covery, in our opinion, is jurisdictional, and may be examined upon habeas corpus. We can see no more authority for detaining an inmate of a state hospital against his will, after he has become restored to reason, than for detaining a prisoner upon conviction of crime after he has served out his sentence, or for detaining a person upon a criminal charge for an act to which the law attaches no criminality, and in this latter case the prisoner would be entitled to his discharge for lack of jurisdiction to hold him. Ex parte Kearny, 55 Cal. 212. If Buchanan has recovered his reason, the commitment under which he is held will not justify his further detention, for it operates only so long as the inmate is in sane. Counsel for plaintiff say in their brief that the learned judge (defendant) held at the hearing that he had the power to inquire into and adjudge the question of Buchanan's sanity, but had not the power to discharge him or order him returned to the sheriff of Yuba county; that the judge could only send him back to the hospital, and leave the enforcement of his rights to some other appropriate proceedings. It is hence argued that this is a misconception of the functions of the writ, and concedes the duty of the judge to remand Buchanan. It is true that section 14, art. 3, of the insanity law, provides that the patient shall, upon the certificate of the superintendent that he has recovered, approved by the judge of the county from which the patient was committed, be redelivered to the sheriff of such county, and dealt with as provided by chapter 6 of the Penal Code; but that is where the superintendent acts. Where he refuses to act, and resort is had to the court, we think the judge has the power, not only to adjudge the patient to be sane, but to order him redelivered to the sheriff, to be dealt with under the Penal Code. Section 1484 of that Code declares that the court or judge "shall dispose of such party as the justice of the case may require." Section 1493 provides: "In cases where any party is held under illegal restraint or custody, or any other person is entitled to the restraint or custody of such party, the judge or court may order such party to be committed to the restraint or custody of such person as is by law entitled thereto." In his petition Buchanan does not ask to be restored to his freedom. He asks to be redelivered to the sheriff of Yuba county, to be there put upon trial under the charge resting against him. We can see no reason why the court or judge should not have the power by an order to direct that Buchanan be redelivered to the sheriff as prayed for by him, should he be found to be sane. Why should he be remanded to the custody of the superintendent, who would no longer have authority to detain him? Or why should he be required to resort to some other proceeding in order to obtain the relief which he may have in the habeas corpus proceeding? 2. Defendant makes the point that the judge of the superior court of Napa county alone has jurisdiction, since the language of section 13, art. 3, of the insanity law provides that the application authorized by it is to be made "to the superior judge of the county in which the hospital is located." The section also provides as follows: "Upon the return of such writ the fact of his insanity shall be inquired into and determined." The act does not require the hearing to be before the judge-elect of the superior court of the county. He may be disqualified to act by reason of relationship to the petitioner or for other cause. Section 71, Code Civ. Proc., provides that "a judge of any superior court may hold the superior court in any county, at the request of the judge of the superior court thereof; and such judge "shall have the same power as a judge thereof." In re Newman, 75 Cal. 213, 16 Pac. 887. Defendant claims that if this Code section supports plaintiff, which we think it does, it must be held to be in violation of section 8, art. 6, of the constitution, which reads: "A judge of any superior court may hold a superior court in any county," etc. The argument is that this provision expressly limits the jurisdiction of the judge requested to act for another to holding a superior court of the county to which he is called, and that in section 71, Code Civ. Proc., the legislature has, without authority, added: "In either case the judge holding the court shall have the same power as a judge thereof." So far as I am aware, the constitutionality of this section of the Code has never before been questioned, although cases have come here for review where the question might have been raised. I believe the universal practice throughout the state has been, where a judge of one county has been called by the judge of another county to hold the court of the latter, or where the governor has requested him to do so, to accord to the judge thus called all the powers of the judge of the court to which he is called. I do not think the Code has enlarged the powers given by the constitution. In the absence of the clause in section 71, added to section 8, art. 6, of the constitution, we would hold the power to exist. Any other construction would make the provision of little value, would defeat the manifest intention of the constitution, and would disturb many judgments of our courts in numerous classes of cases which have been rendered upon the hitherto unquestioned belief that the judge for the time possesses all the powers of the judge whom he represents. We advise that the writ be denied. We concur: COOPER, C.; GRAY, C. PER CURIAM. For the reasons given in the foregoing opinion, the writ is denied. MCFARLAND, J. (concurring). I concur in the judgment because I see no way to hold otherwise consistently with the sacred right of the citizen to invoke the remedy of the writ of habeas corpus. Some slight impairment of the efficiency and discipline of insane asylums may possibly follow; but it is not to be assumed that a judge of the superior court will declare a man to be sane contrary to the judgment of the superintendent of the asylum, except in a very clear and strong case. (126 Cal. 587) VIZELICH v. SOUTHERN PAC. CO. (Sac. 528.)1 (Supreme Court of California. Nov. 8, 1899.) INJURY TO EMPLOYE-PROXIMATE CAUSE The proximate cause of the injury is the negligence, of a fellow servant, thus preventing recovery, where a collision of a switch engine with a train was caused by negligence of the brakeman in manipulating the switch, and the water tank of the engine, insufficiently secured to withstand the shock of the collision, was thereby thrown forward onto a brakeman riding on the engine. Department 2. Appeal from superior court, San Joaquin county. Action by Harry G. Vizelich, an infant, by his guardian ad litem, against the Southern Pacific Company. Judgment for plaintiff. Defendant appeals. Reversed. Dudley & Buck, for appellant. Rodgers & Patterson and R. B. Terry, for respondent. HENSHAW, J. This action was to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant. The cause was tried before a jury, which rendered a verdict for plaintiff. From the judgment in his favor which followed, and from the order denying defendant's motion for a new trial, these appeals are prosecuted. Plaintiff averred that he was in the employ of the defendant at the time of the accident. He was employed as a brakeman and an extra switchman in the railroad yards at Stockton. At the time of the accident he was riding in the cab of a switch engine. This engine collided with a train standing upon the side track. The water tank of the switch engine moved forward, and crushed the leg of plaintiff, necessitating amputation. It is charged that the cause of the accident was the negligence of the defendant in improperly maintaining its track and switch at the place of the accident, and also, in a separate count, the imperfect and defective condition of the water tank upon the switch engine, which was negligently and insecurely fastened. Upon the trial it was made to appear without conflict in the evidence that the switch engine had been used in and about the yard for some time, and that in its ordinary use no injury had ever resulted from the alleged insecure fastening of the water tank. It was also made to appear without dispute that the collision was caused by the negligence of a brakeman in manipulating the switch. 1 Rehearing denied December 8, 1899. 59 P.-9 Of the many propositions urged by appellant, the following is the only one which need receive attention, for it is determinative of the controversy: In this discussion it will be assumed that the plaintiff satisfactorily established his relationship to the company as its employé, and it will further be assumed that the evidence was sufficient to show that the water tank of the engine was insecurely fastened. As to the allegation of the negligent condition of the track and switch, we think it clear that the evidence would not support a finding in plaintiff's favor upon that ground: The trial judge was of the same opinion, and little point is made of this matter in the briefs. The case, then, is one where an employé seeks to recover for personal injuries sustained by him by reason of the defective condition of the appliances furnished to him by the employer. In such cases he can recover only when the defective machinery or appliance was the proximate cause of the injury. Ordinarily this question is one of fact for the jury, under proper instructions; but, where the facts are not in dispute, it may become a question of law for the court. If the question is debatable,-one upon which reasonable minds may take opposing views,-it should, of course, be submitted to the jury; but, where it is clear and unmistakable that the proximate cause is one other than that upon which the cause of action rests, it is for the court so to declare. In this case it appears without conflict that the proximate cause of the injury was the negligence of the fellow employé who misplaced the switch and caused the collision. The case is paralleled by that of Trewatha v. Milling Co., 96 Cal. 494, 28 Pac. 571, and 31 Pac. 561. There an employé of a mining company, being hoisted from the mine in a bucket, was hurled against the sheave and injured. He charged the company with negligence in failing to furnish necessary and proper hoisting appliances. It was shown that the engineer hoisted the plaintiff from the mine with dangerous speed. This court said: "We do not think the verdict and judgment can be sustained, even if it be admitted that the appliances complained of were as defective as it is claimed they were. The immediate and proximate cause of the injury sustained by plaintiff was very clearly shown to have been the negligence of his coemployé. Nothing but carelessness can account for the fact that the engineer allowed the bucket to be hurled against the sheave, twenty-three feet above the upper platform, whether he supposed he was hoisting a man or something else. But the rule is that, where the promoting cause of the injury is the negligence of a fellow servant, no recovery can be had, even though the machinery or appliances be defective. This was so declared in Kevern v. Mining Co., 70 Cal. 394, 11 Pac. 741, where the court said: The proximate cause of the injury is the object * * of inquiry, and, when discovered, must be regarded and relied on.' Hayes v. Railroad Corp., 3 Cush. 274. Even where machinery is defective, so that otherwise a recovery might be had for an injury received, yet, if the promoting cause of the injury is the negligence of a fellow servant, no recovery can be had. Wood, Mast. & Serv. 812. The same rule must apply where the appliances for doing work are defective." It is well settled that if injury has resulted in consequence of a certain unlawful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote. Cooley, Torts (2d Ed.) p. 73. It is here too plain to admit of discussion that the proximate cause was the negligence of the fellow employé who caused the collision. We leave the realm of certainty, and enter upon that of conjecture, when we seek to go behind the proximate cause, and to inquire, as would become necessary in this case, whether the company should have secured the water tank so as to withstand a collision; whether, if fastened with ordinary security, it would have withstood the shock of this particular collision; and other questions of like uncertainty which readily present themselves. Yet, notwithstanding that it so convincingly appears that the proximate cause was the negligence of the switchman, and notwithstanding the further fact that the utmost to which plaintiff could contend that he was entitled by way of instruction to the jury upon this question would be a charge to the effect that as they determined the proximate cause of the injury to be through the negligence of a fellow employé, or the defective appliance, so should their verdict be either for defendant or plaintiff, the court in fact went much further than this, and positively instructed the jury that, if they found that the defendant failed to provide a suitable roadbed, and an engine properly equipped with a tank securely fas tened, and if this failure was the cause of the injury to plaintiff, they must find in plaintiff's favor, "notwithstanding the fact that the brakeman, a fellow servant, was guilty of negligence in leaving the switch described as 'Switch B' open." By this instruction the Jury was, in effect, charged that, if injury resulted by reason of the defective appliance, the defective appliance itself, as matter of law, became the proximate cause. But, as has above been shown, it is clear, under the evidence in this case, that the proximate cause was the negligence of the fellow employé. For the foregoing reasons, the judgment and order appealed from are reversed, and the cause remanded. J. We concur: MCFARLAND, J.; TEMPLE, (126 Cal. 600) COMMERCIAL BANK OF SANTA ANA v. GAGE-FIXTURES. 1. A lease of land for a term of years is a conveyance of real estate, within Civ. Code, §§ 1214, 1215, providing that every conveyance o real property, other than a lease for one year, is void as against a subsequent purchaser whose conveyance is first recorded, and that the term "conveyance" shall embrace every instrument by which any estate or interest in real property is created, except wills. 2. Under Civ. Code, § 2924, providing that every transfer of an interest in property, other than in trust as security, is to be deemed a mortgage, an assignment of a lease of land as security for the payment of a debt is a mort gage. 3. Under Civ. Code, §§ 658, 660, providing that real property consists of land and that which is affixed to it, and that a thing is deemed to be affixed when it permanently rests thereon, a warehouse, with concrete foundation, built by a lessee on land held under a lease for a term of years, providing that he may remove it before the expiration of the term, is real estate, as between the holder of a mortgage on the lessee's interest in the land and a subsequent purchaser of the warehouse. Commissioners' decision. Department 2. Appeal from superior court, Orange county. Action by the Commercial Bank of Santa Ana against B. F. Pritchard and others. From a judgment for defendant C. S. McKelvey, plaintiff appeals. Reversed. E. E. Keech, for appellant. McKelvey & Bowe, for respondent. COOPER, C. Action for foreclosure of mortgage. Judgment for defendant McKelvey. Motion for a new trial denied, and plaintiff appeals from the judgment and order. The facts of, this case are substantially as follows: On May 25, 1895, the Southern California Railway Company leased a small parcel of land, described by metes and bounds, to one Pritchard, for the term of five years from the date of said lease, at the nominal rent of one dollar per year, for the exclusive purpose of a warehouse site. The lease provided that it might be terminated by either party upon 30 days' notice in writing, that upon its termination the said Pritchard should have the privilege of removing all improvements placed by him thereon, and that at its expiration the said Pritchard should have the privilege of removal for a like period, and upon like terms. After the execution of the lease, and prior to the 12th day of August, 1895. said Pritchard built upon the land so leased a grain warehouse, with concrete foundation, 40 feet wide by 100 feet long; the same being a frame building, with shingle roof. On said last-named date the said Pritchard borrowed from appellant $600, giving his promissory note therefor, due one year after date, and, to secure the said note, gave a mortgage upon "all that certain personal property situate and described as follows, to wit: One grain warehouse, with concrete foundation, shingle roof, and frame structure, size forty wide and one hundred feet long, situated at Northam station, in Orange county, California, on the following described lands, to wit." Then follows a description of the lot so leased by Pritchard, by metes and bounds. The mortgage was verified by the mortgagor and mortgagee as a mortgage of personal property and was properly acknowledged. It was by appellant filed for record, and was recorded in volume 2 of Chattel Mortgages of Orange County. Thereafter, on October 9, 1896, the said Pritchard, to further secure the said note, transferred and assigned to appellant the said lease. On June 3, 1897, the appellant filed the said mortgage for record as a real-estate mortgage, and it was recorded in book 13 of Real-Estate Mortgages of said county. The promissory note was not paid, and appellant was the owner and holder of it at the time of the trial. All the above facts were found by the court below, and the court also made the following finding: "That the defendant Charles S. McKelvey is the owner and in possession of said warehouse, and at all times since the 27th day of May, A. D. 1897, has been, and now is, the owner and in possession of said warehouse; and said defendant entered into possession of said warehouse, and became the owner thereof, for a good and valuable consideration, and took the same without any notice whatever of any claim by the plaintiff, or any lien held by the plaintiff against said warehouse. That the said defendant became the purchaser of, and entered into the possession of, said warehouse, without any notice, constructive or otherwise, of plaintiff's lien." By reason of the finding just quoted, the learned judge of the court below refused to grant appellant a decree of foreclosure, and found that respondent was entitled to a judgment against appellant; that he was the owner of the warehouse and lease, and entitled to the control and possession thereof free and clear of any lien of the appellant. In this we think the court erred. The decision was evidently given upon the theory that the warehouse and lease were personal property. Counsel for appellant says in his brief that the decision of this case depends upon whether or not the warehouse is personal property, and counsel for respondent say in their brief, "The only question to be decided is, is the warehouse chattel or real property?" This case does not depend upon the principle that the lessee, as against his lessor, upon the termination of the lease would have the right to remove the warehouse from the real estate described in the lease. It does not appear that the lease has ever been terminated, and no attempt has ever been made to remove the warehouse. Neither the lessor nor the lessee appears to have any interest in this controversy. The lessor was not made a party, and the lessee does not ap pear from the record to have made any defense or contest. It is therefore not necessary to discuss the rule as to the character of the warehouse in case this were a contest between the lessor and lessee. The lease made by the railway company to Pritchard was a conveyance of real estate. Civ. Code, § 1215; Garber v. Gianella, 98 Cal. 529, 33 Pac. 458. Pritchard was, therefore, by virtue of the conveyance, the owner of the estate thereby conveyed, and of all the improvements placed by him upon the premises therein described, and of the covenant for a renewal of his estate as therein provided. Being so the owner of the property, he could convey it by deed absolute, by way of mortgage, or by an assignment of his lease. He did so convey it by way of mortgage to appellant, and afterwards by a transfer of the lease; and this long before the time respondent claims to have purchased the warehouse as personal property. The court finds that Pritchard, in writing, and to secure the said note, assigned and transferred the lease to appellant October 9, 1896. The mortgage and assignment of the lease both being made to appellant prior to the attempted transfer to respondent, and both being so made as security for the note of $600, it will not be necessary to discuss the mortgage separately. This being the case, it must follow that on the 27th day of May, 1897, the attempted transfer to respondent conveyed nothing, or, at most, only conveyed the property subject to the lien of appellant thereon. Not only this, but the attempted transfer as set forth in the finding quoted only mentioned the warehouse, and not the lease. The transfer of the warehouse, if personal property, would not transfer the lease, which the court found had been transferred to appellant. The court, after so finding that the lease had been transferred and assigned to appellant as security, finds that, by a sale of the warehouse made long after the transfer of the lease to appellant, respondent became the owner and entitled to the lease, free and clear of any lien or claim of appellant. We cannot understand by what process of reasoning the court could find that the lease was transferred and assigned to appellant October 9, 1896; that the warehouse on the leased premises was conveyed to respondent May 27, 1897; and that from these facts alone the respondent became the owner of the lease, free of any lien or claim of appellant. The court evidently treated the respondent as an innocent purchaser for a valuable consideration, without notice. Pritchard certainly was guilty of the utmost bad faith towards appellant, in selling respondent the warehouse without letting him know anything about the mortgage or lien of appellant. The respondent, in his testimony, says: "I had no knowledge or information given me at any time of the existence of any mortgage or lien upon this property between Mr. Pritchard and the plaintiff. I knew nothing of the record. Had no personal knowledge of anything. Mr. Pritchard did not tell me about the mortgage to the bank. I did not ask him. Made no in quiry. Did not make any search of the records." The court found that respondent was a purchaser for a valuable consideration without notice. It has been shown that the lease was a conveyance; that it had been assigned to appellant as security for the note of Pritchard. It was therefore incumbent upon respondent to show, not only that he was a subsequent purchaser for a valuable consideration, but that his conveyance was first duly recorded. Civ. Code, §§ 1107, 1214; Thomas v. Vanlieu, 28 Cal. 617; Warnock v. Harlow, 96 Cal. 306, 31 Pac. 166. It nowhere appears, either from the evidence or the finding, that respondent ever recorded his conveyance. It is provided by the Code of this state that every transfer of an interest in property, other than in trust, made as security for the performance of another act, is to be deemed a mortgage, except when, in the case of personal property, it is accompanied by actual change of possession, in which case it is deemed a pledge. Civ. Code, § 2924. The court having found that Pritchard assigned the lease to appellant as security for the payment of the $600, it was clearly a mortgage, within the definition just quoted. There is no law in this state requiring conveyances to be recorded. Bank of Ukiah v. Petaluma Sav. Bank, 100 Cal. 590, 35 Pac. 170. A mortgage is a lien upon everything that would pass by a grant of the property. Civ. Code, § 2926. Therefore Pritchard, by the assignment of the lease as security, conveyed to appellant everything that would have passed by a grant of the property. A grant of the property made by Pritchard would have conveyed all his interest in the leased premises, including the warehouse. In determining whether the warehouse is real or personal property, we must apply the same rule that would be applied if Pritchard had made a deed of grant of the property to appellant. Real property consists of land and that which is affixed to it. Id. § 658. A thing is deemed to be affixed to land when it is permanently resting upon it, as in the case of buildings. Id. § 660. The warehouse, 100 feet by 40 feet, with concrete foundation, would ordinarily permanently rest upon the land. In this case there is nothing to show that the building and concrete foundation did not rest upon the land, and it will be presumed that it did; and hence, under the definitions given, it is real estate. In the case of McNally v. Connolly, 70 Cal. 3, 11 Pac. 320, this court held that an engine, boiler, and machinery in a flouring mill erected by a lessee upon the leased premises, and securely attached thereto by bolts and screws, were fixtures, as between the lessee and his attaching creditors. In Lavenson v. Soap Co., 80 Cal. 245, 22 Pac. 184, it was held that a gun-metal digester, soap kettles, boiler, and candle machines, put into and attached to a building with the intention of using them for making soap and candles, were fixtures, and part of the realty, and would not pass, against a mortgagee, by bill of sale. In Breweries v. Schurtz, 104 Cal. 427, 38 Pac. 92, it was held that fixtures attached by a lessee to leased property became a part of the realty, and remain so until they are severed, and, while so attached, a mortgage of the leasehold interest covers the fixtures. To the same effect are Ewell, Fixt. pp. 276, 277, and note 1, p. 277; Jones, Mortg. §§ 428, 435. In Griffin v. Marine Co., 52 Ill. 130, a lessee of a lot of ground erected a building thereon, under an agreement with the lessor that the former might remove all the improvements placed by him on the premises, or the lessor should pay for them at their appraised value. The lessee and owner of the improvements executed a mortgage upon his interest in the premises, including the improvements; and it was held that the property mortgaged was an actual interest in real estate, and became immovable, possessing none of those attributes as personal property which have shaped the law in regard to mortgaging such property. In the case of Knapp v. Jones (Ill. Sup.) 32 N. E. 382, it was held that a grain elevator built by a lessee on ground held under a lease which provided that the lessor might terminate the lease on 60 days' notice, and that the lessee might remove his buildings at any time before the expiration of the lease, was, together with the leasehold estate, to be classed as real estate, so tha the holder of a recorded mortgage thereon had priority over a subsequent execution creditor. It follows that the judgment and order should be reversed, with directions to the lower court to enter judgment for appellant in accordance with the views herein expressed. We concur: GRAY, C.; CHIPMAN, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are reversed, with directions to the lower court to enter judgment for appellant in accordance with the views herein expressed. An MCFARLAND, J. (concurring). I concur in the judgment; but the opinion of the commissioner might perhaps be construed as holding, generally, that an estate for years in land is real property, which, of course, is not so. estate for years is, in its nature, personal property, a chattel real; and it is subject, for most purposes, to the law which applies to personal property. See Jeffers v. Easton, Eldridge & Co., 113 Cal. 345, 45 Pac. 680, where the subject is discussed, and our Code division of property into real and personal is shown to be substantially that of the common law. But by sections 1214 and 1215 of the Civil Code a lease of land for a term exceeding one year is expressly made subject to the law concerning the recordation of conveyances of real property, and, as it is subject to that law, the reasoning of the commissioner applies to the case at bar. In my opinion, the question whether or not the warehouse was so fixed to the soil as to be a part of the land, and thus |