THORNTON, J. Ejectment. Trial by a jury. Verdict and judgment for defendants. Plaintiffs appeal from the judgment and order denying their motion for a new trial. On October 14, 1862, one Mee, who at that time held the title to the land in suit, conveyed it to George Boreham, husband of plaintiff, Louise Boreham. It was admitted that, from the day the foregoing deed bears date, up to the time George Boreham left San Bernardino, (about July 1, 1865), he and his family resided on the land sued for. Defendants claim title under a deed purporting to be executed by George Boreham and plaintiff Louise Boreham, his wife, to J. H. Stewart, dated May 31, 1865. "It was offered by defendants as the deed of George Boreham only." Whatever title Stewart took by this deed passed to, and vested in, the defendants.

On the trial, plaintiffs offered in evidence a certified copy of a paper executed by George Boreham on November 4, 1862, which was duly acknowledged and recorded on the day just above named. The following is a copy of it: "Know all men by these presents, that I, George Boreham, of the county of San Bernardino, state of California, do hereby make and declare my intention to use and claim the following-described premises as a homestead, to-wit, [here follows a description of said property], which said premises was conveyed to me, by Sydney Mee, by deed bearing date the fourteenth of October, A. D. 1862, together with all the appurtenances thereunto belonging; and I do further declare that I am a married man now, and have been since the date of said deed, in possession of said premises, and that said premises are worth less than $5,000. In witness whereof, I have hereunto set my hand and seal this 4th day of November, A. D. 1862, at the city of San Bernardino. [Signed] GEORGE BOREHAM. [Seal.] Duly acknowledged and recorded November 4, 1862." Defendants objected to the introduction of the foregoing paper on the grounds that it was not a declaration of homestead; that it was immaterial, irrelevant, and incompetent, void on its face; that it did not state that the declarant was residing on the premises at the time it purported to have been made, nor that he was residing thereon with his family; and that it does not state the cash value of the property. The court sustained these objections, and excluded the declaration, to which plaintiffs reserved an exception. The plaintiffs again offered this paper in evidence, and offered to prove, in connection with it, that at the time the same was made and recorded the declarant was in fact residing upon the premises described therein with his family, claiming and using the same as a homestead, and that he so continued to reside there, with his family, up to about the 1st day of July, 1865, and also that the parties defendant acquired whatever right, title, or claim they had to said property under a deed from J. H. Stew. art, and with knowledge of the nature and condition of said Stewart's title and equities

A

The paper thus excluded from evidence was offered as a declaration of homestead made by George Boreham under the act of April 28, 1860. St. 1860, p. 311, as amended by the act of May 12, 1862, p. 519. The act of 1860 was an amendment of the act of April 21, 1851, which latter was the first act passed in this state in relation to a homestead. St. 1851, p. 296. Under this act it was held that a homestead claim could not be created by the residence of the husband alone, in the absence of the wife and family. Gambette v. Brock, 41 Cal. 83, and cases there cited. material modification of this act was made by the act of 1860. St. 1860, p. 311. This latter act authorized the creation of a homestead by either husband or wife, or other head of a family. Either could select or dedicate a homestead by a declaration in writing executed and recorded as provided in the act. In all cases, residence on the land was requisite to consummate the claim of homestead. Gregg v. Bostwick, 33 Cal. 220; Mann v. Rogers, 35 Cal. 316; Gambette v. Brock, 41 Cal. 83. This act was an enabling act, and intended so to be. The provisions of the act as to the declaration had to be complied with in order to make such a selection and dedication. The ability to protect the property claimed as a homestead from sale by forced or voluntary alienation did not arise unless the declaration contained the requisites provided for in the act of 1860. This act (first section) provides what the declaration shall contain. "Said declarations," the act provides, "shall state that they, or either of them, are married, or, if not married, that he or she is the head of a family; that they, or either of them, as the case may be, are at the time of making such declaration residing with their family, or with the person under their care and maintenance, on the premises, particularly describing said premises, and that it is their intention to use and claim the same as a homestead." The paper offered in this case as a declaration of homestead is made by the husband. There is in it no statement that either he or his wife was at the time residing with their family on the premises. The statement that he was then a married man, and had been since the 14th of October, 1862, in possession of the premises, is not equivalent to the required statement of residence. The declarant might have been in possession by his tenant, or might have been in actual possession of the land while his family were residing elsewhere. The paper was manifestly insufficient as a decla

ration of homestead, and the court did not err in excluding it.

Nor did it err in ruling out the other matters offered in connection with a further offer of the so-called "declaration of homestead." Nothing could make the premises a valid protected homestead without such a declaration as the statute required. Actual residence on the land would not so make it, in the absence of a sufficient declaration. A declaration sufficient in form without residence, and residence without a sufficient declaration, are alike ineffectual to constitute the homestead. The court did not err in any of the rulings above stated.

It is argued by counsel for plaintiffs that the declaration is required only to protect the land claimed as a homestead from forced sale. The act cannot be so construed, nor has it ever been so construed. It is manifest, from the perusal of the act, that it was to disable either spouse from making a voluntary alienation of the land, but only when a sufficient declaration was made. If there was no sufficient declaration, the power of the husband to alienate the land, of his own will, remained unimpaired.

The court did not err in allowing the defendants to offer the deed of George Boreham to Stewart as the deed of George alone. If it was signed by the wife of Boreham, it was not error. As we have seen, Boreham, (the husband,) there being no homestead, was competent to convey the land. The signature of his wife was a mere superfluity, and imported no efficacy whatever to the deed. Her signature conveyed no title. This contention comes with a bad grace from plaintiffs, who claimed on the trial, and offered to show, that Louise Boreham's signature to the deed was a forgery. Granted that such signature was a forgery, the deed had still the genuine signature of the husband, which was all that was required to pass the title to the land conveyed by it. It follows from the above that the court did not err in excluding testimony to show that the signature of Louise to the deed was forged. It would have been a waste of time to listen to such testimony, which would have been entirely irrelevant to any issue in the case.

There was no error in the refusal of the court to give the instruction No. 6 requested by the plaintiffs, nor did the court err in giving instructions 2, 3, 4, 5.

In the course of his argument, Byron Waters, Esq., of counsel for defendants, read to the jury, and commented on, the instructions previously settled by the court. To this conduct of counsel plaintiffs objected, and, on its permission by the court, excepted. This course was entirely within the discretion of the court, and, as there was no abuse of discretion in permitting it, this court finds no error in it.

After the charge to the jury had been given, it (the jury) was given in charge of an officer, and retired for deliberation. It appears in the statement that this officer was not sworn,

and that the plaintiffs excepted to this conduct of the court. The officer must have taken his oath of office. To this extent he was a sworn officer, and bound by his oath. The mere statement that the person who took charge of the jury was an officer implied that he had taken his oath of office; for without having taken such oath he would not have been an officer. It is consistent with what appears in the statement that the jury were put in charge of the sheriff. Though it is usual to put the jury, retiring to deliberate, in charge of an officer, to whom a special oath is administered in regard to the discharge of his duties while so in charge, we know of no law, and we have been referred to none, which requires it. The Code of Civil Procedure, in the chapter in regard to the trial by jury, contains no such requirement. Its provisions seem to have been framed under the idea that the official oath was sufficient, We so regard it, leaving it to the superior courts to administer a special oath or not, as they may think proper under the circumstances. The record is free from error. Judgment and order affirmed.

JOHNSTON v. MCDUFFEE et al. (No. 13,399.)

(Supreme Court of California. Jan. 30, 1890.) MORTGAGES-FORECLOSURE-PARTIES-DEPOSITION OF PARTY.

1. Under a joint mortgage executed to secure two several notes, one of the joint mortgagees, who purchases the mortgaged land, acquires the legal title subject to the lien of the mortgage, and is a proper party defendant in an action of foreclosure by the other mortgagee's assignee.

2. Plaintiff's deposition is admissible in evidence where he is absent from the county, and one of his counsel testifies that he knows of no other witness in the county by whom certain facts can be proven.

3. Under Code Civil Proc. §§ 2021, 2034, relating to depositions, a plaintiff's deposition is admissible in evidence though he is present at the trial, and though other witnesses are present by whom he could have proved the same facts, as the exception in the statute excluding the deposition when the witness' presence can be procured relates to another kind of witness.

the mortgagor, Winters, the mortgaged premises, a conveyance of which was executed to him by Winters. By his purchase of the equity of redemption of Winters, McDuffee became the holder of the legal title. He stood in Winter's place in regard to the land mortgaged. McDuffee was made defendant, and properly made a defendant, as the purchaser of the mortgaged property from Win

ters.

As such purchaser, he came in by title subsequent, and subject to the lien of the mortgage. There was judgment of foreclosure against all the defendants. McDuffee only appeals.

It is argued that McDuffee is improperly such a defendant. We do not agree to this, for the reason above given. For the same reason, the complaint states a cause of action against him. The property is described in the complaint by reference to the mortgage, which is appended to the complaint as an exhibit, and made a part of it. Emeric v. Tams, 6 Cal. 156. The mortgage sufficiently describes the mortgaged premises. When the plaintiff offered the mortgage in evidence, no objection was made to it. It is not specified in any way that the findings are not susta ned by the evidence.

The plaintiff offered in evidence his own deposition taken in the case. It does not appear to have been taken otherwise than in accordance with law. The defendant McDuffee objected to the offer of this deposition on the ground that it did not appear that plaintiff was absent from the county of San Bernardino, where the case was tried, and unable to be present at the trial, and on the further ground that it did not appear but that the facts sought to be proven by the deposition could be proved by other witnesses. The court overruled these objections, and the defendant excepted. It was proven to the court that the witness was absent from the county, and there was the testimony of one of plaintiff's counsel that he knew of no other witness in the county by whom the facts might be established, or could be proven. In fact, neither ground of objection is maintainable. The plaintiff had the right, under the statute, to read the deposition, though he had been present at the trial, and though other witnesses had been present by whom he could have proved the same facts. Such is the legal meaning of the statute. Code Civil Proc. § 2021. The only case in which the presence of the witness whose deposition has been taken is required is under the sixth subdivision of section 2021, supra, which does not concern us here, as it relates to a different sort of witness. The presence of a party whose deposition has been taken is never required, and the deposition may be read on the trial by either party, though he is in court when it is read. Id. §§ 2034, 2021. The judgment is supported by the findings. Though McDuffee's rights as mortgagee might have been protected by taking the proper steps to bring them before the court, the record before us is not in a shape that pre

VAUGHN et al. v. CALIFORNIA CENT. RY. Co. (No. 13,183.)

(Supreme Court of California. Jan. 30, 1890.) NEGLIGENCE OF MASTER.

In an action against a railroad company for the alleged negligent killing of one of defendant's employes, it appeared that deceased was sent out, with others, on a construction train, to find washouts and repair the track; that he knew the purpose for which the train started; and that he was killed by the wrecking and ditching of the train at one of the washouts. The complaint was drawn on the theory that defendant's servants in charge of the train were incompetent, and that defendant was negligent in selecting them. Held, that special findings by the jury that the company exercised ordinary care and prudence in selecting the servants, and that the accident was not proximately caused by the negligence of any of them, are in conflict with a general verdict in plaintiffs' favor, which cannot be allowed to stand."

Department 2. Appeal from superior court, San Bernardino county; HENRY M. WILLIS, Judge.

A. Brunson, Chas. R. Redick, and Brousseau & Hatch, for appellant. Stephenson & Harris and Byron Waters, for respondents.

MCFARLAND, J. Pierce B. Vaughn, a young man about 27 years old, was k lled by an accident on the railroad of the corporation defendant; and this action was brought by his father and mother (as heirs) to recover damages for his death, under section 377, Code Civil Proc. The verdict and judgment went for plaintiffs. Defendant appeals from the judgment, and from an order denying a new trial. The jury, in addition to a general verdict, returned answers to a large number of special issues submitted to them; and appellant contends (among numerous other points) that the general verdict is in conflict with the findings on the special issues, and therefore cannot stand. We think appellant right in this contention. Paragraph 4 of the complaint is as follows: "That on January 4, 1888, said Pierce B. Vaughn, while so engaged in such service of the defendant, was being carried upon a work-train of defendant upon such railway, in this county, when, owing to the negligent and defective manner in which the track and road-bed of such railway had been originally constructed and subsequently maintained by said defendant, and at a point about one mile west of North Cucamonga station, the said road-bed was and had been for many hours before, for a distance of thirty feet along the track, washed out, and by the negligence of the defendant the same was so allowed to remain, in an unsafe condition, till the accident complained of occurred." Paragraph 5 is as follows: "That, notwithstanding said unsafe condition of said track, the defendant, without exercising any care in the running of said

train, and without exercising any care to discover the unsafe condition of its track, and by its negligence in the running of said train at a reckless and fast rate of speed along and over said defective track, caused said train to be wrecked and ditched at such washout, thereby, without any fault on the part of said Vaughn, causing said Vaughn to be instantly killed."

An amendment to the complaint contains the following averments: "(8) That at the time of said wreck, and of the killing of said Vaughn, and continuously for more than ten days prior thereto, James McKenna was the section foreman of the defendant; and in that capacity had charge of the defendant's railroad track and road-bed where said washout and wreck occurred, and for several miles along the track on each side thereof, but that he was neither properly qualified nor competent, nor was sufficiently skillful, to perform his duties as such section foreman, and the defendant neglected to use ordinary care in selecting him as such section foreman. (9) That Edson Long was the conductor of said train at the time it was wrecked; but he was neither properly qualified or competent, nor of sufficient skill, to perform his duties as such conductor, and the defendant neglected to use ordinary care in selecting him as such conductor. (10) That at the times aforesaid A. Jones was the engineer of the said worktrain, but he was neither properly qualified or competent, nor of sufficient skill, to perform his duties as such engineer, and the defendant neglected to use ordinary care in selecting him as such engineer."

It is apparent that the gist of the alleged cause of action lies in the averments contained in said paragraph 5 of the complaint, and in the matters averred in the amendment, and that the theory of the pleader was that appellant was liable in damages on account of the carelessness with which the train was run, the incompetency and misconduct of the employes, and the want of care of appellant in employing them; and the reason of this is quite apparent, when we look at the history of the accident. The train on which deceased was killed was not a passenger train; neither was it a work or construction train, traveling on ordinary business. The facts were that during a rainy and stormy time news came to the office of the defendant at San Bernardino of breaks and washouts along the line of the road, and this particular construction train was sent out for the express purpose of finding washouts, and repairing the road at points where such washouts should be found. The deceased was a co-employe of defendant with the other persons on the train, and he knew all the facts, and the purpose for which the train started. He therefore took the extrahazardous risks. It would therefore have been difficult (we do not say impossible) to have rested a cause of action for damages for personal injury upon the mere fact alone that the managers of the train found what they were seeking, viz., a washout, and went into

it without any carelessness on the part of anybody. The fact that the road had not been | constructed as thoroughly as it should have been at the place where the washout occurred, cuts but little figure, because it was evident from the start that the breaks would be most likely to be found at the weakest points. At all events, the complaint goes upon the theory that the injury was caused by the reckless speed with which the train was allowed to approach the washout, and the negligence and misconduct of the company's employes at the time of the accident, and, to avoid the rule that damages cannot be recovered for injuries caused by the negligence of a co-employe, the complaint avers the incompetency of the employes, and defendant's want of care in employing them. But the jury, by its findings on the special issues, expressly negatives all negligence on the part of any person at the time of the accident, and exonerates defendant from any want of care in selecting its employes. To the following questions the following answers were given by the jury: "Were the engine-man and conductor in charge of defendant's train exercising ordinary care in the running of the train at the time of the accident? Answer. Yes. Did the defendant exercise ordinary care and prudence in the selection of its employes having charge of its trains? A. Yes. Did defendant exercise ordinary care and prudence in the selection of its conductor, and persons having charge and supervision of its road bed and track? A. Yes. Was the proximate cause of the accident the negligence of any such servant. If so, which one? A. No." With these issues thus found, there was nothing left of the complaint and the evidence to warrant the general verdict for plaintiff, which was for the very large sum, under the circumstances, of $10,000.

It is to be observed, also, that part of these special findings seem to be in conflict with the averments and admissions of the pleadings. The complaint avers that the section foreman was not qualified or competent to discharge his duties, and the answer admits this, and affirmatively alleges that his negligence, etc. caused the accident; and yet the jury found against the negligence of any servant. The judgment and order are reversed, and the cause remanded for a new trial.

THORNTON, J. 1 concur in the judgment. I think the pleader in the complaint counts on the negligent and defective manner in which the track was originally constructed, and subsequently maintained, as well as on other acts of negligence by the defendant. For negligence in constructing and maintaining its track, an employe can recover against a railway company. Trask v. Railroad Co., 63 Cal. 96. But in this case the deceased, Vaughn, went out on a train sent for the purpose of repairing the track, which had been damaged by washouts caused by a severe

storm, which had a short time previously occurred. He knew the train was sent out for this purpose, and on an errand of danger. By going on this train, he accepted the risks incident to its passage over the track. Under these circumstances, I cannot see how the plaintiffs can recover.

(82 Cal. 533)

SMITH . TAYLOR. (No. 13,421.) (Supreme Court of California. Jan. 13, 1890.) VENDOR AND Vendee -THE CONTRACT-TITLESPECIFIC PERFORMANCE-PLEADING-EVIDENCE -FINDINGS.

1. Where a written contract for the sale of

land contains a stipulation that the money paid thereunder shall be refunded if the abstract of title to be furnished by the vendor does not show good title in him, evidence of the groundlessness of the claims of persons whom the abstract shows to be asserting title adverse to the vendor is inadmissible in an action to recover the installments paid.

2. Evidence that, on the vendee's refusal to receive a "certificate" of title, it was agreed that the vendor should furnish an abstract instead, which was to be referred to a lawyer for examination, does not show a change of the terms of the written contract.

3. Where the written contract is that the vendee should take the land subject to a specified mortgage, evidence that, when the contract was executed, he knew of the existence of other incumbrances, and that there was a parol agreement as to how, when, and by whom they were to be paid off, is inadmissible, as Civil Code Cal. § 1625, provides that when the parties to a contract reduce it to writing the writing supersedes all other agreements between them on that subject.

4. Where a written contract for the sale of land has ceased and determined by its own terms, and the acts of the parties under it, a subsequent oral agreement that a sale should be concluded on the vendor's quieting title against all adverse claimants is void under the statute of frauds. Civil Code Cal. § 1624.

5. Even if regarded as a modification of the written contract, the oral agreement, being unexecuted, is void, under section 1698.

6. While ordinarily, when it is alleged that two parties entered into an agreement for the sale of land, it will be assumed, if nothing else appears, that the agreement is in writing, yet that assumption will not be made in favor of a cross-complaint for specific performance of a land contract containing stipulations that, by his answer in the same cause, defendant declares to have rested in parol.

7. Where a cross-complaint by a vendor for specific performance of a contract for the sale of land fails to show that he has tendered a deed conveying the title he has agreed to convey, or that he is in a condition to convey such a title, and also fails to allege how or when conveyance of title is to be made, or how deferred payments are to be secured, it is not prejudicial error to allow the withdrawal of a demurrer for want of facts, and for ambiguity and uncertainty, and the filing of a second demurrer on the same grounds, but adding further specifications of ambiguity and uncertainty.

8. Where a party makes no request for leave to amend a defective pleading, it is not error for the court, on making an order sustaining a demurrer thereto, to omit to say anything about leave to amend.

9. Where the ultimate facts found by the court are sufficient to sustain the judgment entered, it is not prejudicial error for the court, before entry of judgment, to file a second set of findings, practically a copy of the first, but containing additional probative facts not necessary to be found.

Department 1. Appeal from superior court, Los Angeles county; W. P. WADE, Judge.

Action by W. M. Smith against J. M. Taylor to recover $500, the first installment of the purchase price of land agreed to be conveyed to plaintiff by defendant. Defendant answered, and also filed a cross-complaint for specific performance. Judgment for plaintiff, from which, and an order denying a new trial, defendant appeals.

Lee & Scott, for appellant. Owens & Woodward, for respondent.

Fox, J. Judgment for plaintiff; motion for new trial denied; and defendant appeals from both judgment and order. The complaint is in three counts. The first is for the recovery of $500, money paid on account of the purchase of an interest in certain lands under an agreement that if, upon examination of abstract, it was found that title was not good, the money was to be refunded, and alleging that upon such examination it was found that the title was not good; the second, upon the common count for money had and received; and the third, for the recovery of the same money upon an alleged parol agreement to repay the same, and rescind the contract mentioned in the first count. Upon the trial the claim under the third count was abandoned, and no findings are presented on the issues presented by said third count, and the answer thereto.

The answer admits of making of the contract set out in the complaint, and the receipt of the $500 on account of the same, but contains numerous denials going to the legal effect and meaning of the contract, and then proceeds to deny that the title, as shown by the abstract furnished by defendant, was defective, and alleges that such title was good and valid, and follows with a statement of the facts shown by the abstract, upon which defendant says plaintiff bases the claim that said title was not good, and to claim therefrom that the objections made by plaintiff were groundless; also, sets out that as to certain incumbrances found to exist upon the property, other than the one provided for in the written contract, they were known to the plaintiff at the time of the contract, and that in regard to them certain oral agreements were made that are not set out in the written agreement. Defendant further alleges that after the making of the written agreement, and the delivery and examination of the abstract, a certain parol agreement was made between the parties, under which the defendant was to quiet his title against certain adverse claimants, or parties who seemed to be such, and that upon this being done the sale should be completed as contemplated in the original and written agreement, and that he (defendant) had duly performed the conditions of this subsequent parol agreement on his part. His answer to the second and third counts of the complaint consists of denials putting in issue the allegations of the complaint in that behalf. Defendant also filed a cross-complaint, setting out that on the 31st day of December, 1887,