ejectment being purely a possessory action, a number of persons are considered as in privity therein to the extent that they must yield up the possession to the prevailing plaintiff, though their title to the property remains unadjudicated, and is capable of being successfully asserted against the now successful party in some subsequent controversy. When considering the force of a judgment in ejectment, privies are those who entered under, or acquired an interest in the premises from or through, or entered without title by collusion with, defendants subsequent to the commencement of the action.""

This and the authorities cited in support of it fully sustain the position that Mrs. Johnson entered in privity with Mrs. Buliner, and stands in her shoes.

If the statement by Mr. Freeman that "the action of ejectment is purely a possessory action" be correct, this ends the controversy; for it would be absurd to say that an action exclusively for one purpose could be thwarted by circumstances entirely extraneous and independent.

But it is not necessary to concede, without qualification, that the action of ejectment is "purely possessory." It is sufficient to say that, as modified by our statute, and though based upon title, it is still essentially a possessory action: Hill v. Plunkett, 41 Ark. 465.

Mrs. Johnson's grantor, Mrs. Buliner, might, had she chosen to do so, have set up the Kirby title as a defense to Mrs. Ritchie's suit, and if successful, Mrs. Johnson would have reaped the benefit. She failed to do this, and her grantee ought not now to be heard to complain if the burden is thrown upon her, and not upon the successful plaintiff: Montgomery v. Whiting, 40 Cal. 294.

In Kercheval v. Ambler, 4 Dana, 166, Forman and Ambler, at the same term of court, recovered separate judgments in ejectment for the same land against Kercheval. Forman entered under a writ of possession, and at once leased to Kercheval. Afterwards, under a writ issued under the Ambler judgment, the question arose whether Kercheval could be dispossessed. The court, while conceding that Kercheval held under Forman, and that Forman himself, if in actual occupancy, could not be dispossessed, held that Kercheval could not set up his actual possession acquired from a stranger against a writ under a judgment to which he was himself a party.

This is a stronger case than the case now before the court,

because Mrs. Johnson can, with regard to the possession, occupy no better position than her grantor, Mrs. Buliner, while Kercheval did actually occupy the better position of his lessor, Forman, who could himself have successfully resisted the writ.

As we decide the case adversely to Mrs. Johnson, it becomes unnecessary to discuss the apparent validity or invalidity of her deed from the Kirbys, and on this we decline to express an opinion.

A writ of possession is awarded as prayed for.

ALL WHO COME INTO POSSESSION OF LAND AFTER ACTION BROUGHT must prima facie go out under writ of possession, if the plaintiff recovers; for the presumption is that they came in under the defendant: Wetherbee v. Dunn, 36 Cal. 147; 95 Am. Dec. 166, and note 170; Oetgen v. Ross, 47 Ill. 142; 95 Am. Dec. 468.

WHERE, PENDING ACTION TO RECOVER LAND AGAINST ONE IN POSSESSION UNDER CLAIM OF TITLE, he lets it to a tenant, who, with notice of the action, enters and sows crops, and judgment is recovered against the lessor, and he surrenders possession, the tenant is not entitled to the crops: Rowell v. Klein, 44 Ind. 290; 15 Am. Rep. 235.

SUPREME COURT WILL TREAT AS CONTEMPT USE OF LANGUAGE IN BRIEF FILED THEREIN which impugns the motives of, and is disrespectful to, the lower court.

ACTION by plaintiffs to recover from defendant his proportionate part of a sum of money paid by plaintiffs, which had been owing by a partnership formerly existing between the plaintiffs and defendant.

F. D. and G. W. Nicol, for the appellant.

F. W. Street, for the respondents.

HAYNE, C. The brief of the counsel for appellant contains the following: "The court, out of the fullness of his love for a cause, the parties to it or their counsel, or from an overzealous desire to adjudicate 'all matters, points, arguments, and things,' could not, with any degree of propriety under the law, patch and doctor up the case of the plaintiffs, which, perhaps, the carelessness of their counsel had left in such a condition as to entitle them to no relief whatever."

Here is a distinct intimation that the judge of the court below did not act from proper motives, but from a love of the parties or their counsel. We see nothing in the record which suggests that such was the case. On the contrary, the action complained of seems to us to have been entirely proper: See Sill v. Reese, 47 Cal. 340. The brief, therefore, contains a

groundless charge against the purity of motive of the judge of the court below. This we regard as a grave breach of professional propriety. Every person on his admission to the bar takes an oath to "faithfully discharge the duties of an attorney and counselor ": Code Civ. Proc., sec. 278. And among such duties, as defined by statute, is "to maintain the respect due to the courts of justice and judicial officers": Id., sec. 282. Surely such a course as was taken in this case is not a compliance with that duty. In Friedlander v. Sumner G. & S. M. Co., 61 Cal. 117, the court said: "If unfortunately counsel in any case shall ever so far forget himself as willfully to employ language manifestly disrespectful to the judge of the superior court, a thing not to be anticipated, — we shall deem it our duty to treat such conduct as a contempt of this court, and to proceed accordingly"; and the briefs in the case were ordered to be stricken from the files.

We therefore advise that the submission of this case be set aside, and that the brief of counsel for the appellant be stricken from the files, and that if a proper brief on behalf of appellant be not filed within thirty days from the entry of the order, the appeal stands dismissed.

BELCHER, C. C., and FOOTE, C., concurred.

The COURT. For the reasons given in the foregoing opinion, ordered the submission of the cause is set aside, and brief of counsel for appellant stricken from the files of this court; and if within thirty days from the filing of this order a proper brief on the part of appellant be not filed herein, the appeal will be dismissed.

CONTEMPT, WHat Constitutes: People v. Wilson, 64 Ill. 195; 16 Am. Rep. 528; In re Lowenthal, 74 Cal. 109; 5 Am. St. Rep. 424; Walling v. Miller, 108 N. Y. 173; 2 Am. St. Rep. 400; Williamson's Case, 26 Pa. St. 9; 67 Am. Dec. 374; In re Sturoc, 48 N. H. 428; 97 Am. Dec. 626; State v. Galloway, 5 Cold. 326; 98 Am. Dec. 404, note 416-420; libel on judges: State v. Frew, 24 W. Va. 416; 49 Am. Rep. 257; abusing judge in street for his judicial action: People v. Green, 7 Col. 237; 49 Am. Rep. 351; libel on grand jury: Storey v. People, 79 Ill. 45; 22 Am. Rep. 158; In re Cheeseman, 49 N. J. L. 137; 60 Am. Rep. 596; report that a juror can be bribed: Little v. State, 90 Ind. 338; 46 Am. Rep. 224; addressing insolent letters to judge: In re Pryor, 18 Kan. 72; 26 Am. Rep. 747.

MONTGOMERY V. KEPPEL.

[75 CALIFORNIA, 128.]

MORTGAGER IS CHARGED WITH NOTICE OF FACT AFFECTING TITLE TO MORTGAGED PROPERTY, when he has readily accessible means of acquir ing knowledge thereof which he might have ascertained by inquiry. PRIOR MORTGAGEE IS CHARGED WITH NOTICE OF TERMS UPON WHICH PURCHASE OF MORTGAGED PROPERTY IS MADE, where, pending his ncgotiation with the mortgagor, he acquires knowledge that the title to the property is in a third person, with whom the mortgagor was negotiating for the purchase, which was afterwards consummated by the delivery of a deed to the mortgagor, and the execution by him of a mortgage back to the grantor to secure the purchase-money.

STATEMENT, TO OPERATE AS ESTOPPEL, MUST BE MADE WITH EXPRESS INTENTION TO DECEIVE, or with such carelessness or culpable negligence as to amount to constructive fraud.

ACTION to foreclose a mortgage. The facts are stated in the opinion.

Hundley and Gale, for the appellant.

W. F. Goad and Arthur Rodgers, for the respondent.

THORNTON, J. The plaintiff brought this action to foreclose a mortgage against the mortgagor, Garret Keppel, and the Spring Valley Mining and Irrigating Company. Other persons were made parties, which need not be here especially mentioned. As to all these defendants except Keppel, the general allegation is made that they have, or claim to have, some interest in or claim upon said lands, or some part thereof, as purchasers, mortgagees, judgment creditors, or otherwise, which interests or claims are subsequent to and subject to the lien of plaintiff's mortgage. The defendant corporation above named set up a mortgage upon a portion of the land covered by the plaintiff's mortgage executed by Keppel to it; and which of these mortgages was prior in right, as appears from the transcript, was the principal question tried and determined by the court. It appears from the findings of fact that the mortgage to the corporation defendant was executed on the twenty-second day of November, 1883, acknowledged by the mortgagor on the same day, and filed for record in the office of the county recorder of Butte County (where the mortgaged property was situate) at 10:25 o'clock, on the twenty-sixth day of November, 1883. It further appears that the land mortgaged to the corporation was conveyed by it to the common mortgagor on the same day on which the mortgagor executed to the defendant above named the mortgage just mentioned;