a judgment, they must receive that construction rather than one that will not so support it. Nor is there anything in the findings of probative facts that is at all necessarily inconsistent with the finding under discussion. All of those probative facts may be true and the finding under discussion also be true.

It is well settled in this state that a clear, specific finding of the ultimate fact must prevail over findings of probative facts, where there is no necessary conflict between the probative facts found and the finding of the ultimate fact. Thus, in Smith v. Acker, 52 Cal. 217, it was claimed, upon an appeal on the judgment-roll alone, that in view of probative facts found, the finding as to ownership of land could not be sustained. After stating that the transcript did not show clearly that the numerous probative facts found were all the probative facts shown by the evidence, the court said: "It has been held that where facts are found from which the existence of the ultimate fact must be conclusively inferred, the finding is sufficient as a finding of the ultimate fact. But when the ultimate fact is found, no finding of probative facts, which may tend to establish that the ultimate fact was found against the evidence, can overcome the principal finding." The same ruling was made in Frazier v. Crowell, 52 Cal. 399, 402, where there was no necessary conflict between the finding of ultimate fact and the findings of probative facts. The same rule was declared in Gill v. Driver, 90 Cal. 72, [27 Pac. 64], where it was assumed that the probative facts found were insufficient to support the judgment, the court saying: "Ultimate facts were found which do support the judgment; and they are not questioned, nor could they be, without bringing up the evidence in a statement or bill of exceptions." The same rule has been adhered to in several later cases. (See Perry v. Quackenbush, 105 Cal. 299, 305, [38 Pac. 740]; Rankin v. Newman, 107 Cal. 602, 608, [40 Pac. 1024]; Com. Bank v. Redfield, 122 Cal. 405, 408, [55 Pac. 160]; Brown v. Mutual Reserve etc. Assn., 137 Cal. 278, [70 Pac. 187].) It is only where the probative facts found are necessarily in conflict with the ultimate fact found, that the findings of probative facts can prevail over a clear and express finding of ultimate fact. (See Howeth v. Sullenger, 113 Cal. 547, 551, [45 Pac. 841].)

It is therefore clear that the finding under discussion must be treated as a finding of the ultimate fact of public highway, and must be held to be sufficient on that point regardless of the question as to the sufficiency of the probative facts found. It follows that the findings sufficiently support the judgment. In the absence of a bill of exceptions or statement showing the evidence, the question as to the sufficiency of the evidence to sustain the finding cannot of course be considered.

Complaint is made that the trial court failed to find upon certain affirmative allegations made in the answer, such as that the alleged streets were never accepted or used by the public, that the board of supervisors had refused to accept the same, and that the board of supervisors had abandoned the same as public highways. If it be conceded that any of these matters are not sufficiently embraced in the finding of public highway already discussed, it does not appear that any evidence was introduced in support of such allegations. It is well settled that a failure to find upon some issue made by the answer, a finding upon which would merely have the effect of invalidating a judgment fully supported by the findings made, will not be held ground for reversal, unless it is shown by statement or bill of exceptions that evidence was submitted in relation to such issue. (See Roberts v. Hall, 147 Cal. 434, 439, [82 Pac. 66]; Winslow v. Gohransen, 88 Cal. 450, [26 Pac. 504]; Himmelman v. Henry, 84 Cal. 104, [23 Pac. 1098]; Marchant v. Hayes, 117 Cal. 669, 672, [49 Pac. 840]; Bliss v. Sneath, 119 Cal. 526, 529, [51 Pac. 848]; Rogers v. Duff, 97 Cal. 63, 69, [31 Pac. 836].) The judgment is affirmed.

Shaw, J., and Sloss, J., concurred.

Hearing in Bank denied.

[S. F. Nos. 4077, 4013. Department One.-January 8, 1907.] T. L. JOHNSON, Appellant, v. JOHN TAYLOR, Administrator, etc., et al., Respondents.

TAXATION-SALE-REDEMPTION-LAW IN FORCE AT TIME OF SALEPOWER OF LEGISLATURE.-The law in force at the time of a sale for taxes regulates the right of redemption therefrom; and it is not within the power of the legislature to take away that right, or prejudicially to affect it, by subsequent legislation.

ID.-LAW REQUIRING NOTICE TO OWNER-ABSENCE OF NOTICE-CHANGE OF LAW-INVALIDITY OF DEED TO STATE.-Where the law in force at the time of a tax-sale required the purchaser or his assignee, within thirty days prior to the expiration of the time for redemption, or before a deed was applied for, to serve written notice upon the owner or occupant of such expiration or application, and to file an affidavit with the tax-collector showing such service, before a deed could be issued, and where the law was changed prior to the tax-deed dispensing with such notice, a deed made by the taxcollector to the state without such notice and affidavit passed no title thereto, and a subsequent deed by the state to a third party is void and cannot support an action to quiet title against the owners of the property.

ID.-ACTION TO QUIET TITLE CROSS-COMPLAINT JUDGMENT FOR DEFENDANTS-WAIVER OF OBJECTION.-Where the defendants in an action to quiet title sought by cross-complaint to quiet their title against the plaintiff, and without objection thereto by demurrer or motion to strike out plaintiff answered the cross-complaint, and a trial was had upon the merits, and judgment was rendered affirmatively, quieting the title of defendants, the plaintiff must be deemed to have consented to the mode of procedure, and the objection that affirmative relief could not be granted to defendants under their cross-complaint cannot be urged by plaintiff upon appeal for the first time without regard to the question of merit in the objection.

APPEAL from a judgment of the Superior Court of Mendocino County and from an order denying a new trial. J. Q. White, Judge.

The facts are stated in the opinion of the court.

Thomas, Pemberton & Thomas, for Appellant.

Mannon & Mannon, for Respondents.

SLOSS, J.-The plaintiff brought this action to quiet title to certain land in Mendocino County. The defendants answered, denying the plaintiff's title, and filed cross-complaints setting up title in themselves and praying that their title be quieted against the plaintiff. Judgment went for the defendants, granting them the affirmative relief sought by them. The plaintiff's motion for a new trial was denied, and he now appeals from the judgment and from the order denying his motion for a new trial.

Defendants are the heirs and successors in interest of W. H. Johnson, and it is admitted that they are the owners of the land, unless W. H. Johnson's title was divested by certain tax proceedings culminating in a deed from the state of California to the plaintiff. The land in question was assessed to W. H. Johnson for the year 1893, and was sold to the state for non-payment of taxes on July 7, 1894. The tax-collector executed a deed to the state on July 7, 1899, and a deed was executed to the plaintiff by the tax-collector, acting under the authorization of the state controller, on May 3, 1902. account of some irregularities in the original deed to the state, an amended deed to the state was executed on April 8, 1902. (Pol. Code, sec. 3805b; Stats. 1901, p. 651.)

At the trial the defendants interposed various objections to the introduction in evidence of these instruments. The objections were sustained, and the appellant upon the appeal from the order denying his motion for a new trial seeks to review these rulings. If any of the objections made was good, the evidence of the tax proceedings was properly excluded. We are satisfied that the respondents are correct in their contention that there is at least one fatal objection to the validity of the tax-deeds to the state, and it will be unnecessary, therefore, to consider the other objections. In 1894, when the sale of the property was made, the Political Code provided that if property sold for non-payment of taxes was not redeemed within the time allowed by law the tax-collector must make to the purchaser, or his assignee, a deed of the property; providing, however, that such purchaser, or his assignee, must, thirty days previous to the expiration of the time for such redemption, or thirty days before he applies for the deed, serve upon the owner of the property, or upon the person occupying it, a written notice showing, among other things,

when the right of redemption will expire, or when the purchaser will apply for a deed. And it was provided that no deed should be issued by the tax-collector until this notice should have been given, and an affidavit filed with the taxcollector showing that it had been given. (Pol. Code, sec. 3785, amended 1891; Stats. 1891, p. 134.) Section 3780 of the same code provided that a redemption might be made by the owner or any party in interest within twelve months from the date of the purchase, or at any time prior to the filing of the affidavits and the application for a deed, as provided for in section 3785. (Stats. 1891, p. 133.) As the law then stood, a deed could not be issued to the purchaser without the giving of the notice required by section 3785 (Hughes v. Cannedy, 92 Cal. 382, [28 Pac. 573]), and one relying on a tax-deed was bound to establish the giving of such notice as a part of his proof of title. (Miller v. Miller, 96 Cal. 376, [31 Am. St. Rep. 229, 31 Pac. 247]; Reed v. Lyon, 96 Cal. 501, [31 Pac. 619]; Walsh v. Burke, 134 Cal. 594, [66 Pac. 866]. Furthermore, this court has held in San Francisco etc. Land Co. v. Banbury, 106 Cal. 130, [39 Pac. 439], that the requirement of giving notice applied as well to the state as to a private purchaser.

In the case at bar there was no proof of any such notice having been given, and it would follow, if the case is to be decided on the law as it existed when the sale was made, that the plaintiff failed to establish that any title ever passed from W. H. Johnson to the state.

The appellant contends, however, that the validity of the deed is to be determined by the provisions of law existing at the time such deed was made, rather than at the date of sale. Between 1894, when the sale took place, and 1899, when the deed was executed, the law relating to redemption from tax-sales and the execution of tax-deeds was materially altered. In 1895 the legislature passed a series of amendments to the Political Code, changing the entire scheme of tax-sales. Since 1895 it is provided that all property sold for delinquent taxes shall be sold to the state, and no sales to private purchasers are permitted, as they were prior to the time of these amendments. (Pol. Code, sec. 3771; Stats. 1895, p. 377.) By section 3785, as then amended, the tax-collector is required to make a deed to the state if the property is not redeemed