tiff's contract would be out of harmony with the general rules of pleading and practice.

It may be that it would simplify matters if the plaintiff were required to state in his complaint whether he relies upon a writing or not. For then the question could always be raised at a preliminary stage of the case. But it has been decided that this is not required. (Wakefield v. Greenwood, 29 Cal. 599.) And since this is so, and the question may be adjourned to a subsequent stage of the proceedings, we do not see why the burden of allegation should be thrown upon the defendant when the thing is an essential element of the plaintiff's case.

Furthermore, under our system the pleader is to allege facts only, avoiding matters of evidence on the one hand and matters of law on the other; and when he states a fact once, either affirmatively or negatively, it is sufficient for that pleading. (Green v. Palmer, 15 Cal. 417.) Therefore, when the plaintiff alleges a contract which is either stated or presumed to be in writing, it is sufficient for the defendant to deny such contract. Having denied it, he is not required to state affirmatively that it was not in writing, or to refer in his answer to the law which makes it invalid. If the statute of limitations constitutes an exception to the rule that matters of law must not be pleaded, it is only an exception to a general rule. But it is quite a different matter. It is not an element of the plaintiff's case. Nor does it render the contract void. (McCormick v. Brown, 36 Cal. 184; 95 Am. Dec. 170; Grant v. Burr, 54 Cal. 300.) And the statutory mode of pleading it is simply a short way of averring the time of the trans

action.

If the rule that the statute must be specially pleaded is to prevail in this state because it prevailed in the English court of chancery, then, to be consistent, we should say that for the same reason pleadings here should be of matters of evidence to the extent that was proper there. To our minds, the rule of the common law which

prevails in the majority of American courts, even in equity, is the true one.

The bill of exceptions was in time. The other matters do not require special notice.

We therefore advise that the judgment and order denying a new trial be reversed, and the cause remanded for a new trial.

VANCLIEF, C., and FOOTE, C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause remanded for a new trial.

Hearing in Bank denied.

[No. 12654. In Bank.-July 1, 1889.]

D. J. OULLAHAN, APPELLANT, v. P. J. SWEENEY, RESPONDENT.

TAX SALE-REDEMPTION-EFFECT OF ACT OF 1885 REQUIRING NOTICE TO THE OWNER OF THE PURCHASER'S APPLICATION FOR A Deed— EXTENSION OF TIME FOR REDEMPTION.-The act of 1885, requiring the purchaser at a tax sale to give to the owner thirty days' notice of the application for a deed, and extending the time for redemption until such notice is given, is constitutional, and applies to all applications for deeds made after the act took effect.

APPEAL from an order of the Superior Court of Stanislaus County refusing a new trial.

The facts are stated in the opinion.

Wright & Hazen, for Appellant.

The plaintiff's right to a deed was founded on tract, and was to be determined with reference to the law in force at the time of the tax sale. (Pol. Code, secs. 3780, 3785; Cooley on Taxation, 2d. ed., 545.) The act of March 12, 1885, does not apply to prior tax sales.

A construction which would give it that effect would render the act unconstitutional as impairing the obligation of the contract. (Cooley's Const. Lim. 291; Billings v. Drew, 56 Ill. 483; State v. McDonald, 26 Minn. 145.)

Stonesifer & Minor, for Respondent.

The requirement of notice of the application for the deed, under the act of March 12, 1885, did not impair the obligation of the plaintiff's contract. (Curtis v. Whitney, 13 Wall. 68.) The act only affected the remedial right of the purchaser, and so long as any sufficient remedy is left him by which his substantive right might be enforced, he cannot complain of a change made in the remedy. (Cooley's Const. Lim. 286; Tuolumne Redemption Co. v. Sedgwick, 15 Cal. 524; Galland v. Lewis, 26 Cal. 48; Dentzel v. Waldie, 30 Cal. 143; Moore v. Martin, 38 Cal. 439.)

HAYNE, C.-Ejectment; judgment for defendant; plaintiff appeals. The case turns upon the validity of a tax deed, under which the plaintiff claims. The deed was made without any notice to the owner, as required by section 3785 of the Political Code. The sale was made in February, 1885, at which time the law was, that a redemption could be made in twelve months, and if not made within that time, the purchaser could obtain his deed without giving notice to the owner. But by an amendment passed in March, 1885, it was provided that "the purchaser of property sold for delinquent taxes, or his assignee, must, thirty days previous to the expiration of the time for redemption, or thirty days before he applies for a deed, serve upon the owner of the property purchased, or upon the person occupying the property, if said property is occupied, a written notice stating that said property or a portion thereof has been sold for de linquent taxes; giving the date of the sale, the amount of the property sold, the amount for which it was sold,

the amount then due, and the time when the right of redemption will expire, or when the purchaser will apply for a deed, and the owner of the property shall have the right of redemption indefinitely until such notice shall have been given and said deed applied for, upon the payment of the fees, percentages, penalties, and costs, as provided by law." (Pol. Code, sec. 3785.)

an

We think that this amendment was intended to apply to all applications for deeds after it took effect. The counsel argue, however, that it was not within the power of the legislature to extend the time for redemption on sales previously made, because they say such extension impairs the validity of a contract. It may be assumed, for the purposes of the case, that the legislature cannot make an absolute extension of the time for redemption of property previously sold. But this has not been attempted to be done by the provision in question. The purchaser may still obtain his deed at the expiration of twelve months, provided he takes the proper proceedings. If he does not take them, it is his own fault, and he alone is responsible for the consequences. question, therefore, is, whether the legislature had the power to require notice to be given of applications for deeds of sales made before the passage of the law. This precise point was decided in Curtis v. Whitney, 13 Wall. 68, in which the court upheld the validity of the law. We think that this decision is sound in principle. The change affected the remedy merely, which was within the control of the legislature. (See, generally, Tuolumne R. Co. v. Sedgwick, 15 Cal. 516; Moore v. Martin, 38 Cal. 428.)

The

We therefore advise that the order appealed from be affirmed.

BELCHER, C. C.-and FOOTE, C., concurred.

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

[No. 12976. In Bank.-July 1, 1889.]

NANCY PAYNE ET AL., APPELLANTS, v. W. D. ENG-
LISH ET AL., RESPONDENTS.

DEED DESCRIPTION-BOUNDARY-COURSES, DISTANCES, AND QUANTITY
-STREET AS MONUMENT-WATER LOT.-Before the rule can be
applied in the construction of deeds, that in cases of disputed
boundaries, courses, distances, and quantity must give way to
monuments, the monuments must be fixed and certain, and the
place where the alleged monuments were at the time of the con-
veyance must be satisfactorily located. The line of a street cov-
ered by the waters of a bay, and which had no definite dimensions
or boundaries at the time of the conveyance, cannot control the
other descriptive parts of the conveyance of a water lot.
ID.-DEED FROM MUNICIPAL CORPORATION-EVIDENCE-MAPS.-In as-
certaining the boundaries of land conveyed by deed from the city
of San Francisco, a map referred to in the deed, certified and ir
dorsed by the mayor and city surveyor, and showing the land con
veyed by the deed to conform to the description thereof as located
upon the map, is admissible in evidence for the grantee; but other
maps made subsequently to the date of the conveyance, and show-
ing a different description and smaller quantity of the lots con-
veyed, are not admissible against the grantee, being the declarations
of third parties, who could not bind the grantee.
STATE HARBOR COMMISSIONERS-JURISDICTION OVER NAVIGABLE WATERS
-CHANNEL STREET-STATE GRANT OF WATER-LOT PROPERTY.-
The grant by the state of its beach and water-lot property in the
bay of San Francisco to the city of San Francisco, by the act of
March 26, 1851, did not surrender the control of the state over
the navigable waters of the bay of which Channel Street is a part.
People v. Williams, 64 Cal. 498, affirmed.

ID. ERECTION OF WHARF INJUNCTION AGAINST STATE HARBOR COM-
MISSIONERS-EMINENT DOMAIN.-The state harbor commissioners
may be enjoined from erecting a wharf upon a water-lot which is
the property of private persons.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial,

The facts are stated in the opinion of the court.

Cope, Boyd & Fifield, for Appellants.

Monuments should only control courses, distances, and quantity when they are more stable and certain. more certain part of the description should control.

The

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