from the owner, either express or implied, to create a lien upon his property. If the owner who contracted for the improvement has in the mean time parted with all interest in the property, whether before or after filing the notice, the claimant cannot enforce his lien in an action against him alone, but must make as a defendant the owner at the time of bringing the suit.

The statute is a remedial statute, adopted in obedience to the requirements of the constitution (art. XX, sec. 15), and is to be liberally construed in furtherance of the purposes for which it was authorized. The persons for whose benefit the statute is enacted are not presumed to be versed in the niceties of pleading, and the notices, which under its provisions they are authorized to give, have regard to substance rather than form. The terms of the section clearly indicate that it was not the intention of the legislature that in the claim of lien which he files for record the claimant shall state the name of the real owner, at the risk of losing his lien if it shall turn out that he was in error. The provision therein that the claimant shall give the "name of the owner or reputed owner, if known," implies that, if he does not know the name of the owner, he may state this fact, and perfect his lien without naming an owner (West Coast Lumber Co. v. Newkirk, supra), and, also, that if, in good faith, he gives the name of a reputed owner, he shall not lose his lien if he shall afterward ascertain that some other person was the owner. (See Leiegne v. Schwarzler, 67 How. Pr. 130.) Under this view of the object of the section it must be held that the claimant does not fail in perfecting his lien if, as in the present case, he states the name of the owner or reputed owner in the alternative. As he is not required to ascertain at his peril the name of the true owner, and as it is sufficient if he gives the name of the reputed owner, the sufficiency of the notice is not impaired by the same person being designated as owner or reputed owner. In either case, it is only the opinion of the claimant upon

matters that are not presumptively within his knowledge, but which he has formed from external information; and in that respect the notice which he is to file differs from a pleading in which a fact essential to a recovery must be definitely averred. The object of this statement in his claim is, as we have seen, to designate the person against whom he seeks to establish the lien, as well as to protect others in their dealings with the property. The purpose of this designation is to point out the individual who is to be affected thereby, rather than the attribute of ownership; and, if the individual against whose property the lien is claimed is specified, he receives all the notice which is intended by the statute, irrespective of whether he is designated as owner or reputed owner. (See Reed v. Norton, 90 Cal. 596.)

Many other objections were made by the respondents to the introduction of the notice, but they have not been presented in their brief. The court sustained the objections as a whole, without specifying those which it deemed valid. We have, however, examined the record with reference to all the objections, but do not deem that any of them require further consideration. The objection that in the verification of one of the claims it is stated "that the facts stated therein are true," instead of stating that the claim is true, as well as the objection to another of the notices that it stated that Ewing was the owner of the "premises," instead of stating that he was the owner of the "building," are frivolous.

GAROUTTE, J., and VAN FLEET, J., concurred.

[No. 18376. Department Two.-September 25, 1895.] JOHN T. DAVIS, APPELLANT, v. HENRY I. WARD ET AL., RESPONDENTS.

REGISTRY

MORTGAGE - MISTAKE IN DESCRIPTION NOTICE-REFORMATION-BONA FIDE PURCHASER.-Where the land described in a mortgage is mistakenly described as being in another than the true range, the record of such mortgage does not give constructive notice of the mistake; and bona fide purchasers of the land owned by the mortgagors, who paid their purchase money without actual notice of the mistake, are protected, and the mistake cannot be corrected as against them. ID.-PURCHASE IN GOOD FAITH-BURDEN OF PROOF PAYMENT OF PURCHASE MONEY BEFORE NOTICE.-One who sets up the defense of subsequent purchase in good faith without notice of the plaintiff's equity, must, as a general rule, affirmatively show a purchase for value, and that the purchase money was paid before notice. ID. PAYMENT OF PART OF PURCHASE MONEY-EFFECT OF NOTICE

EQUITY.-Where only part of the purchase money had been paid before actual notice of the plaintiff's equity, the purchaser is protected only to the extent of the actual payment made before notice, and the plaintiff should be permitted to enforce his equity upon condition of doing equity, by refunding to the defendant the amount actually paid before receiving the notice.

ID. MORTGAGE FOR PURCHASE MONEY-ASSIGNMENT TO BANK-PAYMENT-BONA FIDE PURCHASERS.-If the purchaser of land, in addition to paying part of the purchase money, executes a mortgage upon the land to secure notes for the remainder of the purchase money, without notice of an outstanding equity against the land purchased, and the mortgagee assigns the notes and mortgage to a bank for a valuable consideration, without notice to the bank or to the purchaser of such equity, the notes operate as payment, and, in such case, both the purchaser and the bank are protected as bona fide purchasers.

APPEAL from a judgment of the Superior Court of Tulare County and from an order denying a new trial. W. W. CROSs, Judge.

"The facts are stated in the opinion of the court.

J. A. Hannah, for Appellant.

A purchase in good faith and for value, is an affirmative defense, and must be pleaded and proved by the defendants. (Landers v. Bolton, 26 Cal. 393; Eversdon v Mayhew, 65 Cal. 163; 85 Cal. 1; Boone v. Chiles, 10 Pet 210; Pomeroy's Equity Jurisprudence, secs. 784, 785;

Cunningham v. Erwin. Hopk. Ch. 54; Rorer Iron Co. v. Trout, 83 Va. 397; 5 Am. St. Rep. 285; Kerr on Fraud and Mistake, 370, 371; Thomas v. Stone, Walk. Ch. 117; Wilhoit v. Lyons, 98 Cal. 409.) The defendant must prove the absence of notice. (Pomeroy's Equity Jurisprudence, secs. 738-62.) The facts were sufficient to charge the defendants with notice or to put them on inquiry. (Civ. Code secs. 1213, 1215; Pol. Code, sec 4236; Pomeroy's Equity Jurisprudence, secs. 601-13, 615, 616, 626-28, 649, 654, 658, 665, 669, 676, 691, 750-55; McPherson v. Rollins, 107 N. Y. 316; 1 Am. St. Rep. 826; Brush v. Ware, 15 Pet. 111; Green v. Slayter, 4 Johns. Ch. 44; Erickson v. Rafferty, 79 Ill. 209; Stewart v. Matheny, 66 Miss. 21; 14 Am. St. Rep. 538; Bright v. Buckman, 39 Fed. Rep. 247; Slater v. Breese, 36 Mich. 77.)

Bradley & Farnsworth, for Respondents.

The record of the mortgage was constructive notice only of its contents, and nothing else, and could not give notice of any mistake in its description. (Civ. Code, secs. 1213-15; Chamberlain v. Bell, 7 Cal. 292; 68 Am. Dec. 260; Frost v. Beekman, 1 Johns. Ch. 288; Sanger v. Craigue, 10 Vt. 555; 5 Lawson's Rights, Remedies, and Practice, sec. 2279; White v. McGarry, 2 Flipp. 572; 2 Pomeroy's Equity Jurisprudence, sec. 654.)

MCFARLAND J.-This action was brought to have reformed (and foreclosed) a certain mortgage, executed October 8, 1891, by the defendant Ward to one Vancil, and duly recorded April 8, 1892, and by Vancil assigned to plaintiff. Brown, Fleming and the Visalia Savings Bank were made defendants as claiming some interest in the mortgaged premises. It is averred in the complaint that the mortgage was intended to be of the southwest quarter of the southeast quarter of section 13, and the northwest quarter of the northeast quarter of section 24, in township 18 south, range 25 east, Mount Diablo base and meridian; but that by mutual mistake of

the parties the mortgage was made to describe the land as situated in range 24; and the prayer is to have the mortgage reformed so as to describe the premises as being in range 25. Ward made default. Brown and Fleming answered, setting up that after the execution of said mortgage said Ward had sold and conveyed to Brown about one-half of the said land in range 25, and the remainder to Fleming; and that they were bona fide purchasers for a valuable consideration and without notice of the mistake in said mortgage. (The description in the mortgage would have corresponded with lands bought by Brown and Fleming if the range had been 25 instead of 24.) The bank set up that it was the assignee and holder of two negotiable promissory notes given by Brown to Ward, and also assignee of a mortgage given by Brown to Ward upon the said land purchased by Brown from Ward as aforesaid to secure said notes; and that it purchased said notes and mortgage for value and without notice, etc. The court granted a nonsuit as to Fleming, Brown, and the bank, and rendered judgment in their favor. From this judgment and from an order denying his motion for a new trial plaintiff appeals.

Appellant contends that purchase in good faith without notice, etc., is an affirmative defense, and that therefore the granting of the nonsuit was erroneous. But appellant put Brown and Fleming on the stand as his witnesses, and it was proved affirmatively by their testimony that they had no notice nor information of any kind in reference to the said mortgage by Ward to Vancil. It was also proven that Fleming was a purchaser for value, and that he had made full payment of the purchase money at the time of his purchase. The only question, therefore, as far as notice is involved, is whether or not they had constructive notice; and this question must, beyond doubt, be answered in the negative. They were concerned only with the land which they purchased, and were chargeable with constructive notice of whatever the record showed as to that land;