age.

3. A tenant at will cannot defend an action of ejectment by his landlord on the ground that he had no notice to quit, where the answer expressly denies plaintiff's title, and sets up ownership in defendant.

4. Where the findings in ejectment show title in plaintiff, the right of present possession is presumed, as a matter of law.

Commissioners' decision. Department 1. Appeal from superior court, Mariposa county; John M. Corcoran, Judge.

Ejectment by Caroline E. McCarthy against J. L. Brown. Judgment for plaintiff, and defendant appeals. Affirmed.

J. J. Trabucco and Jos. F. Peck, for appellant. J. H. Rogers and F. H. Gould, for respondent.

VAN CLIEF, C. Ejectment. Judgment for plaintiff. Appeal from judgment, on judgment roll. Appellant claims that the findings do not support the judgment, because: First. The finding (No. 16) that defendant "ousted the plaintiff" is a conclusion of law, in that it does not find the facts constituting the ouster. Second. That there is no finding "that plaintiff, at the time of commencing the suit, was entitled to the possession" of the demanded premises.

1. In the case of Smith v. Mohn, 87 Cal. 497, 25 Pac. 696, it was said: "They [findings] should be statements of the ultimate facts, and not of the probative facts. Mathews v. Kinsell, 41 Cal. 512." In Hihn v. Peck, 30 Cal. 286, the court said: "It has been uniformly held that it is not necessary for the court, in its findings, to present the results of last analysis; but, on the contrary, that it would be sufficient if the court found the facts entering as terms into the legal proposition upon which the prevailing party based his right of recovery. The facts' which the court is to find, and the 'facts' which a pleader is to state, lie, according to the decisions in this state, in the same plane; that is, in both connections, facts are to be stated according to their legal effect." In Murdock v. Clarke, 90 Cal. 435, 27 Pac. 275, the court said: "A finding which follows the pleading is sufficient. In this, as in other cases, it is sufficient to find the ultimate facts." Therefore, to determine the sufficiency of a finding of fact, it is only necessary to ascertain what

statement of that fact is required in the pleading. In Payne v. Treadwell, 16 Cal. 243, the court said: "Now, what facts must be proved to recover in ejectment? These only: That the plaintiff is seised of the premises, or of some estate therein in fee, or for life, or for years, and that the defendant was in their possession at the commencement of the action.

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* It is the ultimate facts,which could not be struck out of a pleading without leaving it insufficient,-and not the evidence of these facts, which must be stated." In Garrison v. Sampson, 15 Cal. 95, proof of holding over of premises by defendant was objected to by defendant, on the ground that such proof was inadmissible under the general allegation of the complaint, and could only be admitted under specific averment of the facts. The court, on appeal, said: "We do not think this point well taken. A holding over by the defendant is, in effect, an ouster, and may be so charged." In Boles v. Cohen, 15 Cal. 151, the court said: "The complaint ** distinctly alleges prior possession in the plaintiffs, and an entry and ouster by the defendants, and that the defendants are still in possession of the property. There can be no doubt of the sufficiency of these allegations." See, also, Boles v. Weifenback, Id. 144. While I think the ultimate fact of ouster is sufficiently expressed in finding No. 16, under the heading of "Facts," there can be no doubt that it is so in finding No. 6, under the heading of "Conclusions of Law," as follows: "That on December 11, 1890, defendant did oust and eject plaintiff from the possession of said lot 5, block 3, and has ever since wrongfully and unlawfully withheld said possession from plaintiff." Here the fact of ouster is distinctly expressed; and, as to the withholding of possession, the qualifying words "wrongfully and unlawfully" are harmless surplusage. The force of this finding, as a fact, is not impaired by its having been placed under the heading of "Conclusions of Law." Jones v. Clark, 42 Cal. 180; Burton v. Burton, 79 Cal. 490, 21 Pac. 847; Edwards v. Bank, 59 Cal. 149; Bath v. Valdez, 70 Cal. 355, 11 Pac. 724; Spargur v. Heard, 90 Cal. 228, 27 Pac. 198; Millard v. Supreme Council, 81 Cal. 343, 22 Pac. 864.

The court found, in effect, that the occupancy of the demanded premises by the defendant, up to August, 1890, was under and with the consent of the plaintiff. Appellant contends that this is a finding that defendant was a tenant at will, and that since there is no finding of service of notice in writing to remove from the premises, according to section 789 of the Civil Code, the tenancy was not terminated before the commencement of the action, and consequently plaintiff had no right to the possession. While it is the general rule that in actions between landlords and tenants at will, in order to give the former a right of action, notice to quit is necessary, yet in the case at bar the allegations of the

complaint of the seisin and right of possession of the plaintiff are denied in the answer, and a distinct claim of ownership by the defendant is there alleged. In Smith v. Ogg Shaw, 16 Cal. 90, the court said; "The tenant, having disclaimed the title of the landlord and his own relation of tenant, cannot invoke the protection and advantages of that relation. The defendant's answer expressly makes this denial of title and holding the possession as tenant, or that plaintiff was entitled to the possession.

The effect of this denial

was to make the defendant a trespasser. He was not entitled to notice to quit. Whenever he assumed to hold in defiance of the plaintiff's title, the plaintiff was authorized to maintain his action for the recovery of the premises, and he could not set up the denial of the title, and then claim the benefit of holding in subordination to it. Tayl. Landl. & Ten. 309; Jackson v. Wheeler, 6 Johns. 272; Jackson v. Deyo, 3 Johns. 422." The decision in Smith v. Ogg Shaw was affirmed in Bolton v. Landers, 27 Cal. 104, and Simpson v. Applegate, 75 Cal. 345, 17 Pac. 237.

2. As to plaintiff's right to the possession of the demanded premises, findings 1, 2, 3, and 4, I think, are amply sufficient. They show the paramount source of title in one Murry (antedating any claim of defendant or her grantors), and mesne conveyances from Murry down to plaintiff; the conveyance to the latter having been executed and delivered to her some nine months before the commencement of the action. These disclose title in the plaintiff, carrying with it the right to possession. In Payne v. Treadwell, 16 Cal. 243, the court, by Justice Field, said: "The right to the possession follows as a conclusion of law from the seisin, and need not be alleged.

The right of possession accompanies the ownership, and from the allegation of the fact of ownership-which is the allegation of seisin in 'ordinary language'-the right of present possession is presumed, as a matter of law. The withholding of the possession from one who is seised of the premises is presumptively adverse to his right, and wrongful." See, also, Haight v. Green, 19 Cal. 118; Salmon v. Symonds, 24 Cal. 266; Depuy v. Williams, 26 Cal. 314. I think the judgment should be affirmed.

Code Civ. Proc. 1474, providing that when the homestead is selected from the separate property of the husband, who joined in its selection, on the death of the wife it goes absolutely to the surviving husband, a husband, after his second marriage, may give a valid mortgage on a homestead selected from his separate property during the first marriage.

2. In an action on a note, the court found as facts that there were due plaintiff certain amounts, separately, as principal, interest, counsel fees, and costs, and that they aggregated a sum stated. As conclusions of law, it found that there were due the same items, and aggregate amount, except that the righthand cipher was omitted from the amount due as principal. Held, that the court could cor rect the error after judgment, without notice.

3. Where the decree in foreclosure, by inadvertence or mistake, omits a fractional quar ter of the land described in the mortgage and the findings, the court may amend the decree without notice, after its entry, by including such land.

Commissioners' decision. Department 2 Appeal from superior court, Stanislaus county; Wm. O. Minor, Judge.

Action by Lafayette Dickey against Crecencia Gibson, executrix of the estate of Samuel Gibson, deceased, and others, to foreclose a mortgage. From a judgment for plaintiff, the executrix appeals. Affirmed.

C. W. Eastin, for appellant. L. J. Maddux, for respondent.

SEARLS. C. This is an action to foreclose a mortgage. Plaintiff had judgment of foreclosure, and Crecencia Gibson, as executrix, appeals. The contention of the appellant is that a portion of the mortgaged premises were and are the homestead of said appellant and of Samuel Gibson, her testator, and that as to such homestead the mortgage of the plaintiff and respondent herein never was, and is not now, a lien thereon. The following facts will serve to illustrate the contention: In April, 1875, Samuel Gibson was the owner of all the land described in the mortgage herein, and resided thereon with his then wife, Guadalupe Gibson, and their two minor children. The land was the separate property of said Samuel Gibson, acquired by him before marriage. On the 16th day of April, 1875, and while so residing thereon, the said Gibson and his said wife made, executed, acknowledged, and filed for record, in due form, in the county of Stanislaus, where said land is situate, their declaration of homestead upon all of said land, the value of which was and is less than $5,000. Subsequently, and during the life of said wife, said Samuel Gibson and Guadalupe Gibson, his wife, sold and conveyed a portion of said homestead. In 1879 the said wife, Guadalupe Gibson, died. On or about February 18, 1882, Samuel Gibson intermarried with Crecencia Gibson, the appellant herein, and they have since resided upon the premises in question with the two minor children of the first marriage, and with six minor children, the fruit of the second marriage. Subsequent to the second marriage, probably, Samuel Gibson re

purchased the land so sold by him and his first wife, Guadalupe. On the 2d day of December, 1889, the plaintiff and respondent herein loaned to said Samuel Gibson $5,700, and the latter made to said plaintiff his promissory note therefor, payable one year after date, with interest at 81⁄2 per cent. per annum, compounded annually, etc., and, to secure the payment of said promissory note, said Gibson executed his mortgage to plaintiff on all the land referred to herein, including that sold and reconveyed to said Gibson, as well as the homestead premises. The mortgage was recorded. On the 28th day of May, 1894, at the county of Stanislaus, state of California, said Samuel Gibson departed this life, leaving a last will, under which Crecencia Gibson was nominated as executrix, and such proceedings were thereafter had that the said last will was duly admitted to probate, and said Crecencia Gibson duly appointed executrix thereof, and she duly qualified as such executrix, and still is acting as such. Crecencia Gibson, the appellant here, did not execute the mortgage, or receive any portion of the consideration of the note which it was given to secure. Respondent presented his claim to the executrix for allowance, and then brought this action to foreclose; waiving in his complaint all recourse against any other property of the estate, except the mortgaged premises. By the decree the court ordered a sale of the property, other than the alleged homestead, to be first made, and then the homestead premises, if necessary to satisfy the demand of plaintiff. Section 1265 of the Civil Code, as amended in 1880, provides as follows in reference to homesteads: "From and after the time the declaration is filed for record, the premises therein described constitute a homestead. If the selection was made by a married person from the community property, the land, on the death of either of the spouses, vests in the survivor, subject to no other liability than such as exists or has been created under the provisions of this title [title 5, pt. 4, div. 2, Civ. Code]; in other cases, upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devisees, subject to the power of the superior court to assign the same for a limited period to the family of the decedent; but in no case shall it be held liable for the debts of the owner, except as proIvided in this title." As will be observed from the foregoing section, upon the death of either spouse, a homestead declared upon community property vests absolutely in the survivor. In the hands of such survivor, it is protected against enforced sale, precisely as before it had been protected to the community by its homestead character. Sanders v. Russell, 86 Cal. 119, 24 Pac. 852; In re Burdick's Estate, 76 Cal. 639, 18 Pac. 805; Sheehy v. Miles, 93 Cal. 288, 28 Pac. 1046; Tyrrell v. Baldwin, 78 Cal. 470, 21 Pac. 116.

Prior to the amendment of 1880, and under the law of 1862, the homestead in such cases

went to the survivor, subject to forced sale for debts accruing after the death of the other spouse. Watson v. His Creditors, 58 Cal. 556. When, as in this case, the homestead is selected from the separate property of the husband, who joined in its selection as a homestead, then, upon the death of the wife, it goes absolutely to the surviving husband. In re Croghan's Estate, 92 Cal. 370, 28 Pac. 570; Code Civ. Proc. § 1474. The title to the homestead property then vested absolutely in Samuel Gibson at the death of his first wife, Guadalupe Gibson, in 1879, which was some 10 years prior to the making of the note and execution of the mortgage herein. Could he then execute a valid mortgage on the homestead premises? We think this question must be answered in the affirmative. By the death of the first wife, the homestead property vested absolutely in the surviving husband, Samuel Gibson. As far as the legal title is concerned, it vested in him as fully and perfectly as though no homestead had ever been carved out of it. The limitations and immunities which accompanied the enjoyment of the property under such title modified, not the title, but its enjoyment, and were only such as the statute imposed. Save as to these limitations and immunities, the homestead ceased to exist. It was, also, under section 1474, exempt from the payment of any debt or liability contracted by, or existing against, either the husband or wife, or either of them, previous to or at the death of such husband or wife, except as provided in the Civil Code. Code Civ. Proc. § 1474. The Civil Code provides the manner by which the homestead may be sold, abandoned, or incumbered. Sections 1240-1244. The legislature evidently contemplated that cases would arise in which third persons would succeed by purchase to the rights and title of successors to homesteads, for it is provided by section 1485, Code Civ. Proc., that such purchasers "shall have all the rights and benefits conferred by law on the persons whose interests and rights they acquire." Herrold v. Reen, 58 Cal. 443, was a case in which a homestead was declared by husband and wife upon community property under the act of 1860. In 1862 the statute was so amended that it provided, as at present, that upon the death of the husband or wife the property, as at present, vested in the survivor. The husband died subsequently to this amendment. Under the act of 1862, as at present, in order to constitute a valid mortgage on the homestead it was necessary for the spouses to cooperate. After the death of the husband, the wife executed a mortgage upon the homestead property, and it was held valid and binding, although the mortgaged premises had been set apart by the probate court as a homestead for the mortgagor and her children. When the Civil Code (section 1242) provided that the homestead of a married person could only be conveyed or incumbered by the execution and acknowledgment of an

instrument by both husband and wife, it was dealing with the condition which it had established by the same title, in reference to homesteads, and for the protection of the spouses in their status as husband and wife, and with no view to the altered conditions existing after the death of one of the spouses, when there was no marital relation to protect, and when, by the same law, it was provided that the title to the homestead property, which during coverture was held jointly, should vest in the survivor.

It would require a more emphatic declaration than is to be found in our statute to authorize a construction which would forever deny to the homestead survivor the right of alienation of property, the title to which is vested in him "absolutely." We must not be understood as holding that in the hands of Samuel Gibson the former homestead was liable to sale on a money judgment against the latter. That question was determined in Tyrrell v. Baldwin, 78 Cal. 470, 21 Pac. 116, against such contention. That case did not hold, however, that the survivor could not mortgage the property, but indicated, without deciding, that he could do so. The following language was used: "It does not follow that, because the survivor can mortgage the property after the title vests in him, it is subject to sale under execution; or that, because the title vests absolutely in the survivor, the homestead is subject to forced sale. Such title is entirely consistent with the law of exemptions;" citing In re Headen's Estate, 52 Cal. 294. Waples, in discussing this question, says: "By the provision 'the homestead property selected by the husband and wife, or either of them, * * shall, upon the death of the husband or wife, vest absolutely in the survivor,' after the demise of either, tho power to mortgage is in the widow or widower, as the case may be." Wap. Homest. p. 601. The title to the homestead property, having vested in Gibson at the death of his first wife, was not affected by his second marriage to the appellant herein. As was said in Graham v. Stewart, 68 Cal. 379, 9 Pac. 555: "The marriage changed her social status, but did not change her right to the property. In its title and use it remained vested in her as the true owner, usable by her for her exclusive benefit, and disposable by her, without the consent of her husband, in the manner provided by law,-i. e., by a conveyance of the property," etc. The facts of that case are on all fours with this, except that there the husband had died, and the widow had again married, and thereafter executed a mortgage on the former homestead, while here it was the husband who survived and executed the mortgage. We are of opinion that, upon both principle and authority, the mortgage executed by Samuel Gibson to the respondent was valid, and created a lien upon the property in question.

The portions of the complaint which appellant moved to strike out were proper as a

v.45P.no.1-2

predicate for the injunction which plaintiff sought, and as a foundation for the appointment of a receiver. The temporary injunction was dissolved, and no receiver was ever, so far as appears, appointed.

The following mistakes occurred in the proceedings, and were amended by the court without notice to appellant, and these amendments are urged as error: (1) The court found there was due to plaintiff, as principal upon the note in suit, $5,700, and as interest $1,957.21, as a counsel fee $200, and costs $20.25,-aggregating $7,877.46. As conclusions of law from the foregoing findings of fact, the court found that there was due plaintiff on the promissory note in the findings set out the principal sum of $570, thus omitting a cipher, to make it $5,700, as in the facts. The conclusion as to interest, counsel fees, and costs, together with the aggregate of $7,877.46, for which judgment was ordered, was precisely as in the finding of facts. This was, as abundantly appeared by the record, a mere clerical misprision, which the court could, on its own motion, amend, with or without notice. (2) In entering the decree, by inadvertence and mistake, the fractional S. E. 14 of S. W. 4 of section 36, township 2 S., range 7 E., Mt. D. B. & M., was omitted, although contained in the mortgage and findings. The court amended the decree, one month after its entry, by including therein this fraction. What we have said of the former amendment applies to this also. Bostwick v. McEvoy, 62 Cal. 496; Beatty v. Dixon, 56 Cal. 624; Fallon v. Brittan, 84 Cal. 514, 24 Pac. 381; Egan v. Egan, 90 Cal. 21, 27 Pac. 22; 1 Freem. Judgm. (4th Ed.) § 72a.

We recommend that the judgment be affirmed.

Under Act March 9, 1893, providing that, in cities of the first class, delinquent local assessments shall be part of the tax due on the property, and shall be collected as other taxes; and Act March 15, 1893, § 79, providing that the lien of all taxes lawfully assessed shall have priority over all mortgages and judgments, -the lien of an assessment for local improvements levied by the city of Seattle is superior to the lien of a mortgage given by the property owner prior to the levy of the assessment.

Appeal from superior court, King county; J. W. Langley, Judge.

Action by the city of Seattle against G. A. Hill, Alonzo Hull, and others, to foreclose a lien for an assessment for local improve

GORDON, J. The act of March 9, 1893, authorizes cities in this state to issue improvement bonds in payment of the cost and expense of local improvements, etc., and provides that such bonds, when issued to the contractor constructing the improvement, or sold in the manner authorized by the act, shall transfer to the contractor or other owner or holder all the right and interest of such city in and with respect to every such assessment and the lien thereby created against the property assessed, and chargeable with the cost of such improvement. This action was brought by the respondent, a city of the first class, to recover the amount due upon a local improvement bond issued to the contractor, and by him assigned to the city, and to foreclose the same on certain real estate owned by the defendants Hill, and chargeable with the cost of such improvement, in which action Alonzo Hull, the appellant, was made a party. It appears that, prior to the levying of the assessment or the issuance of the bond in question, defendants Hill had executed a mortgage upon the premises to Hull. Upon the trial below, the court found that all of the proceedings necessary, under the law and the charter and ordinances of said city, to make the said assessment a legal charge and tax against the said property, including the letting of the contract for said improvement under the charter, the performance of the work under said contract, and the acceptance thereof by the board of public works, were duly had, and entered a decree foreclosing the assessment bond against the property, and giving the same priority over the mortgage to appellant; and from this decree the mortgagee, Hull, has appealed.

The real question to be determined is whether the lien of the assessment is entitled to superiority over appellant's mortgage, which was prior in point of time. Appellant insists that the lien given for assessments and local improvements is not a lien of the force and extent of a tax lien. Whether this position can be maintained can be determined only from consideration of the various provisions of statute authorizing the assessment, and providing the manner of its enforcement. Assessments levied for the improvement of a street are based upon the same sovereign power which is asserted in the levying of general taxes. People v. Mayor, etc., of City of Brooklyn, 4 N. Y. 419. On page 433 of Elliott on Roads and Streets, the author says: "While it is true that an assessment is not, strictly, a tax, it is also true that it is levied by the sovereign power for the general public good. It is also true that a mortgagee is benefited to the extent that the land is improved, for, to the extent that the land is

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* *

improved, to that extent is its value augmented. We cannot perceive why it is not in the power of the legislature to create a lien, and give it priority over all private rights or estates. Every one who acquires an interest in land does it subject to the right of the sovereign to lay general taxes upon it, and to impose upon it the burden of paying the expense of public improvements which confer upon the land a special benefit." It is undoubtedly true that a prior mortgage on real estate is not displaced by a subsequent assessment for local improvements, unless the statute authorizing such improvements and assessments, by express words or fair implication, otherwise provides. Subdivision 1, § 6, art. 8, of the charter of Seattle, under which this assessment was made, provides that "the city council may levy and collect an assessment upon all lots and parcels of land benefited by such improvement to defray the cost and expense thereof, which assessment shall become a lien upon all property liable therefor." Section 8, art. 8, of such charter, provides for the giving of notice, in the official newspaper of the city, to interested persons, of the filing of the assessment roll, and affords an opportunity for objections, and also authorizes the council of the city to consider objections and make corrections as it shall deem just, and that it "shall then, by ordinance, approve such roll, and shall levy and assess the amounts thereof against each parcel and lot of land, declare the same a lien thereon, and shall direct the city clerk to deliver the roll to the city comptroller, who shall forthwith deliver to the city treasurer a certified copy thereof, upon receipt of which the treasurer shall proceed to collect the same as other city taxes are collected." Said section further makes it the duty of the treasurer to give 10 days' notice of the filing of such roll, and that, unless payment is made within 30 days from the date of such notice, such assessment shall become delinquent, etc. It also provides for a penalty of 5 per cent. if the assessment is not paid before becoming delinquent, "and the sums delinquent shall be added to the annual tax roll for the current year against each lot and parcel so delinquent, and with the interest collected as other taxes." Section 8 of the act of March 9, 1893, relating to the assessment and collection of taxes in cities of the first class, provides that delinquent local assessments "shall be a part of the tax due on such property, and, with interest, shall be collected as other taxes." Section 79 of the act of March 15, 1893, provides that the lien of all taxes lawfully imposed or assessed "shall have priority to and shall be fully paid and satisfied before any recognizance, mortgage, judgment, debt, obligation or responsibility to or with which said real estate may become charged or liable"; and, in the absence of such statutory provision, it would probably be found that taxes levied upon lands take priority over every lien or incum