mony by showing that, assuming the points taken by them to correctly locate stations on the northwesterly city patent line, by turning the angle at the point Station 35 at the south and starting northwesterly according to the angle and call of the patent description, Station 36 would not have been located in the edge of the stream of the Los Angeles River, but would have been thrown on the hillside to an elevation of seventythree feet above the present river-bed. The testimony showed very conclusively that the bank of the river on the west was of rocky formation, and therefore could have been affected but little in the course of years by the current of the water. These inaccuracies appearing in the surveys of the engineers who gave testimony for appellant, the trial judge held that the burden of showing that the title of the city had been divested by the Griffin-Welsh deed had not been sustained. In this conclusion we agree. It is said that defendant Carter cannot raise the question that the land was not so included in the Griffin-Welsh deed, because he affirmed in his answer that the land was so included. It is true that in one of the defenses set out Carter did make that allegation, but he expressly abandoned and disclaimed that contention at the trial, and hence we think that allegation cannot be viewed as an admission of the fact contended for. The maps made by the city covering the lands of Griffin Subdivision show recognition of the "Sepulveda Corner," that being the point marked by the mound of stones herein before referred to at the south line of the Griffin tract. Defendant Carter introduced in evidence, as declarations against interest, sworn statements made to the city assessor by John S. Griffin for eight different years, the first being for 1883 and the last for 1898, which statements purported to set forth all of the land owned by Griffin in the city of Los Angeles, and none of these statements described any of the land in dispute. It was not error to allow in evidence the decree in an action to quiet title brought by one Fox against the city of Los Angeles, which was introduced by Carter. That action is described in the opinion treating of the appeal of the city as against Carter. It was competent evidence against the city, and if not relevant to the issues as between Johnston and Carter, could have no prejudicial effect, in view of the conclusion as indicated that Johnston did not sustain the burden of proof that the land in dispute was within the plot described in the Griffin-Welsh deed.

Finally, it is claimed on the part of appellant Johnston that a determination in favor of the title of Carter should only be made upon a condition for the repayment to Johnston of the sum of $284.85, which amount, prior to the trial in the action, had been assessed against the property to cover municipal sewer improvements. The payment of the claim arose in this way: There was a judgment in the superior court in a separate matter against Johnston and others amounting to the sum of $1,053.10, which Carter became the owner of by purchase. Carter caused an execution to be issued upon this judgment and a levy and sale made against any interest which Johnston might have in the land in dispute. At this sale Carter caused such interest to be struck off to the nominal party who was acting for him, for the sum of five hundred dollars, which was credited upon the judgment. The sewer assessments becoming payable, Carter caused these to be paid, and notified the sheriff that if Johnston made redemption under the execution sale, that these sewer assessments should be included in the redemption charge. A mortgagee of Johnston redeemed, paying the five hundred dollars and also the $284.85 required for sewer improvements. It is the latter amount that Johnston claims the court should have required by its judgment to be repaid to him. We think this contention is without merit. If Johnston, as is here determined, had no interest in the property, he was not, nor was his mortgagee, required to redeem, and if they had refused to do so, the result would have been that Johnston would have had a credit of five hundred dollars on the judgment entered against him. Having chosen to redeem, speculating upon it being determined that he had some interest in the property which had been made the subject of the execution sale, he, in our view, was a voluntary actor, and a court of equity in such an action as this would not lend him aid in the direction of recovery for the sewer assessments paid. This was not a case where Carter as the moving party sought to have cleared away a cloud caused by a sale or assessment against his property; the title in him as it is now determined was clear of any such lien, real or apparent.

Our conclusion is that the evidence fully sustains the judgment as made by the trial court; that no errors appear which warrant a new trial being granted to appellant.

The judgment and order are affirmed.

Conrey, P. J., and Shaw, J., concurred.

[Civ. No. 1582. Third Appellate District.-July 6, 1916.] EMIGH-WINCHELL HARDWARE COMPANY (a Corporation), Appellant, v. AMOS PYLMAN et al., Respondents. MECHANICS' LIENS

EQUITABLE JURISDICTION

APPEAL.-A mechanic's

lien is of equitable cognizance, although created by law; and an appeal in an action to foreclose the same lies to the supreme court.

APPEAL from a judgment of the Superior Court of Yolo County. W. A. Anderson, Judge.

The facts are stated in the opinion of the court.

Devlin & Devlin, for Appellant.

White, Miller, Needham & Harber, for Respondents.

THE COURT.-This is an action to foreclose a mechanic's lien and to bring about a sale of the premises should it be necessary to enforce the payment as claimed.

:

It was said in Weldon v. Superior Court, 138 Cal. 427, [71 Pac. 502] "The action, so far as it sought to foreclose the lien against the premises, was unquestionably an equitable suit." In Goldtree v. City of San Diego, 8 Cal. App. 505, [97 Pac. 216], citing that case, it was said: "The contention that the lien is not of equitable cognizance because created by law cannot be considered. Such a distinction would destroy all equitable jurisdiction to carry out the provisions of the code. The remedy for the enforcement of the lien is clearly an equitable

The jurisdiction is in the supreme court (Const., sec. 4, art. VI), and the case is therefore transferred to that court.

[Civ. No. 1492. Third Appellate District.-July 6, 1916.]

E. A. MAJORS, Appellant, v. MARK A. GIRDNER, Respondent.

CORPORATION-SALE OF STOCK-NATURE OF TRANSACTION.-The acceptance by a corporation of a promissory note given in payment for its stock upon the agreement that the corporation will issue the stock and deliver it to the purchaser upon the execution and delivery of the note, constitutes a present sale of the stock, and the stock becomes ipso facto the property of the purchaser, notwithstanding the certificate therefor is not issued and delivered.

ID. CERTIFICATE OF STOCK-EVIDENCE OF OWNERSHIP.-A certificate of stock of a corporation is only the evidence of the ownership thereof, and merely constitutes proof of property which may exist without it. ID. RESCISSION OF SALE-FRAUD-PLEADING OFFER OF RESTORATION OF STOCK-ESSENTIAL AVERMENT.-In an action by the assignee of a corporation to recover on a promissory note, assigned to the plaintiff for the purpose of collection only, and accepted by the corporation for the purchase price of stock, where the answer asks for affirmative relief by way of a rescission of the contract of sale upon the grounds of fraud and misrepresentation, and the surrender and cancellation of the note for want of consideration by reason of such fraud, it is essential that the answer by appropriate averment show an offer to restore the stock, notwithstanding the certificate therefor has not been issued.

ID. FRAUD OF CORPORATION-INSUFFICIENCY OF EVIDENCE.-The failure of a corporation to keep its agreement, upon a purchase of its stock, that it will contemporaneously with the execution and delivery of the promissory note of the purchaser given there for, issue the stock to the purchaser, and the failure to keep its agreement to sell the stock upon his demand at a price in advance of that paid therefor, does not involve such misrepresentation and fraud as will work a rescission of the contract of sale, but is merely a breach of the covenants of the contract.

APPEAL from a judgment of the Superior Court of Sonoma County, and from an order denying a new trial. Emmet Seawell, Judge.

The facts are stated in the opinion of the court.

E. J. Dole, for Appellant.

L. G. Scott, for Respondent.

HART, J.-The action is on a promissory note for the sum of $350, which, it is alleged, was made and delivered by the defendant to the Pacific Coast Securities Company, a corporation (for brevity to be hereinafter referred to as "the corporation"), and after such execution and delivery, assigned by the original payee to the plaintiff, "who is now the lawful owner and holder thereof."

The answer admits the execution and delivery of the note as alleged in the complaint, but asserts that the instrument was procured from the defendant by the corporation above named through misrepresentation and fraud.

The gist of the charges of fraud set out in the answer may thus summarily be stated: That the corporation, through its duly accredited agents, called upon the defendant and offered him the stock of the corporation at the price of $15 per share, the par value of which was $10 per share; that said agents guaranteed and warranted said stock to be of the value at least of $15 per share; that at said time, as an inducement to the defendant to buy said stock, said agents entered into an agreement in writing, whereby they bound the corporation "to extend the time of payment of note to suit applicant for stock and to resell stock for $20, if so desired, by January 15, 1914," said agreement being signed by "E. H. McConkey, by Clements & Harold, agent." The further representations were made, so the answer states, that said stock "was very valuable," that the same could be turned and sold at any time for $15 per share, and that the corporation was in a flourishing condition and was financially sound. It is alleged that each and all of said representations were made for the purpose of inducing the defendant to purchase said stock, and that they were false and fraudulent, made with the intent to deceive the defendant and to persuade him to buy the stock; that said stock was not at said time of any real market value, that there were no prospects of the same being of any material market value, and that it was not then 'worth $10 per share or any other amount, and that said corporation never intended to resell the same for $20 per share or $15 per share or $10 per share or for any other amount so far as said corporation had any knowledge"; that said corporation "was not in a money-getting and flourishing financial condition at the time or at any other time." It is alleged that the defendant believed the representations so

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