built a fence on the east side of the land in dispute about 1903 and during the same year inclosed the half section. The fence was of posts and three wires. When he first built the fence he leased the half section to one Goodale for two years at a rental of nine dollars per year. "He agreed to pay the taxes and build the fence.' He pastured some cattle on it for two years. At some date, not stated, defendant leased the half section to a man, whose name he cannot recall, under a verbal lease for five years. He paid the rent, $40, for one year and no more, and defendant does not know how long he was on the land, but never saw him after the first year. In 1911 he leased the land to one Howard for five years under a written lease. This action was begun in October, 1912. The defendant never resided on the land in dispute and never made any use of it except as above stated. The land is in Tulare County and plaintiff's grantor, during all this time, lived in Stockton, and defendant testified his brother never knew he was leasing the land. He also testified that he had the whole half section assessed to himself, and paid all taxes on it for at least fifteen years. The evidence as to the payment of taxes is that they went delinquent in 1905 and that no taxes were paid in 1906, 1907, and 1908 until 1909, when the defendant redeemed the land from tax sales.

The witness, John Gallo, testified that, in the year 1908, the defendant told his father (the husband of plaintiff) that he wanted some money for taxes and his father laughed and said to him: "What rents are you getting from the land?" He said: "Not much." So father said to him: "If you will pay all the taxes, what is left you can keep for your troubles."

It is very clear to us that the defendant did not sustain his plea of adverse possession. The elements required to make out an adverse possession sufficient to constitute a defense under the statute of limitations are clearly stated in Unger v. Mooney, 63 Cal. 595, [49 Am. Rep. 100], and need not here be repeated. In said case it is said: "The adverse character of the possession must in every case be manifested to the owner. The owner must be notified, in some way, that the possession is hostile to his claim, or the statute does not operate on his right. As was said in the case cited in 84 N. Y., per Andrews, J., [Trustees of East Hampton v. Kirk, 84 N. Y. 215, 38 Am. Rep. 505], 'the object of the statute defining the acts essential to constitute an adverse possession is, that the

real owner may, by unequivocal acts of disseizor, have notice of the hostile claim and be thereby called upon to assert his legal title.' Hence, an open and notorious occupation with hostile intent is a necessary constituent of an adverse holding."

The defendant did not personally occupy the land. No one nor all of the persons to whom he leased it ever occupied it for any five consecutive years.

The record does not show that taxes were paid for any one period of five years. Under the decisions construing subdivision 2 of section 325 of the Code of Civil Procedure, it is held that redeeming land from tax sales is not the payment of taxes contemplated by the law as an element of adverse possession. "If it [the payment of taxes] is an element in the adverse possession tending to show good faith, certainly during those years in which the taxes have not been paid the possession lacks an essential element required in the statute. During all the years in which the delinquency was allowed, the true owner might forbear suit because of his knowledge that the person in possession had not paid taxes, thereby indicating that he was not holding adversely." (McDonald v. McCoy, 121 Cal. 73, [53 Pac. 427].)

The relationship of the parties has a bearing and may well be considered. Two brothers owning adjoining land of little value-far from where they are residing-used only for grazing stock; one brother puts a wire fence around both holdings and leases it for short periods. Such act from a stranger, owning no adjoining land, would have far greater significance. as showing a hostile holding, than when being done by a brother owning the adjoining land.

In considering the case on appeal, it will be presumed that all testimony introduced at the trial tending to support the findings of the trial court was accepted by it as true. The testimony of John Gallo, above referred to, wherein he states that, in 1908, the defendant asked his father for money for taxes and the latter said to him: "If you will pay the taxes, what is left you can keep for your troubles," is sufficient in itself to negative all inferences of an adverse and hostile holding, and clearly sufficient to show that plaintiff's grantor was not advised of any hostile claims, but rather points to an understanding between brothers for their mutual benefit. (See Mattes v. Hall, 28 Cal. App. 361, [152 Pae. 436].) Consider

ing the family relationship of the parties, the language used by the district court of appeal in Glowner v. De Alvarez, 10 Cal. App. 196, [101 Pac. 433], seems not inappropriate for quotation in this connection: "There are no equities in favor of a party seeking by adverse holding to acquire the property of another."

The judgment is clearly right, and is affirmed.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 2100. Second Appellate District.-August 1, 1916.] FLETCHER COLLECTION AGENCY (a Corporation), Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

JUSTICE'S COURT APPEAL-MOTION TO DISMISS-FAILURE OF SURETIES TO JUSTIFY-SERVICE OF NOTICE OF JUSTIFICATION.-Upon a motion made to dismiss a justice's court appeal upon the ground that the sureties on the undertaking on appeal did not justify in the manner and form required by law, the decision of the superior court upon conflicting affidavits as to when the notice of justification of the sureties was served, is not subject to review in the appellate court upon certiorari proceedings.

ID.-WAIVER OF JUSTIFICATION-FAILURE TO APPEAR.-Justification of sureties on an undertaking given on a justice's court appeal is waived where the party excepting to the sufficiency of the sureties fails to appear at the time and place mentioned in the notice of justification.

ID.-FILING OF NEW UNDERTAKING PRIMA FACIE JUSTIFICATION.-The filing of a new undertaking on the day fixed for the justification of sureties, which has attached to it the requisite affidavit sworn to before the justice, establishes a prima facie justification. ID.-APPEAL UPON QUESTION OF LAW-RECORD STATEMENT OF GROUNDS. Jurisdiction of a justice's court appeal taken on questions of law alone is not lost by reason of the omission to include in the statement on appeal the grounds upon which the party appealing intended to rely.

APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Second Appellate District to review an order of the Superior Court of Los Angeles County refusing to dismiss a Justice's Court appeal.

31 Cal. App.-13

The facts are stated in the opinion of the court.

George P. Cook, for Petitioner.

Frank A. McDonald, for Respondents.

CONREY, P. J.-On application of the petitioner a writ of review was issued herein, to determine whether the defendant superior court has regularly pursued its authority in refusing to dismiss an appeal from the justice's court, in an action wherein the petitioner was plaintiff and Frank A. McDonald et al. were defendants. The facts are shown by the return filed herein.

After judgment in the justice's court, the defendants in that action filed notice of appeal on questions of law and filed their undertaking on appeal. On November 17, 1915, the plaintiff filed exceptions to the sureties on the appeal bond. On November 22, 1915, before 1 o'clock P. M., appellants served on the plaintiff a notice "that defendants will justify the sureties on the new appeal bond filed by them in the aboveentitled case, and you will take further notice that defendants will file a new appeal bond in the above-entitled action on the 22d day of November, 1915, at the hour of 4:30 P. M., in Department F of the above-entitled court, at the courthouse in the city of Los Angeles, Cal." The plaintiff and its attorneys did not appear in the justice's court at the time specified. The justice's docket is silent as to justification by the sureties or as to any appearances by either party before the justice's court at the time specified in the notice of justification of sureties. But the undertaking filed on that day contains the statutory form of affidavit on an undertaking, with a certificate showing that it was subscribed and sworn to before the justice of the peace on that same day, November 22, 1915, and an indorsement was made thereon showing the filing of the undertaking on that day.

The papers on appeal having been duly transmitted to the superior court and filed therein, the plaintiff gave notice of motion to dismiss the appeal upon the grounds:

"1. That the sureties on the undertaking on appeal heretofore filed by said defendants did not justify in the manner and form required by law and in accordance with the provisions of section 978 of the Code of Civil Procedure.

"2. That the statement on appeal filed by said defendants does not state any grounds of appeal, as required by section 975 of the Code of Civil Procedure.'

The motion was based upon the papers on file and affidavits. The affidavits were for the purpose of showing, and tended to show, that the notice of justification of sureties was not served until the next morning after the time for justification as specified in the notice. Counter-affidavits were filed positively affirming that the notice was served between 12 and 1 o'clock on the twenty-second day of November. For the purpose of determining the questions raised as to its jurisdiction. to entertain the appeal, the superior court considered these conflicting affidavits, and determined that the notice was served on the 22d at the hour named in the appellants' affidavits. Therefore, as to that disputed fact we consider ourselves obliged to adopt the conclusion of the superior court.

On these facts respondents claim that the failure of the party excepting to the sufficiency of the sureties to appear at the time and place mentioned in the notice of justification was a waiver of such justification, and that the affidavit of the sureties before the justice, as shown on the undertaking itself, wherein they made oath that they were residents and householders and respectively worth the sum specified in the undertaking, etc., establishes a prima facie justification, and that nothing further was required under the circumstances here shown. We think that this contention should be sustained. It is directly supported by the decision in Bank of Escondido v. Superior Court, 106 Cal. 43, [39 Pac. 211], and in Budd v. Superior Court, 14 Cal. App. 256, [111 Pac. 628].

The other ground upon which petitioner rests his contention that the superior court exceeded its jurisdiction is that the statement on appeal does not contain the grounds upon which the parties appealing intended to rely, as required by section 975 of the Code of Civil Procedure. Assuming the statement to be insufficient as specified, it does not result that thereby the court was deprived of its appellate jurisdiction over the case. (Rauer's Law & Collection Co. v. Superior Court, 26 Cal. App. 289, [152 Pac. 957].)

The order of the superior court refusing to dismiss the appeal is affirmed.

James, J., and Shaw, J., concurred.