known as the "Edgehill Ranch," located near Escondido, in San Diego county. The court below found that the false and fraudulent statements were made by the defendant as alleged in the plaintiffs' complaint, and that none of the representations and statements so made, either in writing, or by his agent in that behalf, were true; that said statements and representations were made for the purpose of inducing the plaintiffs to make the exchange of the properties upon the terms and conditions set forth and admitted in the pleadings, without personally examining said property of defendant, and were not given as opinions, or expressions of opinion, but, on the contrary, were made and given as existing facts, and that plaintiffs, without having an opportunity to examine said defendant's property, accepted them as such, and believed them to be true, and thereupon made the exchange of the properties, and executed and delivered their deed to the Chicago property, and their note and mortgage on such Edgehill ranch, as set forth and admitted in the pleadings; that the net market value of plaintiffs' said Chicago property (that is, its value over and above all incumbrances) at the time the said exchange of properties was consummated was the sum of $15,000; that the defendant took said property subject to all the liens thereon, aggregating between $39,000 and $40,000, and did not loan to the plaintiffs, or either of them, the sum of $4,000, or any sum or amount whatever, as a part of the transaction of exchanging said properties, and did not give to plaintiffs any consideration whatever for their said Chicago property, save and except said Edgehill ranch and the | personal property thereon situated at the time of said trade, described in the pleadings; that the only consideration for the $13,000 note and mortgage executed by the plaintiffs to the defendant at the time of said trade was the supposed difference in value between plaintiffs' said Chicago property, incumbered as above stated, and the defendant's said Edgehill ranch and the personal property thereon situated; that the defendant's said Edgehill ranch and said personal property thereon situated were at the time of the exchange of said properties of the market value of $15,000, but that, if defendant's said ranch had actually been as represented by defendant to plaintiffs, the market value at the time of said exchange of properties would have been $30.000. And as a conclusion of law the court finds that the plaintiffs are entitled to recover from the defendant the difference between the actual value of said Edgehill ranch and said personal property thereon at the time of said exchange of properties, and the value thereof if the same had been in all respects as was stated and represented to them by the defendant, but plaintiffs are entitled, as part of their recovery and remedy in this action, to have their note and mortgage to the defendant for $13,000 canceled and delivered up to the clerk to be filed as part of

the record of the cause, and to have judg ment against the defendant for the sum of $2,000 and their costs. The defendant moved for a new trial, which was denied, and thereupon appeals from the judgment entered upon the findings, and also from the order denying a new trial; and the plaintiffs appeal from that part of the judgment which gave them a money judgment for $2,000 and costs only.

1. The ground of plaintiffs' appeal is that the superior court has found that the value of the Edgehill ranch and personal property would have been only $30,000 if the representations of defendant had been true, contrary to the admissions of the answer that, if such representations had been true, their value would have been $48,000. They contend that this finding must be disregarded, and the admission of the answer taken as the true value if the representations had been true. The answer to this position is that the defendant denied having made the representations charged, and upon this issue the finding of the court is partially in his favor. One allegation of the complaint is that the defendant represented the Edgehill property to be of the market value of $48,000. And it was the statement of a mere truism in the complaint to say that, if this representation had been true, the property would have been worth $48,000. The defendant denies that he made this representation, and the court does not find that he personally did make it. It seems to be found that Ensign expressed an opinion to that effect at Chicago, but the court evidently did not treat this as a representation of a fact, for otherwise it could not possibly have made its finding that, if the facts had been as represented, the property would have been worth only $30,000. Indeed, such a statement cannot be regarded as giving any ground for an action for deceit. It is obviously and necessarily a mere expression of opinion, upon which the vendee has no right to rely, and so the superior court must have regarded it. This view of the matter disposes of the contention of plaintiffs in support of their appeal. If the representations alleged by plaintiffs had all been matters of fact, and had all been found to have been made, then the failure of the answer to deny that the property would have been worth $48,000, if such representations had been true, would have been conclusive. But since one of said representations, to wit, that the market value was $48,000, was not found to have been made, or, if made, was not a representation of fact, the finding that the property would have been worth only $30,000 if the representations had been true is not inconsistent with the admission of the answer. The trial court, and the parties themselves, treated the value of the Edgehill ranch as being in issue. The plaintiffs themselves put in a large amount of evidence as to the value of the Edgehill ranch, and the defendant in consequence introduced an equally large

amount of evidence bearing upon the same subject; and the court from this conflicting testimony makes a finding as already shown. The plaintiffs, having gone to trial and tried the cause on the theory that there was an issue raised in reference to the value of the Edgehill ranch, cannot in this court, for the first time, raise the question that there was no such issue to be tried. Ortega v. Cordero, 88 Cal. 221, 26 Pac. 80; Murdock v. Clarke, 90 Cal. 427, 27 Pac. 275; Klopper v. Levy, 98 Cal. 525, 33 Pac. 444; Water Co. v. Gage, 108 Cal. 240, 41 Pac. 299; Rudel v. Los Angeles Co., 118 Cal. 281, 50 Pac. 400. The defendant in this case seeks to recoup by showing that the Chicago property was worth less than represented by the plaintiffs, and the finding of the court is accordingly, and awards to the plaintiffs the difference between the market value of the San Diego property and the net market value of the Chicago property; that is, the value over the liens and incumbrances. This rule is sustained by authority. Grinnell, Deceit, p. 143, § 193; Carey v. Guillow, 105 Mass. 18.

2. On the appeal by the defendant it is claimed, as one of his grounds, that the Chicago property having stood in the name of the plaintiff Georgia Barbour, and the title to the Edgehill property having also been taken in her name, it could not be shown by parol that the wife held the titles for the joint use and benefit of herself and husband, or that they were in fact joint owners. It is admitted that the husband was a proper party to the action, but it is claimed that "it does not necessarily follow that the judgment for damages should have been rendered in their favor." The evidence, however, shows that the defendant dealt with Barbour as the owner or part owner of the Chicago property. Besides, it is competent to show by parol that the wife held the legal title to the properties in question for the joint use of herself and husband, and that her husband was in fact an equal owner with herself. It is always competent to prove such a trust in land by parol testimony (Smith v. Moynigan, 44 Cal. 54-64; Sherman v. Sandell, 106 Cal. 374, 39 Pac. 797); but, if it were otherwise, it does not appear how the defendant could be injured, whether the husband were or were not, as a fact, jointly interested with the wife in the properties in question.

The defendant devotes a considerable portion of his brief to a consideration of the proposition that one cannot rescind in part, and contends that the action by the plaintiffs is an attempt to rescind in part; but this is a mistake. The plaintiffs merely ask that the note and mortgage be canceled, as a part of their recovery of damages against the defendant. If an action had been brought by the defendant to foreclose the mortgage, the plaintiffs would have been entitled to a cancellation of the mortgage and note upon the same showing, as a defense, as appears in their favor in the present action. There is in this state but one form of civil actions for the enforcement or

protection of private rights and the redress or prevention of private wrongs. Code Civ. Proc. § 307. And the facts constituting the cause of action are required to be stated in ordinary and concise language. Code Civ. Proc. § 426. It was said by Lord Redesdale: "The distinction between strict law and equity is never in any country a permanent distinction. Law and equity are in continual progression, and the former is constantly gaining ground upon the latter. A great part of what is now strict law was formerly considered as equity, and the equitable decisions of this age will unavoidably be ranked under the strict law of the next. Pom. Code Rem. §§ 76, 81; Spect v. Spect, 88 Cal. 442, 26 Pac. 203, 13 L. R. A. 137; Hurlbutt v. Saw Co., 93 Cal. 57, 28 Pac. 795; Johnson v. Polhemus, 99 Cal. 241, 33 Pac. 908; Watson v. Sutro, 86 Cal. 528, 24 Pac. 172, and 25 Pac. 64. The court finds that plaintiff's did not misrepresent the Chicago property, in size of lot or otherwise, and further finds that defendant, "before closing said trade, caused said property and every part thereof to be carefully examined." This furnishes a complete answer to the contention of defendant in this particular.

Exceptions of the defendant to the rulings of the trial court are very numerous, and his counsel occupy considerable space in their brief to a consideration of the same. Without noticing them separately and in detail, it is sufficient to say that, from a careful examination of the record, we find no error committed by the court in such rulings which would justify a reversal. The most that can be said in favor of the contention of the defendant that the findings are not supported by the evidence in the particulars noted is that such evidence is conflicting; but there is sufficient evidence, if believed by the trial court to be true, to support such finding, and the trial court, having the witnesses before it, and noting their demeanor, is in a much better position to give proper weight to such evidence than this court. Hence the well-established rule in such cases that the findings must be allowed to stand.

The contention of defendant that interest should have been computed on the note and mortgage from date, making $14,600, instead of $13,000, the sum to be deducted from the amount of damages found by the trial court, cannot be sustained. According to the findings, the note and mortgage were obtained by defendant through his fraud and deceit, and without consideration, and should be treated as never having been given, and consequently not entitled to draw interest.

Pending the appeals the plaintiffs and defendant, respectively, moved to dismiss the appeal taken by the adverse party. Having, however, disposed of said appeals on their merits, it is unnecessary to consider either of said motions. The judgment and order deny. ing a new trial are affirmed.

(126 Cal. 607)

(S. F. 1,928.)1

PECK v. AGNEW et al. (Supreme Court of California. Nov. 9, 1899.) DISMISSAL ABATEMENT-NOTICE OF APPEAL. 1. Where, in an action, no summons is served, and part of the defendants appear by demurrer, the court has no jurisdiction, under section 581, Code Civ. Proc., providing that, if appearance has been made by defendants within three years, such action may be prosecuted as if summons had been issued and served, to dismiss such action, on motion of defendants, as to those defendants who demurred.

2. While the issue whether certain lands belonged to the estate of plaintiff's intestate is pending and undetermined, the action does not abate by reason of the revocation of the special letters of administration granted to the plaintiff.

3. Where plaintiff, as special administratrix, was served with a motion to dismiss the action, she has the right to appeal from the judgment against her on such motion, although her special letters had been revoked prior to taking the appeal.

4. Service of a copy of the notice of appeal, instead of the original notice, is sufficient.

5. It is not necessary to serve a notice of appeal upon defendants, who were not served with summons and who did not appear.

Department 1. Appeal from superior court, Santa Cruz county.

Action by M. Elizabeth Peck, as special administratrix, against H. Agnew and others. From an order allowing defendants' motion to dismiss the action, plaintiff appeals. Motion to dismiss appeal denied. Modified.

J. F. Utter, J. J. Scrivner, and A. H. Cohen, for appellant. Jeter & McKinney and Chas. B. Younger, for respondents.

HARRISON, J. This action was commenced in the superior court, December 12, 1895, against a number of defendants, by the plaintiff, as special administratrix of the estate of Martina Castro Depeaux, deceased, for the purpose of having it declared that they have no interest in or title to the land described in the complaint, and that it belonged to the estate of her intestate, and that she recover possession thereof. It does not appear from the record, except inferentially, whether a summons was ever issued upon the complaint, or that it was ever served upon either of the defendants, but within 10 days after the commencement of the action a demurrer was filed on behalf of several of the defendants. does not appear that any action has been taken by the court upon this demurrer. December 19, 1898, a motion was made on behalf of seven of the defendants named in the complaint who had not demurred thereto to set aside the summons and the service thereof, and to dismiss the action, upon the ground, among others, that the summons had not been returned within three years from the commencement of the action. At the hearing the court granted their motion and dismissed the action, and the plaintiff has appealed therefrom.

It

The appellant does not controvert the right of the persons who made the motion to have the action dismissed as to them, nor does she

1 Rebearing denied December 8, 1899.

object to the action of the court, so far as it may be limited to them. At the time the motion was granted she excepted thereto "upon the ground that said court had no jurisdiction to dismiss said action, except as to the defendants who had not or who did not appear in said action by the demurrers," and she now contends that to the extent that the dismissal purports to embrace those who had appeared in the action it was erroneous, and that in this respect the judgment should be modified.

With this contention of the appellant we agree. The failure of the plaintiff to return the summons did not affect her right to continue the action against those defendants who had demurred to the complaint. It is declared in the concluding sentence of section 581, Code Civ. Proc., that "all such actions may be prosecuted if appearance has been made by the defendant or defendants within said three years, in the same manner as if summons had been issued and served." This provision does not prevent a dismissal, when some of the defendants have appeared, as to those who have not appeared, nor does it require an appearance by all of the defendants in order to deprive the court of all power of dismissal, but it is to be construed as authorizing a dismissal as to those defendants who have not appeared, and a prosecution of the action against those who have made such appearance whenever the court would be authorized to render a judgment against them in the absence of the other defendants. The defendants who demurred were entitled to have the issue presented by their demurrer passed upon by the court, and had chosen attorneys for that purpose, as well as to represent them in all proceedings that might be had in the action. It was not competent for the court to dismiss them out of the action upon the motion of other defendants, with whom they were in no wise connected. Nor did the fact that the motion was made by the same attorneys that represented them in the demurrer affect their rights. The motion was made on behalf only of defendants who had not demurred,-seven in number,-and without any notice to the demurrants.

Whether the property described in the complaint belonged to the estate of the decedent was an issue to be tried in the case, and could not be determined upon a motion to dismiss the action. While this issue was pending and undetermined, the action did not abate by reason of the revocation of the special letters that had been granted to the appellant.

A motion to dismiss the appeal was made herein upon the ground that at the time of taking the appeal the appellant had ceased to be the special administratrix of the estate, and her powers as such had been revoked, and she was therefore not authorized to take an appeal. It is a sufficient answer to this motion to say that the respondents recognized her right to represent the estate by serving their motion for a dismissal of the action up

on her. The orders which they now invoke as a reason why she had no right of appeal were made long prior to such service, and no change has taken place in her relation to the estate since the action of the court upon their motion. If the superior court was authorized to entertain their motion and render judgment against her, she is authorized to seek a reversal of that judgment in this court.

of the judge thereof, and such judge "shall have the same power as a judge thereof."

3. Code Civ. Proc. § 71, providing that a judge of a superior court holding the superior court in any county at the request of the judge thereof "shall have the same power as the judge there of," does not enlarge the powers given by, and therefore does not contravene, Const. art. 6. § 8, providing that "a judge of any superior court may hold a superior court in any county."

Commissioners' decision. Department 2. Application by A. M. Gardner, medical superintendent of the Napa state hospital, for writ of prohibition to Joseph P. Jones, judge of the superior court of Contra Costa county. Denied.

It was not necessary to serve the notice of appeal upon the defendants who had not appeared. They were not parties to the proceedings in the superior court, and their interest in the action will not be injuriously affected by a modification of the judgment as asked by the appellant. Clarke v. Mohr (Cal.) 58 Pac. 176. The motion to dismiss the appeal is denied. The superior court is directed to modify its judgment in accordance with the views herein.

We concur: GAROUTTE, J.; VAN DYKE, J.

(126 Cal. 614)

GARDNER v. JONES, Judge. (S. F. 1,764.) (Supreme Court of California. Nov. 9, 1899.)

INSANE PERSONS-DISCHARGE FROM CUSTODY -HABEAS CORPUS-POWERS OF JUDGE.

1. Under Act March 31, 1897 (St. 1897, p. 311) art. 3, § 13, declaring that "any one in custody as an insane person" is entitled to a writ of habeas corpus on application to "the superior judge of the county in which the hospital is located," and that on return of the writ the fact of his insanity shall be inquired into; and section 14, providing that a patient committed to a hospital, under Pen. Code, pt. 2, tit. 10, c. 6, "shall, on the certificate of the superintendent that such person, has recovered, approved by the superior judge of the county from which the patient was committed," be redelivered to the sheriff of such county, and dealt with as provided for by said chapter 6,-where one, pending trial for a crime, is committed to an insane asylum, under the Revised Code, and the medical superintendent refuses to act under said section 14, there can be hearing on habeas corpus, under section 13, and the judge not only can adjudge that the person has recovered his sanity, but can order his return to the sheriff.

2. Under Act March 31, 1897, art. 3, § 13, declaring that any one in custody as an insane person is entitled to a writ of habeas corpus on application to "the superior judge of the county" in which the hospital is located, and that on return of the writ the fact of his insanity shall be inquired into, the hearing may be had before a judge called in; Code Civ. Proc. § 71, providing that a judge of any superior court may hold the superior court in any county at the request

W. H. Anderson, E. J. Livernash, and John T. York, for plaintiff. E. L. Webber and Dinkelspeil & Gesford, for defendant.

CHIPMAN, C. Application for a writ to

tion in a certain habeas corpus case. One Buchanan was duly committed to the Napa state hospital for the insane by the superior court of Yuba county pending his trial upon the charge of murder. A friend of Buchanan, one Muller, presented his petition to the Honorable E. D. Ham, judge of the superior court of Napa county, setting forth, among other things, that Buchanan has recovered his sanity, and is entitled to be discharged from the state hospital, and redelivered to the sheriff of said Yuba county, to be dealt with as provided by chapter 6 of the Penal Code, and that his detention in said hospital as an insane patient has become and now is illegal. Judge Ham issued the writ, returnable "before the acting judge of said superior court," in the court room of the superior court of Napa county. At the request of Judge Ham, defendant, who was then judge of the superior court of Contra Costa county, proceeded to hold the superior court of Napa county, and while so doing assumed jurisdiction in this habeas corpus case. The petitioner in this present proceeding, the medical superintendent of the Napa state hospital, made return to the writ showing the legal commitment, of Buchanan to the asylum, and alleging that he has not recovered his sanity. He claims that Buchanan cannot be delivered to the sheriff of Yuba county except upon the certificate of plaintiff that Buchanan has recovered his sanity, approved by the judge of the superior court of that county, and that the superior court of Napa county is without jurisdiction or authority to order plaintiff to so redeliver Buchanan.

1. It is contended that section 13. art. 3, of the insanity law, approved March 31, 1897 (St. 1897, p. 311), does not apply to insane persons of Buchanan's class. The question is an important one, inasmuch as it involves the right of an inmate of a state hospital, who bappens at the time to be resting under a criminal charge and is committed pending trial for his crime, to have his alleged insanity made the subject of judicial inquiry by the writ of habeas corpus. It is claimed that

"the medical superintendent is the only person or tribunal vested by law with authority to determine whether or not an insane patient of this class has recovered." Section 13, art. 3, of the insanity law, provides as follows: "Any one in custody as an insane person is entitled to a writ of habeas corpus upon a proper application made by a relative or some friends in his behalf to the superior judge of the county in which the hospital is located. Upon the return of such writ the fact of his insanity shall be inquired into and determined. The medical history of the patient, as it appears in the clinical records, shall be given in evidence, and the superintendent in charge of the state hospital wherein such person is held in custody, and any other persons, shall be sworn touching the mental condition of such person." That part of section 14, Id., relied upon, reads as follows: "A patient committed to a hospital under the provisions of chapter six, title ten, part two, of the Penal Code of this state, shall, upon the certificate of the superintendent that such person has recovered, approved by the superior judge of the county from which the patient was committed, be redelivered to the sheriff of such county and dealt with as provided for by said chapter six of the Penal Code." The provisions of the Penal Code regulating the commitment of persons charged with crime are found in sections 1367 to 1373. No question arises as to the regularity of Buchanan's commitment under these provisions. Section 1372 provides as follows: "If the defendant is received into the asylum, he must be detained there until he becomes sane. When he becomes sane, the superintendent must give notice of that fact to the sheriff and district attorney of the county. The sheriff must thereupon, without delay, bring the defendant from the asylum and place him in proper custody until he is brought to trial or judgment, as the case may be, or is legally discharged." Section 1473 of the Penal Code provides as follows: "Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint." Section 5, art. 1, of the constitution reads: "The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require its suspension."

proves that the law recognizes the two mentioned classes of insane. We cannot believe that the legislature intended to enact a law so entirely out of harmony with the spirit and letter of the constitution and the statutes to which attention has been called. It is our duty to harmonize sections 13 and 14, art. 3, of the insanity law so as to conform to the constitution and to the statutes quoted, if we can, rather than resort to the more extreme necessity of holding section 14 to be unconstitutional, as defendant claims it to be, if given the construction placed upon it by plaintiff. We think it was intended by section 14 to provide means by which a patient of Buchanan's class, whose reason has become restored, could be at once remanded to the sheriff of the proper county for trial; but it was not intended that the arbitrary power should rest with the medical superintendent to deprive the patient of the right to be so returned, nor was it intended that the medical superintendent should be the exclusive judge of the patient's restoration. The commitment is made under section 1370. Pen. Code, which provides "that upon his becoming sane he be redelivered to the sheriff"; and section 1372 provides that "if the defendant is received into the asylum he must be detained there until he becomes sane. When he becomes sane, the superintendent must give notice of that fact to the sheriff and district attorney of the county. The sheriff must thereupon, without delay, bring the defendant from the asylum and place him in proper custody until he is brought to trial or judgment, as the case may be, or is legally discharged." The law does not justify the detention (1) if there be not a legal commitment, and (2) if the patient has recovered his sanity. If there be no legal commitment, or if the patient has become restored to sanity, there is lack of authority to detain him, and the question may be inquired into by habeas corpus. A fair construction of all the provisions of the statutes on the. subject leads to the conclusion that, in a case like this, the superintendent of the state hospital may discharge the patient, and, if he fails or refuses to act, the inmate may institute the inquiry into his sanity by the process of habeas corpus. Defendant contends that the superior court can, upon inquiry by the writ, go no further than to adjudge the inmate to be sane, and cannot discharge him or grant the relief asked; and hence it was the plain duty of the court to discharge the writ, and remand the petitioner forthwith. We are cited to section 382b, Church, Hab. Corp. The author is there dealing with an attempt by the writ to review the proceedings by which the person was de

attempt. The legality of the commitment is not questioned. The question here is not whether Buchanan was insane when committed, but whether he has since become sane,a question not at all involved in the original proceeding. The question of Buchanan's re