sideration (sections 1607, 1608, and 1667,) yet, when the defendant has proved, or the plaintiff has conceded, that the consideration for a promissory note, upon which the former is sued by an indorsee thereof, is illegal, crime of burglary, and to keep the crime secret, since a "want of consideration," and "invalidity" of the note, may be inferences properly or improperly drawn from other and different facts; and the finding that plaintiff had no notice of any fact "tending to ima prima facie case of notice to the indorsee peach or affect the validity of the note" may have proceeded from a mistaken view of the law as to what facts would or would not tend to impeach or affect the validity of the note. Again, the third and fourth findings expressly refer and apply only to "want of consideration" and "invalidity" of the note, although the material issue is taken upon allegations of fact constituting an illegal consideration; and the distinction between mere "want of consideration" and an illegal consideration is obvious, and, as will hereafter appear, becomes important in this case. But, as counsel on both sides tacitly assume that the third and fourth findings are equivalent to findings that plaintiff and Lord had no notice that the consideration consisted of a promise not to prosecute defendant's brother for the crime of burglary, and to keep the crime secret, the point under consideration may be disposed of on that assumption, from which it follows that a finding on the issue as to the illegality of the consideration becomes immaterial, and therefore that the defendant was not injured by the failure of the court to find upon that issue. But then the effect of this assumption, viz., that a finding as to the illegality of the note is immaterial, and therefore that its illegality may be conceded, must be allowed, for all purposes of this appeal, since it would be illogical, as well as unjust, after conceding the illegality of the note for the purpose of excusing the want of a finding as to its illegality, to deny the illegality for the purpose of exempting plaintiff and his assignor from the burden of proof which would be cast upon them by the concession of illegality for the former purpose. This will be exemplified under the next point. 2. The next point made by appellant is that the evidence does not justify the finding that plaintiff had no notice of the nature or illegality of the consideration. The only evidence applicable to this issue was that on the part of defendant, tending to prove the illegality of the consideration, as to which there was no finding, but, for the purpose of dispensing with the necessity of a finding as to the nature of the consideration, it has been necessarily conceded that the consideration was, or may have been, illegal; and, as above shown, that concession must be held good for all purposes of this appeal, and therefore must not be denied for the purpose of sustaining the finding under consideration. Section 1615 of the Civil Code provides that "the burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it." Conceding that this section applies to cases of illegal consideration, which is not quite clear, since the same Code distinguishes between a mere want of consideration and an illegal con So of the illegality of the consideration is thereby made, which discharges the burden of proof on the part of the defendant, and casts it upon the plaintiff to prove that he took the note for value, and without notice of the illegalityof the consideration. Story, Prom. Notes, § 196; 1 Pars. Notes & B. 188, 189; Fuller v. Hutchings, 10 Cal. 526; Sperry v. Spaulding, 45 Cal. 548. Mr. Parsons, on pages above cited, says: "But if the defendant can show that the note was originally obtained by fraud or duress, or has been fraudulently obtained from an intermediate holder, or has been lost or stolen, or has been in any way the subject of fraud or felony, this will throw the burden of proof upon the plaintiff. In such cases the presumption is that he who has been guilty will part with the note for the purpose of enabling some third party to recover upon it for his benefit; and such presumption operates against the holder, and it devolves upon him to show that he gave value for it. where the note was given for a distinctly illegal consideration." In Bailey v. Bid well, 13 Mees. & W. 73, Baron PARKE said: "It certainly has been, since the later cases, the universal understanding that if the note were proved to have been obtained by fraud, or affected by illegality, that afforded a presumption that the person who had been guilty of the illegality would dispose of it, and would place it in the hands of another person to sue upon it, and that such proof casts upon the plaintiff the burden of showing that he was a bona fide indorsee for value." In Fitch v. Jones, 5 El. & Bl. 245, 32 Eng. Law & Eq. 134, Lord CAMPBELL, after expressing the rule as above stated, added: "It is not properly that the burthen of proof as to there being consideration is shifted, but that the defendant, on whom the burthen of proof that there was no consideration lies, has, by proving fraud or illegality in the former holder, raised a prima facie presumption that the plaintiff is agent for that holder, and has therefore, unless that presumption be rebutted, proved that there was no consideration. But no such presumption arises where there was in the former holder a mere want of consideration, without illegality or fraud." Therefore, as it has been assumed and conceded in this case that the consideration was illegal, the effect of which was to cast the burden upon Lord and plaintiff of proving that one of them, at least, took the note without notice of the illegality of the consideration; and as there is no evidence that plaintiff so took the note, it follows that the finding by the court that the plaintiff had no such notice is not justified by the evidence. But, as the court also found that Lord had no notice, which finding is not excepted to, the finding that plaintiff bad no notice is immaterial, and the defendant is not injured thereby. If Lord took the note for value, and without notice of the illegality and want of consideration, the plaintiff, as Lord's assignee, could recover upon it even though he had notice. Story, Prom. Notes, § 178, 191; Edw. Bills, § 441; Poorman v. Mills, 39 Cal. 351. was material, and very important. Had the cross-examination been permitted, it might have disclosed that, before the assignment to him, Lord had notice of the illegality of the consideration; and this would have cast the burden upon the plaintiff of proving that he had no notice. For the error in sustaining the objection to the cross-examination of Lord, I think the judgment and order should be reversed, and a new trial granted. We concur: FOOTE, C.; GIBSON, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are reversed, and the cause remanded for a new trial. (83 Cal. 181) CLARK V. BROWN et al. (No. 13,335.) (Supreme Court of California. Feb. 24, 1890.) MINING PARTNERSHIP ACCOUNTING-LOCAL AC TIONS. Though, in the absence of an express allegation in a complaint for dissolution of a mining copartnership, and for an accounting, it be deemed to appear by implication that the firm has an interest in the mine therein described, the presumption, in the absence of evidence to the contrary, is that the interests of the partners therein are equal, and require no adjudication, within Code Civil Proc. Cal. § 392, subd. 1, which provides that an action for the recovery or determination of an interest in land, or for an injury thereto, must be tried in the county where it or some part thereof is situated, subject to the power of the court to change the place of trial under the Code. 3. Upon the trial, plaintiff placed upon the stand George Lord, who testified "that he purchased the note mentioned in the complaint from Ward for a valuable consideration, and afterwards assigned it to the plaintiff; that he paid Ward $336 for the note." On cross-examination he was asked the following question: "At the time you bought this note did you have any notice that it was executed for an illegal consideration?" Το this question plaintiff's counsel objected on the ground that it was not proper cross-examination. The court sustained this objection, and defendant's counsel excepted. Defendant's counsel next asked the witness "if, at the time of the purchase, he did not know that the defendant had warned all persons, in a newspaper notice, from purchasing it, on the ground of illegal consideration?" The plaintiff also objected to this question as not being proper cross-examination. The court sustained this objection, and defendant's counsel excepted. The appellant's counsel contends that the court erred in sustaining these objections, and I think this point should be sustained. The tendency of Lord's testimony in chief was to prove that he took the assignment of the note in good faith, by showing that he paid full value for it. Therefore, any question, the answer to which might tend to prove that he did not take the assignment in good faith, was proper crossexamination. The answers to the questions asked on cross-examination might have proved that he took the assignment with notice that there was no legal or valid consideration for the note, and that he knew "that the defendant had warned all persons, in a newspaper notice, from purchasing it on the ground of illegal consideration." The facts that Lord's testimony in chief was intended to meet and avoid the anticipated defense, and, properly, should have followed the evi-ing their motion to change the place of trial dence of that defense, make no difference as to defendant's right of cross-examination. The plaintiff chose to introduce his evidence in that order; and defendant did not object to it, but simply claimed the right to crossexamine the witness. The plaintiff had the benefit of the testimony in chief, and had no right to deprive the defendant of the privilege of proper cross-examination. Nor did the plaintiff object to the questions on any other ground than that they were not within the limits of proper cross-examination. There was no objection on the ground that plaintiff had examined the witness in chief out of the proper order. In view of the fact that appellant's second point, above considered, would have been well taken but for the finding that Lord had no notice, the matter to which his cross-examination was directed v.23p.no.5-19 Commissioners' decision. Department 2. Appeal from superior court, Stanislaus county; JOHN W. ARMSTRONG, Judge. Action by W. A. Clark against H. B. Brown and others, for the dissolution of a mining copartnership and for an accounting. Code Civil Proc. Cal. § 392, subd. 1, provides that an action "for the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property," must be tried in the county where it, or part thereof, is situated, subject to the power of the court to change the place of trial, as provided in the Code. From an order deny defendants Brown and Flaherty appeal. F. W. Street, for appellants. James H. Budd, for respondent. VANCLIEF, C. This action was commenced in the superior court of the county of Stanislaus, in which two of the defendants resided. It is alleged in the complaint, substantially, that in 1880 the plaintiff and the defendants Brown and Flaherty entered into a mining copartnership, for the purpose of working mining claims situated in Tuolumne county, called the "Green Claims," and extensions thereof. That they actually engaged in working said claims, and extracting mineral therefrom, from said date until October 25, 1887, when Flaherty sold to the defendants Clark and Crittenden "his interest in the above mine, and claim and business, since which date said * defendants Clark and Crittenden have, with defendant Brown and this plaintiff, been actually working said mine and claim, and extracting minerals therefrom. That in the working of said mine and claim, * * as above, plaintiff has advanced and used to and for the defendants, and each and all of them, large sums of money, amounting to many thousands of dollars. That between the 1st day of January, 1881, and the 25th day of October, 1887, plaintiff advanced in the working of the mine and claim aforesaid, and in extracting minerals therefrom, many thousands of dollars, and since said date has advanced for such purpose, and in working said mine, several thousands of dollars, all for the use of said copartnership. That there has never been any settlement of any of the partnership accounts of plaintiff and defendants, or any of them, nor of the accounts between plaintiff and each or all or any of the defendants herein. That the defendants Flaherty and Brown have refused, and still refuse to carry on the aforesaid business, or to settle their, or either of their, accounts with the copartnership, or with this plaintiff on account thereof, or to have or make any accounting whatever for the moneys that they, or either of them, have received on account of the said copartnership. That the copartnership aforesaid can be carried on only at a pecuniary loss. That plaintiff is desirous of dissolving the same, and having a liquidation of its affairs. That no term was ever prescribed or fixed between the parties hereto, or any of them, during which the said copartnership should continue. That defendants Clark and Crittenden are residents of Stanislaus county, state of California." The prayer is that the partnership be dissolved, and an account taken of all the partnership dealings and transactions from the commencement thereof, and of the moneys received and paid by the plaintiff and the defendants, respectively, in relation thereto; that the affairs of the firm be wound up, and the copartnership debts and liabilities be paid; and that plaintiff be paid his advances, and that the surplus, if any, be paid to the plaintiff and defendants according to their respective interests, and for such other and further relief as the nature of the case may require. To this complaint the defendants Brown and Flaherty interposed a general demurrer, on the ground that it does not state facts sufficient to constitute a cause of action; and, at the same time, regularly demanded that the place of trial be changed to the county of Tuolumne, for the reason that the real property in the complaint described appears to be situated in Tuolumne county, and that it further appears by the complaint that the "action is brought to determine the interest of the parties to said action in and to said real property." The appeal is by Brown and Flaherty, from the order denying their motion to change the place of trial; and the only question presented for decision is, does it appear from the complaint that the action is "for the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest," in the true sense of subdivision 1 of section 392 of the Code of Civil Procedure? Counsel for appellants contend that the action is for the determination of the rights and interests of the respective parties in and to the mining claims described in the complaint, and therefore that the court erred in refusing to change the place of trial to the county in which the mining claims are situated. The plainly apparent object of the action is to obtain a dissolution of a mining copartnership, and an accounting between the partners. It does not expressly appear that the copartnership concern had any estate or interest in the mine described; but conceding that this appears by implication, which is the most that can be claimed, yet, in the absence of evidence to the contrary, the legal presumption is that the interests of the partners were equal, and that there was no necessity nor occasion in this action "for the determination, in any form, of the right or interest" of any party to this action, in or to the mine. The mine alleged to have been worked by the concern is described as "the Flaherty Quartz mine, known as the Green vein or claims, and the extensions thereof;" and for aught that appears the vein or claims, and the extensions thereof, may have been owned in severalty by the individual partners, and the partnership may have been limited to the working of those claims without any interest or estate in them, and the partnership may have been so limited, even if the partners had been tenants in common of all the claims and extensions. It is enough, however, for the disposition of this appeal in favor of the respondent, that it does not appear that the action is "for the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest;" and that it does appear that all the relief prayed for may be granted without the determination, even incidentally, of any right or interest in real property. I think the order should be affirmed. (83 Cal. 167) KITTS v. AUSTIN. (No. 13,284.) (Supreme Court of California. Feb. 22, 1890.) QUIETING TITLE-CLAIM TO PUBLIC LANDS. 1. 23 U. S. St. at Large 1883-85, p. 321, provides that one taking possession of government land without connecting himself with the title is a mere trespasser. St. Cal. 1873-74, p. 544, § 2, provides that every qualified claimant under the homestead laws of the United States, residing on public land of the United States within this state, who shall have made his original homestead entry in accordance with said laws, shall, from the date of such entry, be deemed to have title to, and be in possession of, all the land described in such entry, as against trespassers, and all persons having no superior right or title to the same, as long as he shall continue to reside thereon, and to comply in good faith with said homestead laws. Held, in an action to quiet title to land, by one in no wise connected with the government title thereto, against one who had filed her homestead entry on certain land embracing the land on which she resides, and also the land in dispute, that, as against plaintiff, defendant had title to the premises. 2. Where plaintiff relies solely on naked possession for a recovery, he cannot, on rebuttal, show that a third person resides on the land under a title superior to defendant's. 3. Where defendant's answer sets up her adverse claim of title, the court having found that title superior to plaintiff's may properly include in its decree an award of the possession to defendant, under Code Civil Proc. Cal. § 380, providing that in an action by a person out of possession to determine an adverse claim of an interest therein, if the judgment be for plaintiff, he may have a writ for possession as against the defendants in the action. Commissioners' decision. Department 1. Appeal from superior court, Nevada county; J. M. WALLING, Judge. Chas. W. Kitts, for appellant. Thos. 8. Ford, for respondent. GIBSON, C. This was an action to quiet title. The defendant set up her adverse claim, and judgment passed in her favor, from which, and an order denying a new trial, plaintiff appeals. From the findings, which are fully sustained by the evidence, it appears that the land in controversy is a portion of the public domain, and is comprised of 10 acres within a larger tract, to which the defendant acquired the right of possession by a deed from Wilson and wife in 1867, who were at the time and prior thereto had been, in the exclusive possession of the whole tract. Under this deed the defendant immediately entered upon the exclusive possession of the land, built a house, and made other improve ments upon a portion not included within the 10-acre tract. The latter was used, in connection with her dwelling, as a pasture for her cattle. In 1869, one of the predecessors of plaintiff entered upon the land, and inclosed the 10-acre tract with a fence, which was sufficient to exclude stock for three years thereafter, during which time defendant was prevented from using the land; but thereafter, that is to say, from and including the year 1872 until the year 1886, the defendant used the land the same as before, except that such use was in connection with, but hostile to, that of the plaintiff and his predecessors. April 17, 1886, the defendant, who was duly qualified to do so, made and filed her original homestead entry upon certain public land, embracing the land upon which she resides, and the 10 acres in dispute, and received the certificate of entry therefor, which she owns, and the same has never been suspended, canceled, or revoked. Neither the plaintiff, nor any of his predecessors, ever connected himself with the government title to the tract in dispute; but the plaintiff, in 1886, after defendant had made her homestead entry, erected, and has since maintained, a substantial inclosure around the said tract. At the trial considerable evidence was introduced by both parties tending to prove that they and their respective predecessors had, as against each other, acquired the right to the possession of the land in dispute by adverse use. This evidence shows that neither the predecessors of plaintiff, nor himself, ever had the exclusive possession of the land against the defendant, except perhaps during three years from 1869 to 1871, both inclusive; and even during those years, it seems, a school was maintained in a schoolhouse, previously built upon the land by the permission of the defendant's husband, since deceased, who was at the time one of the trustees of the school-district that maintained the school. But the case seems to have turned in defendant's favor upon the right she acquired as a homesteader. This was right. The plaintiff, not having shown any connection with the government title to the land in controversy, was a mere naked trespasser; and his inclosure of it was made and maintained in violation of the provisions of the act of congress of February 25, 1885, (23 U. S. St. at Large, 1883-85, p. 321,) while the defendant, as a qualified homesteader, possessed of a certificate of entry which remained in full force, was deemed, as against trespassers and others not having a superior right or title to the land, to have title to, and be in possession of, all the land described in her certificate of entry, (St. Cal., 1873–74, p. 544; Whittaker v. Pendola, 78 Cal. 296, 20 Pac. Rep. 680.) That case was parallel with the one here. There the plaintiff sought to recover all but two or three acres embraced within his homestead entry, which was evidenced by a receiver's duplicate receipt. The plaintiff, on the trial, introduced this receipt in evidence, together with testimony, from which it appeared that before the com. mencement of the action, he had, in addition to making the payment mentioned in the receipt, built a house, and established his residence, upon the two or three acres within his homestead claim, that were not sued for; that for two years prior to the issuance of the receipt the defendant had maintained an inclosure around, and cultivated a large portion of, the homestead, and had a house and barn thereon. On the case thus made, defendant moved for a nonsuit on the ground that no title to the land had been shown by plaintiff. The court denied the motion; and the defendant thereupon, without offering any evidence on his part, submitted the case, and judgment was rendered for plaintiff. In passing upon the appeal, this court said: "The defendant, not having shown any capacity in himself to acquire the government title to the demanded premises, nor any ef fort or intention to do so, stands in the position of a mere naked trespasser upon the public domain, with an inclosure erected and maintained contrary to the express provis ions of the act of congress of February 25, 1885, (23 St. at Large, 1883-85, p. 321;) and the main question in the case is whether by such unauthorized inclosure he can prevent a homestead entry of the land by a citizen of the United States who goes peaceably upon a portion of the tract, and in other respects complies with the law. This is the precise question, or the converse of it, involved and decided in the case of Haven v. Haws, 63 Cal. 514; and on the authority of that case we hold that this plaintiff had the right to make his homestead entry of the whole tract, notwithstanding the possession by defendant of the greater portion of it." And, with regard to the certificate of entry as evidence of the right of the plaintiff as a homesteader, it further said: "The evidence, therefore, brought the plaintiff squarely within the provisions of the second section of the act of the legislature of this state passed March 23, 1874, (St. 1873-74, p. 544,) which reads as follows: Sec. 2. Every qualified homestead claimant under the homestead laws of the United States, residing on public land of the United States within this state, who shall have made his original homestead entry in accordance with said laws, shall, from the date of such entry, be deemed to have title to, and to be in possession of, all the land described in such entry, as against trespassers, and all persons having no superior right or title to the same, as long as he shall continue to reside thereon, and to comply in good faith with said homestead laws.' Under this law, the plaintiff must be deemed to have the title, as against the defendant, to the demanded premises." The offer of plaintiff to prove in rebuttal that one Luey, as a qualified pre-emptor, had entered the land as such, had received his certificate therefor, which bore date one month prior to that of defendant, and that he was residing upon the land, was properly rejected. It was not evidence in rebuttal. He relied solely upon naked possession, and could only recover, if at all, upon the strength of his own title, and not upon the weakness of the defendant's; and the attempt to show that the land was in the possession of a third person, to say nothing of its inconsistency with his own claim, could not aid him. It could not avail him in any way, unless he could show some connection on his part with whatever right or title Luey may have had. Niagara C. G. M. Co. v. Bunker Hill C. M. Co., 59 Cal. 612; Wilson v. Madison, 55 Cal. 5; Funk v. Sterrett, 59 Cal. 613. All of these cases were to quiet title to land. In the first, the defendant offered to prove prior possession of the mining claim in a stranger. This was rejected because the defendant disclaimed any intention of connecting itself with such prior possession. The ruling was sustained. In the next case it was held that the defendant could not rely upon an outstanding title in the United States; he not having shown any privity with it, or any title whatever. In the last case it was decided that the plaintiff, a mere possessor of a mining claim, who had not brought himself in privity with the title of the United States by a location of the claim, could not prevail over one who had. It is objected that the court, in this form of action, erred in awarding the possession to the defendant. But there is warrant for the relief granted in section 380 of the Code of Civil Procedure, which is as follows: “Sec. 380. In an action, brought by a person out of possession of real property, to determine an adverse claim of an interest or estate therein, the person making such adverse claim and persons in possession may be joined as defendants; and, if the judgment be for the plaintiff, he may have a writ for the possession of the premises as against the defendant in the action against whom the judgment has passed." See, also, Polack v. Gurnee, 66 Cal. 266, 5 Pac. Rep. 229, 610. The defendant here, in her answer, set up her adverse claim of title to the property. She thereby became an actor, with the burden of proof upon her to establish her claim. And the court, having found that her adverse claim was superior to that of the plaintiff's, from which the right of possession flowed, properly included in its decree an award of the possession. We have discovered no prejudicial error in the record, and therefore advise that the judgment be affirmed. We concur: BELCHER, C. C.; HAYNE, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are aflirmed. (83 Cal. 215) BURGESS . FAIRBANKS et al. (No. 13,262.) (Supreme Court of California. Feb. 26, 1890.) VENDOR'S LIEN-PLEADING-WAIVER OF LIEN. 1. A complaint alleging that plaintiff sold land to defendant W. for a certain sum, of which a part was paid, leaving a specified balance due and unpaid; that at the time of the sale, for reasons known to W., and at his request, a conveyance of the land was made with the name of defendant F. inserted therein, and that the latter knew all the facts of the transaction,-is sufficient to warrant the enforcement of the vendor's lien for such balance as against F. 2. It is not necessary that, in such case, the vendor, before suing in equity to enforce his lien, shall have first exhausted his remedy at law. 3. An instrument in the words, "Due G, W. B., and payable when the suit now in court, between him and C. B. R. is settled, $750, " is not a promissory note, and the vendor, by taking it as security for the balance of the purchase money for the land, does not waive his lien. Department 2. Appeal from superior court, Trinity county; T. E. JONES, Judge. Barclay Henley, for appellants. John W. Turner, for respondent. MCFARLAND, J. This is an action to enforce a vendor's lien for balance of unpaid purchase money. Judgment was for plaintiff, and defendants appeal from the judgment on the judgment roll alone. The complaint is sufficient. It avers clearly enough that plaintiff sold the land to the defendant George E. White for $4,150; that, |