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It appears from the findings of the court that these pueblo lots are large lots containing several acres, and that they are subdivided into a large number of smaller lots designated upon the map by numbers. The decree adjudges Nash to be the owner of over 150 subdivisions, being a portion of the E. of one pueblo lot alone, giving the number of each block and lot. The map showing these subdivisions was made by the city engineer in 1870.

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The assessor did not assess the lots nor even the block separately, but assessed the E. of lot 1,126 as one undivided parcel. This, we think, could not under the law be done. "The assessor must prepare an assessment book, * * in which must be listed all property within the county, and in which must be specified in separate columns, under the appropriate head, * * third, city and town lots, naming the city or town, and the number of the lot and block according to the system of numbering in such city or town, and improvements thereon; fourth, all personal property showing the number, kind, amount, quality; but a failure to enumerate in detail such personal property does not invalidate the assessment." Section 3650, Pol. Code. Under the revenue act of 1861 it was held that, where one man owned and returned a whole block or half block, the assessor might list and value it as a whole. People v. Morse, 43 Cal. 541; People v. Culverwell, 44 Cal. 620. Since the decisions in these cases the duty of the assessor has been made more specific and imperative, as will be seen by a comparison of section 20 of the revenue act of 1861 with the provisions of section 3650 of the Political Code. Of course, where the owner himself returns the property as a whole, he cannot be heard to complain that it has been improperly listed in that manner; but where, as in this case, no return was made by the owner, and there is nothing to show that the owners of the property refused to make a return to the assessor, we are bound to say that the assessment is void, or to hold that the imperative language of section 3650 is simply directory, unimportant, and that the assessor may regard it or disregard it at will. We think that the rule prescribed is based upon reason, and should be followed. Several parties may own different portions of a pueblo lot divided into city blocks containing several hundred well-known lots. An owner of one lot who is a nonresident would be required, if his lot be assessed, as this lot was, to pay the tax on the whole property to save his own from tax sale; and this, without any fault of his own. There is no way of ascertaining what proportion of the whole tax any particular lot-owner should pay, and of course the tax collector will accept nothing less than the full amount of the tax.

That the assessor is bound to assess in subdivisions is apparent also from provisions of the Code which relate to assessment and sale. Thus he is required to exact from each person under oath a statement showing separately“Fifth, an exact description of all lands in parcels and subdivisions." "When the assessor has not received from the owner of the tract of land the statement required by section 3629, or when such statement does not sufficiently describe a tract of land to enable the assessor to assess the same as required by law, * * * he shall cite such owners to appear," etc. Section 3634. The form of the assessment book is prescribed, in which one column is for "Real Estate other than City and Town Lots," and half columns for: "Range E. or W.;" "Township N. or S;" "Section;" "Subdivision of Section." Also a column for "City or Town Lots," with half columns beneath for "Block," "Lot," and "Fraction." Section 3651. "The supervisors must provide for the assessor * * * maps of cities and villages." Sections 3658, 3659.

The tax collector must commence the sale at the head of the list, and continue alphabetically, or in the numerical order of lots and blocks, until completed, (section 3771;) and the owner has the right to designate what particular parcel he wishes sold, if less than the whole, (section 3773.)

We think, therefore, that the court below was right in its conclusion that the assessment, sale, and deed affecting the pueblo was void.

Appellant requests that the court below be directed to enter judgment in his favor for the Middletown lots, but this request cannot be granted. The evidence on another trial may show a state of facts entirely different from those shown in this record. Judgment and order reversed and cause remanded for a new trial.

We concur: MCKINSTRY, J.; TEMPLE, J.

73 Cal. 72

SMITH . LING. (No. 11,722.)

(Supreme Court of California. July 1, 1887.)

PRACTICE IN CIVIL CASES-DISMISSAL BY CONSENT.

Where the complaint is, by consent of both parties, after answer denying all the allegations therein, stricken out, the court should dismiss the action.

Department 2. Appeal from superior court, Los Angeles county.
N. Smith, appellant, pro se.

R. A. Ling, for respondent.

66

SHARPSTEIN, J. The record on this appeal consists of a copy of a complaint, and of an answer denying all the allegations of the complaint, and of a judgment in these words: 'WEDNESDAY, June 10, 1885. "This cause came regularly on for trial, all parties in court with their respective attorneys. Upon motion of the plaintiff, and by consent of defendant, ordered that the amended complaint be stricken out. Defendant moved the court for judgment upon the pleadings. Motion argued, and ordered that the action be dismissed. A. BRUNSON, Judge."

The form is unique, but we gather from it that the complaint was stricken out by consent of both parties, and that the court then dismissed the action. We see no error in that. After the complaint was stricken out, there was no case to try, and it was proper to dismiss the proceeding. An action can only be commenced by filing a complaint, and when the complaint is stricken out the action is terminated.

Judgment affirmed.

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

73 Cal. 58

WOOSTER and others v. NEVILLS and others. (No. 11,973.)

(Supreme Court of California. July 1, 1887.)

FRAUD-REMEDIES-DEMAND AND TENDER.

Defendant induced plaintiffs to transfer to him their stock in a mining company, in order that he might sell the mine, and, instead of acting in good faith, proceeded in fraud of their rights to sell the mine for a very large sum of money, for which he did not account to them, except to give them $8,000, and to have them cancel a debt due from him to them of $3,000; retaining the stock, which was worth much more than he represented it to be, in his own name, and drawing dividends thereon. Held, that plaintiffs could maintain an action against defendant as their agent for an accounting, and to compel him to return the stock, without previously making a demand for the return of the stock, and tender of the money that they had received.

Commissioners' decision. Department 1.

Appeal from superior court, San Francisco.

Sidney V. Smith, for appellants. A. C. Adams, Curtis H. Lindley, and Lindley & Spagnoli, for respondents.

FOOTE, C. This action was for an accounting, and to compel the defendant William A. Nevills to return to plaintiffs certain mining stock a transfer of which he had fraudulently obtained from them. The complaint was demurred to, the demurrer sustained, and, the plaintiffs declining to amend

their pleading, judgment was rendered for the defendant. In support of that judgment their counsel contend that the complaint was to compel the rescission of a contract, and that, in order to obtain that right, it was incumbent upon the plaintiffs to have alleged in their pleading that they had made a demand for the return of their stock, and tender of the money they had received from Nevills prior to the institution of this suit.

But as it appears to us, from the statement of facts set out in the complaint, Nevills was not a purchaser of the stock from the plaintiffs in the proper and legal sense of that term. He never was, at any time during the transaction, so far as they were concerned, anything more than an agent or trustee, bound to act for them in the whole matter in the utmost good faith. He deceived them into the belief that he, for them, could sell the mine in which they were stockholders for a certain sum of money, if they would make him the apparent, but not the real, owner of the stock. For the purpose, not of vesting title to the stock in him, but to enable him the better as their agent to sell the mine upon which the issue of the stock was based, they transferred the stock to him as requested. Instead of acting in good faith towards the plaintiffs, Nevills proceeded in fraud of their rights to sell the mine for a very large sum of money, for which he did not account to the plaintiffs, except to give them $8,000, and to have them cancel a debt due from him to them of $3,000. He still retains their stock in his own name, in a mine which is worth many thousand dollars more than he falsely assured the plaintiffs was its value, and has drawn their dividends upon the stock.

We see no good reason why, under such a state of facts, Mr. Nevills should not be made to retransfer this stock to its true owners, towards whom he assumed the relation of an agent or trustee, nor why a full accounting, as between the parties, should not be had. The facts asserted as true in the complaint do not show any sale of the stock to Nevills on the part of the plaintiffs. He was to make a sale of the mine for their account. He deceived them as to the price he could obtain for the mine, and deceived them into the belief that a sale could more easily be effected if the stock stood in his name rather than in theirs. Thus, as we have before said, he was nothing more than their agent, in whose apparent ownership the stock stood. The transaction was not one of sale. It was the giving to an agent power, clothed with apparent ownership, to make a sale to third parties. In such a case, where an agent has abused his trust, and holds his principal's property in fraud, the principal can compel a return of his property, and any increase of it by way of dividends while in the agent's possession.

It was unnecessary to have made a tender of money to Nevills before this suit was instituted, for there is no contract of sale, or actual sale, alleged by the complaint to have been made to him by the plaintiffs of the stock in dispute. The plaintiffs, as one of the incidents necessary to a proper accounting between Nevills and themselves, seek to recover from him, as their trustee, property of which he has, through turpitude, gotten from them the apparent ownership, to which property he never had, nor was intended under their agreement to have had, any title. As no sale of the stock was made to him, no rescission of a sale was asked for in the complaint; and no rescission being required, no tender of any money prior to the bringing of the action was needed.

As a part of the accounting asked for from Nevills by the plaintiffs, they demand from him a return of their stock, which he obtained from them by fraudulent statements, and to which he had no shadow of claim, either in his own or their estimation, beyond its possession and apparent ownership, as their trustee. It is evident, therefore, upon the facts stated in the complaint, if they are to be taken as true, that the plaintiffs were entitled to an accounting as asked for, and the other relief prayed for therein.

The judgment and order dissolving the injunction should be reversed, and

the cause remanded, with instructions to the court below to overrule the demurrer to the complaint, and give leave to the defendants to answer that pleading within a reasonable time, upon which the cause can be tried upon its merits.

We concur: BELCHER, C. C.; HAYNE, C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are reversed, and cause remanded, with direction to the court below to overrule the demurrer to the complaint, with leave to defendants to answer within a reasonable time.

73 Cal. 52

HANCOCK v. BURTON and others. (No. 11,599.)
(Supreme Court of California. July 1, 1887.)

1. LIMITATION OF ACTION-ADVERSE POSSESSION-PROOF.

In an action of ejectment, where the plaintiff showed clearly a chain of title to the demanded premises, reaching back to the patent from the government, and there was at least substantial conflict as to whether the defendants, who claimed by adverse occupation, had occupied for such time, and in such manner, as would enable them to set up the statute of limitations, held, there was sufficient evidence to support a verdict for the plaintiff.

2. APPEAL-REVIEW-OBJECTION NOT TAKEN BELOW.

Where, in an action of ejectment brought against several defendants, who claimed that they were severally in possession of specific portions of the land in controversy, a judgment was rendered against each of the defendants for the entire tract, held, on appeal from an order denying a new trial, that whether such a judgment was error could not be considered, no specification of the insufficiency of the evidence on this point having been made in the motion for a new trial. Department 1. Appeal from superior court, San Bernardino county. Paris, Smith & Hutton and Paris, Goodcell & Fox, for appellants. & Otis and Barclay, Wilson & Reddick, for respondent.

Curtis

BY THE COURT. The plaintiff brought this action against the appellants and one Thomas M. Agers, to recover the possession of a tract of land in San Bernardino county, containing 1,280 acres, with $500 damages for the withholding thereof, and $100 per annum from and after January 1, 1879, for rent and profits. The defendants denied the plaintiff's ownership or right to the possession of the land, and denied that he had been or would be damaged in the sums of money alleged, or in any sums, by reason of their withholding its possession, or on account of a loss of its rents and profits. They then set up that they were in possession of and holding separate parcels of the land, and that as to each one of them the plaintiff's cause of action was barred by the statute of limitations. The case was tried before a jury, and a verdict was returned in favor of the plaintiff, but without damages, on which judgment was entered. The appellants moved for a new trial, and now prosecute this appeal from the judgment, and an order denying their motion.

Two points only are made in support of the appeal: (1) That the verdict was not justified by the evidence; and (2) that the judgment was erroneously entered against each of the defendants for the possession of the entire tract, when it should only have been against each one for the parcel separately claimed by him.

1. We think there was ample evidence to support the verdict. The plaintiff showed clearly that he had title to the demanded premises, and there was

1 Respecting the character of occupancy necessary to constitute adverse possession, see Cooper v. Morris, (N. J.) 7 Atl. Rep. note, 427; Merrill v. Tobin, 30 Fed. Rep. 738, Roots v. Beck, (Ind.) 9 N. E. Rep. 698, and note; Murphy v. Doyle, (Minn.) 33 N. W. Rep. 220; Murray v. Hudson, (Mich.) 32 N. W. Rep. 889.

at least a substantial conflict as to whether the defendants had occupied and claimed and paid taxes on their respective parcels for such time and in such manner as would enable them to assert title under the statute of limitations. 2. Conceding that the court erred in rendering a joint judgment against the defendants for the whole tract, still the error cannot be considered on this appeal. Although the defendants answered severally, claiming that they were not jointly withholding the entire tract from the plaintiff, and that they were severally in possession of specific portions thereof only, the plaintiff was not precluded from proving his allegation that they were jointly in possession of the entire tract. It was so found by the jury, and there is no specification, in the statement on motion for new trial, of insufficiency of the evidence in this respect.

It follows that the judgment and order should be affirmed. So ordered.

73 Cal. 105

WHITE . WHITE. (No. 12,144.)

(Supreme Court of California. July 7, 1887.)

DIVORCE-ALIMONY-APPEAL.

An order in a divorce suit for a payment, an account of alimony, counsel's fees, and costs, will not be interfered with unless it appears affirmatively and clearly that there has been a gross abuse of discretion by the court below in making the order.

In bank. Appeal from superior court, Mendocino county.

E. D. Wheeler and Barclay Henley, for appellant. H. E. Highton, H. C. McPike, and J. A. Cooper, for respondent.

MCFARLAND, J. This is an action of divorce brought by the husband against the wife. By her answer the wife denies the averments of the complaint, which state facts constituting a cause for divorce; and by a cross-complaint she avers causes of divorce against the husband. The action is still pending in the court below; but during its progress the court made an order directing the payment by said plaintiff to said defendant of certain sums, aggregating $3,850, as and for costs and expenses, alimony and counsel fees, and from this order the plaintiff appeals. The only point made by appellant is that the allowance was excessive, and an abuse of discretion. The evidence upon which the order was made was conflicting as to appellant's financial ability, and as to other matters which it was the duty of the court below to consider. Of course we could not be expected, under any circumstances, to interfere with the judgment of a nisi prius judge in such a matter, unless it appeared affirmatively and clearly that there had been a gross abuse of discretion. No such abuse appears here, and therefore we will not stop to determine whether or not our estimates of counsel fees, costs, expenses, etc., would correspond with those of the learned judge of the court below. This view disposes of the appeal, and therefore it is not necessary to consider the other point made by counsel for respondent, viz., that an appeal does not lie from an order of this kind in a divorce case, where the marriage and the relation of the husband and wife are not denied. Order affirmed.

We concur: SEARLS, C. J.; MCKINSTRY, J.; PATERSON, J.; TEMPLE, J.

73 Cal. 97

Ex parte WILSON. (No. 20,315.)
(Supreme Court of California. July 7, 1887.)

DIVORCE ALIMONY-CONTEMPT.

Upon the hearing of a petition for habeas corpus, where it appears that the petitioner was committed for contempt in not paying alimony, the fact that he has since filed his petition in insolvency, and obtained a preliminary order thereon,

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