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DEEDS. 1. Where two or more different descriptions occur in a deed, it must be construed
most strongly against the grantor. Hagar vs. Spect, 86.
ecution for a deficiency, seven months before the sale of the mortgaged premi-
inserted by mistake for 1856. Frost vs. Meetz, 256.
of them, he is taken by implication to include in bis grant all such easements
See Sheriff's DEED.
fact was served on the 25th and was one day too late with his answer. Held:
See FORFEITURE, 1.
error to require defendant to prove a special agreement for pasturage on land
See ATTORNEYS, 1; FINDINGS, 2; PLEADINGS AND PRACTICE, 13.
DISMISSAL. 1. Judgment of dismissal may be entered by the clerk, notwithstanding cross-complaint filed by defendant. C. C. P. $ 581 construed. James vs. Center, 164.
DIVORCE. 1. Example of evidence held insufficient to support a decree of divorce on the grounds
of desertio cruelty, and neglect to provide. Christie vs. Christie, 207.
ESTOPPEL. 1. Where a party represents that he has power, and does execute a power of attorney
to convey lands for another party, he and all parties claiming under him is estopped, when the title has come to his own hands, to deny that he had been duly authorized to execute the power of attorney. Hagar vs. Spect, 86.
ESTRAY CATTLE. 1. Cattle passing over and along a public road in charge of a herder, and not being
upon the road for the purpose of being pastured there, and in passing did castle ally eat of the grass growing at the roadside, are not estrays, and subject to
proceedings under the Statute of March, 1874. 2. The court below found that the plaintiff's cattle had been driven to Wolf Creek
for the purpose of being watered, and while there in charge of a herder, who
EVIDENCE. See CONTRACTS, CRIMINAL LAW, CLAIM AND DELIVERY, DIVORCE, PLEADINGS AND
PRACTICE, OFFICERS DE JURE, WAREHOUSE RECEIPTS, MARRIAGE.
FACTORS. 1. Contracts made by third parties, with a factor in respect to the property, without
knowledge on the part of said third party that said factor is not the real owner,
will be binding upon the owner. 2. A factor has ostensible authority to deal with the property as his own in transac
tions with persons not having notice of the real ownership. Green vs. Campbell, 43.
See Green vs. Meyer.
FINDINGS. 1. That certain persons were “acting as trustees” of a school district, and that
“there was no sufficient evidence of the election" of such persons, is merely a recital of evidence, and not a sufficient finding. Delphi School District vs.
Murray, 145. 2. Omission to find upon an affirmative defense set up in the answer is error.
Phipps vs. Harlan, 191. 3. The findings in an action for the recovery of personal property, should contain a
description thereof. A finding referring to the complaint for description, when it appears that the amended complaint was intended, is irregular. Kelley vs.
McKibben, 202. 4. In an action against an administrator upon a disallowed claim, the presentation of
which was made after the ten months had elapsed, it is necessary that the precise time when the claim became due appear in the findings. C. C. Pro., Sec.
1493. Elliott vs. Peck, 222. 5. Omission to find upon a counter claim is error. 6. Amending the findings after an appeal taken, for that reason, if for no other, is er
ror. Baggs vs. Smith, 223. 7. Where appeal is taken by bill of exceptions or statement, the fact of non-waiver
of findings must affirmatively appear in order to avail appellant of the error.
Smith vs. Lawrence, 225. 8. A finding, “that all the issues of fact raised by the pleadings are hereby found and
decided in favor of the plaintiffs and against the defendant,” is indefinite and insufficient. The court below should determine in the findings what are the issues raised in the pleadings. Johnson vs. Squires, 235.
See PARTITION, 2; JUDGMENT, 1.
FORECLOSURE. 1. Persons claiming title adversely to the mortgagor are not proper parties to a fore
closure suit, as they have no interest in the subject matter of the action. 2. All persons beneficially interested, either in the estate mortgaged or the demand
secured, are proper parties. Croghan vs. Minor d Spence, 148. 3. Where a mortgagor claimed a homestead, after which the creditor foreclosed, and
deficiency was docketed. lleld: no lien attached by virtue of the docketed judgment. The judgment creditor (for deficiency) was not entitled to redeem. The mortgagor or his grantee could redeem from the purchaser on payment of the
sum bid and costs. Hershey vs. Dennis, 188. 4. Johnson executed a note to the Bank of San Luis Obispo, dated February 2, 1875,
payable two years after date, with interest at one per cent. per month, payable monthly, and if not so paid to be compounded; and as security for the payment of said note, executed a mortgage containing this clause: “In case of default by the mortgagor in the payment of said note or interest, or in the performance of any of the conditions hereof, then the mortgagee may, at its option, either commence proceedings to foreclose this mortgage in the usual manner, or cause the said premises or any part thereof to be sold,” etc. Held: that the mere failure to pay the interest as it becomes due does not make the principal sum due, and entitle the mortgagee to proceed to foreclosure for the note and interest. The foreclosure proceedings must be limited to the collection of so much interest as
may be due. Bank of San Luis Obispo vs. Johnson, 243. 5. Section 246 of the Practice Act of 1851 did not require any formal report of sale
under a foreclose of mortgage, showing in term the amount of deficiency, nor does the amendment of 1860 require anything more than the return of the sheriff of the amount for which the premises had sold to give the judgment creditor the benefit of a lien on the general real estate of the debtor. It is only neces. sary that it appear from the sheriff's return that there is a deficiency of such proceeds and a balance still due, and the judgment shall then be docketed. To ascertain the exact balance is a mere matter of computation and may be made either by the sheriff or clerk. Frost vs. Meetz, 256.
FORFEITURE. 1. A stipulation for re-entry by vendor in an agreement to convey, if default be made
in any of the installments for the space of ninety days, constitutes an agreement that time should not be considered of the essence of the contract during the ninety days, and postpones any action founded upon vendee's default, until the expiration of that period. Weill vs. Jones, 147.
GUARDIAN AND WARD. 1. A settlement in pais will not support an action for balance due from guardian, un
, less such settlement has been approved by the Probate Court. Allan vs. Tiffany, 237.
HOMESTEAD. 1. Actual residence at the time of filing the declaration necessary to constitute a homestead. Dorn vs. Howe, 98.
See FORECLOSURE, 2; Gottschalk vs. Keester.
HUSBAND AND WIFE.
INSTRUCTIONS. 1. An erroneous instruction is not cured by a proper one if both go to the jury ;
they are contradictory, and it is impossible to determine on which of them the jury acted. (People vs. Campbell, 30 Cal. 312; Brown vs. McAllister, 38 Cal. 573; People vs. Anderson, 44 Cal. 65.) Chidester vs. Cons. People Ditch Co., 273.
See CRIMINAL LAW.
JUDGMENT. 1. A judgment is invalid for uncertainty where it refers to the findings for certain
data, and the findings in turn refer to the pleadings, from which it can not be
intelligibly ascertained what is meant. Kelly vs. McKibben, 202. 2. In an action upon a tort, a judgment in gold coin is irregular, and the judgment will be modified upon appeal. Livingstone vs. Morgan, 209.
See DISMISSAL, 1; SHERIFF, 1; Estate OF KEHOE.
JURISDICTION. 1. An action for trespass on real property, in removing fences, is within the jurisdic
tion of a Justice of the Peace, where the gravamen of the action is plaintiff's possession of the land, and the damages sued for are less than three hundred dollars. Pollock vs. Cummings (38 Cal. 683) cited. Livingstone vs. Morgan,
209. 2. An action will not lie in the District Court to recover for default of a guardian,
until after an accounting and settlement in the Probate Court. The latter has exclusive jurisdiction to determine the state of accounts between the guardian
and ward. C. C. Pro., Sec. 1754, construed. Allan vs. Tiffany, 237. 3. The Probate Court has no jurisdiction to receive or in any way to act upon an ac
count of a deceased executor with the estate of which he was executor when presented by the executor of the deceased executor. JVetzlar vs. Fitch, 311.
LIEU LANDS. 1. At the time defendant filed his application in 1876 the act under which he pro
ceeded had been repealed. Plaintiff in 1875 filed upon the same land. In 1870 the Legislature passed an act to save the rights of purchasers under the repealed · law. Beld: that defendant's application, however defective, was made valid by the curative statute of March 24, 1870, and he is entitled to purchase the land from the State. Wanzer vs. Somers, 167.
MARRIAGE. 1. The doctrine recognized that marriage may be sufficiently established by evidence
of a contract per verba in præsenti and per verba de futuro cum copula. Estate of McCausland, deceased, 182.
MASTER AND SERVANT. 1. The common employer is not bound to respond in damages by reason of an em
ploye's negligence, in the absence of evidence that he had neglected to use or. dinary care in the selection of the employé. McDonald vs. Haseltine, 236.