Départment 2. Appeal from superior court, Contra Costa County; JOSEPH P. JONES, Judge.

Ejectment by Susan Muir against William Meredith and others. From a judgment for plaintiff, defendants appeal.

A. H. Griffith and James G. Maguire, for appellants. Chase, Chase & Miller, for respondent.

THORNTON, J. The record is free from error. The descriptions in the complaint and judgment are sufficient. The land is described in the complaint as that certain lot of land situate in the county of Contra Costa, and described as follows: "Beginning at a point in fence line at the center of section 7, T. 1 N., R. 1 E., Mount Diablo base and meridian; thence along fence line 1.20 chains to station fence post; thence N., 89% W., along fence line, 8.37 chains, to station in fence line; thence S., SS W., 6.80 chains, to station in fence; thence S., 74% W., 8.80 chains, to station on the 4 section line between the N. E. and N. W. sections of section 7, T. 1 N., R. 1 E., Mount Diablo base and meridian; thence W., along the section line, 22 links, to station; thence N., 13° W., 1.06 chains, to station in fence; thence N., 73° W., 1.00 chain, to station in fence; thence S., 83° W., 1.06 chains, to station in fence; thence S., 66° W., 3.00 chains, to station in fence on the section line between the N. E. and the N. W. % of section 7, T. 1 N., R. 1 E., Mount Diablo base and meridian; thence easterly, along said 4 section line, to the point of beginning, containing 2.49 acres of land." The same description is in the judgment. The beginning point of description is certain. It is easy enough to find that point. The description then proceeds. "Thence along fence line 1.20 chains to station fence post." The course is given by designating a fixed monument, the station fence post. The line is to be run from the beginning point to the "station fence post," in whatever direction that is. If it was said, "thence to a tree marked in a blaze with the letter'A,'" the line would run to this tree, and the location of the tree would determine the direction or course. Rarely can it be said that there is no sufficient description of a lot of land where the beginning point is, or can be, fixed. A surveyor who understands his business can, with the description before him, when the starting point can be fixed, identify and survey the tract. The course of every other call in the description is given. It cannot be presumed or assumed, as a matter of law, that the station fence post called for cannot be found. On what principle of law it can be held that the judgment is a nullity for want of description, we cannot divine. The evidence is not before us. The case comes up on the judgment roll. It nowhere appears in the transcript that the location and identity of the land sued for was not established by the evidence. The fact that the jury found a verdict for it, and the court rendered judgment on the verdict, is sufficient to show to this court that the location of the land sued for was proved by the testimony. At any rate, this court would so presume, to sustain the judgment of the trial court. Error

cannot be presumed. It must be made to appear. The transcript fails to show that any objection that the land was not identified by the evidence was made when the case was on trial. There was no demurrer to the complaint. But, waiving all this, the land was sufficiently described in the complaint and judgment.

The verdict is sufficient. It finds that the plaintiff is entitled to recover the land in controversy. The words, "in accordance with the United States survey," appended at the end of the verdict, may be rejected as surplusage. The verdict is sufficient without them. But we will say, further, that we have no doubt that this latter part of the verdict is consistent with the former part of it, and that the reference to the survey is to the survey of the land by the United States referred to in the complaint and judgment, and will aid in fixing the location and identity of the land sued for. At any rate, we cannot say as a matter of law, on construing the language of the verdict, that there is any want of consistency in the first and last clauses of the verdict. In the absence of a showing to the contrary in the verdict, we must presume it to be so. The sheriff can, no doubt, with the proper writ of execution in his hands, find the land recovered, and put the plaintiff in possession. If he cannot, we have no doubt the court below

can.

The objection to the costs in the judgment is not well taken. If the costs were not regularly taxed, the defendants should have moved to retax. On such motion the court below could have corrected any error or mistake in the judgment of the costs. The defendants might have reserved an exception to the ruling of the court below as to the costs, and could have had such ruling reviewed by this court on a bill of exceptions. By failing to do so, any such question is waived, and there is nothing before this court to be considered. The judgment and order are affirmed.

We concur: SHARPSTEIN, J.; MCFARLAND, J. (82 Cal. 68) CHEVER et al. v. CHING HONG Poy et al. (No. 12,468.) (Supreme Court of California. Dec. 14, 1889.) RIGHT OF HEIRS-DECREE OF DISTRIBUTION. Defendant conveyed his interest in his father's estate to his mother, and afterwards a decree was entered in the probate court distributing the land belonging to the estate among the heirs at law, including defendant. Held, that the decree of distribution did not invalidate defendant's deed, under Code Civil Proc. Cal. § 1666, which provides that a decree of distribution is conclusive as to the rights of the heirs, legatees, or devisees.

Department 2. Appeal from superior court, city and county of San Francisco; T. H. REARDEN, Judge.

Action by Edward E. Chever and others against Ching Hong Poy and others to recover rents for certain lands. From an order granting a new trial defendant William J. Chever appeals.

James M. Seawell, for appellant. F. W. Van Reynegom, Jarboe, Harrison & Goodfellow, H. R. Cotton, and T. D. Riordan, for respondents.

MCFARLAND, J. This action was brought against certain Chinese tenants to recover rent for certain land, and against William J. Chever, who claims a certain interest in the land and rent, and who was made a defendant because he refused to join as plaintiff. The Chinese defendants paid the rent due into court; and the only matter in controversy is the right to a certain onefifth of the rent, which is claimed by both plaintiff and defendant William J. Chever. The court first decided the issue in favor of said defendant, but afterwards granted a new trial; and from the order granting the new trial the said defendant William J. Chever appeals. The plaintiff Edward E. Chever sues in his own right, and also as administrator of his deceased mother, Lydia D. Chever; and it is in his capacity as such administrator that he claims the said one-fifth of the rent.

The facts are that James W. Chever, who was the father of plaintiff and defendant, died seised of the land in question in the year 1857. He left surviving him his widow, Lydia D. Chever, and five sons, viz., Edward E., (the plaintiff,) David A., George F., Charles G., and the defendant William J. Chever. He left a will in which he devised all his property to his widow, Lydia D., during her widowhood, with a proviso that if she should marry again it should immediately go to his said children in equal proportions. As she did not marry, the effect of the will was simply to give her a life-estate in the property, without further dispostion of it; leaving it to go after her life according to the law of descents. Afterwards, on May 10, 1860, but before the settlement of the estate of the deceased father, the defendant herein, William J. Chever, duly executed to his mother, the said Lydia D., a deed in which he did “give, grant, sell, devise, release, and forever quitclaim" to said Lydia D. all his right, title, and interest in and to all the real property which might be coming to the said William J. Chever as heir at law of said James W. Chever, deceased;" and further covenanted to warrant and defend the same to said Lydia D., her heirs and assigns, forever, etc. His interest at that time was one-fifth. Afterwards, and prior to April, 1878, the said brother, George F. Chever, died unmarried, without issue, and intestate. On April 8, 1878, on the petition of the administrator of the said father, James W. Chever, a decree was entered in the probate court distributing the land described in the complaint to the said widow, Lydia D. Chever, during her widowhood, and afterwards in equal proportions to the surviving sons, Edward E., (plaintiff herein,) David A., Charles G., and the defendant William J. Chever. Afterwards, on January 15, 1883, Lydia D. died; and plaintiff is her administrator.

*

Upon this state of facts, the contention of appellant is that, notwithstanding his said deed to his mother of May 10, 1860, by which he conveyed to her all his right and title to the property, the subsequent decree of distribution entirely destroyed the effect of that deed, and conclusively established the title in appellant as of the date of the decree. The contention of respondent is that the title vested in appellant on

the death of his father by operation of law, and passed by the deed to his mother. And we think that the view of the question taken by respondent, and adopted by the court below, is the correct one. Section 1666, Code Civil Proc., provides that a decree of distribution "is conclusive as to the rights of heirs, legatees, or devisees;" but it is conclusive against them only as heirs. legatees, or devisees,-only so far as they claim in such capacities. The probate court has jurisdiction to determine who are the legal heirs of a deceased person who died intestate, and who are the devisees or legatees of one who died testate; but its determination of such matters does not create any new title. It merely declares the title which accrued under the law of descents, or under the provisions of the will. The decree of distribution has nothing to do with contracts or conveyances which may have been made by heirs, devisees, or legatees. of or about their shares of the estate, either among themselves or with others. Such matters are not before the probate court, and over them it has no jurisdiction. An heir may contract about or convey the title which the law had cast upon him on the death of his ancestor; and the validity or force of such contract is not affected by the fact that a probate court afterwards, by its decree of distribution, declares his asserted heirship and title to be valid. Section 1678, invoked by appellant, applies particularly to cases of partition between heirs or devisees, where commissioners are appointed to make division, etc., and merely gives the right to a grantee of an heir or devisee to have the share of his grantor set off to him. Whether, even in such a case, the probate court would have jurisdiction to hear and determine a contested issue between an heir and alleged grantee, when the former denied the right of the latter, or whether it was intended to apply merely to admitted claims, is a question which need not be answered here. It is clear that on rendering ordinary decrees of distribution probate courts deal only with issues and parties legitimately before them. In opposition to these views, appellant cites Freeman v. Rahm, 58 Cal. 114. It is not very clear what principles were intended to be determined in the leading opinion in that case, or if they would be applicable to the case at bar. At all events, we cannot hold that that case rules this one differently from the conclusion herein reached. Views opposite to those claimed to be stated in Freeman v. Rahm are expressed in Theller v. Such, 57 Cal. 447; Bath y Valdez, 70 Cal. 350, 11 Pac. Rep. 724; and Barnard v. Wilson, 74 Cal. 512, 16 Pac. Rep. 307. Order appealed from affirmed.

thereof has been received in due form, the matter shall, at the written request of either party, be submitted to impartial appraisers, whose award in writing shall be binding on the parties," not providing for the number of appraisers or the mode of their selection, is too vague to give the company a right to demand arbitration, and the insured's refusal of such demand does not deprive him of the right to sue on the policy, or to prove the full amount of his loss, even though it is more than stated by him in the proofs.

2. In an action on an insurance policy, it ap peared by plaintiff's calculation that his loss amounted to more than $4,000. One of his witnesses placed the loss at $3,000. Plaintiff's clerk testified that he usually had a stock worth $5,000; and another witness testified that three weeks before the fire it was worth $5,000, but that during that time large amounts of goods had been sold, and little purchased. Witnesses for defendant put the value of the stock at much less than $1,000. Held, that a finding of $1,000 loss was supported by the evidence.

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

Action on insurance policy by George A. Case against the Manufacturers' Fire & Marine Insurance Company. From a judgment for plaintiff, defendant appeals. For former report, see 21 Pac. Rep. 843.

Wright & McCormac and T. Z. Blakeman, for appellant. Haggin, Van Ness & Dibble, for respondent.

BEATTY, C. J. The order denying defendant's motion for a new trial in this case

was reversed by a decision of department 1, (21 Pac. Rep. 843,) on the sole ground that the finding as to the amount of respondent's loss was contrary to the evidence. A rehearing having been granted we are satisfied, after reargument and reexamination of the record, that we misconstrued the testimony of the witness Pam, and were led to an erroneous conclusion as to the effect of it by failing to add to the invoice price of the goods purchased the whole amount of the freight, $893. This was necessary in order to obtain a proper basis for the computation as to the value of the goods destroyed. Making this correction, the computation shows that the goods destroyed were worth a little in excess of $4,000, and so there is evidence sufficient to support the verdict. As to other points involved in the appeal we adopt the opinion of the department. Judgment and order are affirmed.

We concur: MCFARLAND, J.; PATERSON, J.; SHARPSTEIN, J.; THORNTON, J.; WORKS, J.; Fox, J.

(3 Cal. Unrep. 208)

GREGORY V. KEATING et al. (No. 12,472.) (Supreme Court of California. Dec. 31, 1889.) MORTGAGES-FORECLOSURE-MODIFICATION OF JUDGMENT.

Where a defendant in a mortgage foreclosure claims an interest in the property adverse and superior to that of the mortgagee, and the findings by the trial court do not determine such claim, the judgment, which bars only the right, title, and equity of redemption of such defendant, will be modified so as to preserve, unaffected and unprejudiced, the adverse right so claimed.

Department 2. Appeal from superior court, city and county of San Francisco; E. B. MAHON, Judge.

Action by James B. Gregory against Denis Keating and Mary Jane Keating to foreclose three mortgages executed by said Denis Keating to plaintiff. Defendant Mary Jane Keating claimed an adverse and paramount title to the buildings on the mortgaged premises. Plaintiff obtained a judgment, and defendants appealed.

Mich. Mullany, for appellants. A. H. counsel,) for respondent. Laughborough, (Carter P. Pomeroy, of

THORNTON, J. In this case the judgment forecloses the mortgages executed to plaintiff, and subjects to sale the right, title, and interest of the mortgagor, Denis Keating, in the mortgaged premises. It forecloses and bars only the right, title, and equity of redemption of defendant Mary Keating as to such possession. It does not purport to affect in any way her prior adverse right to the buildings on the premises, if she has any. Nor do we see in the findings of facts anything determinative of the claimed adverse right of Mary Keating. The facts found as to her only bear on her right to remove the buildings from the land involved in the suit under the terms of the lease. On the return to the court below, that court is directed to modify the judgment so as to preserve the adverse right to the buildings set up by her, unaffected and unprejudiced by the judgment. On the making of such modification of the judgment, the judgment and order will

stand affirmed.

GREGORY V. KEATING et al. (No. 12.472.) (Supreme Court of California. Jan. 29, 1890.) In bank. On rehearing. For hearing in department 2, see supra.

PER CURIAM. Appellants, in their petition for rehearing, complain that the court has not noticed their contention that the findings of the superior court are unsupported by the evidence. The point was not overlooked, although not expressly adverted to. We think that the evidence was sufficient to sustain all the findings of the superior court. Rehearing denied.

(82 Cal. 529)

MCLAIN V. BAKER. (No. 13,231.) (Supreme Court of California. Jan. 11, 1890.) WEIGHT AND SUFFICIENCY OF EVIDENCE.

In an action to recover for money had and received, and for services rendered, plaintiff testified that be had deposited $220 with defendant, who had returned $165, and had rendered services to defendant reasonably worth $480; in which he was corroborated by other witnesses. Defendant controverted plaintiff's evidence by testimony that he had received but $124.50, had expended for and returned to plaintiff $355, and that plaintiff's services were agreed upon at a much less sum than plaintiff claimed; and there was only the conflicting testimony of the parties as to an alleged prior settlement between them. Held, that the evidence was sufficient to sustain a finding in favor of plaintiff for $535.

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

Paris, Goodcell & Fox, for appellant. Rowell & Rowell, for respondent.

GIBSON, C. This action was to recover of the defendant the sum of $220 received from and to the use of plaintiff, and for services rendered by plaintiff to defendant at his request from about May, 1886, to on or about September 20, 1887, for which defendant agreed to pay the reasonable worth of such services, which were alleged to be reasonably worth the sum of $30 per mouth. Defendant, by his answer, denied that he received from plaintiff any greater sum than $124.50, and that the plaintiff rendered him any services other than from April 20, 1887, to October 20, 1887, which he avers were at the agreed price of $15 per month. And as an affirmative defense, that he (defendant) expended for the use of plaintiff, at his request, from December, 1885, to October, 1887, the sum of $437; that at plaintiff's request he boarded and pastured three horses for plaintiff, for different periods, which board and pasture were reasonably worth $170; that through the negligence of plaintiff he (plaintiff) lost a horse worth $50, loaned to him by defendant, for which he agreed to pay the latter sum; that he (defendant) furnished a hayrack to plaintiff, and rendered certain services to him, at his request, reasonably worth $45. The action was tried without a jury, and the court found that defendant received $220 which belonged to plaintiff, and returned only the sum of $165 thereof; that during the years 1886 and 1887 the plaintiff, at request of defendant, performed labor for defendant, for a period of 16 months, reasonably worth $30 per month, amounting in all to the sum of $480; and that all other accounts and demands existing between the parties and set forth in defendant's answer were fully settled by them prior to the commencement of this action. Judgment was accordingly entered in favor of plaintiff for the sum of $535 and $130.10 costs. From the judgment and an order denying a new trial comes this appeal.

The only question raised by the appellant is that the findings are not sustained by the evidence; or, in other words, that they are against the weight of evidence. As was said in Spring Val. Water-Works v. San Mateo Water-Works, 64 Cal. 123, "In this court it is incumbent upon the appellant, on such a contention, to show that in the evidence upon which the findings are based there was no substantial conflict, and that the facts and the inferences deducible from them, as found by the court, were contrary to the evidence.' In the present case the appellant has not attempted to show that no substantial conflict existed in the evidence upon which the findings complained of are based, nor that the facts and inferences deducible therefrom, as found by the court, are contrary to the evidence. the record shows that such a conflict exists, and does not show that any of the facts found are contrary to the evidence. Regarding the sum of $220 claimed by the plaintiff, he testified hat in May, 1886, early one morning, while suffering from a sudden illness, which he thought might prove fatal, and when no one else but himself and defendant were present, he gave the defendant two packages of money, containing $100 each, $25 in gold, and a handful of

But

silver. He heard the defendant, in counting all but the silver, make $190 of it. And further on he said defendant counted $220 in all. Defendant testifies that he received but $124.50. Poole, who was called for defendant, testified that he did not see Baker take the money from plaintiff, and that all he knew about the amount was from what Baker showed him, viz., one package of $120, and $5 in silver. Thus it appears that upon this point there is a decided conflict in the testimony of the parties. The testimony of Poole was of little value, as he was not present when the transaction occurred, and only knew what the defendant exhibited to him afterwards; and it was for the trial court to say whether it added sufficient weight to that of defendant to overcome the testimony of plaintiff. A similar conflict of testimony exists as to the amount returned by the defendant to plaintiff. The latter said he received $50, with which to go to San Diego, and on his return he gave $10 back to defendant; that he received $50 for a pair of colts he sold, which presumably belonged to the defendant, and at another time received about $75, making $165 in all, as found by the court, while the defendant says he gave him $220 additional. So it is with regard to the services, and the value thereof. The plaintiff says he was employed by defendant, and worked for him for 16 months; that nothing was said as to the rate of compensation, but he expected $30 per month; and there is abundant testimony to show that such services as he rendered were reasonably worth $30 per month. Defendant's evidence tends to show that plaintiff worked for less than that period for the agreed price of $15 per month, and that his services were not reasonably worth more. As to the affirmative matter set up in defendant's answer, found by the court to have been settled before the commencement of the suit, there is but the conflicting testimony of the parties. The defendant denies that the items thus claimed by him were included in the settlement, while the plaintiff says: "I heard some of the testimony of defendant Baker, about a settlement we had at the time I quit work,--a portion of it; not all. Isold Baker some horses at that time,-three head of horses, a cow and a yearling, a buckboard, a wagon and a harness, that he sold before he went out there. I put the whole thing together, and told him I would take two hundred dollars for the whole thing, and call it a trade. I told him that did notinclude everything,-not my services and the two hundred and twenty dollars. I started to take my things off, and he said: 'Hold on. We will call it a trade, if you say so.' 'All right, I will give it.' The trade was for two hundred dollars for that stuff, and to pay my expenses there, and did not include my services there or the money. That don't look reasonable." It therefore clearly appears that there was evidence enough to sustain the findings, and that there was such a conflict in the evidence upon which the findings are based that, under numerous decisions of this court, among which Mallett v. Swain, 56 Cal. 171; Stockman v. Irrigating Co., 64 Cal. 57,-may be cited, they cannot be disturbed;