The demurrers admitted all the material allegations of the complaint. These showed that the plaintiffs were the owners in fee and entitled to the possession of the demanded premises, and that the defendants were in possession of the same, and wrongfully withheld them from the plaintiffs. The cause of action was, in no respect, different from that stated in the first complaint, which had been filed on the 8th of August, 1881, except that it ran against a party named as a defendent whose name did not appear in the first complaint, who, it was alleged, was in possession as a tenant of his co-defendant, Merritt. But this new name was alleged to be the real name of one of the defendants named in the first complaint by a fictitious name. Being a party named in that complaint by a fictitious name, he was a party to the action from its commencement. (Sacramento v. Spencer, 53 Cal. 737.) It was necessary, however, to amend the complaint by inserting his real name when ascertained, otherwise no judgment could be taken and enforced against him. (Section 474 C. C. P.; McKinlay V. Tuttle, 42 Cal. 577; Campbell v. Adams, 50 id. 205; Baldwin v. Morgan, id. 585.) Such an amendment, however, does not change the original cause of action. Merritt was a proper party defendant. Section 379 C. C. P. provides that a landlord may be made a defendant to an action of ejectment. Whether the Statute of Limitations had run in favor of either of the demurring defendants, at the time of filing the amended complaint, was a question which could not be raised by demurrer, unless the complaint contained allegations of all the facts necessary to constitute adverse possession by the defendants, according to the provisions of the sections of the Code which they invoked by their demur rers. No such allegations were contained in the complaint. It did allege an ouster on the 20th of December, 1876; and, assuming that the cause of action then accrued, the action was brought within five years at the filing of the first complaint. But while it is a fact that more than five years had run at the time of filing the amended complaint, in which the real name of the defendant Platt was, for the first time, inserted, yet the right of the plaintiffs as alleged owners in fee of the demanded premises was not forfeited by the mere lapse of time. They could only be deprived of their title or barred of their action by proof of an adverse possession by the defendants according to the requisites and requirements of the Statute of Limitations, upon which they relied; and the burden of the allegata et probata of such a statutory right was upon them. Such is the case of Lawrence v. Ballou (50 Cal. 258), referred to by respondents' counsel. Judgment and order reversed, and cause remanded, with directions to overrule the demurrers and allow the defendants to answer. We concur: Ross, J., McKinstry, J. DEPARTMENT No. 2. [Filed February 6, 1883.] SOUTHARD, RESPONDENT, V. MCBROWN, APPELLANT. APPEAL. Action for professional services. Held, on appeal, no error in the record. Appeal from Superior Court, San Francisco. George F. Sharp for appellant. Sullivan and Craig for respondent. By the COURT: We have examined the points filed by appellant in this case and find no error in the record. Judgment and order affirmed. DEPARTMENT No. 2. [Filed February 6, 1883.] MOVERRY, RESPONDENT, v. ROTHSCHILD ET AL., APPELLANTS. STREET ASSESSMENT. Judgement affirmed upon authority of Deady v. Townsend, 57 Cal. 298, and Williams v. McDonald, 58 id. 527. Appeal from Superior Court, San Francisco. Taylor and Rothschild for appellants. Wood and Bates for respondent. By the COURT: In this cause the judgment must be affirmed on the authority of Deady v. Townsend, 57 Cal. 298, and Williams v. McDonald, 58 id. 527. The appeal of plaintiff from the order made after judgment is affirmed, no points being presented to us. So ordered. IN BANK. [Filed February 12, 1883.] No. 7134. REIS, RESPONDENT, v. LAWRENCE ET AL., APPELLANTS. MARRIED WOMAN - ESTOPPEL-EQUITY — MORTGAGE-DEED. Case stated where a party is estopped from claiming she was a married woman, and that instruments executed by her were not acknowlodged in conformity to the law for acknowledging instruments executed by married women. ID.--COMMON LAW-HUSBAND AND WIFE. It is unnecessary to determine whether the rules based on the common law relation of husband and wife are to be applied to their full extent in this State, where the wife is now by statute empowered to dispose of her separate estate without the consent or concurrence of her husband. Appeal from Third District Court, Alameda County. Pringle & Hayne for appellants. Ross, J., delivered the opinion of the Court: The defendant, Edwin A. awrence, is the father of the defendant, Fannie P. Lawrence. The latter married one Hiram Hutchinson, in the city of San Francisco, on the 13th of April, 1871. In the year 1873 she went to the Territory of Utah for the purpose of obtaining a divorce from her husband, and on the 6th of May of that year filed in the Probate Court of Salt Lake County, Utah Territory, a petition, in which she set forth that Hutchinson deserted and abandoned her on or about the first day of March, 1872, and had ever since continued his desertion and abandonment of her, and praying for a decree of divorce dissolving the bonds of matrimony existing between them. On the 15th of July, 1873, the Court in which the proceeding was had, entered a decree purporting to dissolve the bonds of matrimony existing between Mr. and Mrs. Hutchinson, and restoring to the petitioner her maiden name. From the view we take of the case before us, it will not be necessary to determine whether or not the decree of the Probate Court of Utah was validated by subsequent Congressional action. Upon the entry of the decree on the 15th of July, 1873, Mrs. Hutchinson resumed her maiden name, and never afterward lived with Hutchinson, but has ever since that date lived and acted as a single woman, and borne her maiden name. On the 26th of May, 1874, she was the owner of a certain piece of land, situated in Alameda County, of this State, which was her separate property, it having been given to her by her father on the occasion of her marriage. On the day last named she signed a power of attorney, very general in its terms, appointing her father her attorney-in-fact to (among other things) lease, let, demise, bargain, sell, remise, release, convey, mortgage, and hypothecate" her said land upon such terms and conditions, and under such covenants as to him should seem fit. The power as well as the certificate of acknowledgment described the constituent as "Fannie P. Lawrence, formerly Fannie L. Hutchinson," and the power was so signed. The certificate, however, did not conform to the requirements of our statute prescribing the form for certificates of acknowledgment of married women. When the power of attorney, so signed and acknowledged, was received by Edwin A. Lawrence, the latter was the owner of various certificates of purchase, issued by the State of California for State lands, on which Gustave Reis held a mortgage, executed to him by Lawrence. A part of the purchase-money of the lands had been paid, but a part of it remained unpaid. In due course of time an installment became due. Lawrence needed the money with which to make the payment. He negotiated with Mr. E. B. Mastick for the loan of the required amount on a mortgage he proposed to give on his daughter's land under and by virtue of the power of attorney. The power, the daughter testified on the trial of this case, she signed unwillingly and only after urgent solicitation on the part of the father; and in answer to the question, "Why did your father urge you to execute the power of attorney to which you have referred?" she answered: "Because he said he had payments to make on certain lands of his, and that in case of necessity he wished to raise enough money on my property to meet that demandbut that he hardly thought he would be obliged to do so-but he wished to have the power on hand, so in case of need he could make use of it." In endeavoring to obtain money on the strength of his daughter's land, Edwin A. Lawrence was, therefore, but carrying out the purpose had in view by both when the daughter gave him the power. His negotiations with Mr. Mastick for a loan of the required money failed of accomplishment on the last day allowed for the payment of the installment due upon the certificates of purchase. In this extremity he applied to Gustave Reis for the loan of the amount necessary to make the payment, viz.: $4,550. Gustave furnished a part of the money, but got the greater part of it from Ferdinand Reis, who is the plaintiff in this action. The loan was accordingly made, and as security for its payment Edwin A. Lawrence executed to plaintiff Reis a deed for the Alameda land as attorney-infact for Fannie P. Lawrence. At the time of this transaction, which took place on the 27th of June, 1874, Edwin A. Lawrence represented to Reis that his daughter had obtained a divorce from her husband in Salt Lake, and had been restored to her maiden name. Subsequently, to wit: on the 18th of September, 1874, upon application made on behalf of the plaintiff, Fannie P. Lawrence executed to plaintiff a deed for the same land described in the deed already executed to him by her father as her attorney-in-fact, which deed expressed a consideration of $4,500, and contained the clause: "This deed is given in confirmation of the deed given by me to said Reis on June 27, 1874, by my attorney-in-fact, hereby ratifying and confirming the same." The certificate of acknowledgment to this confirmatory deed described the grantor as "Fannie P. Lawrence (feme sole)," and complied with the requirements of the statute prescribing the form of such certificates for others than married women, but did not conform to those in respect to the latter. The case further shows that in the month of July, 1877, Hutchinson commenced an action in the District Court of Marin County of this State against the defendant Fannie for the purpose of obtaining a decree dissolving the bonds of matrimony alleged to have existed between them since the 13th of April, 1871, on the ground that the defendant therein, on or about the 1st of July, 1872, deserted the plaintiff in that action, and from that time forth lived apart from him and denied him all marital rights. After trial, the Court in which the action was brought decreed the plaintiff a divorce on the ground stated in his complaint. We assume that the Utah decree was invalid. Nevertheless, the fact remains that upon the rendition of that decree the defendant, Fannie P. Lawrence, resumed her maiden name, and thence hitherto continued to act and represent herself as a feme sole. As such she signed and acknowledged the power of attorney to her father for the purpose of enabling him to borrow money on the strength of her land. On the security of that land and on those representations the father did borrow money, and to secure its repayment, executed to the lender, pursuant to the power, a deed for the the premises. Subsequently, and in consideration of that loan, the daughter, still acting and representing herself as a feme sole, executed as such to the lender another deed for |