DEPARTMENT No. 2. [Filed July 24, 1880.] WILLIS JONES, APPELLANT, VS. H. S. BRYAN, RESPONDENT. ORDER DENYING MOTION FOR NEW TRIAL. This Court will not reverse an order of the Court below denying a new trial where the testimony is conflicting upon the material issues raised by the pleadings. Appeal from the District Court of the Fourteenth Judicial District, Placer County. Hale & Craig and J. M. Fulweiler, for appellant. SHARPSTEIN, J., delivered the opinion of the Court: This action is brought to compel the specific performance of an alleged unwritten contract between plaintiff and defendant Bryan, to convey certain lands to plaintiff, which before suit had been conveyed by defendant Bryan to defendant Powell, who, it is alleged, had notice of said unwritten contract. Defendant Bryan, in his answer, denies that he ever entered into any such contract, or that defendant Powell ever had notice of it. Defendant Powell, in his answer, denies that he purchased with notice, and alleges that he is a bona fide purchaser for value. Both of them testified on the trial to the facts stated in their answers. The plaintiff, on the other hand, testified to the facts set up in his complaint, and introduced some testimony which tended to corroborate him. The appellant claims that the judgment should be reversed, on the ground that the weight of evidence is in favor of the plaintiff and against the defendants, and that the whole of the evidence taken together supports the allegations of the complaint. We cannot assent to those propositions. The testimony is conflicting upon the material issues raised by the pleadings, and it was for the Court below to determine to which side the weight or preponderance of it inclined. This has been held too often by this Court to require any citation of authorities in support of it. Judgment and order denying a new trial affirmed. DEPARTMENT No. 1. [Filed July 21, 1880.] No. 6527. ELI A. HARPER ET AL., APPELLANTS, VS. J. L. ROWE ET AL., RESPONDENTS. TAX TITLE. Conceded that the charge of fifty cents for filing in Recorder's office a duplicate certificate of sale would render the sale void, if the charge was illegal; but the charge was not illegal, therefore the sale was not void. SHERIFF'S SALE. Where an undivided interest is assessed, the Sheriff cannot sell a specific tract of land covered by that interest. COSTS IN TAX SALE. All costs legitimately incurred in enforcing the collection of a tax are proper. Appeal from the District Court of the Eighteenth Judicial District, San Diego County. M. A. Luce and W. M. Smith, for appellants. Ross, J., delivered the opinion of the Court: On the 20th of May, 1873, the people of the State of California recovered a judgment in the Eighteenth District Court against Doe et al. and certain real estate situated in San Diego County, for the sum $792.60 for State and county taxes assessed and levied against the said real estate for the fiscal year ending April, 1872, and for the sum of $124.83 for attorneys' fees in said action, and for the further sum of $48.33 costs of suit. By the judgment it was also decreed that so much of the real estate as should be "sufficient to raise said taxes, and attorneys' fees and costs, and all accruing costs herein, and the costs and expenses of the sale," be sold at public auction by or under the direction of the Sheriff of the County of San Diego, etc. Under this decree the Sheriff sold the property in question, being a portion of the property assessed, at public auction for the sum of $999.52, said amount being the sum total of the taxes, attorneys' fees, and costs as fixed in the decrees, together with the costs incident to the sale, in which latter was included the sum of fifty cents for filing the duplicate certificate of sale with the County Recorder. The validity of the judgment under which the sale was made was conceded at the argument; but it was claimed by the appellants that the last item mentionednamely, the fifty cents for filing the duplicate certificate of sale-was an illegal charge, and that therefore the property was sold for a sum in excess of that authorized by law, and that consequently the sale was void. It might be conceded, for the purposes of this case, that if the item objected to was an illegal charge, the conclusion contended for by the appellant would be correct. But was it unauthorized by law? By Section 8 of the Act of May 12, 1862 (Hittell, Art. 6479), which was in force at the time these proceedings were had, it was provided that "in hearing and determining an action for the enforcement of a lien for taxes, the Court in which it is pending shall have and exercise all the powers that pertain to Courts of equity in foreclosure of mortgages and liens; but when the decree of the Court contains no special directions as to the mode of selling, no more of the property shall be sold than is necessary to pay the judgment and costs, nor shall the property be sold for less than the amount of judgment and costs. It is claimed by the appellant that the "costs" here referred to do not include accruing costs, but only such as are ascertained and fixed in the judgment. It is sufficient answer to this to say that the judgment, which is admittedly valid, in terms directs so much of the property to be sold as shall be necessary to satisfy the taxes, costs, and accruing costs. But, independent of this, we think the words used in the statute itself include all costs legitimately incurred in enforcing the collection of the tax. If this be not so, then the Sheriff's commissions and other costs, such as advertising, etc., are illegal charges, and the sale was void because these items were included in the amount for which the property was sold. Yet appellant makes no objection to any of these, and virtually concedes their correctness. But they can only be sustained on the ground that they constitute a part of the accruing costs. And so it is in respect to the charge for filing a duplicate of the certificate of sale. The law in force at the time the sale was made (Hittell, Art. 5168 and 6194) required the Sheriff to file a duplicate of such certificate in the office of the Recorder of the county; and the fee bill applicable to San Diego County at the time (Statutes 1869--70, p. 152) authorized the Recorder to charge and receive the sum of fifty cents for filing such duplicate. The item objected to was therefore authorized by law, and properly included in the accruing costs. It is also objected on the part of the appellant that the sale was void because the Sheriff sold an undivided interest in the land instead of a specific tract. But the findings show that it was an undivided interest that was assessed; and the judgment under which the sale was made, as well as the statute it force at the time (Hittell, Art. 6194), directed that the Sheriff, in making the sale, should "only sell the smallest quantity that any purchaser would take, and pay the judgment and all costs." The property assessed and directed to be sold being an undivided interest, it is manifest that no specific tract could be sold. The Sheriff was directed and authorized to sell only the smallest quantity of the undivided interest assessed that any purchaser would take, and pay the judgment and all the costs. This he did. Objections are also made to certain recitals in the Sheriff's deed; but as the statute did not provide for the form of the deed in such cases, the objectionable matter is mere surplusage, and in no way affects the validity of the deed. Judgment and order affirmed. We concur: McKinstry, J., McKee, J. DEPARTMENT No. 1. [Filed July 27, 1880.] M. R. C. PULLIAM, RESPONDENT, VS. JAMES M. BENNETT ET AL., APPELLANTS. EJECTMENT STATUTE OF LIMITATIONS. Defendants cannot invoke the Statute of Limitations in bar of plaintiff's action, because, although the defendants are in possession, claiming adversely to the plaintiff, yet that possession commenced prior to the commencement of this action. The possession of the defendants cannot be tacked on to that of their grantor, so as to render adverse the possession prior to the time when they received their deeds. Appeal from the District Court of the Second Judicial District, Butte County. Belcher & Belcher, for respondent. Burt & Hamilton, for appellants. MCKEE, J., delivered the opinion of the Court: The action is ejectment. The land in dispute was originally part of the Bosquejo or Lassen Ranch, lying partly in the counties of Tehama and Butte. Plaintiff's claim title to it by mesne conveyances from one Henry Gerke, who was the owner of it. The ranch was patented in 1862. But in 1856 there was pending between Gerke and one Henry Ford and H. L. Wilson a controversy for one-third of the ranch. This controversy was compromised and settled by Gerke agreeing to convey to Wilson and Ford 5000 acres from the lower end of the ranch-4500 acres to Wilson, and 500 acres to Ford. In performance of his agreement, Gerke had two deeds prepared-one to Wilson for 4500 acres, and another to Ford for 500 acres. In the Wilson deed the land is described as follows: "All that certain tract or parcel of land situated in the County of Tehama, said State, described as follows-towit: Being four thousand five hundred (4500) acres of land taken off of the lower or most southerly portion of the rancho known as the Bosque or Lassen Rancho, extending the full width of said rancho, from the westerly to the easterly boundaries thereof, and as far above the southerly line of said rancho as shall be necessary to include or contain four thousand five hundred acres of land; provided, that no part of the land hereby conveyed, or intended to be conveyed, shall be or extend north of a straight line drawn from a point on the Sacramento River, at a distance of one Spanish league, south of the mouth of Deer Creek, due east to the easterly boundary line of said ranch; and if there should not be four thousand five hundred acres of land between said line and the southerly line of said ranch, then the balance or residue of land to make up the said four thousand five hundred acres shall be taken off from the southeasterly corner of said ranch in a square form; the westerly boundary of said last named square not to extend within one Spanish league of the Sacramento River." The premises conveyed by the Ford deed are described as follows: "All that certain tract or parcel of land situated in the County of Tehama, said State, described as followsto-wit: Being five hundred acres of the rancho known as the Bosque or Lassen Rancho. It being expressly understood that the said 500 acres shall be taken off of the southwesterly corner of said ranch in a rectangular form, the frontage along the Sacramento River to be not more than one-half the depth; provided, that no part of the land hereby conveyed, or intended to be conveyed, shall be or extend north of a straight line drawn from a point on the Sacramento River one Spanish league south of the mouth of Deer Creek, due east to the easterly boundary line of said rancho." Both deeds were executed on the 17th of December, 1856. There is some conflict of evidence as to which of them was first delivered-Wilson claiming that his deed was delivered before the Ford deed; Gerke that both deeds were delivered on the same day, but the Ford deed before the other; and the attorney of Gerke also testified that the Ford deed was |