the sum of fifteen dollars monthly during his natural life. Said sums to be paid monthly on the fifteenth day of each and every month at the Northern California Bank of Savings, Marysville, California, to the credit of said Jacob Gard, Sr.

A short time after the date of this agreement defendant entered into the personal occupancy of the premises and has ever since continued in such occupancy. He has failed after demand to comply with his agreement, and has refused to pay to plaintiff the monthly sum of fifteen dollars or any other sum. His wife, with knowledge of all the facts, has placed a homestead upon the property. The defendant son has no property except that so acquired from the father, and the father, eighty years old, feeble and decrepit, has no means of subsistence unless the sum of fifteen dollars a month can be made a charge upon the property.

Such is the tale told by the complaint, and in this consideration it must be taken as true. It is the tragedy of Lear in a country setting, with the "Seven Mile House" for the revenues of a kingdom, and a county pauper for the distracted king.

The case is one which appeals strongly to that sense of "natural equity" upon which it is sometimes said a vendor's lien rests, but, at the same time, a court of equity, no more than a court of law, can, because of individual hardship, reject from its consideration the wellconsidered and firmly established principles and rules upon which the right to the relief asked has always been based. The enforcement of purely moral obligations is not within the domain of equity or law. An outlawed debt still holds the debtor under moral obligation, but no court can compel its payment.

"The grantor's lien, wherever recognized, is only permitted as a security for the unpaid purchase price, and not for any other indebtedness or liability. There must be a certain, ascertained, absolute debt owing for the purchase price; the lien does not exist in behalf of

any uncertain, contingent, or unliquidated demand" (3) Pomeroy's Equity Jurisprudence, sec. 1251.)

This rule as deduced by Professor Pomeroy has an overwhelming weight of authority in its support. (See note to Mackreth v. Symmons, 15 Ves. 329, in 1 White & Tudor's Leading Cases in Equity, 4th Am. ed., 468; Peters v. Tunel, 43 Minn. 473; 19 Am. St. Rep. 252; Perry on Trusts, 4th ed., sec. 235; 2 Jones on Liens, sec. 1071.)

Conceding, without deciding, that plaintiff had a vendor's lien upon the property for the sum of nine hundred and fifty dollars down to the time of his entering into the agreement as above set forth in 1893, he then and thereby lost his right to such lien. And this is so whether the last-named agreement be considered as a substitute by novation for the original indebtedness, or merely as a consummation, within the contemplation of its terms, of the original contract of sale. If the last agreement be treated as in novation of the original indebtedness the lien is at once extinguished (3 Pomeroy's Equity Jurisprudence, sec. 1252); while if considered as but the completion of the unconsummated original agreement, it is open to all objections of uncertainty and contingency as to time, amount, and mode of payment.

The learned judge of the trial court, in an able opinion sustaining the demurrer makes this clear and forcible presentation of the matter, which we adopt :

"But it is claimed by counsel for plaintiff that this agreement amounts simply to a written acknowledgment of defendant's indebtedness to plaintiff for the amount of the purchase price, $950, and his promise to pay it. I do not see how it is possible to sustain that contention. The agreement is not that defendant shall pay the purchase price of the granted premises, which is $950, or any other or definite or fixed sum. His agreement to pay any thing was wholly contingent, and dependent upon the uncertainty of a human life. If plaintiff had died the next moment after receiving the

agreement the obligation to pay would have died with him, and nothing would have been paid under it. But it was even possible under the agreement that nothing should be paid plaintiff even though he should live a term of years, for the promise is only to pay provided the defendant, Gard, occupied the premises personally, or received rents from them. He might never occupy them himself, and he might not receive any rents. The premises might remain vacant, or the tenant might fail to pay rent. Again, it might be possible that under the agreement the defendant would be compelled to pay a sum largely in excess of the alleged purchase price; it might be double that amount, or even more, depending upon the uncertain contingency of the length of plaintiff's life, the rental and receiving of rents, or the occupancy by the defendant. I cannot see how it is possible to conclude that this agreement was, in effect, or in the intention of the parties, an acknowledgment of an indebtedness for the purchase price of the granted premises, and a promise to pay it. On the contrary, it seems clear that it was an independent and collateral contract or covenant, speculative in its character, and designed, if the original debt still existed, to cancel and extinguish it. It was speculative, because under it the plaintiff might receive a sum largely in excess of the purchase price of the land in the form of an annuity, while, on the other hand, the defendant might satisfy his $950 indebtedness by the payment of little or nothing. It seems to me that no argument is required to show that such an agreement, by no transposition whatever, can be made the basis of a lien of a vendor. Under the agreement the defendant became personally bound only and subject to an action for damages for breach of his contract, the only remedy open to plaintiff. The case is analogous to that of Payne v. Avery, 21, Mich. 524, where the court held that while the grantor, upon the facts, might be able to maintain a remedy at law for damages caused by the grantee's failure to comply with his contract, such damages were too uncertain

in

their character to form the subject of a vendor's lien."

The judgment appealed from is affirmed.

MCFARLAND, J., and TEMPLE, J., concurred.

[No. 18405. Department Two.-July 8, 1895.] JULES ALEXANDER, RESPONDENT, v. L. D. McDOW, APPELLANT.

OF

SUMMONS-RETURN OF SERVICE CLERICAL ERROR-VACATION JUDGMENT BY DEFAULT.-Where a summons against one defendant only is returned as having been served upon the defendant personally an irregularity consisting of a clerical error or slip of the pen, by which a letter is affixed to the last name of the defendant which did not belong to his name, does not affect the regular service of the summons, and the irregularity is no ground for vacating a judgment by default.

ACTION UPON NOTE-SUFFICIENCY OF PLEADING ASSIGNMENT TO PLAINTIFF-SUPPORT OF JUDGMENT.-In an action upon a note a complaint alleging the execution of the note set out in hæc verba, and described as indorsed by the payees to the plaintiff by name, accompanied by the allegation that no part of the note had been paid, and that the whole thereof is due and owing from the defendant to the plaintiff, though defective in not distinctly alleging an as signment of the note to the plaintiff, is sufficient to support a judgment by default, which cures all defects in averments which by fair and reasonable intendment have been pleaded, though defectively. Such complaint shows an indorsement by assignment of the note to the plaintiff, and that plaintiff is the owner and holder of it. ID.-ALLOWANCE OF ATTORNEYS' FEES-STIPULATION IN NOTE-DEFAULT. Where the body of the note set forth in the complaint provides for an allowance of ten per cent for attorneys' fees for the collection of the note, and the prayer of the complaint is for such an allowance, and it appears that the action was brought by an attorney at law, the default of the defendant admits the reasonableness of the claim for attorneys' fees, and no evidence was required to be taken for the purpose of fixing the agreed allowance in the judgment, although the allowance might have been contested by the defendant. ID.-JUDGMENT FOR ATTORNEYS' FEES ENTERED BY CLERK-MINISTERIAL ACTION.-The action of the clerk in estimating and adding the amount of attorneys' fees to the judgment by default is as purely ministerial as his calculation of interest upon the principal sum of the note, and he was acting within the scope of his authority in entering judgment for the attorneys' fees. ID.-SPECIFICATION IN SUMMONS-LIMITATION

OF AUTHORITY OF CLERK-MODIFICATION OF JUDGMENT-COSTS OF APPEAL.-The clerk

has no authority to enter judgment for an amount in excess of the amount specified in the summons, and, if a judgment by default is entered in excess of that amount, the superior court will be directed to order the clerk to modify it by entering therein the amount specified in the summons, and the appellant will be allowed the costs of his appeal.

APPEAL from a judgment of the Superior Court of Lassen County and from an order to recall and quash execution and to vacate the judgment. W. T. MASTEN,

Judge.

The facts are stated in the opinion of the court. Spencer & Raker, and F. C. Spencer, for Appellant. The judgment is void because the summons does not show service upon the defendant, but upon a person of a different name not intended to be summoned. (Hahn

v. Kelley, 34 Cal. 391-407; 94 Am. Dec. 742; 16 Am. & Eng. Ency. of Law, 125; McDevro v. State, 23 Tex. App. 429.) Where the summons does not show service upon the defendant named, the court does not acquire jurisdiction of the defendant. (Code Civ. Proc., sec. 410; McMillan v. Reynolds, 11 Cal. 373; Reynolds v. Page, 35 Cal. 296; Southern Pac. R. R. Co. v. Superior Court, 59 Cal. 471; Dorente v. Sullivan, 7 Cal. 279; People v. Bernal, 43 Cal. 385; Drake v. Duvenick, 45 Cal. 455; Sacramento Sav. Bank v. Spencer, 53 Cal. 739.) The complaint is insufficient to support the judgment, there being no allegation of assignment to the plaintiff. (Grogan v. Ruckle, 1 Cal. 158, 193; Youngs v. Bell, 4 Cal. 201; Hastings v. Dollarhide, 18 Cal. 391; Mahe v. Reynolds, 38 Cal. 560; Foltier v. Schroeder, 19 La. Ann. 17; 92 Am. Dec. 522; Bank of Shasta v. Boyd, 99 Cal. 604; Fay v. Cobb, 51 Cal. 313; Roby v. Hallock, 55 How. Pr. 412; Bank of California v. Boyd, 86 Cal. 386; Poorman v. Mills, 35 Cal. 118, 121; Van Giesen v. Van Giesen, 10 N. Y. 316; 18 Am. & Eng. Ency. of Law, 570; Lord v. Chesebrough, 4 Sand. (Sup. Ct.) 696; Boone's Forms, 51; Lancaster v. Baltzell, 7 Gill & J. 468; 28 Am. Dec. 233; Bliss on Code Pleading, sec. 232; Jaccard v. Anderson, 32 Mo. 188; Rousch v. Duff, 35 Mo. 312; Van Santvoord's Pleadings, 173; Read v. Buffum, 79 Cal. 81; 12 Am. St. Rep. 131.) The