made, it is between yourselves, and if you wish Mr. Crosby to ship you some more bags, better communicate with him. We are surprised that you should again write us on this subject, as we have already fully advised you in reference to this matter. We have received your car load of gray oats by last steamer, but so far have been unable to dispose of them, but will dispose of them first favorable opportunity. The markets are very much depressed, oats are very slow of sale, and wheat is easier again to-day, No. 1 shipping wheat about $1.05. Yours, truly, Moore, Ferguson & Co."

The theory of the respondent, which seems to have been adopted by the court in the exclusion of the offered evidence on behalf of the defendant, is that the receipt is a contract, complete in itself, between the defendant and Moore, Ferguson & Co., and did not require any explanation or reference to other writings concerning the transaction. His counsel says in his brief: "The real controversy is whether defendant was or was not bound to pay for the bags not delivered. His defense was that he had stored the balance of the bags in certain warehouses in Oregon, belonging to third persons, and notified W. F. Crosby of that fact, and had received his approval; and he claims that Crosby was the agent of Moore, Ferguson & Co. He offered no proof of any such agency; but plaintiff's evidence was that Crosby was never their general agent." As appears from the foregoing, however, the defendant did offer, and the court ruled out, evidence tending to establish the agency of Crosby. Before giving the receipt relied upon by the plaintiff, the defendant wrote to Moore, Ferguson & Co. concerning the matter, and in their reply they say: "You seem to have a mistaken idea in regard to the first shipments of bags that we made to you. They were not shipped by us at your request, but at Mr. Crosby's request; we shipped them altogether on Mr. Crosby's instructions." And in Crosby's letter to said firm he informed them of the conversation he had had with Ingle in reference to the transaction, and asked them if they approved of the plan. In their letter to Crosby, in reply thereto, they say: "Your arrangements with him appear to be all right."-adding then the suggestion heretofore noted. The receipt also says: "According to the terms of a certain warehouse agreement entered into with W. F. Crosby on July 28, 1893." The defendant, therefore, had the right to have that agreement considered in connection with said receipt, as they form parts of the same transaction between Crosby and defendant.

Several contracts relating to the same matters, between the same parties, and made as parts of substantially the one transaction, are to to be taken together. Civ. Code,

1642. A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates.

Civ. Code, 1647; also section 1856, subd. 2, and section 1860, Code Civ. Proc. The defendant, it appears, stored the balance of the unused bags received by him under the receipt or agreement made with Crosby, and relied upon by plaintiff, in warehouses in Oregon, leased by Crosby, and was authorized so to do by Crosby. In addition to excluding the correspondence and agreements already referred to, the court ruled out all testimony offered by the defendant in reference to directions to him, or conversations with him, by Crosby concerning the bag transaction. On the last effort of defendant in this line the court remarked: "That brings up the old question again of his authority. If he was the agent of Moore, Ferguson & Co., this testimony would be rele vant; otherwise, not,"-and excluded the testimony so offered. This was clearly error. The excluded evidence tended to show that the defendant was justified in treating Crosby as the agent of Moore, Ferguson & Co. in the premises, and in dealing with him as he did. Civ. Code, §§ 2300, 2317-2319. Judgment and order reversed.

We concur: GAROUTTE, J.; HARRISON, J.

(137 Cal. 84)

HULL. CALKINS et al. (L. A. 1,029.) 1 (Supreme Court of California. July 23, 1902.) COMMISSIONERS' DEED-REFORMATION-EQ

UITY-JUDGMENT-CLERICAL ER-
ROR-CORRECTION.

1. Where a contract was omitted by mistake from a judgment directing the sale of certain property, the commissioners' deed cannot be reformed by making it purport to convey the contract, which had not in fact been sold, and which the commissioners were not authorized by the writ to sell.

2. Equity will not interfere to correct a mere clerical error in a judgment appearing on the face of the record, which could be corrected by the court at any time, it not appearing that the interests of others than parties to the suit or parties represented by them are affected.

Department 1. Appeal from superior court, Ventura county; B. T. Williams, Judge.

Action by Morton Dennison Hull against James W. Calkins and others to correct a judgment and reform a commissioners' deed. From a judgment for defendants, plaintiff appeals. Affirmed.

Edgar W. Camp and Sidney J. Parsons, for appellant. Henley C. Booth, Calvert Wilson, Richards & Carrier, Grant Jackson, and J. W. Taggart, for respondents.

PER CURIAM. This is an appeal by the plaintiff from a judgment rendered against him on demurrer to the complaint. The case, as alleged, is in substance as follows: April 7, 1888, one Alexander More was the owner of certain lands in the Sespe rancho, in the 1 Rehearing denied August 23, 1902.

2. See Judgment, vol. 30, Cent. Dig. §§ 797, 806, 807.

The

county of Ventura, and of a contract of the Pacific Improvement Company, agreeing to pay him one-half of the proceeds of the sales of land conveyed to it by his deed of even date; and on that day executed to the defendant Calkins a deed conveying to him the lands, and assigned to him the contract referred to, in trust to sell the same, and with the proceeds to pay to himself, after the expenses of executing the trust, the sum of $15,000, with interest as provided, with the additional sum of $10,000 without interest, and the amount of a mortgage to one Dreyfus, the payment of which was assumed by him. But the deed was taken by Calkins as the trustee of Morton B. Hull, the plaintiff's assignor, who was the real beneficiary. deed purports to convey to the grantee certain lands specifically described, and also all the right, title, and interest of the grantor in the Sespe rancho. The land conveyed to the Pacific Improvement Company comes within the boundaries of the tract first described, but is excluded by specific description. It is, however, included in the Sespe rancho. Subsequently orders were drawn on the trustee by More in favor of several parties for various sums, aggregating something over $6,000; and to secure them another deed was exeuted by More to Calkins purporting to convey to the latter all the right, title, and interest of the grantor in and to the Sespe rancho (described as "being the same property described in" the former deed). In the year following the above transactions More commenced a suit against Calkins, which upon his death was continued in the name of his administrator (one of the defendants in this suit), and resulted in the judgment considered in More v. Calkins, 95 Cal. 435, 30 Pac. 583, 29 Am. St. Rep. 128; in which case the judgment was affirmed except as to the part thereof allowing the provision for the payment to the trustee of $10,000, which was held by this court to be void. By the judgment thus affirmed the trustee, Calkins, and one Baker, associated with him as commissioner, were directed to execute the power of sale contained in the deed to the former, and to discharge the trusts therein provided, and out of the proceeds (after paying the expenses of the sale) to pay the sums due to Calkins, amounting in the aggregate to $68,200, with interest, etc., less $1,591.17, the balance of rents in the hands of the trustee, and thereafter the amounts of the several orders above referred to, and the balance to the plaintiff; "and [in the language of the complaint] thereupon followed a description of the property to be so sold, which description truly described all the property and things transferred by said deed of April 17, 1888, except that it did not mention said contract." Under this judgment the property therein described was sold and conveyed by the commissioners September 7, 1891, for the sum of $75,000, to one High, who had been employed by the plaintiff, then assignee

of Martin B. Hull, to make the bid; no mention of the contract being made in the deed. But it is alleged that in the conclusions of law on the facts found (which were substantially as above given) it was by the court "decided and ruled that said J. W. Calkins had full power and authority under and by virtue of said deed of April 7, 1888, to sell all the property mentioned in said deed of trust [including the contract with the Pacific Improvement Company] for the uses and purposes therein expressed, and to apply the proceeds thereof as directed in said deed," and out of the balance to pay the orders above mentioned, and it was ordered that judgment should be entered accordingly; but that the contract was omitted from the description, in the judgment, of the property to be sold, by mistake of Calkins' attorneys, who supposed "that a sale of the said lands would transfer to the purchaser the said contract, and all the rights of the said Alexander S. More under said contract"; that all the parties to the suit, and the judge, and also the commissioner appointed by the court, and the purchaser at the sale, participated in the mistake; that the commissioner and trustee supposed they were selling, and the purchaser, and his principal, Hull, supposed they were purchasing, the contract in question, with the rights of the plaintiff thereunder; and that the whole property, including the contract, was not worth over the amount bid. The mistake, it is alleged, was not discovered until the year 1897; and there are other allegations explaining how it was that it was not sooner discovered; but these, under the view we take of the case, need not be considered. The prayer of the complaint is for the amendment of the judgment by including in the description of the property to be sold the contract in question, and for a similar reformation of the commissioners' deed.

It is assumed, and in fact alleged, in the complaint, that the sale of the lands described in the judgment, which included, in the general description of the Sespe rancho, the lands previously conveyed to the Pacific Improvement Company, did not operate to transfer the contract with that company, or the rights of More to the payments therein stipulated; and-as otherwise the plaintiff would have no cause of action-this assumption must, for the purposes of this appeal, be admitted. Assuming, then, this to be the case, the object of the suit is, not only to amend the judgment, but to reform the commissioners' deed by making it purport to convey property that had not been sold, and which the commissioners were not authorized by the writ to sell. This, it is obvious, cannot be done. Where there is a mistake in a conveyance by the owner of the land himself or by his agent, the deed may be reformed. But the commissioners to sell were not the agents of the plaintiff except to the extent of the power conferred upon them by

the order of sale, and there was, therefore, lacking that essential element to the reform of a contract, an actual contract to be embodied in the reformed instrument. A sheriff or other officer's mistakes in the exercise of his power may doubtless be rectified; but when he acts in accordance with his power there is no mistake to be corrected or contract to be reformed. Code Civ. Proc. § 684; Heyman v. Babcock, 30 Cal. 367, and 2 Notes on Cal. Rep. 580; Miller v. Kolb, 47 Ind. 220; Armstrong v. Short, 95 Ind. 331; Conyers v. Mericles, 75 Ind. 443; McCasland v. Insurance Co., 108 Ind. 130, 9 N. E. 119; Ray v. Ferrell, 127 Ind. 570, 27 N. E. 159; Davenport v. Sovil's Widow, 6 Ohio St. 459. Many cases are cited by the appellant's counsel in support of his contention to the contrary, but none have application to this case. In one of them a mortgage was reformed (Blodgett v. Hobart, 18 Vt. 415); in others, a judgment amended, and a resale ordered (Snyder v. Ives, 42 Iowa, 157; Bank v. Wentworth, 28 Kan. 183; McClure v. Bruck [Minn.] 45 N. W. 438); and in another the successors of the judgment debtor were, upon the facts of the case, enjoined from interfering with the purchaser (Waldron v. Letson, 15 N. J. Eq. 126). In three of them only was there an amendment of a sheriff's deed. Quivey v. Baker, 37 Cal. 465; Greeley v. De Cottes, 24 Fla. 475, 5 South. 239; Parker v. Starr (Neb.) 33 N. W. 424. In these cases, as in the case of Waldron v. Letson, the equities of the case were very strongly in favor of the purchaser or his successors in interest, and, as in that case, may have justified the actual decision; but it is difficult to perceive on what recognized principle of equity the court was justified in amending the sheriff's deed.

But whatever may be the merits of those decisions, they differ from the case at bar in two essential circumstances that render them inapplicable here. Of these one was that there was not in any of them any mistake as to the property intended to be sold and in fact sold, which, in the case first cited, at least, and probably in the others, was pointed out by the sheriff to the bidders on the ground. The property intended was, therefore, it may be said, itself sold, though by a mistaken description; and there was some color for the application of the maxim, "Præsentia corporis tollit errorem descriptionis." But here the mistake of the judgment was not in describing the property to be sold, but in omitting to provide for the sale of a part of the property that might have been sold. The other difference between the cases is that in the cases cited the mistake occurred originally in the mortgage, from which it was carried into the foreclosure proceedings; and this feature of the case in Quivey v. Baker furnished the ground of the decision, the court saying: Equity "will not only go back to the original error, and reform it, but will administer complete justice by correcting all subsequent mistakes

which grew out of and were superinduced by the first." 37 Cal. 472. But here there was no mistake in the trust deed, but merely a mistake of the judge, superinduced by the mistake of the attorneys of the defendant, and in the production of which the plaintiff in no way participated. The ground of the decision in those cases is therefore lacking here.

There still remains the question whether the suit can be maintained for the purpose of amending the judgment, and this, we think, must also be answered in the negative. The alleged mistake is a mere clerical error, appearing on the face of the record, and, as appears from the authorities cited by the appellant's counsel, could be corrected by the court at any time; nor does it appear that the interests of others are affected than parties to the suit, or parties represented in the suit by them. There is lacking, therefore, any ground for the interference of equity. The cases in which equity will interfere notwithstanding the existence of a legal remedy are all, we believe, cases of original equity jurisdiction, where the jurisdiction at law was subsequently acquired. Our attention has not been called to any case where courts of equity have intervened to correct merely clerical errors.

For the reasons given, the judgment appealed from must be affirmed, and it is so ordered.

(137 Cal. 79)

COSTA v. SUPERIOR COURT OF SANTA
CLARA COUNTY. (S. F. 2,192.)
(Supreme Court of California. July 23, 1902.)
ADMINISTRATION-WITHDRAWAL-JUDGMENT

AGAINST ADMINISTRATOR-JURIS

DICTION-EQUITY.

1. In a proceeding to set aside the administration of an alleged decedent afterwards found to be alive, the probate court, after declaring the grant of administration and all subsequent proceedings void, had no authority to order the administrator to pay over money he had received, and, in default, that execution issue.

2. A proceeding to set aside administration cannot be said to be a suit in equity, where no summons was served on the administrator, or pleading filed by him.

Department 2. Petition for a writ of review by James A. Costa against the superior court of Santa Clara county. Order vacated in part.

C. D. Wright and H. A. Gabriel, for petitioner. E. E. Cothran, for respondent.

PER CURIAM. Petition for writ of review. It appears from the petition that plaintiff was appointed administrator of the estate of George W. Fay. Thereafter, May 27, 1898, the estate was distributed to the heirs of Fay. Pursuant to the decree, plaintiff paid to the distributees all the funds not disbursed in the course of administration, except $410.55. On April 14, 1899, said Fay filed a petition in said court in said matter,

n which it was shown that he was the identical Fay whose estate was being administered by plaintiff as administrator. The petition set forth the proceedings by which plaintiff became possessed of Fay's property as administrator; that during all the time the proceedings in administration were pending said Fay was absent from the state, and ignorant of said proceedings; and that he, the said Fay, is alive and in the flesh. He prayed: (1) That citation issue to plaintiff, Costa, said pretended administrator, to show cause why all the proceedings had by him in said matter should not be set aside; (2) why all the property described in said proceedings and received by Costa should not be returned to the court by said pretended administrator, free from all charges and claims of every nature; (3) why all said property should not be forthwith ordered by the court paid to said petitioner, Fay. Citation duly issued, and Costa appeared without demurrer or answer, and consented that the court might set aside the proceedings had in the probate court for want of jurisdiction, but denied the right of the court to determine any other matter involved in the litigation. It was stipulated that in the present proceeding the transcript in S. F. 2,032, in the matter of the estate of George W. Fay, deceased, now on file in this court, should constitute the complete return to the petition for a writ of review. At page 49 of said transcript (as also set out in the present petition) is the following: "Finding 16. That said superior court never had or acquired jurisdiction to appoint said James A. Costa as administrator, or to administer upon the estate of George W. Fay." The petition before us, then, shows that the court decreed as follows: "First. That all the proceedings taken and had in the matter of the estate of George W. Fay be set aside and annulled. Second. That all the property and estate of said George W. Fay received by James A. Costa, and described in the inventory, to wit, the sum of $1,543.68, less the sum of $25 (already received by Fay), be returned and paid to the said George W. Fay, free from any and all claims or titles set up or asserted thereto by the said James A. Costa as said administrator or otherwise, or any one claiming under him. Third. That said James A. Costa pay to said George W. Fay the sum of $1,518.68, together with the costs incurred by said Fay in this proceeding, taxed at the sum of $Fourth. That the clerk issue execution in favor of said George W. Fay against said James A. Costa for the sum of $1,518.68, together with said costs." The prayer of the plaintiff's petition is that the decree directing plaintiff to pay over said money, and, in default, that execution issue, be annulled for want of jurisdiction in said court to make said decree. No objection is made to the decree so far as it set aside the probate proceedings, but it is claimed that the court could go no further.

It appears that the hearing in the court below on Fay's petition was had and the decree entered therein on May 31, 1899. The administrator appealed to this court from that part of the judgment set forth in the second, third, and fourth paragraphs, which were the same as shown in the petition. The appeal was dismissed October 26, 1899 (In re Fay's Estate, 126 Cal. 457, 58 Pac. 936), and thereafter the administrator instituted the present proceeding. A demurrer to the petition was filed for insufficiency of facts, and on the further ground that plaintiff had a plain, speedy, and adequate remedy, in that an appeal from the decree set forth is given by the Code.

Stevenson v. Superior Court, 62 Cal. 60, was an application for a writ of review similar to the case here. The lower court made just such an order as was made here, except as to directing execution to issue. It was held by the court in banc that the lower court had no jurisdiction to authorize an administration on the estate of a person supposed to be dead, but who was in fact alive; that it was competent for him to prove the fact; and that he sought to make the proof in the right tribunal. The demurrer to the petition was sustained, and the proceedings dismissed. The question here is, can the court go beyond the case of Stevenson v. Superior Court, and sustain that part of the judgment which directs Costa to pay certain moneys, and, in default of such payment, that execution issue? The case is easily distinguishable from Heydenfeldt v. Superior Court, 49 Pac. 210. In making the order of distribution the court there was clearly within its jurisdiction, although it, as was held by this court, committed error, in consequence of which property of the estate was given to petitioner. The probate court, upon the reversal, simply ordered the petitioner to restore what she had acquired through this error. The power of a court to right an injury done in this way by itself is generally admitted. In this case the court finds that it has never acquired jurisdiction of the subject-matter involved in the proceeding. Its previous orders were entirely void, and in this very judgment it was so declared. The petitioner, therefore, has not been placed in possession of the property by any valid order or process of the court. After the judgment declaring the grant of administration and all subsequent proceedings void, the petitioner will be regarded as a trespasser from the beginning. He cannot be regarded as a receiver whose possession is that of the court.

Nor can it be said that the proceeding is a suit in equity. The petitioner was not served with summons, but with a citation. It did not require him to answer, or notify him that, in case of failure to do so, judgment would go against him. It purported to be a proceeding in an estate, and part of the relief demanded, to wit, the decree declaring

A

the grant of administration void, was properly obtainable only in that proceeding. Stevenson v. Superior Court, supra. It must, therefore, be deemed a proceeding in probate. Surely it cannot be both a bill in equity and a petition asking for relief which can be had only in the probate procedure. Counsel state that there is here no probate court, but a court of general jurisdiction, including probate jurisdiction. That may be so, but there is a special proceeding for the administration of the estates of deceased persons, and in that proceeding the power of the court is limited by the prescribed procedure. citation issued entitled in the estate, and notifying the person to appear and show cause why a certain order should not be made, does not require the person notified to answer as in a personal action when summons is issued; nor does it assure him that, if he answers, and proposes certain issues, he will have the right of an ordinary litigant in a suit in equity, especially when some part of the demanded relief can only be had in the probate proceeding. Had the petitioner filed an answer making such issues as he might have made in an equitable action, there would have been no harm in saying that it would be regarded as an action in a court of equity, as was done in Re Thompson's Estate, 101 Cal. 349, 35 Pac. 991, 36 Pac. 98, though irregularly brought. Here the petitioner did not answer the petition or citation, and no issues were made, and therefore none were tried. He appeared in response to the citation, and declined to answer or demur. In the language of the trial court, "he stood mute," declining to plead. He was sworn as a witness, and conceded that Fay was the person on whose estate he had administered, and he did not object to a decree declaring the administration void. Nor does he now. He only contends that the court could not render a judgment for the money, and order execution. In short, he appeared in the probate court to object to the jurisdiction of that court to do anything more than to vacate the administration. Suppose a petition entitled in the estate of Fay and addressed to the probate judge had been intended to serve as a bill in equity, and no summons had been issued or served, but Costa had been cited as here, but had failed to appear, could judgment have been rendered against him? Could the court have treated it as a bill in equity, and, if judg ment had been entered, would it have been sustainable on appeal? It seems plain that it could not be. This case seems equally obvious. A petition was filed asking for relief which could only be had in the probate proceeding, and also for relief which the court sitting in probate could not give. Costa simply appeared to object that the court had no jurisdiction to grant the additional relief. It is admitted that the objection was well founded, but it is contended that the proceeding may be converted into a bill in equi

ty. If it were a suit in equity, the party may have had many important privileges which might be denied him in a probate proceeding, such as the right to request a jury trial, in case of an adverse decision to move for a new trial, and the right of appeal. It was important for the party to know in what forum he was called upon to answer.

It is therefore adjudged that the said court exceeded its jurisdiction in directing said Costa to pay to said Fay the sum of $1,518.68 and costs, and in directing its clerk to issue execution for that sum, and that portion of said order is annulled and vacated.

(6 Cal. Unrep. 979) SHEEHAN, Tax Collector, et al. v. OSBORNE et al. (S. F. 2,237.)

(Supreme Court of California. July 23, 1902.) JUDGMENT AGAINST OFFICER-RIGHT OF SUCCESSOR TO OPEN - DISMISSAL - MISTAKE — TERMINATION OF OFFICE PENDING SUIT.

1. If a judgment in an action against the tax collector of a county, which adjudges an assessment void, and enjoins him and his successors in office from proceeding under the assessment, is binding on him,-which it is not unless the county is bound thereby,-he has a right to proceed by suit or otherwise to set it aside, as preventing his perform.ing his duties.

2. An order dismissing a suit to set aside a judgment adjudging an assessment void, and enjoining the county tax collector from proceeding under it, though entered by the plaintiff tax collector's attorney with his consent, will be opened for mistake on showing that he gave his consent in ignorance of his obligation to other parties interested, and that their interests would be prejudiced.

3. Though the term of office of a tax collector terminates pending a suit by him, it may be prosecuted without substitution of his successor; Code Civ. Proc. § 385, after giving the rule in case of death of a party, providing that in case of any other transfer of interest the action may be continued in the name of the original party.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; Wm. R. Daingerfield, Judge.

Suit by Edward I. Sheehan, tax collector of the city and county of San Francisco, and others, against George Osborne and others. From order denying motion to set aside a judgment of dismissal, plaintiff Sheehan appeals. Reversed.

Lloyd & Wood, Page, McCutchen & Eells, and Coogan & Kahn, for appellant. Morrison & Cope, A. Heyneman, Naphtaly, Friedenrich & Ackerman, and Garret W. McEnerney, for respondents.

SMITH, C. This is an appeal from an order denying the appellant's motion to set aside a judgment of dismissal of date February 17, 1898. The dismissal was entered by the plaintiff's attorney, with the consent of the appellant, but it is claimed by the latter that in giving his consent he acted

3. See Abatement and Revival, vol. 1, Cent. Dig. §§ 228, 239.