which alone applies to this case. That section reads as follows: "An action to redeem a mortgage of real property, with or without an account of rents and profits, may be brought by the mortgagor, or those claiming under him, against the mortgagee or those claiming under him, unless he or they have continuously maintained an adverse possession of the mortgaged premises for five years after the breach of some condition of the mortgage. The contention of the appellant is that the findings show that the possession of defendant was not adverse before the twenty-second of January, 1885, and this action was commenced within a few days thereafter. The specific findings of fact certainly sustain that contention, and "if a discrepancy exist, the more specific findings of particular facts must control." Hidden v. Jordan, 28 Cal. 301. The specific findings show that the entry and possession of the defendant was not adverse to the plaintiff up to January 22, 1885. In Frink v. Le Roy, 49 Cal. 314, the defendant had entered into and held possession of the mortgaged premises under a contract not materially different from that under which the defendant entered into and held possession in this case. The court in that case said it would hardly be claimed that the plaintiff would be barred of the right to resume the possession upon payment or tender of the balance of the mortgage debt.

The possession of the defendant must be adverse for five years after the breach of some condition of the mortgage, in order to bar the plaintiff's right of action to redeem. We so held in Cohen v. Mitchell, 9 Pac. Rep. 649. Here the findings show that the possession was not adverse for any such period.

Judgment reversed and cause remanded for a new trial.

BY THE COURT. In this cause we are of opinion that the judgment should be modified so as to read as follows: "The judgment is reversed, and the cause remanded to the court below, with directions to enter judgment on the findings for the plaintiff.”

(73 Cal. 320)

MCCLAIN v. BUCK. (No. 11,671.)

(Supreme Court of California. August 31, 1887.) FRAUDULENT CONVEYANCE-PERSONAL PROPERTY-CHANGE OF POSSESSION-RIGHTS OF CREDITORS.

By an agreement supplemental to an absolute sale of personal property by plaintiff to R., plaintiff was authorized by R., on default in payment, to retake the property. R. made default, and refused to deliver to plaintiff the property, which, since the sale, had been in the continuous possession of R. Defendant, with knowledge of these facts, caused the property to be sold under an execution against R. In an action for conversion, held, that under Civil Code Cal. 3440, declaring void as to creditors certain transfers not accompanied by an actual and continued change of possession, the transfer was void, as to defendant.1

Department 2. Appeal from superior court, Solano county; A. J. BUCKLES, Judge.

R. Clark and T. J. Mize, for appellant. A. J. Dobbins, for respondent. THORNTON, J. This action was brought to recover damages for the conversion by defendant of certain personal property, described as "all that certain lot of printing material situated in the town of Vacaville, Solano county,

1 Respecting the change of possession sufficient to overcome the presumption of fraud, as against the creditors of the vendor, and when that is a question for the jury, see Stull v. Weigle, (Pa.) 8 Atl. Rep. 578; Hogan v. Cowell, (Cal.) ante, 780; Dodge v. Jones, (Mont.) ante, 707; Young v. Poole, (Cal.) 13 Pac. Rep. 492; Cook v. Rochford, (Cal.) 12 Pac. Rep. 568, and note.

Cal., and known and described as the Vacaville Reporter or Judicion newspaper material.'" At the trial it appeared that plaintiff sold the property in question, with other property, to one Raleigh Barcar, on the tenth day of October, 1884. The purchase price was $1,250, of which $500 was paid down, and for the balance Barcar executed to plaintiff two promissory notes, one for $500, with interest, payable one year after date, and the other for $250, with interest, payable 18 months after date. At the time of the sale, plaintiff executed and delivered to Barcar an absolute bill of sale, in which the consideration was recited and the property described. After the sale was made and plaintiff had gone away, but within two hours, as he testified, he "considered the thing was not safe enough," and went back and had Barcar execute a "supplementary agreement" in the following words: "It is hereby agreed that the party of the first part to the foregoing sale and agreement shall, upon default in the payment of either of the notes specified in said memorandum of sale and agreement between J. D. McClain and Raleigh Barcar, be authorized and permitted to enter upon and take possession of the printing presses, types, and stock and materials mentioned therein, to secure payment of said notes, said property being considered as pledged to secure payment of said notes. The possession of all the property sold was immediately delivered to Barcar, and he held it till the $500 note matured. Then plaintiff demanded from him payment of the note, and not receiving the money, demanded that possession of the property be given back. This was refused. On the next day plaintiff read to defendant his contract and “explained to him its terms and asked him to assist Barcar to pay it or fix it up." Defendant said he would see about it the next day. On the next day defendant caused the property to be attached as the property of Barcar, and thereafter had it sold under execution. Plaintiff demanded the property from the officer who held it under execution, and sought by injunction and other means to prevent its sale, but failed in all his efforts.

Upon these facts plaintiff submitted his case, and thereupon, on motion of defendant, a judgment of nonsuit was entered against him. He then moved for a new trial, and now prosecutes this appeal from the order denying his motion.

The nonsuit was properly granted. If title revested in the plaintiff under his agreement with Barcar, there was no delivery of the property followed by an actual and continued change of possession. The same is true if plaintiff had, under the agreement mentioned, a right to take possession from Barcar, for the right to the possession of personal property is a thing in action, and is therefore personal property. Civil Code, § 14, sub. 3. In either view, the transfer was not valid under the statute, against defendant, a creditor, (Civil Code, § 3440,) unless accompanied by an actual and continued change of possession. The notice of plaintiff's claim which defendant had was immaterial. Buck was a creditor, while Barcar remained in possession, and, as against such creditor, the transfer was void. Civil Code, § 3440, supra. The order must be affirmed. Ordered accordingly.

PRESCOTT v. MCNAMARA and others. (No. 12,104.)

(Supreme Court of California. August 27, 1887.)

1. LEVEE TAXES-PAYMENT-WARRANTS ON LEVEE FUND-COIN.

Under the California act of March 25, 1868, entitled "An act to provide for the protection of certain lands in the county of Sutter from overflow," levee taxes may be paid with either warrants drawn on the levee fund, or with money, but, when paid with money, the payment must be in gold or silver coin.

2. SAME-REGISTRY OF WARRANTS-ORDER OF PAYMENT.

Section 13 of the said act provides that the treasurer shall keep a register of warrants in the order of their presentation for payment, and, when no money is in the fund, to indorse on each warrant the date of its presentation, "and thereafter pay the same in the order of registry, as from time to time any money shall be paid over to him to the credit of the particular levee fund on which the same is drawn." Held, that the right to payment in order of time of presentation existed only when there was money in hand, and that the section did not qualify the right given by section 12 to use the warrants in payment of taxes without reference to the order of their registry.

Department 2. KEYSER, Judge.

Appeal from superior court, Sutter county; PHIL. W.

On demurrer to complaint.

E. A. Davis and J. H. Craddock, for Prescott, appellant. Stabler & Bayne and Sandborn & Phillips, for McNamara and others, respondents.

MCFARLAND, J. This action was brought to restrain the tax collector of levee district No. 6, of Sutter county, and the treasurer of said county, from receiving in payment of levee taxes any warrants drawn on the levee fund, except in the order of their registration. A demurrer to the complaint was sustained in the court below; and plaintiff, declining to amend, judgment went for defendant, and plaintiff appeals from the judgment.

Appellant is the holder of a number of warrants issued and registered in 1871, and he contends--First, that all levee taxes must be paid in gold or silver coin; and, second, that at least no later warrants can be received for taxes while older registered warrants remain unpaid.

The last clause of section 12 of the act under which the district was organized is as follows: "Warrants drawn on any levee district fund shall be paid out of any money in the county treasury belonging to such fund, or they may be received by the tax collector in payment of the tax authorized to be levied for the construction of levee, or other work of protection, of said district." Section 16 provides that "all taxes levied and collected by virtue of this act shall be paid in gold or silver coin of the United States." And appellant contends that, as these two sections are in conflict, section 16, being the last in numerical order, and the latest expression of the legislative will, must obtain. But that rule of construction can be resorted to only when the conflict between two laws, or two parts of laws, is so complete as to baffle all attempts to reconcile them. All parts of a statute are to be reconciled, and effect is to be given to each part, if it can be done; and here it can be easily done. The statute, upon its face, means that the taxes may be paid either with warrants or with money, but that when paid with money it must be with a particular kind of money. And this appears still more clearly when we consider the historical fact that a few years before the passage of the act in question the state adopted the policy of excluding paper money from her fiscal system.

Section 13 provides that the treasurer shall keep a register of warrants in the order of their presentation for payment, and, when there is no money in the fund, shall indorse on the warrants the date of their presentation, “and thereafter pay the same in the order of its registry, as from time to time any money shall be paid over to him to the credit of the particular levee fund on which the same is drawn." This provision deals only with the right of holders of warrants to have them paid in money, in the order of registry, when "from time to time any money" shall be in the fund. It in no way qualifies the right given by section 12 to use warrants in payment of taxes without reference to the order of their registry. Judgment affirmed.

We concur: SHARPSTEIN, J.; THORNTON, J.

(73 Cal. 329)

MCLERAN v. BENTON and another. (No. 9,220.)

(Supreme Court of California. August 31, 1887.)

1. MUNICIPAL ORDINANCE-VAN NESS ORDINANCE OF SAN FRANCISCO-CLAIMS TO REAL ESTATE-RELINQUISHMENT-POSSESSORS.

Under the Van Ness ordinance of San Francisco, passed June 20, 1855, by which the city relinquished its claims to real estate within certain limits, to the possessors thereof on or before January 1, 1855, provided that such possession continued up to the time of the introduction of the ordinance, or if interrupted by an intruder or trespasser, had been or might be recovered by legal process, held, that the proviso includes ousters before January 1, 1855, and one evicted before the ordinance took effect must recover possession by virtue of his prior possession, before his action thereon was barred by limitation, and not by virtue of any title vested in him by the ordinance.

2. LANDLORD AND TENANT-VOID LEASE-RELEASE BY TENANT-TENANTS IN COMMONADVERSE POSSESSION.

A lessee, holding under a void lease from a tenant in common, released to persons who had contracted to purchase the premises from the tenant in common, if they should obtain such release. Held, that the releasees were neither tenants at will nor on sufferance, and that a deed to them made thereafter by such tenant in common, with a bona fide intention to pass the title, vested in them all the grantor's right of possession, so as to constitute their possession adverse as against the other co-tenants, and give them the benefit of the Van Ness ordinance of San Francisco relinquishing the city's title in favor of possessors.

3. LIMITATION OF ACTIONS- ESTATES OF DECEDENTS - PERSONAL REPRESENTATIVES HEIRS.

In California, the personal representatives having the exclusive right to bring suit on behalf of the estate, for the benefit of creditors, heirs, and devisees, an action barred by limitations against such representatives is also barred against the heirs, though they be under disability.

A right of action having accrued to one under no disability, who died without bringing suit, the disability of those claiming under her does not stop the running of the statute.

D. APPEAL-DECISION-SECOND AND THIRD TRIAL-LAW OF THE CASE.

Where, on the first and second trials of a cause, a lease has been introduced in evidence without objection, the decisions of such causes on appeal, where it was not questioned, do not make its validity the law of the case, so as to preclude the trial court to hold it invalid on the third trial, when it is merely introduced to show the nature of the lessee's possession.

In bank. Appeal from superior court, San Francisco; OLIVER P. EVANS, Judge.

The following is an epitome of the history of the case, and of the facts as found by the court: In 1849 Jacob Harmon and wife, Eleonora, entered into possession of a tract of land embracing the land in controversy, which consists of separate parcels lying in what is now a populous portion of the city of San Francisco, and generally known as "Woodward's Garden," "Benton's Church," and "Judson & Shepard's Acid Factory." The lands are within the boundaries of the territory described in the Van Ness ordinance. See St. 1858, p. 52 et seq. Harmon continued in the actual occupation thereof until the time of his death, November, 1850. Eleonora was divorced from Jacob in 1849, and by the decree was awarded an undivided half of the property. Jacob appealed from the judgment. Pending the appeal he died testate, and his executors were substituted as parties. To his son, Jacob, Jr., then five years of age, he bequeathed two undivided thirds of his property, and appointed the executors to be guardians of said Jacob, Jr. To his daughter (there were but two children) he gave the remaining one-third, when she arrived at the age of 18, if her conduct satisfied the executors, and with the proviso: "If it should so happen that her conduct should not be entirely unexceptionable, yet not lost to every sense of propriety, in that case it is my will and desire that my executors should relieve her urgent wants and necessities, but in no case to give her more than one-third of my entire property.

And if she should fail to comply with the conditions which I have imposed upon her, then and in that case I give the remaining one-third to my son, Jacob, Jr."

The decree referred to was affirmed by this court, (Harman v. Harman, 1 Cal. 215,) and by proceedings afterwards had in the court below the lands were sold at auction, by commissioners therefor appointed by the court, on March 28, 1851. At the sale Eleonora was the highest bidder, and upon payment to the commissioners they conveyed the land to her. The children were not made parties. Eleonora and her husband, Michael Foley,—to whom she was married November 20, 1852,—were put into possession under orders from the court, and the executors never afterwards occupied or claimed the property. An inventory, acknowledged by Foley and wife, was filed May 31, 1852, in which all of the lands in controversy are described as the separate property of Mrs. Foley. In September, 1851, Michael Comerford went into possession, under a parol agreement with Foley and wife, to cultivate the lands on shares, and remained in possession thereunder until August 16, 1852, when Foley and wife and Comerford executed an instrument in the form of a lease to said Comerford, from said sixteenth day of August, 1852, to the sixteenth day of January, 1856, at the monthly rental of $83.75. This instrument was never acknowledged by any of the parties to it, but was recorded August 24, 1852. Comerford continued in possession under and by virtue of the lease until January 27, 1853. The court found as a fact that during this lastnamed period Comerford was a tenant at will of Foley and wife, both parties having treated it at the trial as void, and, if admissible at all, only to show the character of Comerford's holding. On the eighteenth day of June, 1853, Foley and wife entered into a written agreement with Brannan and others, whereby they agreed to sell to the latter all of the lands, and assigned the lease in consideration of $6,000. Brannan & Co. paid Foley and wife $100 in consideration of the agreement, but it was understood and agreed that the conveyance was to be only in the event that satisfactory arrangements should be made with Comerford to deliver the possession to Brannan & Co. Interviews were had with Comerford by Foley and wife and Brannan & Co., which resulted in an assignment by him of all interest which he held under the instrument which they all regarded as a valid lease; and on the termination of Comerford's tenancy, and his surrender of possession to Brannan & Co., in consideration of $5,000, which they paid, Comerford was allowed to gather his crop then growing, which was done prior to December, 1853, and from that time until October, 1855, the court finds that said Comerford was a caretaker and bailiff in the employ of Brannan & Co.

As to those portions of the lands claimed by defendants Benton, Judson, and Woodward, however, said defendants were let into possession in 1854, under deeds from Brannan & Co. conveying them severally in fee-simple. On June 27, 1853, Brannan & Co. paid to Eleonora, personally, the balance of the $6,000 purchase price, and in pursuance of their agreement with Brannan & Co., Foley and wife attempted to convey the lands to Brannan & Co. by deed, but the deed was not acknowledged so as to constitute it a valid conveyance by Mrs. Foley, and it is admitted that it is void. The court found that "said defendants Benton, Judson, and Woodward, ever since their entry into possession in 1854, have been severally and respectively in the actual, continuous, exclusive, and adverse possession, holding the same against all the world, of the several parcels described in their answer, claiming the same under said conveyances in good faith, and having paid a valuable consideration therefor, and as early as 1854 made and have since continued to make large and valuable improvements thereon. * * * That such possession was continued without interruption ever since, and that they held and continued during all of said time in possession of said premises without any trespass or intrusion by any person or persons whatsoever."