the day, before, nor at any time thereafter, the owner of either tract of land in controversy, or entitled to the rents, issues, and profits thereof; nor since his death have the plaintiffs, as his executors, been entitled to the possession of said land, or the rents, issues, and profits thereof.

Now, as to the title by prescription, the appellants contend that it cannot prevail, because their testator claimed both tracts in dispute by title derived from the state through the patents issued therefor, as swamp and overflowed lands; and as respondent claimed adversely to him, and his predecessors in interest, including the state, to avail himself of a plea in bar against the state and her successors in interest, he should have pleaded section 315 of the Code of Civil Procedure, or the similar provision of the statute of limitations of 1850, chapter 2, section 3, as they were and are the only laws under which the defendant could acquire a prescriptive title.

It may be conceded that if section 315, supra, is the only limitaion that applies in this case, as the defendant failed to plead it, or the facts necessary to bring himself within its terms, he cannot derive any benefit from it. We are of the opinion, however, that neither section 315 nor section 316 of the Code of Civil Procedure, also relied upon by appellant, apply in this case. Hence the case of Genesee Valley C. R. Co. v. Slaight, 49 Hun, 35, cited by appellants, in which similar provisions of the laws of New York were applied, is not in point.

It is quite clear that a state as a soverign is not precluded from exercising the prerogative of such with regard to her property, except in so far as she has expressly restricted herself in her legislative enactments. Such a restriction is found in section 315, supra, which reads as follows: "The people of this state will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless,-1. Such right or title shall have accrued with in ten years before any action or other

proceeding for the same is commenced; or 2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of ten years." (See People v. Center, 66 Cal. 551, and People v. Clark, 9 N. Y. 349, therein cited; also Weber v. Harbor Comm'rs, 18 Wall. 57, in which the same provision of the statute of limitations of 1850 of this state is commented upon.)

Section 316 of the Code of Civil Procedure, next referred to, is also the same as section 4, chapter 2, of the statute of limitation, of 1850, except the word "shall," in section 4 of the latter statute, has been changed to the word "can," in section 316.

By the terms of section 316, patentees or grantees of the state are precluded from maintaining an action respecting the real property granted, unless the saine might have been maintained by the people as specified in section 315, in case the patent had not been issued or the grant made; or in other words, if the right of the people to maintain such an action is barred at the time the patent is issued or the grant made, the right of the patentee or grantee is also barred. If, however, when the state patent is issued or its grant made, not more than five years of the ten-year limit prescribed in section 315 has run, the patentee or grantee can maintain an action. to recover the property or the mesne profits thereof at any time within the period of five years, as provided in sections 318, 319, and 321, and subdivision 2 of section 336, of the Code of Civil Procedure. All of these sections, together with sections 323, 324, and 325 of the same code, defining the different kinds of adverse possession, were set up by defendant in his answer, in bar of appellants' right to maintain this action for the recovery of the premises involved, or the mesne profits thereof.

We apprehend that the distinction between sections 315 and 316 and the other sections mentioned is, that as the state cannot be disseised of its lands by the adverse

occupancy of another (Civ. Code, sec. 1006), a mere assertion by it of ownership by legislative enactment or otherwise, as well as by a judicial proceeding, as indicated in Weber v. Harbor Commissioners, 18 Wall. 57, will prevent the time specified in section 315 from running and ripening into a presumptive title in favor of the adverse occupant; while under the other sections, between individuals, nothing short of an actual re-entry upon or the commencement of an action to recover the possession of the property of which he has been disseised under an adverse claim will avail the true owner in preventing the adverse occupant from acquiring a title by prescription, except an acknowledgment of the true title by the adverse occupant.

As the title of the United States to the swamp-lands within this state, of which the land involved here was a part, passed to this state on the passage and by virtue of the act of Congress of September 28, 1850, it follows that when the state subsequently sold the several tracts in dispute, one, the eighty-acre tract, to the predecessors of Kile, and the other, embracing the five acres, to Kile himself, upon their several applications made to purchase the same as swamp-land, under the act of April 21, 1858, and the amendments thereto of April 18, 1859, and afterward issued its patents for such tracts on the 26th of June, 1862, and the fifth day of August, 1865, respectively, the state parted with all its title to the several tracts so patented. And the statute of limitations commenced to run on those dates, respectively, in favor of the defendant, against all persons claiming title under such patents. (O'Connor v. Fogle, 63 Cal. 9; Reed v. Ybarra, 50 Cal. 465; Riverside L. & I. Co. v. Jansen, 66 Cal. 300; Henshaw v. Bissell, 18 Wall. 255.)

This action was not commenced until the fourteenth day of December, 1887, and the respondent, having maintained his adverse possession from the 26th of June, 1862, the time when the state's patent to the eighty-acre

tract was issued, until the twenty-third day of May, 1884, the date of the death of Kile, a period of nearly twentytwo years, and thence to the commencement of this action, and paid all the taxes levied or assessed thereon, had, nearly seventeen years before the last-mentioned date, acquired a prescriptive title to the tract, which extinguished the legal title Kile had acquired from the state. (Civ. Code, sec. 1007.) So, too, as to the five-acre tract. The respondent initiated his adverse possession of and claim of title to it on the 8th of May, 1873, the date of his homestead entry, and maintained the same, and paid all taxes levied or assessed upon the land, up to the commencement of this action, and thereby acquired a prescriptive title to it sufficient against Kile six years before the latter's death.

There is a finding to the effect that in a certain action, in which the appellant's testator, Kile, and one Reese B. Thompson were plaintiffs, and the respondent here was defendant, involving the title to the five-acre tract in question here, judgment was rendered in favor of the defendant on April 25, 1866, and was subsequently, on appeal therefrom to this court, affirmed, and that the same still remains in force. But the conclusion we have reached regarding the prescriptive title acquired by the respondent to the same land renders it unnecessary to consider its effect.

The record does not disclose any error, and we there for advise that the judgment be affirmed.

BELCHER, C. C., and VANCLIEF, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.

Hearing in Bank denied.

LXXXIII. CAL-19

[No. 13479. Department Two.-March 1, 1890] MARTHA WASHINGTON, RESPONDENT, v. MARY A. BLACK ET AL., APPELLANTS.

ESTATES OF DECEDENTS-RENTS AND PROFITS OF LANDS DEVISED-DevASTAVIT LIABILITY OF EXECUTRIX-SETTLEMENT OF FINAL ACCOUNT-JURISDICTION OF PROBATE COURT.-An executrix is entitled to receive the rents and profits of lands devised as a part of the assets of the estate of the deceased testator until such lands are distributed, and is not liable to a personal action for the same at the suit of the devisee after the settlement of her final account, though such rents and profits were not included therein, nor at any time administered, sold, or paid out by the executrix, or distributed to any person, and though the executrix was guilty of a devastavit in respect to such assets by neglect to account therefor. The matter of the settlement of the estate and the distribution of such assets to the person entitled thereto is under the sole jurisdiction of the probate court, and the personal obligation for the devastavit is only enforceable by resort to the court which settled the account.

ID. CONCLUSIVENESS OF FINAL ACCOUNT.-The decree of the probate court settling the accounts of an administrator or executor, and fixing the amount of his liability, is conclusive upon all persons interested in the estate who are not under disability. ID.-PRESUMPTION AS TO RECEIPT OF ASSETS BY EXECUTRIX-FINDING OF PROBATIVE FACTS.-An executrix having lawful authority to receive the rents and profits of lands devised in her official capacity, and no authority appearing to receive them in any other capacity, must be presumed to have received the same as assets of the estate, though it is not found that she received them as executrix. Findings of probative facts showing that she did not treat them as assets of the estate in the course of administration do not show that they were not received by her as executrix.

Appeal from a judgment of the Superior Court of Yolo County, and from an order denying a new trial.

The facts are stated in the opinion of the court.

E. E. Bush, and C. W. Thomas, for Appellants.

A. P. Catlin, for Respondent.

THORNTON, J.-James Moore died in 1884, leaving a will, which was afterwards duly admitted to probate in Yolo County. He died possessed of a large estate. By