Department 1. Appeal from superior the issues, and gave judgment accordingly. court, city and county of San Francisco; Motion for new trial was made on the M. A. EDMONDS, Judge. J. C. Bates, for appellants. Boche, for respondent. ground of errors of law, and also that the Van Ness & evidence was insufficient to justify the findings. The motion being denied, plaintiffs appeal, both from the judgment, and from the order denying the motion for new trial. tract, complaint filed December 10, 1873, while the Sproul estate was in course of administration, and pending in the probate court. The defendants were "Mary Ann Sproul, administratrix of the estate of John Sproul, deceased, Mary Ann Sproul, Elizabeth Sproul, Mary Sproul, and Matilda Sproul, and Mary Ann Sproul, guardian of the persons and estates of Elizabeth Sproul, Mary Sproul, and Matilda Sproul, minors." To the introduction of this judgment roll in evidence the plaintiffs objected, on 26 separately stated grounds, all of which, however, go to the question of the jurisdiction of the court to hear and determine the case, and render any judgment therein, or to the regularity and sufficiency of the proceedings had to render any judgment of partition therein valid or binding. The ob jection was overruled, and the judgment roll admitted in evidence, to which ruling plaintiffs excepted, and this is now assigned as error of law, and the evidence thus introduced is claimed to be insufficient to justify the findings based thereon. The first point made against the admission of this record is that the district court had no jurisdiction to make partition of the premises described in the complaint in the cause, because the estate of John Sproul, deceased, was then in course of administration, pending and undetermined, in the probate court, and that court alone had jurisdiction to make partition of the estate. This point is not well taken. The probate court never had jurisdiction to make partition of real Fox, J. This is an action to quiet title to the undivided one-half interest in 11 separate blocks and parts of blocks of land in the Upon the trial of the cause, the plaintiffs outside lands of San Francisco, part of that having rested their case upon proof of the portion of said “Outside Lands,” so-called, facts as herein before recited, and of conveycommonly known as the "Sharp and Sproul ance from their mother to them of her inTract." The record shows that John Sproul terest in the premises, the defendant, for the died in January, 1869, leaving a widow, purpose of making out his defense, offered Mary Ann Sproul, and three daughters, in evidence a judgment roll in the case enElizabeth, Mary, and Matilda, his heirs at titled "George F. Sharp, Plaintifi, vs. Mary law. The daughters are the plaintiffs in Ann Sproul, Administratrix, et al., Defendthis cause. At the time of his death John ants," in the district court of the late nineSproul and George F. Sharp were the own-teenth judicial district of the state of Caliers as tenants in common of the said Sharp |fornia, in and for the city and county of San and Sproul tract, each owning an undivided Francisco. This was an action brought half thereof. In due time, and under regu- for the partition of the Sharp and Sproul lar proceedings, the widow, Mary Ann Sproul, was appointed administratrix of the estate of John Sproul, deceased, and by other regular proceedings she was also appointed general guardian of the persons and estates of the said daughters, who were then minors. Prior to his death, Sproul had sold out of the said tract certain lots and blocks or parts of blocks thereof to third persons, Sharp joining in such conveyances, but Sproul receiving to his own use the entire proceeds of such sales; in consideration of which, Sharp and Sproul had entered into an agreement in writing reciting the facts, and providing that, upon final partition of the tract, said Sharp should receive, in addition to the undivided one-half of what remained unsold, an amount which should be equal and sufficient in extent, quantity, and value to the lands which had been so conveyed by Sharp for the benefit of Sproul. After the death of Sproul, Sharp, in writing, renounced all claim under this last-named agreement, except so far as related to certain lands sold and conveyed to one Sampson and one Reynolds. For these latter he was still to receive an equivalent upon final partition. In 1870, all the unsold portions of the Sharp and Sproul tract were deeded by lots and blocks by the city and county of San Francisco to said George F. Sharp, and to Mary Ann Sproul, administratrix of the estate of John Sproul, deceased, saving and excepting, of course, such lots, blocks, and other portions as were reserved for public use under the ordinances and acts authorizing such convey-estate, except in the course of the settlement ances. The plaintiffs claim title as heirs of of the estates of deceased persons, and for their father and grantees of their mother. the purpose of distribution to the heirs or The defendant denies that the plaintiffs devisees of such estates. See Code Civil have any right, title, or interest in the lots Proc. §§ 1675-1686, as the same stood prior and blocks described in the complaint, or to 1880, and sections 261-273 of the former any part thereof, and claims to be himself practice act. It is a mistake to suppose, the owner in fee of said lots and blocks so from anything found in those sections, that described, and of the whole thereof, and of all the probate court had any power or jurisinterest therein, deraigning his title under diction over the interest of any persons said Sharp; and it is conceded that defend- who might be owners as tenants in com. ant has acquired and holds whatever inter-mon with the estate or its distributees, and est Sharp bad in the property described in who did not deraign their title through the the complaint herein at the time of his death, estate. Section 1678, to which we are cited, which occurred October 17, 1882. Defendant in no manner supports the contention of also pleads, as against the claim of plain-plaintiffs in that behalf. It is expressly tiffs, that the same is barred by the provis- confined to persons who have purchased fons of section 318, Code Civil Proc. The from heirs, legatees, or devisees their intercourt found in favor of defendant upon allest in the estate, and then places them sim ply in the shoes of their grantors in the matter of such partition and distribution. On the contrary, at that time, the district court, only, had jurisdiction to make partition of real estate between tenants in common therein; and this, according to the provisions of part 2, tit. 10, c. 4, Code Civil Proc. And section 760, a part of that chapter, made express provision for exactly such cases as this, and provided that in such a case the court might "first ascertain and determine the shares or interest respectively held by the original co-tenants, and thereupon adjudge and cause partition to be made, as if such original co-tenants were the parties, and sole parties in interest, and the only parties to the action, and thereafter may proceed in like manner to adjudge and make partition separately of each share or portion so ascertained and allotted, as between those claiming under the original tenant to whom the same shall have been so set apart, or may allow them to remain | tenants in common thereof, as they may desire." The record offered shows that this was exactly what was done in that case. The court did ascertain and determine the respective interests of the original co-tenants, Sharp and Sproul, and made partition between them; then, at the request of the defendants, left them to remain tenants in common of the Sproul allotments, the same being subject to administration in the Sproul estate, and to final distribution therein, by partition or otherwise, as the probate court should determine. * It is also objected that legal service of the summons was never made, so as to give the court jurisdiction over the persons of the defendants. The objection is as to the service upon the minors, who are claimed to have been at that time under 14 years of age. The provision of the statute at that time, as to service in such case, was as follows, (section 411, subd. 3:) "If against a minor under the age of fourteen years, * to such minor personally, and also to his father, mother, or guardian; or, if there be none within this state, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed." The return of the sheriff in that case shows that he personally served the minors, naming each of them, on the 10th day of December, 1873, and on the 12th day of the same month personally served Mary Ann Sproul, administratrix of the estate of John Sproul, deceased, Mary Ann Sproul, Mary Ann Sproul, guardian of the persons of Elizabeth Sproul, Mary Sproul, and Matilda Sproul, minors, and also Mary Ann Sproul, guardian of said minor defendants, by delivering to each of said defendants personally, in the city and county of San Francisco, a copy of said summons; the summons so served upon Mary Ann Sproul being attached to a copy of the complaint in said action. We are unable to see wherein the return fails to show sufficient service upon the defendants. Besides, the appearance of the general guardian was sufficient to give the court jurisdiction of the persons of the defendants. Smith v. McDonald, 42 Cal. 484. Objection is also made to the sufficiency of the complaint, in that cause, to give the court jurisdiction to make partition; but an examination of the complaint shows it to be full, in every particular required by the chapter on partitions, setting out, not only the interests of the respective original co-tenants, but also the interests of the re-sentatives of the estate of John Sproul, despective heirs of the Sproul estate. It is also objected that the supplemental agreements hereinbefore referred to, providing that, upon final partition, Sharp was to have set apart to him an equivalent for certain lands theretofore sold for the benefit of Sproul, were not made part of the complaint, and called to the attention of the court; but this is a false call on the part of the plaintiffs in this action, for those agreements are both made a part of the complaint in the partition suit, and considered by the court, in making the partition. It is also objected that all the parties were not joined, necessary to give the court jurisdiction to make the partition, for that Sampson and Reynolds were not made parties thereto. Sampson and Reynolds were not tenants in common with the others in any part of the tract sought to be partitioned. They were purchasers from Sharp and Sproul of certain lots or blocks in the Sharp and Sproul tract, and held them in severalty, free from any claim or interest of either Sharp or Sproul. Their properties were not included in the land to be partitioned, and they were neither necessary nor proper parties to the partition suit. It is also objected that the summons was insufficient to give the court jurisdiction to make the partition, but an inspection shows it to have been full and complete. It is also claimed that the final decree is void for uncertainty on its face, because it set apart defendants' interest to the estate of John Sproul, deceased. All the defendants in that action were heirs and repreIceased, one of the two original co-tenants. As such, they asked in their answer that partition be not made between themselves, but that the interest of their ancestor be set off as an entirety, and they be left as tenants in common therein as before. The statute authorized this to be done, and it was so done. As the estate was then in course of administration, it was a very proper thing to do. There was no error in such a course, and no uncertainty as to whom, or in whose favor, the allotment was made. In view of our express statute, the long list of authorities cited by counsel on this point are not applicable, except that of Hill v. Den, 54 Cal. 6, which is directly in point in support of the course pursued by the court in the case under consideration. It is also claimed that the proceedings in partition were void because a single referee was appointed, and because he, acting in a judicial capacity, acted without notice to the parties, and they had no opportunity for a hearing before him. As to the appointment of a single referee, that is expressly provided for in the statute. By section 797 it was provided that the court might appoint a single referee, in proceedings in partition, by the consent of the parties; and the decree recites in this case that it was done by the consent of the parties. To this it is replied, however, that minors could not consent. By section 795, Code Civil Proc., it The was provided that the general guardian of | scribed therein should be then partitioned, an infant could consent to partition with- and that they should be omitted from the out action. This being so, and the general partition; also that it was inexpedient that guardian having authority to appear for partition should be made as between the the minors in an action for partition, it defendants at that time, and that partition would seem that, in the action, the guard- should only be made as between the origiian might consent to a mere course of pro-nal co-tenants; also that a single referee, cedure authorized by statute, and coming naming him, should be appointed. By some within the purview of the action itself. oversight this interlocutory decree was not As to the other point of the objection, filed until April 21st, when it was filed nunc counsel has evidently got confused between pro tunc, by order of the court, as of March the two classes of referees who might be 13th, the day it bore date. The report of appointed in cases of partition. Sections the referee was filed on the same day, April 761 and 762 provided for the appointment 21st, nunc pro tunc as of March 20th. of referees to take certain evidence, and re-final decree is dated April 20, and recorded port certain facts, affecting the question of May 5, 1874. All this, instead of proving title, for the information of the court, be- fraud, as claimed by the defendants, but fore the interlocutory decree. Such referees verifies the supposition that the parties, beacted judicially in the taking of testimony, ing properly in court, had agreed among and the investigation of the facts; and of themselves, had submitted their agreement their sittings notice had to be given, and to the court, and the court, finding it lawthe parties were entitled to an opportunity ful and proper, had carried it into effect in be heard before them. But such was not the judgment, and according to the forms this case. The only referee appointed in this of law, and that in doing it the papers had case was one appointed, under sections remained in the hands of the judge until he 763 and 797, to make partition, after inter- had reached and signed his final decree. locutory decree. His sole duty was to ap- While counsel broadly intimates that there portion and allot these lots and blocks be- was fraud in these proceedings, he nowhere tween the original co-tenants, according to intimates, and it is not claimed, that there their respective interests as found and de- was injustice in them. We see nothing in termined by the court, quantity and quality them showing evidence of fraud, to which relatively considered, and make report of the court itself must have been a party, if his proceedings, specifying the manner in there was any. The proceedings were not which he had executed his trust, and de- in conflict with the statute, and nothing scribing the property divided, and the was done which the parties had not full shares allotted to each party. All this was power to agree to, and the court had not done. The statute did not require that he full power to decree and do. The final deshould report a valuation of the whole, or cree of partition was valid and binding be of any allotment, or for any hearing of the tween the parties, and allotted to the parties before him. If any contest arose as plaintiff therein, under whom the defendant to the relative value of the several allot-in this case deraigns his title, the property ments, or as to the justice of his report in any other respect, the settlement of such dispute was to be had before the court, which had full power to confirm, change, modify, or set aside his report. See sections 764-766. described in the complaint herein. There was no error in the ruling of the court, in this cause, admitting the judgment roll in evidence. That decree operated to sever the unity of possession, (Wade v. Deray, 50 Cal. 376; Objection is also taken to the record, be- McBrown v. Dalton, 70 Cal. 94, 11 Pac. Rep. cause of the apparent haste in, and of the 583;) and each became entitled by the judg order of, procedure. The answer was filed ment to the exclusive possession of that March 13, 1874, 90 days after the service of part which was allotted to him. In the summons. It would seem, from the course subsequent distribution of the Sproul esof procedure, that in the mean time the par- tate in the probate court, the part which ties had agreed between themselves upon had been allotted to the Sproul estate was the manner of partition, as they might have distributed to the plaintiffs herein and their done if no action had been commenced, and mother, but no part of the property denow, in the action, were carrying out their scribed in the complaint in this cause was agreement with the court, as well as the distributed or mentioned in said decree of guardian, to protect the interests of the distribution. From the date of said decree minors. Be that as it may, the defendants of partition, the lands described in the comall appeared and answered, and, among plaint herein were assessed to Sharp, and other things, asked that partition be not he paid the taxes thereon until his death, made between themselves, but only be- and thereafter the taxes were paid by his tween the original co-tenants. On the same executor until the sale to this defendant, imday the court made and signed its interloc-mediately after which this suit was utory decree, determining the interests of the parties according to the allegations and All the specifications of insufficiency of eviadmissions of the pleadings, reciting all the dence, and of errors of law, herein, are adjurisdictional facts, and also showing that, dressed to the proceedings in partition alinasmuch as the general guardian of the ready considered, and there is little left now minors was herself interested personally in to be considered on this appeal, except to the subject-matter of the partition, Francis say that the court below found that all the G. Newlands, Esq., had been appointed at- plaintiffs herein were barred by the provistorney specially to protect the interest of ions of section 318, Code Civil Proc., except said minors; that it had been agreed by all the plaintiff Matilda S. Filmer. The court the parties that it was inexpedient that was right in that finding, so far as it goes; certain lots and blocks designated and de-but the said Matilda is also barred by said brought. section, so far as relates to the interest ac- with the lien. The complaint charges that quired from her mother, for the statute had the claim filed stated the name of E. B. run against the mother before she conveyed Newkirk as the owner of said house, and to her daughters. As they are all concluded, a reputed owner of a leasehold interest in however, by the decree of partition, and said realty, and stating in said lien that the fee-simple title coming down to defend- the owner of the fee of said real estate was ant under it, he is not required to rest his not known. This averment shows a comdefense as against any of them on the stat-pliance with the requirement of the statute ute of limitations alone. Judgment and above quoted. It is substantially an averorder affirmed. ment that it was stated in the claim filed that neither the name of the real owner nor of the reputed owner was known to the plaintiff when he filed his lien. The plaintiff is only required to state the names menare not known, the claim filed is sufficient if it is silent on this subject. We concur: WORKS, J.; Paterson, J. (80 Cal. 275) WEST COAST LUMBER Co. v. NEWKIRK et tioned, if known. If the names al. (No. 13,026.) (Supreme Court of California. Sept. 2, 1889.) MECHANICS' LIENS-PLEADING-HARMLESS ERROR. 1. Under Code Civil Proc. Cal. § 1187, providing that a contractor's claim of lien shall contain, inter alia, the name of the owner or reputed owner of the realty, if known, where such name is not known, the claim need aver nothing on that subject. 2. Under Code Civil Proc. Cal. § 1192, providing that certain buildings constructed on land with the knowledge of the owner thereof shall be held to have been constructed at his instance, and the land shall be subject to a lien therefor, unless the owner shall give proper notice that he will not be responsible for such construction, the giving of such notice is matter of defense, and need not be denied in the complaint, in an action to foreclose such a lien. 3. Code Civil Proc. Cal. § 1185, provides that, if the person causing the construction of a building on land does not own the fee-simple thereof, then only his interest in such land shall be subject to the contractor's lien for such building, and section 1192 provides that, when the construction of a building upon land is known to the owner of any interest therein such interest shall be subject to the contractor's lien. Held that, where the construction is at the instance of a leaseholder, with the knowledge of the owner of the fee, not only the leasehold interest, but also the fee, is subject to such lien. 4. Testimony to show the manner in which books were kept, and that they are correct, is admissible, where the books themselves are properly in evidence. 5. Improper allowance of a question, the answer given thereto having been admitted by the pleadings, is not prejudicial error. BEATTY, C. J., dissenting. In bank. Appeal from superior court, San Diego county; E. PARKER, Judge. John M. Lucas and Hunsaker, Britt & Lamme, for appellant. Oscar Trippett, for respondent. It is further urged as a reason why the Court erred in overruling the demurrer that it is not averred in the complaint that the appellant did not give notice that she would not be responsible for the materials furnished by the plaintiff. It is further said that it is not alleged that Roberts had notice of the construction of the building. We are of opinion that it is averred in the complaint that Roberts had notice of such construction. The allegation is "that such building was constructed upon the said land with the knowledge of each of said defendants." Roberts was one of the defendants referred to in this allegation. We do not think it necessary that it should be, averred that the owner of the realty did not give notice that he would not be responsible for the construction of the building. Such notice, under section 1192 of the Code of Civil Procedure, if given, is matter of defense, to be set up by defendant. The averments of the complaint above referred to are, in our judgment, sufficient. does not state a cause of action against It is further argued that the complaint appellant, for the reason that it is alleged in the complaint that she is the owner of the fee of the land upon which the building was constructed, and that defendant Newkirk, who caused the building to be constructed, is the owner of a leasehold interest therein, and it is provided in section 1185 of the Code of Civil Procedure that, if the person who caused the building to be constructed owned less than a fee-simple estate in such land, then only his interest therein is subject to such lien. The above, it is true, is the provision of section 1185 of the Code of Civil Procedure, but it is also proTHORNTON, J. Action to foreclose the vided in section 1192 of the same chapter lien of a material-man. Judgment for that every building or other improvement plaintiff. Motion for a new trial by the de- mentioned in section 1183 of this Code, confendant Roberts, which was denied. Ap-structed upon any lands with the knowlpeal by the same defendant from the judg-edge of the owner, or the person having or ment and order denying a new trial. De-claiming any interest therein, shall be held ⚫ fendant Roberts demurred to the com- to have been constructed at the instance of plaint. The demurrer was overruled. It such owner or person claiming any interest is argued that the court below erred in so therein, and the interest owned or claimed ruling. It is said on behalf of appellant shall be subject to any lien filed in accordthat there is no averment in the complaintance with the provisions of this chapter, that there was a statement in the claim unless such owner or person having or of lien filed that the reputed owner of the claiming an interest therein shall, within fee was not known, and for this reason the three days after he shall have obtained demurrer should have been sustained. It knowledge of the construction, alteration, is provided in section 1187 of the Code of or repair, or the intended construction, alCivil Procedure that the claim of lien filed teration, or repair, give notice that he will with the recorder shall contain, inter alia,not be responsible for the same by posting "the name of the owner, or reputed owner, a notice in writing to the saine effect in if known," of the property to be charged some conspicuous place upon said land, or upon the building or other improvement | mitted in evidence. Landis v. Turner, 14 situated thereon. Cal. 573. The defendant was not injured It is clear that the foregoing provisions by the allowance of the questions put to of sections 1185 and 1192 must be reconciled, the witness Baker in these words: "State if they can be consistently, with a fair con- whether or not you knew at the time this struction of the words used in each sec-lien was filed on lot 1, block 755, of New tion; and in our judgment this can be done San Diego, the property on Columbia street, within the rule just above stated. We think who was the reputed owner of the real that the provisions referred to may and estate in fee-simple?" It was averred in should be read as follows: "If the person the complaint that at the time the lien was who caused the building to be constructed filed the plaintiff did not know who was owned, when the work was commenced or the owner or reputed owner of the fee of the materials for the same were furnished, the real estate involved herein. This was less than a fee-simple estate in the land to not denied in the answer. The witness, to be charged with the lien, then only his in- the above question, answered that he did terest in the land is subject to such lien; not know. It was entirely unnecessary provided, however, that if the building was under these circumstances to put the quesconstructed with the knowledge of the tion, but, the question having been put owner of the fee of such land, or the person and answered, as admitted by the pleadhaving or claiming any interest therein, ings, we cannot see that defendant sussuch building shall be held to have been tained any injury. Conceding that the alconstructed at the instance of such owner lowance of the question was error, still, as or person having or claiming any interest defendant was not injured by it, it is no therein, and the interest owned or claimed ground of reversal. shall be subject to any lien filed in accord- The court did not err in admitting in eviance with the provisions of this chapter, dence the claim of lien, nor in admitting the unless such owner or person having or lease from Roberts to Newkirk. The obclaiming an interest shall, within three jection to the claim of lien that it did not days after he shall have obtained knowl-state that the name of the reputed owner edge of the construction, give the notice of the fee was not known has been heretoabove referred to. fore disposed of. If there is no finding that In our view, the two sections, when re- defendant did not give the notice spoken of conciled, as they may be in the mode justin section 1192 of the Code of Civil Procedure, pointed out, make the estate of the owner it must be regarded that no such notice was of the fee, (Roberts,) as well as the estate ever given. As such fact does not appear, of the owner of the leasehold interest here- it must be taken not to have existed. The in, subject to the lien sought to be enforced evidence was sufficient to justify the findin this action. Our predecessors, in Phelps ing that the materials were furnished by v. Mining Co., 49 Cal. 336, so construed like plaintiff to be used in the building menprovisions in the act of 1868. This act was tioned in the complaint. The cartage comentitled "An act for securing liens of me-plained of was a portion of the cost of the chanics and others," and was approved inaterials furnished, and, if allowed at all, March 30, 1868. The provisions of section was allowed as a part of the value of the 1185 of the Code of Civil Procedure are materials. found in section 2, and the provisions of We find no error in the record, and the 1192 of the Code of Civil Procedure in sec-judgment and order are affirmed, with dition 4, of this act of 1868. St. 1867-68, pp.rections to the court below, on the going 589, 590. In the case cited the defendant down of the remittitur, to allow plaintiff, corporation above named was the owner, under section 1195 of the Code of Civil Proand one Gilbert Douglass was in posses-cedure, a reasonable fee for the services of sion as lessee of the owner for an unexpired its attorney in this court. Ordered accordterm of the land sought to be chargedingly. with the lien. The lessee, Douglass, caused the materials to be furnished for the repairs We concur: SHARPSTEIN, J.; MCFAR I dissent: BEATTY, C. J. of the mill. The corporation knew that LAND, J.; PATERSON, J. WORKS, J., took no part in the decision of the above cause. WEST COAST LUMBER Co. v. NEWKIRK et al. (No. 13,027.) (Supreme Court of California. Sept. 2, 1889.) In bank. Appeal from superior court, San Diego county; E. PARKER, Judge. John M. Lucas and Hunsaker, Britt & Lamme, for appellant. Oscar Trippett, for respondent. There was no error in refusing defendants' PER CURIAM. The same questions arise in this motion to strike out a part of the testi- case as in the case of the same title, numbered mony of C. A. Baker. This testimony was the judgment and order herein are affirmed, with 13,026, ante, 231. On the authority of that case only introduced to show the mode in which directions to the court below, on the going down the books were kept, and that they were of the remittitur, to allow plaintiff, under section correct. These books were properly ad- | 1195 of the Code of Civil Procedure, a reasonable |