their acceptance of, and receipt for, the property distributed were induced under a misapprehension and misinformation of fact, however they might have been considered upon a motion to set aside the decree of distribution and upon an appeal from the order made upon such motion, cannot be considered upon a motion to dismiss an appeal from the decree.

MOTION to dismiss appeals from a decrce of the Superior Court of Marin County distributing the estate of a deceased person. F. M. Angellotti, Judge.

The facts are stated in the opinion of the court.

T. Z. Blakeman, for Appellants.

Lennon & Hawkins, for Respondent.

HARRISON, J.-The executor of the last will and testament of the above decedent presented to the superior court for final settlement an account of his administration of the estate, and at the same time a petition for the distribution of the estate remaining in his hands, setting forth therein the provisions of the will and the names of the persons entitled to receive distribution, and also the shares of the estate to which they were respectively entitled. After due notice of the time and place appointed for hearing the same, the court heard the testimony and proof submitted in support of the account, made an order settling the same, and thereupon made an order distributing the estate in accordance with the terms of the petition. The decree of distribution was entered April 24, 1900.

June 20th Annie J. Shaver and Jacob Shaver, two of the distributees named in the decree, appealed therefrom to this court, bringing as the record here the petition and decree, without any bill of exceptions.

The respondents have filed herein copies of certain records and papers on file in the superior court in the matter of the administration of said estate, showing that after the abovenamed petition was filed, and prior to the day appointed for its hearing, the appellants signed their consent to the settlement and allowance of the account, and to the distribution of the estate in accordance with the prayer of said petition, and that the same was filed in court before the hearing upon the said petition; and that on the next day after the said decree

of distribution was entered of record, viz., April 24th, the executor paid and delivered to each of said appellants all of the personal property, and the possession of the real estate distributed to them by said decree, and that their voucher therefor was filed in said court, and that thereupon, on April 25th, the court made an order discharging the said executor from all further duties and responsibilities of his trust as such executor. Upon these facts the respondents have moved for a dismissal of the appeals upon the ground that the appellants, having accepted the provisions of the judgment and voluntarily satisfied the same, were not at liberty thereafter to appeal therefrom.

The right to accept the fruits of a judgment, and the right of appeal therefrom are not concurrent. On the contrary, they are totally inconsistent. An election to take one of these courses is, therefor, a renunciation of the other. (Bennett v. Van Syckel, 18 N. Y. 481.) The precise question involved herein was presented in Estate of Baby, 87 Cal. 200,1 and upon the motion of the respondents therein the appeal was dismissed, the court saying: "When a judgment has been satisfied it has passed beyond review, for the satisfaction thereof is the last act and end of the proceeding." And upon the authority of that case the motion must be granted.

The appellants have presented herein certain affidavits tending to show that their consent to the settlement of the account and the entry of the decree of distribution was signed by them under certain misapprehension and misinformation of fact, and that they received the property distributed to them and signed their receipt therefor by reason of the same misapprehension.

The matters presented in these affidavits cannot, however, be considered upon this motion to dismiss the appeal. Whether they could have been considered upon a motion in the superior court to set aside the decree of distribution need not be determined. If such motion had been made in that court the affidavits would then have formed a part of its records, and could have been authenticated in a bill of exceptions and would form a part of the record on appeal from the order made upon the motion. No motion of this nature was, however, made before that court, nor was any matter pre

1 22 Am. St. Rep. 239.

sented for its consideration tending to impair the validity and correctness of the decree, and while the decree remains as the judgment of that court this court has no jurisdiction to question its sufficiency or force by reason of any matters which are not of record.

The appeals are dismissed.

Van Dyke, J., and Garoutte, J., concurred.

Hearing in Bank denied.

[L. A. No. 784. Department Two.-December 29, 1900.] SOLON BRYAN, Appellant, v. SETH ABBOTT et al., Respondents.

MECHANICS' LIENS-VALIDITY OF CLAIM-NAME OF REPUTED OWNER.-A claim of lien for work and materials is sufficient, though it gives only the name of the reputed owner of the premises, without stating that he is the owner thereof in fact. If, in good faith, he gives the name of a reputed owner, he would not lose his lien, even if it should be ascertained that some other person was the owner.

ID. FORECLOSURE-PLEADING AVERMENT OF OWNERSHIP-DEMURRER.— Where the complaint foreclosing such claim of lien avers that the defendant, who was named in the claim of lien as the reputed owner, was the owner and reputed owner, and in possession of the premises, at all of the times mentioned in the complaint, a demurrer thereto admits his ownership, and that he could not have been misled by the description contained in the claim of

lien.

ID.-TIME OF PAYMENT-CONSTRUCTION OF CLAIM-CONSISTENCY WITH COMPLAINT.-A claim of lien, stating that "there was no time specified in the contract for the commencement or completion of the work," and further stating that payment was "to be made upon the completion of the work or as required in its progress," is to be construed as requiring payment upon the completion of the work, though not fixing any date of payment; and such claim is not inconsistent with an averment of the complaint "that no time for payment was or is stated or set forth in said contract or agreement."

ID. DESCRIPTION OF WORK-CEMENT SIDEWALK AND CURB-DEMURRER FOR UNCERTAINTY.-A complaint stating that the contract was for the construction of a cement sidewalk and cement curb "in front of and adjoining" the lot described, and attaching as an ex

hibit a claim of lien stating that the contract was to construct the same "around" the premises, and also a diagram showing the curb and sidewalk along the side and across the end of the property, being all of it that bordered on the street, is not subject to a demurrer by the owner for uncertainty in the description of the work.

ID.-OWNER'S PERSONAL KNOWLEDGE OF WORK-ESTOPPEL.-The owner, having personal knowledge of the work done, cannot avail himself of a demurrer upon the ground that the description of the work is ambiguous, where he can have no doubt as to its meaning.

ID.-LOCATION OF LOT IN INCORPORATED CITY-ABSENCE OF EXPRESS AVERMENT-JUDICIAL NOTICE.-The failure of the notice of lien and of the complaint to allege that the lot of land improved by the sidewalk and curb is “in an incorporated city or town" does not fail to show a lien therefor under section 1191 of the Code of Civil Procedure, where the lot is described as being situated "in the city of San Diego," etc. The court will take judicial notice the city of San Diego is incorporated.

APPEAL from a judgment of the Superior Court of San Diego County. J. W. Hughes, Judge.

The facts are stated in the opinion.

A. D. Jordan, and Eugene Daney, for Appellant.

Sam Ferry Smith, and McDonald & McDonald, for Respondents.

HAYNES, C.-Action brought to enforce a lien for work and materials in laying cement sidewalk and curb and constructing cement steps on the sidewalk leading up to the doorways.

Defendants severally demurred to the second amended complaint, the demurrers were sustained, and, plaintiff failing to amend, judgment of dismissal was entered and plaintiff appeals.

The contract was made, the work performed and notice of lien filed by William McDonald, who assigned his claim and demand to the plaintiff. The demurrer is general and special.

1. The notice or claim of lien stated "that Seth Abbott is the name of the reputed owner of said premises, and caused and requested said William McDonald to perform said labor and furnish said materials"; and the complaint alleges: "That at all the times herein mentioned said defendant, Seth

Abbott was the owner and reputed owner and in possession of and personally occupied the following described real property," describing it.

Respondent contends that the recorded notice of lien is insufficient because it does not state the name of the owner of the premises sought to be charged with the lien.

It is sufficient if the name of the reputed owner only is given. (Corbett v. Chambers, 109 Cal. 178, 184.) The case of Santa Cruz Rock Pav. Co. v. Lyons, 117 Cal. 212,1 cited by respondent, does not either directly or indirectly hold that the recorded notice of lien must state the name of the owner, but the reasoning of the case and the conclusion reached is entirely consistent with Corbett v. Chambers, supra, where it was said: "The provision therein that the claimant shall give the name of the owner or reputed owner, if known, implies that, if he does not know the name of the owner, he may state this fact, and perfect his lien without naming an owner (West Coast Lumber Co. v. Newkirk, 80 Cal. 275); and also, that if in good faith he gives the name of a reputed owner, he shall not lose his lien if he shall afterward ascertain that some other person was the owner."

Here the demurrer admits that Seth Abbott, who was described in the notice as the "reputed owner," is the "owner" of the premises sought to be charged with the lien; and if Seth Abbott, as owner, examined the records in the recorder's office, as the law presumes he did, the false description, "reputed owner," could hardly lead him to doubt his identity.

.

2. The notice of lien, after describing the work, stated there was "no time specified for the commencement or completion of the work, . payment to be made in United States gold coin upon completion of the work or as required in its progress." Attached to the complaint, and made part thereof, is a copy of the notice of lien, and in the complaint it is alleged "that no time for said payment was or is stated or set forth in said contract or agreement." It is contended that the allegations of the complaint are inconsistent with the notice of lien attached as an exhibit, and that the complaint is therefore demurrable for uncertainty or ambiguity.

1 59 Am. St. Rep. 174.