derby was not there, and the thing went on until sixth of February, 1877. * * * Then I went to Mastick, and Mr. Mastick had the certificate. He wrote the assignment on the back of the certificate. Mr. Derby was sent for and signed the assignment to Barroilhet. It was acknowledged, * * * and then

*

The deed

my clerk came to Oakland and got the sheriff's deed, and immediately thereafter Mr. Pardini requested Barroilhet for a deed to block 31, and Barroilhet made it. The others were not requested, and they remained so. ** I had no conversation with Barroilhet when the deed was made. was delivered to Barroilhet; the certificate never was. * * * The money was my money. I borrowed it from Mr. Barroilhet on my open account. Mastick testified:

"I went with Splivalo and called upon Mr. Barroilhet, and he said whatever we did was all satisfactory to him. He turned the matter over to Mr. Splivalo to give directions. * * ** these people were to be protected.

*

The distinct understanding was that * * Anspacher was to be protected;