with the admissions of the pleadings. We have looked in vain for any such allegation in the complaint, and, if there was such an averment in one part of the complaint, it was contradicted by the copy of the sworn claim, as presented to the executors, which copy was annexed to and made a part of the complaint.

The mortgage having provided for counsel fee in case of foreclosure, it was and is in the discretion of the court below to make such allowance as in its judgment was reasonable and just, without regard to the amount or percentage specified in the mortgage. The court seems to have acted on this understanding of the law, and we cannot say that there was any abuse of discretion in the allowance made. The judgment and decree must be reversed as to so much of it as is based upon the cause of action set out in the second count of this complaint, and the cause remanded for further proceedings in accordance with this opinion. So ordered.

MORAN v. GARDEMEYER et al. (No. 12,198.) (Supreme Court of California. Dec. 18, 1889.)

MORTGAGES-DEBTS SECURED.

A mortgage containing the condition that, in addition to the principal sum secured, it shall be security for "all further advances to the mortgagor by the mortgagee that may exist, arise, or be contracted before the satisfaction hereof," does not cover a subsequent note given to the mortgagee, containing this clause: "This note is secured by crop mortgage," so that the holder may sue the mortgagor's executor without presenting the claim, as provided by Code Civil Proc. Cal. § 1500, in case of claims secured by mortgage.

Department 1. Appeal from superior court, Alameda county; E. M. GIBSON, Judge. Naphtaly, Friedenrich & Ackerman, for appellants. George M. Shaw and A. M.Rosborough, for respondent.

Fox, J. With the exception that the amounts are different, and the mortgage is upon different property, this case is exactly like No. 12,197, ante, 6, between the same parties, (decided this day,) in all that relates to the cause of action set out in the first count of the complaint, and in all that relates to the course of procedure in the cause, and the judgment and decree therein rendered. Without repeating the history of the case in detail, on the authority of the decision in said No. 12,197, we hold that the objection to the judgment and decree is not well taken, so far as the same relates to the cause of action set out in the first count of the complaint. The mortgage was exactly the same as the other on the subject of future advances and indebtedness. Long after the date of the mortgage and of the note therein set out (the subject-matter of the first count) the mortgagor made and executed to the mortgagee, plaintiff herein, his promissory note for the sum of $1,303, payable on the 1st of September, 1884, with interest at the rate of 1 per cent. per month, which note contained these

clauses: "In case of suit to collect this note, or any part thereof, I agree to pay attorney's fees and costs of court, which shall be included in the judgment. This note is secured by crop mortgage." In due course plaintiff presented his claim against the estate of the mortgagor, upon this note, asserting that it was secured by crop mortgage, as shown upon its face, but making no pretense that it or any part of it was secured by the mortgage now in suit, or otherwise than by such crop mortgage. It was regularly allowed as presented. Now, in this foreclosure, he sets it up as a separate cause of action, in a second count to his complaint, and prays that it be decreed that as to $500 of the amount, with the interest thereon, it is secured by this mortgage, and that it be included in the judgment of foreclosure, with judgment docketed against the estate for the deficiency, if there be any. As before, there is no direct averment in the complaint that this note was secured by this mortgage to any extent, and the note itself, and the claim as presented to the executors, negative the proposition that it was so secured, by showing affirmatively that it was otherwise secured. If the note had been silent on the subject of security, under the well-established rule in regard to mortgages given to secure future indebtedness we should have been constrained to hold that it was secured by the mortgage in suit to the extent of the limitation therein prescribed. But as to this note the plaintiff has accepted it, expressing upon its face that it is otherwise secured as to its entirety, and with no expression indicating that it is secured by this mortgage, either in whole or in part. He has failed anywhere to advise the executors that it is so secured. We must hold that, if he could resort to this security at all upon that note, it could only be for the deficiency, after exhausting the other security. And it is by no means certain that he could do that; that as to such deficiency, if there should be one, he would not be remitted to his established claim against the estate, to be paid in due course of administration. It is unnecessary to decide that question here, for in this case he has made no attempt to show that he has exhausted the direct security given for the payment of that note. It follows that the judgment and decree in this case must be reversed, so far as it is based upon the cause of action set out in the second count of the complaint, and the case be remanded for further proceedings in accordance with this opinion. So ordered.

We concur: WORKS, J.; PATERSON, J. (82 Cal. 104)

MILLER 0. PRENTICE. (No. 12,239.) (Supreme Court of California. Dec. 18, 1889.) SCHOOL LANDS-CERTIFICATE OF PURCHAse.

A certificate of purchase of state school lands, issued under Pol. Code Cal. § 3495, requiring an applicant to make affidavit whether the land is or is not suitable for cultivation, and, if it is, that he is an actual settler thereon, is only prima facie evidence of the purchaser's title, and

may be impeached by proof showing that he was not legally entitled to purchase the land.

Department 2. Appeal from superior court, Monterey county; JOHN K. ALEXANDER, Judge.

Geil & Morehouse, for appellant. Webb & Sherwood, for respondent.

by proving that he could not legally purchase the land. As we have before stated, his affidavit is defective, in omitting to state whether the land was or was not suitable for cultivation; and the evidence shows that it was, and that plaintiff was not an actual settler upon it. Therefore, the finding of the court that the plaintiff is the owner of, and entitled to the possession of, the demanded premises, is not justified by the evidence. Judgment and order reversed.

We concur: THORNTON, J.; MCFARLAND, J.

(82 Cal. 174)

That the plaintiff was never an actual settler on the demanded premises is shown by evidence free from conflict; and by evidence likewise free from conflict it is shown that the defendant was an actual settler on said premises, and that he had applied, in the proper mode, to purchase the same from the state. One of the requirements of the Code is that any person desiring to purchase any portion, not less than the smallest legal subdivision of any of the sixteenth and thirty-sixth sections, make an affidavit stating "whether the land is or is not suitable for cultivation; and, if it is, that the applicant is an actual settler thereon." In this case the plaintiff did not state in his affidavit whether the land was or was not suitable for cultivation, and the evidence on the trial, we think, without material conflict, shows that it was suitable for cultivation. The plaintiff states in his testimony "that the land is what you would call grazing land. Some of it could be plowed, but not more than the smallest legal subdivision at any one place. I don't think you could find more than eighteen or twenty acres at any one place, if you could find that, which you could plow. The land is hilly, and, in my judgment, not fit for agriculture." We do not think that this materially conflicts with the testimony of witnesses who testify that they are well acquainted with the land in controversy, and that it is suitable for cultivation. The evidence as to the citizenship of plaintiff is clearly insufficient to establish that fact. He swears that he was born in France, and was naturalized in the city of New York, but has lost his naturalization papers. We do not doubt that the defendant, who is in the actual occupation of the premises, is in a position to show, when his right of possession is assailed, that his assailant has no title or right of possession in and to the premises. The plaintiff's certificate is only prima facie evidence of his title, and may be impeached

12,454.)

(Supreme Court of California. Dec. 23, 1889.) EXECUTORS AND ADMINISTRATORS-SALE OF LANDPROCEEDINGS OF PROBATE COURT-COLLATERAL ATTACK.

1. A petition for a sale of land by an administrator, aided by an inventory which was made part of it, described the land as an undivided half interest in the Sharp and Sproul tract, situate in San Francisco, and then gives metes and bounds, excepting certain parcels heretofore conveyed, which are delineated and marked on a map or diagram "on file herein." This map, at the time of trial, could not be found. It further stated that under certain legislative acts all of said land was reserved and appropriated by the public for a park, except that portion described in Schedule B, and another portion assigned to S. under a decree for partition, which was referred to; that the only real property to which the estate was entitled was that described in Schedule B, and that the condition and value of the same are set forth in said schedule. Schedule B contained full descriptions of all the lands belonging to the estate. Held, that the description was sufficient, under Code Civil Proc. Cal. § 1537, requiring the petition to contain a description of the property, and the condition and value thereof.

2. The designation of a city lot as "unimproved" is a sufficient description of its condition, as required by section 1537.

3. In a petition by an administrator to sell land, simply to provide for the family allowance and future expenses of administration, where the prior accounts of the administrator have been settled, an averment that there are no debts or expenses accrued and unpaid is a sufficient statement of the debts, expenses, and charges of administration required by Code Civil Proc. Cal. § 1537.

4. Where it appears from the petition that the amount necessary to be raised is between $10,000 and $11,000, and the property consists of several lots and parcels, a provision that the sale shall cease when an amount not less than $10,000, and not more than $11,000, shall be obtained, does not invalidate the order of sale.

5. An adjudication by the probate court that a notice of sale had been posted in three public places cannot be attacked coilaterally.

6. Where certain schedules were annexed to and made part of the petition, a verification placed before the schedules is not improper.

Department 2. Appeal from superior court, city and county of San Francisco; G. MAGUIRE, Judge.

Jarboe, Harrison & Goodfellow, for appellants. J. C. Bates, for respondents.

MCFARLAND, J. Action to quiet title. Judgment for plaintiffs, from which, and from an order denying a new trial, the defendants Kate Dunne and Alice Dunne appeal. Plaintiffs claim title to the disputed

tion in the petition of the land of the estate as it was when Sproul died; that is, "the real property of which the decedent died seised." The petition, with the inventory which is a part of it, describes the land first, generally, as the undivided one-half of the "Sharp and Sproul tract," situated in San Francisco, and then gives a description by metes and bounds, excepting certain parcels heretofore conveyed, which are delineated and marked with certain specific names on a map or diagram "on file herein;" that is, on file with the inventory. But at the time of the trial-about 17 years afterwards-such map or diagram could not be found on file, or among the papers of the estate, and it is argued that without this map the description is so defective as to upset the jurisdiction. The land, however, down to the decree of partition, was always described as the half of the Sharp and Sproul tract. Now, the averments of the petition are (and the jurisdiction depends on the averments, not upon their truth or falsity) that all of the said land not mentioned in the second subdivision of Schedule B was divided by the partition decree; and the parcels set off in severalty to the estate by that decree are fully described in the first part of said schedule. And the second part of said schedule fully describes all the lots and parcels of said tract in which the estate and Sharp were still joint owners. It seems to us, therefore, that the averments of the petition sufficiently showed to the court what the interest of the deceased in the "Sharp and Sproul tract" was at the time of his death, and contained a full description of all the real property of the estate at the time the sale was asked, and gave to the court all the information upon that subject contemplated by the Code, and that the sale was not void for want of suficient description of real property in the petition. Stuart v. Allen, 16 Cal. 501; Fitch v. Miller, 20 Cal. 352.

The other objections made by the respond ents are untenable. The designation of a city lot as "unimproved” is, we think, a sufficient description of its "condition," at least, to give jurisdiction to the probate court.

The statement that there were no debts or expenses of administration accrued and unpaid was, we think, sufficient to vest jurisdiction, so far as that point is concerned, where, as in this case, the prior accounts of the administratrix had been settled, and the petition sought a sale, not to pay debts and past expenses, but to provide for family allowance and future expenses of administration.

It appears that the amount necessary to be raised was between $10.000 and $11,000; and, the property consisting of several separate lots and parcels, the order of sale provided that "such sale shall cease when an amount not less than $10,000, and not exceeding $11,000, has been obtained;" and respondent contends that the part of the order just quoted

makes the whole void. We are unable to see any good reason for that contention.

The probate court, in its order confirming the sale, declared that the notice of sale was posted in three public places. Respondent introduced evidence, against the objection of appellants, with intent to show that one of the places was not a "public" place within the meaning of the Code. But surely the court, having jurisdiction of the proceeding, could, within that jurisdiction, find the fact that the place was a public place; and such finding cannot be attacked collaterally.

The position of respondent that the petition was not properly verified, because the certificate of verification is placed before the schedules which were attached to it, is not tenable. The schedules were a part of the petition, and were as fully included in the verification as were the parts which preceded the certificate.

We see no other attacks upon the jurisdiction of the probate court to order the sale which require special notice. It may be remarked that there is no pretense that the sale under which appellants claim was in fact fraudulent, or without adequate consideration or in any way unfair. To the objections made to it, may well be applied that often abused word "technical;" and we do not think that they are sufficient to overturn, for want of jurisdiction, the solemn judgment of a court, or to destroy a title to realty honestly acquired.

Appellants plead as a defense to the action section 1573, which provides that "no action for the recovery of any estate sold by an executor or administrator, under the provisions of this chapter, can be maintained by any heir or other person claiming under the decedent, unless it be commenced within three years next after the settlement of the final account of the executor or administrator." Counsel on both sides, in discussing the issue made by this defense, deal mainly with the question whether this section applies to actions to quiet title, and whether, to make the defense good, it must not appear that the purchasers were in the actual adverse possession for three years. We are inclined to hold (although we do not here undertake to definitely settle the question) that section 1573 intended to have settled within the time mentioned all questions about the validity of probate sales; and that the words "recovery of any estate" were intended to and do include all actions which involve an "estate" in the land sold, and therefore include an action to quiet title. But in the case at bar we are not able to see, from the transcript, that the action was not brought within three years after plaintiffs attained their majority, (see section 1574:) nor does the record show the date of "the settlement of the final account" of the administratrix. The point, therefore, cannot be raised on the record which is before us.

These views lead us to the conclusion that the findings of the court below, "that the

proceedings on said administratrix's sale of said estate of said John Sproul, deceased, were irregular, invalid in law, and no title passed under said sales;" that "the claims of said defendants, and each of them, are without any legal right," etc.; that "the plaintiffs are the owners in their own right, as their separate property, of the parcels of land described in the amended complaint herein;" and "that defendants have not, nor have either of them, any right, title, estate, or interest" therein,-are erroneous. This being so, it is unnecessary to inquire if the findings are sufficiently full. But the case is not one where judgment can be ordered for appellants on the findings. All we can do is to order a new trial. Judgment and order reversed, and cause remanded for a new trial. We concur: THORNTON, J.; SHARP

STEIN, J.

Hearing in bank denied.

(82 Cal. 548)

said estate has acquired any interest, and the condition and value of the said real estate, are set forth in the schedule marked · D,' hereunto annexed, and made part of this petition." And the property in contest in the case at bar is described in the schedule D as "one undivided half of lots Nos. 30, 31, and 32, in block 61, situated in the town of Fresno, with brick and frame buildings thereon, which is partnership property of the former firm of Silverman & Reinstein. The said one-half interest was appraised at $7,000.” And the point of appellant is that the court was utterly without jurisdiction to order the sale, and the sale entirely void, because the petition does not clearly state that $7,000 was the value of the property at the time the petition was made. But to hold this point good on a collateral attack would be to enforce a strictness of literal compliance with the statute beyond all reason. Substantial compliance has always been held sufficient. Stuart v. Allen, 16 Cal. 474; Richardson v. But

13,350.)

(Supreme Court of California. Jan. 14, 1890.) SALE OF REAL ESTATE BY ADMINISTRATOR.

The petition of an administratrix to sell decedent's real estate showed that the inventory and appraisement were made some five months before the petition was filed, and alleged "that the condition and value of the said real estate are set forth in the schedule marked 'D,' hereunto annexed, and made a part of this petition." Held, that it was such a compliance with Code Civil Proc. Cal § 1537, providing that the petition of an administrator to sell the real estate shall set forth the value thereof, that a sale made thereunder would not be declared void in an action by decedent's heirs to recover it. Department 2. Appeal from superior court, Fresno county; M. K. HARRIS, Judge.

W. D. Grady and D S Terry, for appellant. Tupper & Tupper and Jarboe, Harrison & Goodfellow, for respondents.

MCFARLAND, J. Action to recover possession of an undivided interest in real property described as lots 30, 31, and 32, in block 61, in the town of Fresno. Judgment went for defendants, and plaintiff appeals. Plaintiff claims title as heir of II. D. Silverman, deceased; and defendants claim under probate sale made during the administration of the estate of said deceased. Appellant contends that the probate sale was void because the petition upon which it was based was too defective to give the probate court jurisdiction; and the particular defect of the petition which he specifies is its alleged failure to state the value of the property sought to be sold, as required by section 1537 of the Code of Civil Procedure. The petition, which was made by the administratrix, shows that the inventory and appraisement were made September 25, 1887,-but a little over five months before the petition itself was filed. The language of the petition which bears upon the question here involved is as follows: "That a full description of all the real estate of which the said decedent died seised, or in which he had any interest, or in which the

1889.) Upon a special demurrer, perhaps, a court might require a little more certainty; but there surely was not such a total want of a statement of values as renders the petition defenseless against the attack made here, which is in the nature of an objection, in an ordinary civil action, that the complaint does not state facts sufficient to constitute a cause of action. The averment in the body of the petition may fairly be taken as an averment that the amount named in the schedule was the present value of the property. And at all events, as was said in Richardson v. Butler, supra, the petition, on this point, fully and fairly answers the purpose of the provisions of the Code. With these views, it is not necessary to notice the other points discussed by counsel for respondents. Judgment and order denying a new trial affirmed.

We concur: THORNTON, J.; SHARPSTEIN, J. (82 Cal. 193)

WAINWRIGHT WESKE. (No. 12,436.) (Supreme Court of California. Dec. 27, 1889.) CONTRACTS-ACTIONS-RESCISSION-PLEADING.

1. A complaint alleged that for 10 shares of corporate stock at the value of $1,400 a share, and $2,500 cash, plaintiff transferred to defendant onehalf interest in a liquor business, and notes amounting to $10,000. That, discovering fraud in the representations as to the stock, he tendered back an assignment of the stock, and $300 received in dividends, and demanded $14,000 in money, as value paid for stock. He made no offer to return the $2,500, nor did he demand a transfer of the business interest, or of the notes. Held, that it was insufficient as a complaint to rescind a con

tract.

2. As the complaint neither alleged the value of the thing assigned, nor damages sustained, it was insufficient to recover on affirmation of the contract.

Department 2. Appeal from superior court, city and county of San Francisco; J. F. SULLIVAN, Judge.

Action by James Wainwright against Adolph Weske to recover $14,000 paid to de