EJECTMENT-Defense-COMPENSATION

OF

OF ATTORNEYS-VALIDITY CONTRACT. When the plaintiffs in an action of ejectment have agreed to convey part of it to their attorneys in compensation for services, it cannot be urged by the defendants as matter of defense that such contract is void.

STATUTE OF LIMITATIONS-ADVERSE POSSESSION-TENANCY IN COMMON-FINDINGS.-A finding of facts tending to prove adverse possession against the owners of an undivided interest, but which do not necessarily constitute it, is not a sufficient finding of adverse possession to sustain a defense of the statute of limitations.

ID. PATENT-MEXICAN GRANT.-The statute of limitations does not begin to run against the holder of a patent confirming a Mexican grant until the patent is issued, and adverse possession prior to such patent is of no avail.

APPEAL from a judgment of the Superior Court of San Diego County, and from an order denying a new

trial.

The record did not contain the notice of motion for new trial, nor did the statement embody or refer to the notice, and a motion to dismiss the appeal was made upon this ground. The findings as to adverse possession were as follows: "That the defendants and their grantors have at all times for more than sixteen years last past been in the actual, peaceable, open, and notorious possession of all of said property, claiming the same by absolute title in fee as against all and every of the plaintiffs, their grantors, and all the world, and for more than five years prior to the commencement of this action have paid all the taxes, state, county, and municipal, which have been levied and assessed upon such land; that the defendant John G. Downey held the actual possession thereof, and the defendant Merchants' Exchange Bank held the same as tenants in common with him, by agreement with him that he hold the same as tenant in common with said bank, and not as against them; that prior to and at the time the plaintiff Gage purchased the interest in said property and procured the deeds under which he claims title here, he had notice that the defendants were in the open, exclusive, and notorious

possession of all of said property, claiming to own all thereof as against the grantors of the said Gage and against all the world." The date of Gage's purchase is fixed by recital in the agreements set out in the findings as October 16, 1882. The complaint was filed July 26, 1883, but was amended October 26, 1885, to include the Portilla grant, and to bring in the Merchants' Exchange Bank as defendant. The findings showed an agreement between the plaintiffs and their attorneys, Glassell, Smith, and Patton, to convey to them two fifths of the land in controversy in consideration of their professional services in establishing title thereto, and also another agreement between the plaintiff Gage and said attorneys, whereby he agreed to sell them his interest derived through his wife, in consideration of one thousand dollars and the first agreement. The further facts are stated in the opinion of the

court.

Glassell, Smith & Patton, and Henry T. Gage, for Appel lants.

Portilla

The Portilla grant was not in issue in the San Bernardino case, and the Moss league is expressly excluded from the description. Only the right, title, and interest of Warner and wife, the mortgagors in the property included in the mortgage, was involved. (San Francisco v. Lawton, 18 Cal. 465; 79 Am. Dec. 187.) The description in the decree must be construed with reference to that in the complaint. (Sheperd v. McNeil, 38 Cal. 72; Gregory v. Nelson, 41 Cal. 278; Mondran v. Goux, 51 Cal. 151.) The title of the heirs of Rains to the Portilla grant was not in issue in the Santa Clara case, and the judgment in that case could not operate to divest their title. (Gregory v. Nelson, 41 Cal. 278; Mondran v. Goux, 51 Cal. 151; Freeman on Judgments, secs. 118, 252, 256-258, 271, 273, 276; Fulton v. Hanlow, 20 Cal. 450; Waterman v. Lawrence, 19 Cal. 210; 79 Am. Dec. 212; 1 Greenl. Ev., secs. 528, 532.) The order of the judge, who was

disqualified, transferring that case to another than the nearest court, was coram non judice and void. (People v. McGarvey, 56 Cal. 327; Livermore v. Brundage, 64 Cal. 299.) The judgment was void, having been rendered without jurisdiction. (Galpin v. Page, 3 Saw. 93; 18 Wall. 350; Belcher v. Chambers, 53 Cal. 635; Pennoyer v. Neff, 97 U. S. 714.) There is no sufficient finding of adverse possession, as there is no finding of notice to the plaintiffs of hostile possession. (Aguirre v. Alexander, 58 Cal. 28, 29; Miller v. Myers, 46 Cal. 539; Unger v. Mooney, 65 Cal. 586; 49 Am. Rep. 100; Fair v. Stevenot, 29 Cal. 486; Pico v. Gallardo, 52 Cal. 206; Soto v. Irvine, 60 Cal. 436.)

Levi Chase, Bicknell & White, and O'Brien & Morrison, for Respondents.

The title was represented by the administrator, and the heirs are all bound by the San Benardino decree, including unborn heirs. (Tyler on Infancy and Coverture, 227, 230; McPherson on Infancy, 567; Knots v. Stearns, 91 U. S. 640; Code Civ. Proc., sec. 1582; Freeman on Judgments, 163 a; Meeks v. Vassal, 3 Saw. 408; Cunningham v. Ashley, 45 Cal. 485.) The adverse possession of defendants was sufficient to put plaintiffs on inquiry, and the means of notice constituted notice. (Fair v. Stevenot, 29 Cal. 486; Smith v. Yale, 31 Cal. 184; 89 Am. Dec. 167; Pell v. McElroy, 36 Cal. 273.) Under the amendment of the complaint October 26, 1885, the limitation as to the Portilla grant, and in favor of the bank as a new party, ran to that date. (Jeffers v. Cook, 58 Cal. 147; Anderson v. Mayers, 50 Cal. 525; Atkinson v. Amador & Sac. C. Co., 53 Cal. 102; Meeks v. S. P. R. R. Co., 61 Cal. 149.)

THORNTON, J.-The motion to dismiss the appeals herein is denied on the authority of Pico v. Cohn, 78 Cal.

The plaintiffs in this cause are Henry T. Gage and Cornelia Rains de Foley, and the defendants are John G. Downey and the Merchant's Exchange Bank of San Fran

cisco.

The action is ejectment to recover possession of an undivided one half of a tract of land situate in San Diego County, known as the rancho Valle de San José, for which a patent was issued by the United States on the 10th of January, 1880, to Sylvestre de la Portilla, and also an undivided twelve twenty-fifths of a tract of land situate in the same county, known as the rancho Valle de San José, for which a patent was, on January 16, 1880, issued by the United States to J. J. Warner.

Judgment was rendered for the defendants. The plaintiffs moved for a new trial, which was denied. The latter prosecute the appeals herein from the judgment and order denying a new trial.

On the 16th of April, 1836, a grant was made to Sylvestre de la Portilla by N. Guitterrez, political chief, of the place called Valle de San José, containing four square leagues.

On the 8th day of June, 1840, a grant was made to José Antonio Pico by Juan B. Alvarado, governor of California, of the place called Agua Caliente, to the extent mentioned in the plan accompanying the expediente.

On the twenty-eighth day of November, 1841, a grant was made to J. J. Warner by Manuel Micheltorena, governor of California, of the place called Valle de San José, containing six square leagues, more or less.

The grants to Portilla and Warner were confirmed and patents were issued to them severally, as above set forth. The grant to Pico was rejected.

On the 6th of November, 1858, Portilla conveyed all his interest in the rancho to one Vicente S. de Carillo.

Some time prior to 1856, say in 1854, J. J. Warner mortgaged his rancho Valley of San José to J. Mora

Moss. Suit was brought to foreclose this mortgage in the district court for San Diego County. In this action a homestead was set apart by the court to Warner and wife. This homestead tract is described in the decree. A tract of a league in extent was set apart and directed to be sold. under the Moss mortgage.

This latter tract is described in the decree. It does not appear that the league was ever sold. This decree seems to have been entered in 1856. Surely, in the absence of proof, it may be conclusively presumed that Moss's debt was paid to Warner, and that this league was never sold.

The homestead set apart included the whole of Warner's ranch except the league above mentioned. This is manifest from the report of the commissioners, who set apart the homestead and the order of the court confirming it.

On the 20th of November, 1858, the above-named Warner and his wife, Anita Warner, executed a mortgage to John Rains of all their interest in the land granted to him.

The description of the land included in this mortgage is as follows:

"All the right, title, and interest of the parites of the first part in and to that certain tract of land lying, being, and situate in the county of San Diego, California, known as the valley of San José and Agua Caliente, and being the lands granted to José Antonio Pico by Juan B. Alvarado, governor of the department of the Californias, by deed of grant of date of June 8, 1840, and to Juan J. Warner by Manuel Micheltorena, governor as aforesaid, by deed of grant of date of November 28, 1844, reference being had for a more particular description to the several grants, expedientes, maps, and other papers on file in the office of the surveyor-general of the United States for California, in the city of San Francisco, and in the office of the clerk of the district court of the United States for LXXIX. CAL-10