of Patterson, it does not appear what information he got from those of whom he made the inquiries; that for all the affidavit shows these persons may have informed him that Patterson was residing in Los Angeles, or somewhere in the state; that a statement of the result of his inquiries in the affidavit was essential to warrant an order of publication; that without it the court had no jurisdiction to make the order, and the order for the service of summons and the service under it and the decree were all void. It is true, as claimed by respondent, that the affidavit fails to state what information the affiant received concerning the whereabouts of Patterson from those of whom he inquired concerning him. But in the case of Ligare v. Cal. S. R. R. Co., 76 Cal. 610, 612, 18 Pac. 777, it was held that such an omission was not fatal, if from the other facts stated in the aflidavit it could be reasonably inferred that such inquiries to ascertain the whereabouts of the defendant were unavailing.

In the case at bar the affidavit, in so far as it bears upon the point involved, stated that Walter Patterson could not be found in the state of California after diligent search made therein for him by affiant; that such diligent search consisted of making inquiries of each and every person from whom he had reason to believe he would receive knowledge of the whereabouts of Patterson. Then follows a statement of the persons of whom he made inquiries, and why he expected them to know of his whereabouts. In the case cited the affidavit under consideration there contained the same statements, but, like the case at bar, failed to state what the result of the inquiries was. It was held, however. that the affidavit was sufficient; the court saying: "It is argued that the affidavit for publication was insufficient on the question of diligence. The Code provides that service may be made by publication (among other cases) where the person on whom it is to be made 'cannot, after due diligence, be found within the state.' Code Civ. Proc. § 412. The affidavit in question first states that certain defendants, among whom is the plaintiff here, have been sought for to obtain service of summons thereon, but, after diligent search and inquiry, cannot be found within the state.' It then goes on to show what kind of search and inquiry have been made, viz., that the affiant 'has made inquiry of all persons from whom he could expect to obtain information as to the residence of said defendants.' It is not expressly stated what was the result of these inquiries. But the statement must be read in connection with what preceded it, viz., that after inquiry the said defendants 'cannot be found within the state.' And, so reading it, we think it is to be inferred that the inquiries were fruitless." The court held the decree attacked in that case for insufliciency of the affidavit

of publication valid against a collateral attack such as is made here, and upon the authority of that case the affidavit here must be held sufficient and the decree quieting title to the lot in question in favor of Davis and against Patterson to be valid.

Now, as to the effect of the decree: While respondent has contended here, though ineffectually, that the decree is void, he also insists that, even if valid, the trial court properly rejected it when offered as constituting a muniment of title in behalf of plaintiff against the defendant; that the decree was only conclusive against Patterson and parties in privity with him having notice of the judgment (subdivision 2, § 1908, Code Civ. Proc.), and did not affect the rights of the defendant Moore. And it is asserted by respondent in his brief that this was the view taken by the trial court. If so, it was incorrect. While the generai rule undoubtedly is that judgments bind only parties and privies, still there is an exception to the rule universally recognized which sustains their admissibility against third parties who are not parties or privies to the judgments for certain purposes. This exception is that the judgment rendered in an action involving title to property, and in which it is determined that the title is in one of the parties to the action, is admissible in evidence in behalf of the party claiming under the judgment, and subsequently asserting a claim to the property affected by it as a link in his chain of title, although such judgment would not be conclusive on the party against whom it is offered because he was not a party or privy thereto. It is admissible in evidence, not for the purpose of defeating or affecting any claim or title of a party who was not a party or privy to such judgment, but solely as a muniment in an asserted title. In Barr v. Gratz's Executors, 4 Wheat. (U. S.) 213, 4 L. Ed. 553, the rule is stated: "It is true that in general judgments or decrees are evidence only in suits between parties and privies. But the doctrine is wholly inapplicable to a case where the decree is not introduced as per se binding upon any rights of the other party, but as an introductory fact to a link in the chain of plaintiff's title and constituting a part of the muniments of his estate. * To reject the proof

of the decree would be, in effect, to declare that no title derived under a decree in chancery was of any validity except in a suit between parties and privies, so that in a suit by or against a stranger it would be a mere nullity. It might with as much propriety be argued that the plaintiff was not at liberty to prove any other title deeds in this suit, because they were res inter alios acta." To the same effect are the cases of Kurtz v. St. Paul & D. R. Co., 5 Minn. 60, 67 N. W. 808; Gage v. Goudy, 141 Ill. 215, 30 N. E. 320; Railroad Equip. Co. v. Blair, 145 N. Y. 607, 39 N. E. 962; Bussey v. Dodge, 94 Ga. 548,

21 S. E. 151; Skelly v. Jones, 70 N. Y. Supp. 447, 61 App. Div. 173. Also 24 Am. & Eng. Ency. of Law, p. 757: Freeman on Judg ments, § 416. These authorities declare the exception to the general rule to be well established that a party claiming under a judg ment is entitled to prove it as a muniment in his chain of title, and we content ourselves simply with a reference to them as nothing to the contrary is cited by respondent.

Applying this rule, then, to the effect of this judgment considered with the other proofs of title made by appellant, and it is clear that the finding of the court complained of was not justified by the evidence. It was conceded on the trial that in 1887 the legal title to the lot in controversy was in Walter Patterson, and the presumption is that the legal title continued in him until it was shown that he had conveyed it, or that in some way it had become extinguished, or his title defeated or barred. It was defeated and barred by the judgment obtained by Davis, the predecessor of plaintiff, against Patterson in 1894. As between these two, it was there adjudged that the legal title, conceded, and theretofore presumed to continue in Patterson, was. as against him, in Davis, and such adjudication was as effective evidence of title to the property in the latter, and as conclusive of any claim of Patterson, or his privies, as if Patterson had made him a conveyance of it by deed. A deed from Patterson to Davis would have been conclusive evidence against Patterson that legal title had in fact been transferred to Davis by him, and, of course, would be admissible as a link in the asserted claim of plaintiff of title to the property. So with the judgment. As it was effective as against Patterson's claim of title as if he had made Davis a deed to the property, it was, under the rule heretofore stated, admissible for the same purpose that his deed would have been-as a muniment of title. Being so admissible, it, with the previous concession of legal title in Patterson, and the presumption arising therefrom, together with the conveyance from Davis to plaintiff. established in him prima facie title to the property, which in the absence of any evidence of title in the defendant would have warranted a judgment in his favor against the defendant Moore, and the finding of the court in the face of this prima facie showing, that plaintiff was not the owner, was not justified by the evidence.

These are the only points made in the case, and for the reasons given the judgment and order denying the motion of appellant for a new trial are reversed with costs on appeal to appellant. and affirmed as to the Strohms, with costs in their favor.

(151 Cal. 520)

HIMMELS v. SENTOUS et al. (L. A. 2,019.) (Supreme Court of California. July 20, 1907. Rehearing Denied Aug. 20, 1907.)

1. CHATTEL MORTGAGES MORTGAGED PROP

ERTY-REMOVAL-EFFECT.

Civ. Code, § 2965, provides that, where mortgaged chattels are removed to another county, they are relieved from the operation of the mortgage, except as between the parties, unless the mortgagee within 30 days after such removal causes the mortgage to be recorded in the county to which the property is removed or takes possession. Held that, where mortgaged property is removed to another county by the mortgagor, the mortgage remains a subsisting lien, of which the original record is constructive notice to all the world during the 30 days after such removal within which the mortgagee is authorized to continue the lien by re-recording the mortgage or taking possession.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, §§ 166, 167.] 2. SAME-FAILURE TO RECORD.

Where, after the removal of mortgaged hogs to another county, the mortgagor sold them to defendants, who slaughtered them and sold the meat within 30 days after such removal, the mortgagee's failure to re-record the mortgage in the county to which the hogs were removed after they had been killed did not impair his lien nor his right to recover against defendants for the conversion of the hogs.

[Ed. Note. For cases in point, see C'ent. Dig. vol. 9. Chattel Mortgages, §§ 167, 269.] 3. SAME.

In the absence of specific statutory provi sions regarding the removal of mortgaged chattels, the regular original record of a chattel mortgage is constructive notice to all the world, and the mortgage continues a valid lien, notwithstanding the removal of the property to another town, county, or state.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 166.]

In Bank. Appeal from Superior Court, Los Angeles County; Waldo M. York, Judge.

Action by James G. Himmels against Louis Sentous and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Hutton & Williams, Henry T. Gage, and W. I. Foley, for appellants. Powers & Holland, for respondent.

SLOSS, J. This is an action to recover damages for the conversion of personal property. Plaintiff had judgment for $660, and the defendants appeal.

On November 22, 1904, one E. M. Coe made and delivered to plaintiff, in the county of San Diego, his promissory note for $1,750, and, as security therefor, executed and delivered to plaintiff a chattel mortgage upon 41 head of dairy heifers and 169 head of hogs, then situated in said San Diego county. The mortgage was duly acknowledged and was accompanied by the affidavit of the parties, as required by Civ. Code. § 2957. On december 2, 1904, it was recorded in the office of the recorder of San Diego county. At all the times named the mortgagor, E. M. Coe, resided in San Diego county, and the mortgaged property was in said county. On January

chattel mortgage in the town or county where it is required to be originally filed for record is held to be constructive notice to all the world, and the mortgage is valid, even though the property may be removed to another town or county, or even to another state. Pease v. Odenkirchen, 42 Conn. 415; Barrows v. Turner, 50 Me. 127; Brigham v. Weaver, 6 Cush. (Mass.) 398; Whitney v. Heywood, 6 Cush. (Mass.) 82; Hoit v. Remick, 11 N. H. 285; Hicks v. Williams, 17 Barb. (N. Y.) 523; Kanaga v. Taylor, 7 Ohio St. 134; Greenville Nat. Bank v. Evans, 60 Pac. 249, 9 Okl. 353; Hornthal v. Burwell, 13 S. E. 721, 109 N. C. 10, 13 L. R. A. 740, 26 Am. St. Rep. 556; Shapard v. Hynes, 104 Fed. 449, 45 C. C. A. 271, 52 L. R. A. 675.

It is said in Hoit v. Remick, supra: "The object of the statute was to give publicity to such conveyances, and to provide sources of information common to all persons, in order to enable purchasers and creditors and all others to determine with some degree of facility, convenience and certainty the question of title to property, which they may be interested to know, while, at the same time, it was not among the purposes of the act to subject the bona fide mortgagee, who is, of course, a creditor, to the inconvenience, if not impracticability, of the constant vigilance and ceaseless watching which would be requisite to guard and secure his interests, if he were obliged to record his mortgage in every town into which the mortgagor might see fit to remove with the property to reside." Our statute, it is true, goes further than those considered in the foregoing cases. It does require the mortgagee to exercise some degree of vigilance in order to protect his right in case of removal of the property; but it allows him 30 days after such removal in which to perform the acts essential to the continuance of the mortgage lien. During those 30 days he cannot be said to have fallen short of full compliance with every duty imposed upon him by the law, and should not therefore be held to have lost any of the rights vested in him by the due execution and registration of his mortgage.

The appellants urge that the rule invoked by respondent would work a hardship upon innocent purchasers of mortgaged property in a county in which no record of the mortgage exists. Such hardship may result, but it is no more burdensome than the injury which would be sustained by a bona fide mortgagee who, on the contrary construction, would be held to have lost his lien by a surreptitious removal and sale of the property before he could know of the removal, and before the lapse of the time allowed him by the statute within which to protect his right in the county to which the property had been removed. The question is purely one of legislative policy, and we think the policy intended to be declared in section 2965 is the same as that adopted in other states which require a mortgage to be re-recorded after

removal of the property. While the language of the statutes in those states is somewhat different from that of the section in question, it is instructive to note that such statutes are held to declare an intention that the mortgage shall remain in force after removal of the property and until the expiration of the time allowed for re-registration. Wilkinson v. King, 8 South. 189, 81 Ala. 156; Malone v. Bedsole (Ala.) 9 South. 520, 93 Ala. 41; Ames Iron Works v. Chinn, 38 S. W. 247, 15 Tex. Civ. App. 88. The cases cited by appellants do not conflict with these views. In Fassett v. Wise, 115 Cal. 316, 47 Pac. 47, 1095, 36 L. R. A. 505, the mortgage had not been recorded, before removal of the property, so as to make it valid as against creditors or subsequent purchasers. The prevailing opinion of Temple, J., expressly points out that section 2965 is not applicable to such a case as the one there presented. So far as there is any discussion of section 2965 in Fassett v. Wise, both the majority and the dissenting opinions tend to sustain the views here expressed. Ruggles v. Cannedy, 127 Cal. 290, 53 Pac. 911, 59 Pac. 827, 46 L. R. A. 371, merely declares that a chattel mortgage must be recorded promptly in order to make it valid as against certain creditors of the mortgagor. The case throws no light on the question here presented.

We are satisfied that the court below properly entered judgment for the plaintiff upon the facts found.

The judgment is affirmed.

We concur: BEATTY, C. J.; ANGELLOTTI, J.; SHAW, J.; MCFARLAND, J.; HENSHAW, J.; LORIGAN, J.

(151 Cal. 550) (Sac. 1,555.)

In re CORNELIUS' ESTATE. (Supreme Court of California. July 24, 1907.) 1. ESCROWS-DELIVERY-INTENT.

A finding of intent to make an absolute delivery is authorized, where one, being ill and expecting to die, presently signed and acknowledged a deed to her stepsons of her interest in her deceased husband's estate, and delivered it to a third person, telling him to keep it till after her death, and then to give it to said sons. 2. SAME RETURN OF DEED.

Where one being ill and expecting to die presently signed and acknowledged a deed to her stepsons, and delivered to B., a third person, telling him to keep it till after her death, and then to give it to said sons, her intent being to make an absolute delivery to B., the deed became an executed conveyance on the delivery to B., so that the subsequent return thereof to the grantor by B., without the consent or knowledge of the grantees, and its destruction by the grantor, did not destroy its effect as a conveyance.

[Ed. Note.-For cases in point, see Cent. Dig., vol. 19, Escrows, § 10.]

Department 1. Appeal from Superior Court, Sacramento County; Peter J. Shields, Judge.

In the matter of the estate of H. P. Cor. nelius, deceased. From an order of distribu

tion, S. B. Smith, administrator of Margaret Cornelius, deceased, appeals. Affirmed.

S. Solomon Hall, for appellant. Hopkins & Hinsdale, for respondent.

SHAW, J. Appeal from an order distributing the estate of II. P. Cornelius, deceased. The question presented concerns only the distribution of the interest in the estate which, upon the death of the deceased, descended to his widow, Margaret Cornelius.

After the death of her husband she signed and acknowledged a deed purporting to convey to her two stepsons, Robert P. Cornelius and John B. Cornelius, her interest in said estate, and delivered it to Charles V. Bartholomew, telling him at the time to keep it until after her death and then to give it to the grantees. She was at that time very ill and expecting to die presently. She recovered from that illness and lived more than three years thereafter. Two years and six months thereafter, Bartholomew, of his own volition and without any request from her, and without the knowledge or consent of the grantees, delivered the deed to her, and some four months thereafter she destroyed it. The court finds from the evidence that at the time of the delivery to Bartholomew Margaret Cornelius parted with all dominion and control over the deed and reserved no right to recall or alter it. The intent of the grantor to make an absolute delivery of the deed to Bartholomew is a question of fact, to be decided largely by inference from the circumstances proved to have occurred at the time. The decision of the court below in regard to this fact is, under the evidence in the case, conclusive.

Upon the facts stated the deed became an executed conveyance upon the delivery to Bartholomew for the grantees. He was thereafter holding for them as their trustee, and for the grantor as her trustee. His duty to her was to withhold it from the grantees during her lifetime, and thus preserve to her, in effect, a life estate in the property. His duty to the grantees was to hold the deed in his possession until her death, and then deliver it to them. His delivery of the deed to the grantor without their consent did not affect the validity of the deed, nor deprive them of their prospective estate in the property. Civ. Code, §§ 1057, 1058. The principles governing this case are fully discussed and decided in Bury v. Young, 98 Cal. 446, 33 Pac. 338, 35 Am. St. Rep. 186. The grantor in that case endeavored to defeat the grant by an unsuccessful attempt to regain possession of the deed by devising the property to another. This difference in the facts does not distinguish that case from the present one. If. after such a conveyance is so delivered that the grantor has no dominion or control over it or right to recall it, he gains possession of it and wrongfully destroys it, there can be no doubt that he cannot profit by his wrongful act, nor deprive the grantees of

their interest thereby, without their consent. The doctrine applicable to the case is further illustrated by the decisions in Ruiz v. Dow, 113 Cal. 490, 45 Pac. 867: Wittenbrock v. Cass, 110 Cal. 1, 42 Pac. 300; Keyes v. Meyers, 147 Cal. 702, 82 Pac. 304. The cases of Standiford v. Standiford, 97 Mo. 231, 10 S. W. 836, 3 L. R. A. 299, and Williams v. Latham, 113 Mo. 165, 20 S. W. 99, are to the same effect as Bury v. Young. There are inconsistent cases in other states, but the rule in this state is settled by the decisions above cited.

The part of the decree of distribution appealed from is affirmed.

We concur: SLOSS, J.; ANGELLOTTI, J.

(151 Cal. 488) DOEIILA v. PHILLIPS. (L. A. 1,893.) (Supreme Court of California. July 8, 1907.) 1. JUDGMENTS-DORMANT JUDGMENTS-REVIVAL.

Code Civ. Proc. § 685, as amended by St. 1895, p. 38, c. 33, providing that judgments may be enforced after the lapse of five years from entry by leave of court, on motion, or by judgment for that purpose, founded on supplementary pleadings, but that nothing in the section should be construed to revive a judgment for the recovery of money which was barred by limitations prior to the passage of the act, whether technically retroactive or not, was applicable to all judgments existing at the time the amendment was passed, which were not then barred by limitation.

2. EXECUTION-LEAVE TO ISSUE-NOTICE.

Notice of the time and place of the hearing of an application for leave to have an execution issued on a judgment more than five years after the entry thereof, as authorized by Code Civ. Proc. § 685, as amended by St. 1895, p. 38, c. 33. is not required to be given to the judgment debtor.

3. SAME LIMITATIONS.

An application for leave to have an execution issued on a judgment more than five years after the entry thereof, as authorized by Code Civ. Proc. § 685, as amended by St. 1895, p. 38, c. 33. is not an action or special proceeding of a civil nature, but a motion in the original action to which the general statutes of limitations do not apply.

[Ed. Note. For cases in point, see Cent. Dig. vol. 21, Execution, § 161.] 4. CONSTITUTIONAL LAW CONTRACT-LIMITATIONS.

OBLIGATION OF

A judgment debtor having no vested right period fixed has completely run and barred the to a particular statute of limitation until the action, Code Civ. Proc. $ 685, as amended by St. 1895, p. 38, c. 33, authorizing the enforcement of judgments after the expiration of five years from the entry thereof, was not invalid as impairing the obligation of contracts.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Constitutional Law, §§ 506, 507.1 5. EXECUTION-LEAVE TO ISSUE-APPLICATION -LACHES-DISCRETION.

Where a judgment recovered for money loaned the defendant had never been satisfied, and no reason was shown why in equity and good conscience defendant should not be compelled to pay, it was not an abuse of the trial court's discretion to authorize the issuance of an execution thereon. under Code Civ. Proc. § 685, as amended by St. 1895, p. 38, c. 33, authorizing the enforcement of judgments after 5