five [hundred?] ($2,500) to be paid within ten days, $1,461 on or before twelve months from date, and $1,461 on or before twentyfour months from date, with interest at 8 per cent. per annum, interest payable semi-annually, and assume and pay one-sixth of a certain mortgage for $15,450, now on said ranch. The title to said above lands to prove good, or no sale; five days being allowed to examine abstract or certificate, and pass upon title, after abstract or certificate is delivered. If the remaining payments be not made according to this agreement and contract, the above-mentioned deposit to be forfeited without recourse. If title prove defective, said deposit to be returned. J. M. TAYLOR,

Agent. I hereby extend the time of this agreement five days longer from the date hereof. J. M. TAYLOR.

The further findings necessary to be noted here were in substance as follows: (2) That, at the time, plaintiff paid to defendant the sum of $500,"Which is acknowledged by said contract as a deposit to secure the sale of one-sixth interest," etc. (3) That said payment was upon express condition that the title should prove good upon examination of abstract or certificate; otherwise there should be no sale, and the said $500 should be repaid. (5) That the defendant delivered to plaintiff an abstract which, within 10 days was examined by plaintiff's attorney, and the title found to be not good, but defective. (6) That thereupon plaintiff returned the abstract with objections to the title, to the effect that the same was not good, but defective, and that plaintiff then informed defendant that he elected not to consummate the sale. (7) That afterwards, and on or about the 29th of May, 1888, the plaintiff made written demand upon the defendant for the repayment of said deposit of $500; but (8) that defendant refused, and still refuses to repay the same, or any part thereof. (9) That no other contract or agreement relative to the sale of said lands was made between the parties. (10) That at the time of making said contract, and depositing said money, and of the examination of the abstract, and ever since, the defendant had not, and has not, a good and perfect title of record, but the same was and is defective; that the same was incumbered by mortgage liens of record, and was subject to litigation between parties other than the parties in this action. (11) That at the time of making the contract, and up to the examination of the abstract, plaintiff had no knowledge of said defects of title, or of any incumbrance except $15,450. That at the time of making the contract, and of the examination, there was a mortgage on the whole of the tract to secure an indebtedness of $20,450, also a mortgage on the undivided two-thirds, embracing said undivided one-sixth of $3,333.34. (13) That all the allegations and averments of the first and second causes of action of the plaintiff's complaint are true. And the court finds as conclusion of law that plaintiff is entitled to re

(12)

cover the $500 with interest, amounting to $533.45, with his costs of suit, and judgment is entered accordingly. Two sets of findings were filed, one on the 13th and one on the 14th of May, 1888; and judgment is entered May 17, 1888.

One of the errors of law assigned and relied upon is that the court erred in filing the second set of findings. They are, confessedly, exactly like the first, except that in the second, in No. 11, the court states that the plaintiff knew of the existence of an incumbrance amounting to $15,450, a statement omitted from the findings as first filed, and in No. 12 the mortgage liens are set forth, which was not done in the first. With the exception of the two corrections which we have noted, the paper indorsed "Findings," filed on the 14th, was practically a copy of the one so indorsed and filed on the 13th; and, if the filing of the second was error, it was not a prejudicial one, for all that there was new in it was finding of certain probative facts. not necessary to be found, the ultimate facts already found being sufficient. Both sets of findings were filed before judgment. Boti are brought up to this court. Either is suf ficient to support the judgment, and there is nothing in either that conflicts with the other in any matter material to the issues in the cause, or the judgment entered. While it true that a court cannot change its finding after the entry of judgment without granting a new trial, and doing it upon new trial, it does not follow that it may not make such modification or correction of its findings before judgment as shall make them conform to the truth, and cover the issues in the We have carefully examined all the testimony in the record, and are satisfied that the evidence supports the findings. It only remains to consider whether there was any such errors of law, not already disposed of, as will require a reversal of the judgment or order appealed from.

cause.

Appellant contended at the trial, and contends here, that he had the right to prove by evidence aliunde that the claims of persons who appeared by the abstract of title to be asserting title to land adverse to the title which he offered, and who had suits pending regarding the same, were groundless. Many of his exceptions are to rulings of the court in rejecting evidence offered for that purpose. We are not called upon at this time to determine what would have been his rights in this regard, if his contract had been simply one to make good title. But that was not the force or effect of his bond. The only fair interpretation of this contract is that he was to furnish an abstract of title,-a paper prepared by a skilled searcher of records, which should show an abstract of whatever appeared on the public records of the county affecting the title, and that this abstract must show good title, or there was no sale; and in that event he was to return the money. He did furnish such abstract, and the plaintiff found, and the court, upon sufficient

proof,-in fact, upon the admissions of the defendant himself, as well as upon presentation of the abstract,-sustains the finding, that the abstract did not show good record title. Under that contract, the plaintiff was not bound to make any investigation outside the abstract, or to take the chances of any litigation which the abstract showed to be either pending or probable. The court therefore did not err in rejecting any of the evidence offered for this purpose.

Appellant claims that at the time of the making of the contract the plaintiff had knowledge of the existence of incumbrances upon the land other than the $15,450, of which he was to pay the one-sixth, and that there was then a parol understanding or agreement between them as to how, when, and by whom the incumbrances in excess of said $15,450 were to be paid off; and several of his exceptions and assignments of error are directed to the rulings of the court in rejecting certain evidence offered in support of that claim. It was not error to reject this evidence, for when the parties reduced their agreement to writing the writing superseded all other understandings or agreements between them on that subject. Civil Code, § 1625. Some evidence, however, on that subject did get in from both sides; and the court found that the plaintiff at the time had no such knowledge, and that there was no other agreement between the parties than the written one.

It was also claimed on the part of the appellant that long after this examination and rejection of the title the parties made an oral agreement whereby defendant undertook to quiet his title against all adverse claimants shown by the abstract, and that upon his doing so the sale was to be concluded, and many exceptions were saved to rulings of the court rejecting evidence offered in support of his claim; and these rulings are now assigned as error. These rulings were not erroneous. The agreement in writing had already ceased and determined by its own terms, and the action of the parties under it. According to its express provisions, there was "no sale." Defendant was already bound to repay the $500, and it had already been demanded of him. This subsequent agreement, then, if there was one, must stand or fall by itself. If there was such an agreement, it was one for, or in relation to, the sale of an interest in lands, and was not in writing. It was therefore void under section 1624, Civil Code. But even if it was, as defendant contends, an alteration or modification of the former written agreement, it was void under section 1698, Id., being an unexecuted oral agreement. So that in either event the defendant was not entitled to introduce evidence in support of it. But in this case, as in the other, the parties were finally permitted to tell what did occur, and to call other witnesses to the same point; and from the evidence so admitted it appears that some effort was made to make such an agreement, but

that the minds of the parties never met, and no such agreement was ever concluded, orally or otherwise, and the court so finds.

In the course of the trial it was shown that the defendant, in the first instance, presented to the agent of plaintiff a certificate of title, as distinguished from an abstract of title. This certificate exposed the fact of the existence of some adverse claims, and the agent of plaintiff declined to accept it, when it was agreed between the agent and defendant that defendant should furnish an abstract instead, when it should be referred to Judge Minor for examination, and plaintiff would accept Minor's opinion as to whether it showed good title or not. Defendant moved to strike out this evidence on the ground that it was incompetent to change the terms of the written contract. This motion was denied, and defendant excepted, and now assigns this ruling as error. There was no error in denying the motion on the ground upon which it was made. The evidence was perhaps irrelevant and immaterial, but it worked no injury to defendant, and certainly did not tend to show a change of the terms of the written contract.

The foregoing covers a review of all the 32 exceptions taken by defendant, and now assigned as errors of law. It follows from the conclusions reached that the judgment and order appealed from must be affirmed. Sc ordered.

PATERSON, J.: I concur.

WORKS, J.: I concur in the judgment. Hearing in bank denied.

GOOD v. TAYLOR. (No. 13,419.) (Supreme Court of California. Jan. 13, 1890.) Fox, J. This case is in all material respects like the Case of Smith, against the same defendant, ante, 217, No. 13,421, (decided this day.) It was tried at the same time, and submitted on the same evidence. On the authority of the decision in said case, No. 13,421, the judgment and order appealed from in this case are affirmed.

We concur: PATERSON, J.; WORKS, J.

CARSCADDON v. TAYLOR. (No. 13,420.) (Supreme Court of California. Jan. 13, 1890.) Fox, J. This case is in all material points like the Case of Smith, against the same defendant, ante, 217, No. 13,421, (decided this day.) It was tried at the same time, and submitted on the same evidence. On the authority of the decision in said case, No. 13,421, the judgment and order appealed from in this case are affirmed.

We concur: PATERSON, J.; WORKS, J.

(83 Cal. 1)

GEER. SIBLEY. (No. 13,221.) (Supreme Court of California. Jan. 29, 1890., SWAMP LANDS-KNOWLEDGE OF PURCHASER.

Pol. Code Cal. § 3443, provides that a person desiring to purchase swamp and overflowed land shall state in his affidavit "that he knows the land applied for, and the exterior bounds thereof,

and knows of his own knowledge that there are no settlers thereon." In an action to try defendant's right to purchase such land, it appeared that, before making his affidavit, he went to the northeast corner of the section with a surveyor, by whom the corner post was pointed out to him; that the surveyor set up his instrument at this corner, and with it showed defendant the prolongations of the east and north boundaries, telling him that

the south-east and the north-west corners were at the distance of a mile along the respective lines; that they went to the north-west corner of the northeast quarter section, and to the south-east section corner, where they found the stakes in the water, and from which points the surveyor showed him the projections of the north and south boundaries, and gave him corresponding information; that they traversed the east boundary; that all the land, except a few acres at the north-east section corner, was covered with the waters of a lake; that one had an unobstructed view for two or three miles in each direction. Held, that defendant's knowledge was sufficient, within the statute.

Commissioners' decision. In bank. Appeal from superior court, Tulare county; W. W. CROSS, Judge.

Chas. E. Wilson and T. M. McNamara, for appellant. Chas. G. Lamberson, for respondent.

FOOTE, C. This was a contest in the superior court of Tulare county as to the respective rights of the plaintiff and defendant to purchase a section of swamp land of the state. Judgment passed for the plaintiff, from which the defendant appeals. The point made for the reversal of the judgment is that the findings of fact do not support it. The only ground relied upon in the complaint to defeat the defendant's right to purchase the land is that his affidavit filed with the surveyor general was false, in that it asserted that at the time of making it the defendant knew "the land applied for, and the exterior bounds thereof," when he did not so know. The court found, among other facts necessary to enable the defendant to recover, in finding 4, that, "at the time of making and filing said affidavit and application, defendant did not know of any valid claim to said land other than his own; he knew of his own knowledge that there were no settlers thereon, and he did not, and does not now, own swamp and overflowed land, which, together with that sought to be purchased by him as aforesaid, exceeded six hundred and forty acres. " But found in the fifth finding "that, immediately prior to the making and filing of his affidavit and application, the defendant went to the section of land in controversy in company with John Gilcrest, a practical surveyor, whom the defendant employed to survey and point out to him the said section. They found the north-east corner of the section, which was marked by the government stake standing at that point. The surveyor set up his instrument at this point, and, turning south, projected the east line of said section, and at his request the defendant looked through the instrument along said line, the surveyor at the same time informing him that he was looking along the east line of said section, which line extended one mile from that point. The surveyor

then turned his instrument west, projecting the north line of the section. The defendant looked through the instrument along this line, being at the same time informed by the surveyor that said north line extended one mile on that course. They then followed along said line to the quarter section corner of said section, in said line, at which point they found the government stake floating in the water, but confined by tules. The surveyor set his instrument at this point, sighting west on said north line, and the defendant looked through the instrument, being at the same time informed by the surveyor that the north-west corner of said section was located one-half mile west of said quarter section corner in said line. They then went back, and around to the south-east of section 1 in said township, and from there ran west to the south-east corner of the section, which they found marked by the government stake standing in the water. The surveyor set his instrument at this corner, looking west, and projecting the south line of the section. The defendant looked through the instrument along this line, being at the same time informed by the surveyor that he was looking along the south line of said section, and that the south-west corner thereof was located at a point in said line one mile west of said south-east corner, in the direction pointed by the instrument. At this time the section of land in controversy, except about ten or fifteen acres at the north-east corner thereof, was covered with the water of Tulare lake. The defendant could see the entire surface of the water covering said section, and for two or three miles in either direction. From the foregoing facts the court finds that the defendant did not, at the time of making and filing his affidavit and application, know the land he applied to purchase, and in controversy herein, nor the exterior bounds thereof." From this the court, as a conclusion of law, decided that the defendant was not entitled to purchase the land, and that the plaintiff was so entitled, and rendered judgment accordingly.

The appellate court held in People v. Reed, 22 Pac. Rep. 474: "But, conceding that the finding is one of fact, or, as counsel terms it, a conclusion of fact,' it is apparent that the court below did not intend to cut off the right of the appellants to test the sufficiency of the specific facts found to show such dedication, in the manner indicated. This finding is based upon the other facts found. It recites in terms that, by the acts, facts, and matters above found, said premises were by said parties dedicated,' etc. It may be that if this finding had stood alone, and had not been put in this argumentative form, it might have been upheld as a sufficient finding of an ultimate fact. But this cannot be so where the facts are fully found, and the general finding of a dedication is expressly drawn as a conclusion from such facts. Counsel say it does not appear that the court found all the facts proved. But it does appear from the

finding itself that it was based entirely upon the facts found, and not, in whole or in part, on facts proved, but not found. Therefore, if the specific facts found do not support this one, which is a summing up of the others, the judgment should be reversed." The supreme court in Price v. Beaver, 73 Cal. 625, 15 Pac. Rep. 356, said: "It is claimed for the appellant that the finding that at said time she knew the land applied for, and the exterior bounds thereof, and knew of her own knowledge that there were no settlers thereon,' was not justified by the evidence; and this is the principal point made for a reversal of the judgment. We do not think the judgment should be reversed, for the reason urged. * ** It is true the Code requires any person desiring to purchase swamp and overflowed land to state in his affidavit that he knows the land applied for, and the exterior bounds thereof, and knows of his own knowledge that there are no settlers thereon.' Pol. Code, § 3443. And it is also true that in cases of this kind each party is an actor, and must allege and prove that he has strictly complied with the law. But it is not required that the purchaser of swamp land shall know of his own knowledge' the land applied for, and the exterior bounds thereof. Ordinarily he does not, and, unless he is a skilled surveyor, must gain this information from others. Having gained it. however, he can and must then state, if such be the fact, that he knows of his own knowledge that there are no settlers on the land. The defendant was shown by her brother-inlaw what he supposed to be the corners and boundary lines of the land in controversy. She relied and acted upon the information thus received, and there was no attempt to show that it was not correct. It is not pretended that she did not go upon the land which she desired to purchase, nor that she was incorrectly informed as to its bounds or limits, nor that there were any settlers on the land. The claim is only that J. W. Beaver did not at the time know the true lines and corners, and so, however correct her information may have been, her application must fail. If this be the correct view, then it must follow that if defendant had employed a surveyor to show her the land, and he had made mistakes as to the corners and lines, and had incorrectly located its bounds, her application could be successfully assailed by any subsequent applicant. We do not think that such a result was intended by the lawmakers, or should receive sanction from the courts."

In the present case the point seems to be that the defendant did not know the exterior boundaries of the land applied for, because neither his own information, nor that derived from the surveyor he had employed, was sufficient to enable him to have such knowledge in the sense intended by the statute. But the findings of special facts show that the land was covered with water, except in one corner of the section, and that on this dry

land the defendant did find and have located by his surveyor the government stake; and that he and the surveyor also found another quarter section stake on the north line of the section, and one upon the south-east corner of the section; and that from each of the stakes thus found the surveyor showed the defendant a prolongation of some one of the boundaries of the section, and the distance along them at which the other section corners were; and that they traversed at least one of the boundaries, and went to the south-east and northeast corner stakes, and to the quarter section stake on the north line; so that the defendant had pointed out and shown to him by a surveyor three of the boundary lines of the section, viz., the north, south, and east lines, and the west line could easily be determined, as it was the prolonged line between the north-west and south-west corners. Such knowledge, so obtained, under all the circumstances surrounding the matter, in the light of the construction given to the statute in the case just adverted to, and in the sense in which we believe it should be construed, must be held to satisfy the terms and spirit of the statute involved here. It must therefore be apparent that the ultimate fact in finding 5 is manifestly inconsistent with the specific facts previously set out in the same finding, and the judgment is therefore without proper support. We advise that it be reversed.

We concur: BELCHER, C. C.; HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is reversed.

(83 Cal. 56)

CULLEN et al. v. SPRIGG et al. (No.
13,131.)

(Supreme Court of California. Feb. 1, 1890.) DEEDS DESCRIPTION-CONDITIONS.

1. The city of San Diego, by its president and trustees, conveyed to defendants' grantor "that lot of land containing 60 acres, lying in block No. 1111, according to the official map of said city made by A. D. 1856." The deed referred to a resolution of the trustees, under which the lands were sold, which provided that all surveys should be made by the purchaser. At the time of the conveyance there had been no survey or subdivision of the block. Held, that the deed should be construed to convey an undivided 60 acres of the block.

2. The resolution of the trustees provided that lands should be granted only on these terms: Onehalf of the purchase money should be paid at the time of securing certificate; the lands should be occupied and improved within six months from date of certificate; and, if within a year therefrom improvements of a certain amount were not made, then the purchaser should forfeit his deposit, and the lands should revert to the city. The deed to defendants' grantor recited a sale made to him that day on the conditions of the resolution, and an agreement on his part to make the improvements, but these recitals preceded the granting clause, which, together with the habendum, in consideration of the full receipt of the purchase money by the city, purported to vest in the grantee the full title of the city in fee simple absolute, without condition. Held, that the grant was ab solute, and not on condition.