or one of them that they might aid in ascertaining the condition of the sureties in point of responsibility. In this case we are of opinion that the sheriff was clearly negligent in accepting the undertaking in question without taking the steps to find out whether the sureties were sufficient. At any rate, he should have compelled them to justify, which he totally neglected to do. It does not appear that he made any inquiry as to the pecuniary condition of the sureties, and we are convinced that if the sureties had been held to justify, that they would have been rejected as insufficient. The sheriff did not come up to the obligation of care and diligence required by law. He was therefore guilty of negligence in the discharge of the duties required of him by law, for which he and his sureties are responsible. We find no error in the record, and the judgment and order are affirmed. We think it proper to say that, feeling some doubt on the point whether the appeal should be dismissed on account of the language of the stipulation in regard to the transcript, we do not pass on the motion; and, as we conclude to affirm the judgment and order, it is unnecessary to pass on it. Ordered as above. (No. 11,683.) ALLEN v. COUNTY OF SAN BERNARDINO. (Supreme Court of California. June 4, 1887.) DISTRICT AND PROSECUTING ATTORNEY-AUTHORITY-SPECIAL COUNSEL-DISMISSAL OF APPEAL. As between the board of supervisors of a county and the district attorney, on the one hand, and an attorney claiming to be special counsel for the county, on the other, the former are superior in authority, and have a right to control all proceedings in a case to which the county is a party. An appeal taken by the county will therefore be dismissed on motion of the district attorney, made by direction of a resolution of the board, over the objection of such special counsel. Department 1. Appeal from superior court, San Bernardino county. Legare Allen, respondent, brought this action, as county recorder, to recover a money judgment against appellant, and the facts are as follows, viz.: The respondent from the first day of January, 1885, up to the first day of February, 1886, received the sum of $5,186.50 for official services as county recorder of the appellant, in the way of fees collected by him for recording instruments of writing, (and not as salary,) and then paid the same into appellant's treasury. Respondent asks to recover back a portion of said sum so paid over, to-wit, $301, for the reason this latter amount was received by him from diverse persons for recording, in his said office of county recorder, notices of location of mining claims, and that the law did not require him to record such notices, and, if recorded, did not require him to pay said sum into the county treasury. Plaintiff recovered judgment, from which, and an order denying new trial, these appeals are taken by the county. John L. Campbell and Chas. R. Gray, for appellant. Harris & Allen, for respondent. BY THE COURT. The board of supervisors, by resolution, directed the district attorney to ask this court to dismiss the appeal herein. The motion was made accordingly; counsel who had appeared specially in the court below for defendant objecting to the granting of the motion. As between the board of supervisors and district attorney, on the one hand, and an attorney claiming to be special counsel for defendant, on the other, the former are superior in authority, and have a right to control all proceedings in a case to which the county is a party; at least, in the absence of an objection by the attorney general. It is therefore ordered that the appeal herein be, and the same is hereby, dismissed. (72 Cal. 356) WALLACE . MAPLES. (No. 11,539.) (Supreme Court of California. May 25, 1887.) REPLEVIN-CROPS-CONTRACT. Article 7 of a contract relating to the farming of certain lands provided that the title to the crops raised by M., the farmer, should remain in W., the owner of the land, until M. had performed the covenants in article 8. That article contained an agreement by W. to deliver four-fifths of the crop to M. "upon the full performance by him of all the stipulations and covenants in this article above specified." Held. in claim and delivery by W. for the whole crop on the ground of a breach of covenants contained in other articles, that the covenants in articles 7 and 8 were independent of those broken, and that M., having fully complied therewith, was entitled to four-fifths of the crop. Department 2. Appeal from superior court, Tulare county. Brown & Daggett, for Wallace, appellant. Atwell & Bradley and A. B. Hunt, for Maples, respondent. MCFARLAND, J. This is an action to recover certain wheat or its value. The sheriff took possession of the property under the statute, and delivered it to plaintiff. Defendant answered, denying plaintiff's right to the wheat, averred ownership in himself, and claimed a return of the property or its value. The case was tried without a jury, and the court found in favor of defendant, and gave him judgment for the return of 4,360 sacks of wheat, or $7,935.20, found to be its value. Plaintiff appealed from the judgment, and from an order denying a new trial. The litigation arose out of a long, written contract between the parties about the farming of certain lands belonging to plaintiff. The contract is formally divided into 12 articles, numbered consecutively from "article 1 to article 12. The main drift of the contract is as follows: Defendant was to have possession of the lands, to be farmed and cultivated by him, for the term of four years from October 1, 1884. He was to cultivate all of said lands each season in a skillful and thorough manner, in alfalfa, corn, and wheat, at his own expense, and also to harvest, thresh, and sack the crops of corn and wheat. He was to give certain alfalfa and alfalfa seed to plaintiff. He was to pay all assessments on certain stock of water companies which furnished water for irrigating the land, and he was to do certain other things not important to be here mentioned. At the end of the harvest, and after the corn and wheat were sacked, defendant, upon certain conditions being complied with, was to have four-fifths of the grain, and plaintiff was to have one-fifth. During the first year of the term, defendant failed to perform some parts of his contract. The main failures relied on by plaintiff are-First, that he failed to pay a small part of the assessments due on the water stock; and, second, that a part of the land was not cultivated, or, at least, was not cultivated in a "skillful and thorough manner." And plaintiff assumed that, on account of these breaches of the contract, defendant forfeited-or rather never acquired any interest in-the wheat which he raised on the lands. Upon this theory, after defendant had harvested, threshed, and sacked the wheat raised that year, and delivered one-fifth to plaintiff, and had hauled the other fourfifths to a warehouse as his own, she commenced this action, and took possession of it all. The main question to be determined in the case is whether the covenants of articles 7 and 8 of the contract are independent covenants, or whether all the covenants are mutual and dependent. The parts of the contract which respondent failed to comply with, as above stated, are not contained in said articles 7 and 8. Article 7 provides that all the wheat and corn shall be the property of appellant, and that respondent shall have no right or authority to sell or dispose of it "until all the stipulations and covenants contained in article 8 hereof are fully performed by said party of the second part." The first part of article 8 contains covenants of respondent that he will mark onefifth of the grain, when sacked, in a particular manner, and deliver it at a warehouse to be designated by appellant; that he will then pay appellant certain moneys for loans and advances, with interest; and that he will also pay appellant all moneys due on account of sales of her alfalfa hay and seed, etc. Respondent fully complied with all his covenants contained in said article 8. The article then proceeds as follows: "And said party of the first part [appellant] agrees that upon the full performance by said party of the second part [respondent] of all the stipulations and covenants in this article above specified, but not otherwise, she will deliver to said party of the second part, to have and to hold as his property, four-fifths of each crop of wheat and corn produced upon said lands while the same are cultivated by said party of the second part under this agreement, which said four-fifths of said crop shall be delivered to said party of the second part on the land when the same is threshed and put in sacks, and which four-fifths of said crops said party of the second part agrees to take and receive as his compensation for his labor and expense in cultivating said lands to corn and wheat under this agreement." It seems to us clear that the provisions of articles 7 and 8 are independent covenants; and that upon a full compliance with them respondent became the owner of four-fifths of the wheat. Of course, if respondent violated any of his covenants not contained in said two articles, appellant has her remedy in an action to recover whatever damages she has sustained by such violation. There is nothing in the point that appellant did not "deliver" the wheat in contest to respondent. Respondent already had the actual possession of both the land and the wheat, and there was no further act of delivery to be done by appellant. Judgment and order affirmed. We concur: THORNTON, J.; SHARPSTEIN, J. (72 Cal. 313) TOBELMAN and others v. HILDEBRANDT and others. (No. 9,597.) 1. JUDGMENT-ESTOPPEL-EXECUTORS AND ADMINISTRATORS. Under Code Civil Proc. Cal. 1637, providing that the settlement of the account of an executor, and the allowance thereof by the court, is conclusive against all persons, not under disabilities, in any way interested in the estate, heirs at law are estopped by a decree allowing the final account of their ancestor's executor, and ordering distribution, to bring an action against the executor to recover the amount of a promissory note alleged to have been given by him in payment of land which he bought of the testator, and by him fraudulently destroyed, when the note was omitted from his inventory, and the heirs had knowledge at that time of the fraudulent destruction set out in their complaint. 2. JUDGMENT-COLLATERAL ATTACK-COURTS OF PROBATE. Under the law of California, an order of a probate court allowing the final ac count of an executor is a final settlement and adjudication of the matter of which it assumes to dispose, and it cannot, therefore, be collaterally impeached or attacked in the same or any other court by the parties thereto, or those in privity with them. Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco. J. C. Bates, for Tobelman and others, appellants. A. H. Longborough, for Hildebrandt and another, respondents. SEARLS, C. This is an action to recover upon a promissory note alleged to have been made by defendant Hildebrandt to August Tittel, the testator of plaintiffs. Judgment of nonsuit was rendered, from which, and from an order denying a new trial, plaintiffs appeal. The complaint alleges that on the twentieth day of August, 1866, August Tittel, in consideration of $13,000, sold and conveyed to defendant, Hildebrandt, a lot of land on Sutter street, San Francisco; that defendant paid in cash $3,000, and made his promissory note for the sum of $10,000, the residue of the purchase price of said lot; that this promissory note was, with other papers of Tittel, placed in an iron safe, to which defendant had access, and that defendant was the confidential agent of Tittel. August Tittel departed this life February 1, 1868, leaving a last will under which defendant Hildebrandt was appointed executor. The will was duly admitted to probate, and administered upon by the defendant as executor, who filed an inventory, and ultimately rendered his final account, which was approved, and a decree made distributing the estate. The note in question was not included in the inventory, and, the complaint charges, was fraudulently destroyed by the defendant and omitted from the inventory, with the fraudulent intent of cheating plaintiffs, who are beneficiaries under the will. The answer denies making the note, and all allegations relating thereto. At the trial plaintiffs sought to prove, by plaintiff Margaret Tobelman, conversation between August Tittel, deceased, and his wife, including declarations of the former in his own favor, touching the existence of the promissory note in suit. The court sustained an objection to the testimony. These declarations were hearsay and clearly incompetent. The motion for a nonsuit was based upon the following ground: "The complaint, containing a copy of decree settling a final account, is final and conclusive as to the parties, and cannot be disturbed, except by a direct proceeding." According to the allegations of the complaint, defendant filed his final account, and prayed for a decree of distribution of the estate, which was granted; and the decree, a copy of which is attached to the complaint, and made a part thereof, was duly signed and filed January 4, 1882. "The settlement of the account, and the allowance thereof by the court, or upon appeal, is conclusive against all persons in any way interested in the estate." Code Civil Proc. § 1637. Section 1908 of the same Code declares that the judgment or order of a court, having jurisdiction as to the administration of an estate, is conclusive. Reynolds v. Brumagim, 54 Cal. 254; Tebbets v. Tilton, 24 N. H. 120; Grady v. Porter, 53 Cal. 680; Estate of Stott, 52 Cal. 403. The plaintiffs herein appeared in the probate court and filed objections to the final account of defendant as executor. They do not aver in their complaint that they were ignorant of the facts constituting the alleged fraud on the part of the defendant, at the time the executor's account was settled, and the evidence shows that they were aware of such facts long prior thereto. The decrees and orders of a probate court, made in the exercise of jurisdiction conferred upon it by law, are as final and conclusive as the judgments, decrees, or orders of any other court. The character and finality of res adjudicata attach to the decisions of probate courts, irrespective of the nature of the issue determined, provided the court had jurisdiction to determine it. Freem. Judgm. § 319a. It follows that an order of a probate court allowing or disallowing a final account is a final settlement and adjudication of the matter of which it assumes to dispose, and it cannot thereafter be collaterally attacked or impeached in the same or any other court by the parties thereto, or those in privity with them. The decree of a probate court settling the account of an administrator may be attacked for fraud or mistake like other judgments. It was said in Griffith v. Godey, 113 U. S. 93, 5 Sup. Ct. Rep. 383: "If the property be omitted by mistake, or be subsequently discovered, a court of equity may exercise its jurisdiction in the premises, and take such action as justice to the heirs of the deceased or to the creditors of the estate, may require, even if the probate court might, in such case, open its decree, and ad minister upon the omitted property. And a fraudulent concealment of property, or a fraudulent disposition of it, is a general and always existing ground for the interposition of equity." The evidence, as before stated, shows affirmatively that plaintiffs were aware of the facts constituting the alleged fraud, long prior to the settlement of the final account of the administrator. This being so, and there being no impediment to the investigation in the probate court, plaintiffs are concluded by the action of such court. For this reason, and for the further reason that there was no sufficient evidence to support a verdict in favor of plaintiffs, had such verdict been rendered, the judgment and order appealed from should be affirmed. We concur: BELCHER, C. C.; FOOTE, C. BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed. (72 Cal. 371) HEILBRON and others v. HEINLEN and others. (No. 11,566.) TRESPASS-QUARE CLAUSUM-EVIDENCE, In an action of trespass quare clausum, defendant, without pleading the statute of limitations, offered evidence of his own occupation of the close for 15 years. Held that, the question being one of possession, and not of title, such evidence was admissible. Commissioners' decision. Department 2. Appeal from superior court, Fresno county. G. A. Heinlen and Atwell & Bradley, for appellants. D. S. Terry, for respondents. BELCHER, C. C. This is an action to recover damages for trespass upon real property. It is alleged in the complaint that for more than two years last past the plaintiffs have been seized and possessed of all that certain tract of land in the counties of Fresno and Tulare known as the "Rancho Laguna de Tache," containing about 48,000 acres, and for which a patent, dated March 6, 1866, was issued by the United States to Manuel Castro; that on the seventeenth day of December, 1883, the plaintiffs were engaged in constructing a fence of posts and wire along the right bank of Kings river, which is the southern boundary of the rancho, and had completed the fence for a great part of said line; that on the day named the defendants, without right, and against the will of plaintiffs, cut and destroyed the said fence for a distance of about one and a half miles on sections 30 and 31, in township 18 S., range 20 E., and on a portion of section 36, in township 18 S., range 19 E., and also cut and destroyed the posts which had been set by plaintiffs for the purpose of building a fence for a distance of about two and one-half miles on sections 1 and 2, in township 19 S., range 19 E. The defendants, by their answer, deny that the plaintiffs are or ever were seized or possessed, or entitled to the possession, of the lands described in their complaint; deny that the plaintiffs at the time named, or at any time, were engaged in constructing or had constructed any fence along the right bank of Kings river; and deny that at any time, they, or either of them, ever cut or destroyed any fence, for any distance, on any sections in any township or range, or cut or destroyed any posts on any sections in any township or range, or at all, upon any lands of plaintiffs, or any or either of them, or that the posts or fence alleged to have been cut or destroyed were situate upon any lands of the plaintiffs, or either of them. At the trial the plaintiffs introduced in evidence the patent, with the map |