Opinion of the Court-Hawley, C. J.

to the citizen whose property is thus taken, none of the dangers of future legislation predicted by respondent's counsel, is at all likely to happen. But if in error in this respect, this court, as already stated, is powerless to furnish the remedy. The fact is, as was clearly stated by Justice Beatty, in Ex parte Spinney (10 Nev. 333), that the protection which the people of the state enjoy against unjust and absurd legislation, "is not derived from constitutional restrictions, but from the force of public opinion and the character of our representatives. This court has the power to keep the legislature within the terms and plain import of the constitution. To superintend the conscience and intelligence of legislatures, and see that they pay a due regard to considerations of justice and expediency in the enactment of laws, is the business of the people."

We are of opinion that the present law can be enforced by the courts so as to prevent its being used as an instrument of oppression to any one. But if, in its practical operations, it is found to be incompatible with a just preservation of the rights of individuals in private property, it will be the duty of the legislature to repeal the act, and to that tribunal instead of this must the argument of injustice be made. Whether we look at this act in the light of the interpretation which has been given to the term "public use" in the constitution of other states, to our own reasoning and construction of the language of the state constitution, or, to the character of the business and the natural production and resources of this state, we are irresistibly drawn to the conclusion that the act is constitutional and valid.

It is, therefore, ordered that the writ of peremptory mandamus be issued.

Opinion of the Court-Beatty, J.

[No 781.]

ANNA J. GILSON, APPELLANT, v. JOHN BOSTON, RESPONDENT.

RIGHTS OF REDEMPTIONER— R-LESSEE.--Plaintiff purchased from B. the right of redemption to certain land, and redeemed the same from the purchaser at a foreclosure sale. Held, that she is not entitled to the possession of the land against a lessee under a demise made subsequent to the mortgage.

IDEM.--After redeeming, plaintiff had the same estate in the land that B. had before the sale, and was as much bound by the lease as B. would have been.

LEASE. WHEN IT NEED NOT BE IN WRITING.--A lease for a year need not be in writing, and the power to execute it need not be in writing. (1 C. L. 233.)

ACTUAL NOTICE.--PURCHASER IN GOOD FAITH.--Actual notice dispenses with constructive notice. A purchaser with actual notice is not a purchaser in good faith of the estate previously conveyed.

APPEAL from the District Court of the Second Judicial District, Douglas County.

The facts are stated in the opinion.

T. W. W. Davies, for Appellant.

The plaintiff was entitled to the crops on the land not secured at the time the redemption time expired, as the defendant Boston went into possession after the foreclosure sale, and with full knowledge, actual and constructive, of the termination of the redemption time. (Comp. Laws of Nevada, vol. 1, sections 228-252-255. 1 Hilliard on Mortgage, pp. 180-182, and note c. par. 5, p. 184; par. 18, pp. 193-7; par. 33-34, pp. 207-208, and p. 214. Taylor's Landlord and Tenant, sec. 120; 2 Story Eq. sec. 1023, n.)

Robert M. Clarke, for Respondent.

By the Court, BEATTY, J.:

This is an action of ejectment, and the questions presented upon the appeal arise out of the following state of facts:

In December, 1872, Bollen, who was then the owner of the land in controversy, mortgaged it to Martens, and in November, 1873, leased it for four years to Lovejoy. In

Opinion of the Court-Beatty, J.

December, 1874, Martens foreclosed his mortgage, and on January 28, 1875, purchased the land at the foreclosure sale, acquiring all the estate Bollen had at the date of the mortgage. In January, 1875, and prior to the sale, Lovejoy assigned his lease to the defendant, Boston, who immediately took possession thereunder. Subsequently, the plaintiff, Anna Gilson, with notice either actual or constructive of all these facts, purchased Bollen's right of redemption, and before the expiration of the time for redemption redeemed the land from Martens, the purchaser at the foreclosure sale. She thereupon demanded possession of the land from Boston, who refused to surrender, and this action was commenced in September, 1875.

Upon a finding of the foregoing facts, among others, the district court gave judgment for the defendant, and subsequently overruled a motion for new trial. The plaintiff appeals from both the judgment and order, and in support of her appeal contends that on the 28th of July, 1875, when the time for redemption expired, she became entitled to all the estate in the land that Martens would have had if no redemption had been made, and, consequently, that she was entitled to the immediate possession against a lessee under a demise made subsequent to the mortgage. But in this position we think she is mistaken. As assignee of Bollen, and redeeming in his right, she stands in his shoes; and his position, as a redemptioner, is defined by the statute as follows: "If the debtor redeem at any time before the time for redemption expires, the effect of the sale shall be terminated, and he be restored to his estate." (Comp. L., end of sec. 1295.) So that the plaintiff, in this case, after redeeming had the same estate in the land that Bollen had before the sale; that is, she had the reversion after the expiration of Lovejoy's term, and was no more entitled to the possession, as against Lovejoy or his assignees, than Bollen would have been if there had never been a foreclosure or a sale.

But the appellant contends that Boston was not the assignee of Lovejoy, and that the evidence does not sustain that finding. The lease to Lovejoy contained a covenant

Opinion of the Court-Beatty, J.

that he would not underlet the premises without the written consent of Bollen; and it was not shown that he consented in writing to the assignment, though he did consent orally. Without undertaking to decide what was the effect of the failure to procure this consent in writing, we think everything that the appellant claims, or can claim as resulting therefrom, may be conceded without bettering her case. Suppose the effect of the assignment without Bollen's written consent to have been a forfeiture of all the rights of the lessee. If so, the forfeiture accrued to Bollen before the foreclosure sale, and he afterwards leased the premises to Boston for the year 1875, and received the rent. Appellant, by her own admission, had notice of this lease and of Boston's possession thereunder before she purchased Bollen's right to redeem; and when she redeemed, she was as much bound by the lease as Bollen would have been.

It is not necessary to notice particularly all the arguments of counsel for appellant, based upon the assumption that she acquired by her redemption all the estate that was mortgaged. They are all disposed of by saying that she got only the estate that Bollen had when he sold his right of redemption.

There is nothing in the objection to Tebbs' want of authority to execute the lease from Bollen to Boston for the year 1875. A lease for a year need not be in writing, and the power to execute it need not be in writing. (C. L., sec. 283.) Neither is there any force in the objections to the failure to acknowledge and record the assignment of Lovejoy's lease. If the appellant, with actual and constructive knowledge of the lease, had any right to notice of the assignment, she had actual notice, and actual notice dispenses with constructive notice. It is only subsequent purchasers in good faith against whom unrecorded conveyances are void; and a purchaser with actual notice is not a purchaser in good faith of the estate previously conveyed.

The judgment and order appealed from are affirmed.

Statement of Facts.

[No. 794.]

THE STATE OF NEVADA, RESPONDENT. v. GEORGE O'CONNOR, APPELLANT.

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INDICTMENT-TIME OF COMMISSION OF OFFENSE.-The indictment charges: "That on the twenty-third day of February, A. D. 1876, or thereabouts, at the county of Storey, without authority of law, and with malice aforethought, with a deadly weapon, to wit, a knife, the said George O'Connor then and there being armed, did, without authority of law and with malice aforethought, make an assault In and upon one John Winn, with intent to kill him, the said John Winn," etc.: Held, that the time when the offense was committed is alleged with sufficient certainty.

IDEM. The words "and before the finding of this indictment," after the date alleged, though proper, need not necessarily be inserted in an indictment.

IDEM STATEMENT OF OFFENSE CHARGED.-Held, that the indictment clearly charges an assault with a knife--a deadly weapon-with intent to kill. MOTION IN ARREST OF JUDGMENT.-A motion in arrest of judgment can only be sustained upon the ground that the court has no jurisdiction over the subject of the indictment, or that the facts stated do not constitute a public offense. (1 Comp. L., 1918.) RES GESTE.-Remarks made in the presence of a party concerning his own conduct are often material facts when his conduct becomes the subject of investigation, and are admissible in evidence as a part of the es gesta.

ASSAULT WITH INTENT TO KILL.-The statute of 1873 embraces the crime of an assault with intent to kill in all cases where the killing, if effected, would be unlawful. INSTRUCTIONS-DRUNKENNESS OF DEFENDANT.--Upon reviewing the instructions given and refused by the court, relating to the question of defendant's intoxication: Held, that the instructions given on this point were more favorable to the defendant than those which were refused. REFUSAL OF INSTRUCTIONS-WHEN NOT ERRONEOUS.-It is not error to refuse an instruction which has already been given in substance, and in terms as clear, full, and favorable to the defendant as those in which the court is asked to repeat it.

APPEAL from the District Court of the First Judicial District, Storey County.

The instructions refused by the court upon the question of drunkenness, referred to in the opinion, read as follows: "If the jury find that the defendant, at the time of the assault, had, by drinking intoxicating liquors, made himself incapable mentally of entertaining the intent to kill, then