United States for the northern district of California, in United States v. Curtner, decided February 4, 1889. In that case it was held that the Las Pocitas was a "float": that "the railroad company, by the acts of 1862 and 1864, had a valid grant to every odd section of land within twenty miles on each side of the road, and within the exterior bounds of the Las Pocitas grant, not embraced within two leagues, as it was finally located, and not reserved," etc.; that the decision in Newhall v. Sanger has been materially limited in its operation by the recent decision in United States v. McLaughlin.

In this decision of the circuit court Mr. Justice Field, who participated and acquiesced in the decisions in Doolan v. Carr and United States v. McLaughlin, concurred.

It seems to me quite clear either that the record in Doolan v. Carr was not such as to indicate the true character of the Las Pocitas grant,-that the offer of proof made therein was too broad to present the question whether the grant was in fact a float, or that that question was overlooked or not presented for the consideration of the court therein.

In view of the decisions of the national courts in United States v. McLaughlin and United States v. Curtner, supra, I do not think that the decision of this cause on the former appeal can be regarded as the "law of the case." It is useless to apply a rule of decision which will not be regarded by the higher tribunal. (Belcher v. Chambers, 53

Cal. 635.)

I think, therefore, that the judgment and order should be reversed.

[No. 12762. In Bank.-May 4, 1889.]

F. F. DOLAND, APPELLANT, v. JOHN E. MOONEY, ET AL., RESPONDENTS.

TAX SALE-VARIANCE IN RECITALS-SALE FOR EXCESSIVE SUM-PRESUMPTION.-The fact that the amount of taxes and costs recited in the certificate of tax sale is fifty cents less than that recited in the tax deed will not vitiate the tax sale or tax deed, or show that the sale was for a sum in excess of the taxes and legal costs. If the property was in fact sold for an excessive sum, that fact may be shown to invalidate the sale; but the presumption is in favor of the regularity of official action.

ID. RECITAL OF INTEREST SOLD.-It is not ground of objection to a certificate of tax and a tax deed thereunder that the certificate recites that the bidder "offered to take the least quantity of said property, or the smallest portion of interest therein," when the certificate and deed both show by the description of the premises sold that quantity was offered and only quantity sold.

ID. RECITAL OF COSTS OF PUBLICATION.-A recital in the certificate of tax sale and tax deed of the non-payment of the costs of publication will not vitiate the sale or deed, if it does not appear that the amount for which the property was actually sold included anything for costs of publication.

ID. TAX PROCEEDINGS-SUBSTANTIAL CONFORMITY TO LAW-QUIETING TITLE EVIDENCE.-When a certificate of tax sale and tax deed conform substantially to the requirements of the Political Code, it is error to refuse to admit the deed in evidence in an action to quiet title founded thereupon.

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

The facts are stated in the opinion of the court.

D. E. Alexander, for Appellant.

The deed should have been admitted in evidence, as its sufficiency was adjudicated in Doland v. Mooney, 72 Cal. 35. (Jaffe v. Skae, 48 Cal. 543; New York & N. H. R. R. Co. v. Schuyler, 8 Abb. Pr. 239; Buell v. Lockport, 8 N. Y. 55; Huttemeier v. Albro, 2 Bosw. 546, 553; Smith v. His Creditors, 59 Cal. 267; O'Grady v. Barnhisel, 23 Cal.

Grove L. Johnson, Clinton L. White, and Lincoln White, for Respondents.

The deed is void because not containing the same recitals as the certificate. (Pol. Code, sec. 3786; Grimm v. O'Connell, 54 Cal. 522; Hubbell v. Campbell, 56 Cal. 527; Anderson v. Hancock, 64 Cal. 455; Daly v. Ah Goon, 64 Cal. 512.)

PATERSON, J.-Action to quiet title. At the trial plaintiff offered in evidence to support his claim of title a certificate of tax sale and a tax deed. The certificate was admitted; the deed was excluded. The ruling of the court in excluding the deed is assigned as error.

Respondent contends that the deed is void because it docs not recite the matters recited in the certificate. We have examined the particulars in which the deed differs from the certificate, and are of the opinion that none of them are material.

In the certificate it is stated that the taxes and costs amount in all to the sum of $35.71. In the deed, the amount recited is $35.21. The authorities cited hold that if a sale of land for a delinquent tax is made for a sum in excess of the tax and legal costs, the sale is void unless the excess is less than the smallest fractional coin authorized by law.

We cannot say that because the certificate and deed differ in such recitals that the sale was for a sum in excess of the tax and legal costs. If an excessive amount was demanded and the property sold therefor it would invalidate the sale, and that fact may be shown, but the presumption is in favor of the regularity of official action.

In the certificate it is recited that Mayo was "the bidder who offered to take the least quantity of said property, or the smallest portion of interest therein." The point is made that only the "least quantity" should have been offered for sale or sold. We think it clear that such was the fact. The certificate and deed both

define what is meant by least quantity and smallest portion of interest as follows: "Said least quantity of said property or smallest portion of interest therein is situated in said county of Sacramento, and is described as follows, to wit: All of the above described property.' Quan tity was offered and only quantity was sold.

It is contended that the certificate and deed both show that a portion of the costs for which the property was sold was "costs of publication"; that although it does not appear how much was collected by the tax collector as costs of publication, yet the recitals make it clear that something was collected; and that as the law nowhere provides that any costs of publication may be collected, the sale must have been for a sum in excess of the taxes and legal costs due, and was therefore void. There are in the certificate and deed preliminary statements that "said taxes, with five per cent, and the cost of publication, and other costs, not having been paid," etc.; but they both recite that Mayo was the bidder who offered to take the least quantity and pay the taxes and costs due thereon, including fifty cents for the certificate, and it does not appear that the amount for which the property was actually sold including anything for "costs of publication."

We think that the certificate and deed conform substantially to sections 3776 and 3786, Political Code, and that the court erred in refusing to admit the deed in evidence.

Judgment and order reversed, and cause remanded for a new trial.

WORKS, J., BEATTY, C. J., and SHARPSTEIN, J., concurred.

MCFARLAND, J., dissented.

Rehearing denied.

[No. 12377. In Bank.-May 6, 1889.]

HENRY T. GAGE ET AL., APPELLANTS, v. JOHN G. DOWNEY ET AL., RESPONDENTS.

APPEAL-DISMISSAL-NOTICE OF MOTION FOR NEW TRIAL.-Motion to dismiss the appeal in this case because no notice of motion for new trial appeared in the record; denied upon the authority of Pico v. Cohn, 78 Cal. 384. MORTGAGE-DECREE OF SALE-PRESUMPTION FROM LAPSE OF TIME.—In the absence of proof that property decreed to be sold upon foreclosure of a mortgage in 1856 was ever sold, it may be conclusively presumed, in an action of ejectment commenced in 1883, that the mortgage debt was paid, and that the property was never sold. HUSBAND AND WIFE-ACTION FOR SEPARATE PROPERTY-JUDGMENTRES ADJUDICATA.-A judgment in favor of a widow against the administrator and heirs of her deceased husband, establishing her right to certain land as having been acquired by her husband's investment of her separate funds, and compelling a conveyance to her of such land, conclusively determines that that land belonged to her as her separate estate, and that the estate of the husband had no title to it acquired from any other source; and a title acquired by the husband from another source cannot prevail as to any portion of the land included in the judgment. ID. PLEADING DESCRIPTION OF LANDS-DERAIGNMENT OF TITLE.— Reference made in the complaint in an action to adjudge certain lands to be the separate property of the wife to a particular grant of land which was mortgaged to the husband for a loan of the wife's money, and under which the husband acquired title, and also to a homestead which was set off to the mortgagor, and mortgaged to the husband to secure said loan, and to the mortgagor's "right" to the property described, are mere matters of description to identify the land claimed by the wife, and should not be regarded as setting forth a particular deraignment of title as the sole ground of the action. Such action challenges the husband's title to the land discribed, derived from any source, and title from another source which would defeat the wife's claim must be presented in defense, or it is concluded by the judgment in her favor. CHANGE OF PLACE OF TRIAL-DISQUALIFICATION OF JUDGE JURISDICTION-COLLATERAL ATTACK UPON JUDGMENT.-When a case is transferred because of the disqualification of the judge, the determination of what court is the nearest to which the transfer should be made under the statute is within the jurisdiction of the judge, and the selection of a county seat most readily accessible, though not the nearest in distance, whether erroneous or not, will not render the final judgment in the case void upon collateral attack. HUSBAND AND WIFE-COMMUNITY PROPERTY-SUCCESSION.-Upon the death of the husband, one half of the community property goes to the wife, and one half to the surviving children.