money, then that plaintiff should have judg ment canceling said deeds, on the payment to plaintiff of $358. Let a judgment be entered in accordance herewith." Appellants' contention is that the findings that plaintiff Clarence knew of the destruction of the house when he received $25, and the finding that defendants collected $110.45 for insurance, have no support in the pleadings. The pleadings are verified, and the allegation of the answer was: "The defendants allege that prior to the 19th day of December, 1898, and subsequent to December 1, 1898, the defendants placed and erected upon the said real property [the property conveyed to defendants] valuable and permanent improvements of the value of $358, and for which defendants paid the sum of $358, to wit, $300 paid by the defendants for an addition built to the dwelling house situated on said lastnamed real property; $18 for cultivating and irrigating the last-named real property; $25 paid to said Clarence L. Beardsley for fertilizing material used on same; and $15 for other fertilizing material used on same." Defendants allege that they have expended for permanent improvements since December 19, 1898, and for taxes, the sum of $952.08, but as this relates to expenditures since the notice of rescission, the allegation cannot be considered. The allegation first above stated is deemed denied, and raised an issue which the trial court treated as a plea in estoppel, and on that ground held that, although plaintiffs had the right to rescind in view of the mutual mistake, they were yet estopped by subsequent conduct. In plaintiffs' brief the opinion of the trial judge is printed, and in it he said: "But the obstacle in plaintiff's way is found in the facts which took place after the delivery of the deeds, and before the notice of rescission. Until that time, and about fourteen days after plaintiff and her intestate learned of the destruction of the house, defendants, with the full knowledge of plaintiff and her intestate, made substantial and valuable improvements on the Redlands property, which they acquired from plaintiff and her intestate in exchange; said improvements amounting in value to $358. Plaintiff's intestate also removed certain things from the Redlands property, which he claimed were not transferred by his (said plaintiff's) deed, and sold certain fertilizers located there to defendants, to be used in fertilizing said Redlands land, while said improvements were being made, thus indicating that he did not intend to rescind, and encouraging defendants' work and expenditure on the Redlands property. These things created an equitable estoppel, because it is unconscionable for a party to permit another to so improve property obtained in such a bargain, and then claim the property and improvements, even were he to pay the costs of the improvements." But it is contended that no estoppel was pleaded in the answer, and this is

true in the sense that no estoppel eo nomine was specifically pleaded with the usual averments of such a plea; and it is also true that the rules of pleading require estoppels to be pleaded. But it is also true that, "if the facts upon which the estoppel rests be pleaded, so that the opposite party may know, its nature," it is sufficient, at least where the question arises under circumstances such as are disclosed in this case (Carpy v. Dowdell, 115 Cal. 677, 47 Pac. 695); and it was there also held that where no objection is made at the trial to evidence on the score of defective pleading, the rule is well established that such a course is a waiver of a defective pleading. The facts pleaded in the answer could have had no other object than that given them by the court, and whatever evidence went in to support the allegations must have been understood by plaintiffs to mean what the language used obviously and naturally imports. We cannot doubt that plaintiffs understood what defendants intended by alleging these facts, and to do so would be an impeachment of plaintiffs' intelligence.

The case does not fall within the class of which Ortega v. Cordero, 88 Cal. 221, 26 Pac. 80, is an example, but falls rather within the class reviewed in that decision, and some others, of which Horton v. Dominguez, 68 Cal. 642, 10 Pac. 186; Moore v. Campbell, 72 Cal. 251, 13 Pac. 689; Illinois Trust & Savings Bank v. Pacific Ry. Co., 115 Cal. 285, 47 Pac. 60; and McDougal v. Hulet, 132 Cal. 154, 64 Pac. 278,-are examples. We must presume that there was evidence sufficient to support the findings, and we must also presume that it went in without objection, and was admissible under the pleadings. See cases last above cited. In the absence of the evidence, which alone could enlighten us as to the inferences fairly to be drawn from the conduct of the parties giving rise to the estoppel found by the trial court, we cannot say that its conclusions were er

roneous.

Plaintiffs cannot complain that defendants were by the interlocutory decree required to pay to plaintiffs the money collected by them for insurance before entering a final decree in defendants' favor. Plaintiffs were certainly not injured by this feature of the decree. A question might arise as to whether plaintiffs rescinded promptly, and whether they restored, or offered to restore, to defendants, if that was necessary, the value of the improvements put upon the land with their knowledge after the right to rescind arose. The record discloses no offer to make defendants whole, nor do we know all the facts occurring after plaintiffs knew of the destruction of the house, nor why, after such knowledge, they waited until improvements were made by defendants on the land before taking any steps to rescind. What would be prompt rescission does not depend alone on the time that may elapse before asserting the right; what would constitute

prompt rescission must depend somewhat on the circumstances of each case. In this case the notice was given probably in time, had the situation of defendants not materially changed. Defendants had a right to assume, under the circumstances disclosed, that the exchange was satisfactory, although the house was destroyed. They were warranted in so believing, inasmuch as plaintiffs said nothing about rescinding, but stood by while they were improving the property, and even sold them some of the material that went into these improvements. It is quite possible that the evidence, if before us, would put an entirely different phase on the case, but as it comes to us no error is apparent, and we therefore advise that the judgment be affirmed.

We concur: COOPER, C.; HAYNES, O.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

(137 Cal. 284)

LUDDY v. PAVKOVICH. (L. A. 1,031.) (Supreme Court of California. Sept. 13, 1902.)

MORTGAGE FORECLOSURE COMPLAINT ALLEGATION OF MONEY DUE-ATTORNEY'S FEES STIPULATION IN MORTGAGE -PERSONAL JUDGMENT.

1. A complaint to foreclose a mortgage, setting out the note and mortgage, showing on their face that the principal was due and payable two years before commencement of the action, averring that no part of the principal mentioned in the note and mortgage has been paid, and that the principal sum is unpaid, and is owing by defendant to plaintiff, sufficiently shows that the principal sum of the note was due.

2. Under a mortgage stipulating that on foreclosure the mortgagee may include counsel fees, he may have a personal judgment for attorney's fees.

Department 2. Appeal from superior court, Los Angeles county; Frank J. Murasky, Judge.

Action by J. R. Luddy against Pavkovich. Judgment for plaintiff. ant appeals. Affirmed.

John V. Defend

J. H. Krimminger, for appellant. Thos. L. Neal and H. C. Millsap, for respondent.

MCFARLAND, J. This is an ordinary suit on a note and mortgage made and executed by defendant to plaintiff. The usual judgment of foreclosure was rendered, and defendant appeals from the judgment, bringing up only the judgment roll. The appellant contends that the complaint does not state facts sufficient to constitute a cause of action, because there is no express averment therein that the principal sum of the note and mortgage was "due" at the commencement of the action. The complaint sets out in full the note and mortgage sued on, which show on their face that the principal was due and payable about two years before the commencement of the action; 70 P.-12

and it is averred that "no part of the principal mentioned in said promissory note and mortgage has been paid," etc., and that "the principal sum of said promissory note, to wit, fifteen hundred (1,500) dollars, is unpaid, and is owing by said defendant, John L. Pavkovich, to J. R. Luddy, plaintiff herein." These averments are entirely sufficient to show what the contract sued on was, and that appellant had violated it by not paying the note after its maturity; and the sufficiency of the complaint in this respect is an answer to appellant's contention that there is no express finding that the principal sum of the note was "due." The court, in addition to specific find-ings as to the amount of the principal sum secured, and that it is "unpaid," etc., finds that all allegations of the complaint are true, except a part of the allegation as to an attorney's fee; and it also finds, under the head of "Conclusions of Law," that the principal sum, with certain interest, is "due and unpaid." With respect to an attorney's fee for foreclosing, the mortgage provides that in the event of foreclosure the mortgagee "may include in such foreclosure a reasonable counsel fee, to be fixed by the court"; and it is averred that $250 was a reasonable fee. The court allowed a fee of $125, which is not claimed to be unreasonable, but merely gave a personal judgment for that amount, holding that it was not included in the mortgage lien. Appellant contends that the provision in the mortgage as to attorney's fee does not warrant a personal judgment therefor; but on this point the case is exactly like Klokke v. Escailler, 124 Cal. 297, 56 Pac. 1113, where it was held (the provision of the mortgage and the averment in the complaint about an attorney's fee being the same there as in the case at bar) that "while plaintiff is entitled, upon proper showing, to recover attorney's fees in his action, he is not entitled to have those fees included in the amount of the mortgage lien. He must rely alone upon a personal judg ment."

The judgment appealed from is affirmed. We concur: TEMPLE, J.; HENSHAW, J.

(137 Cal. 319) COLLIER v. SHAFFER, County Auditor. (L. A. 1,067.) (Supreme Court of California. Sept. 17, 1902.) TAX SALES-REDEMPTION-SUMS TO BE PAID

-INTEREST-PENALTIES.

1. Pol. Code, § 3817, providing that real estate sold to the state for taxes may be redeemed by paying the amount of taxes due thereon at the time of the sale, with interest thereou, does not require payment of interest on costs, or the 5 per cent. penalty, prescribed by section 3756, where taxes are not paid before they are delinquent.

2. Under Pol. Code, § 3817, requiring for redemption from tax sale to the state, payment of taxes due at the time of the sale, with interest, also all taxes which were a lien on the real estate when said taxes became delinquent, and taxes on a certain basis for the succeeding

years prior to redemption, with interest, and also all costs and expenses and 25 per cent. penalty, which may have accrued by reason of such delinquency and sale, the penalty, which is to be computed only on the tax for which sale was made, will be held to be the 5 per cent. penalty provided by section 3756, where taxes are not paid before they are delinquent; there being no other penalty by reason of the delinquency or the sale, which, by sections 3756, 3770, 3773, is to be made for the taxes and costs due.

3. Under Pol. Code, § 3817, requiring for redemption from tax sale to the state, payment, for each year since the sale for which taxes have not been paid, of an amount equal to the percentage of state and county taxes for that year on the value of the real estate assessed for the year of the sale, the value on which the percentage for taxes for the subsequent years is to be computed is that assessed for the taxes for which sale was made.

4. Though at the time land was sold for taxes Pol. Code, § 3817, provided the redemptioner should pay the county auditor $2 for making out an estimate of the amount to be paid to redeem, he need not pay it, where, before redemption, there is an amendment making it the duty of the auditor to make the estimate without fee; the amendment going to the remedy only.

Department 2. Appeal from superior court, San Diego county; E. S. Torrance, Judge.

Application by D. C. Collier, Jr., for writ of mandate to E. E. Shaffer, auditor of San Diego county. From the judgment, both parties appeal. Reversed.

Collier & Smith, for appellant. T. L. Lewis, Dist. Atty., and A. Haines, Asst. Dist. Atty., for respondent.

PER CURIAM. The plaintiff filed a verified application for a writ of mandate against the defendant, as auditor of San Diego county, to compel the defendant in his official capacity to furnish certain estimates of the amount due in order to redeem certain tracts of land from a sale to the state for delinquent taxes for the year 1889-90. The defendant, as auditor, had furnished an estimate, which included the following items, stated in the complaint as follows, to wit: "(1) The taxes for the year 1889-90. (2) Five per cent. penalty on said taxes, as provided by section 3756 of the Political Code as it existed prior to the amendment in 1891. (3) Costs as provided by section 3770 of the Political Code, being fifty cents on each tract of land separately assessed. (4) Interest on the above amounts, obtained by adding 1, 2, and 3 together, figured at 7 per cent. per annum from the date of sale. (5) Twentyfive per cent. penalty on redemption, figured on the amount obtained by adding 1, 2, and 3 together. (6) State and county taxes for 1890-91, figured upon the assessed value for that year and at the rate of taxation established for that year. (7) Five per cent. penalty thereon for delinquency obtained by adding 6 and 7 together. (9) State and county taxes for 1891-92 upon the assessed valuation of that year and at the rate of taxation

for that year. (10) Fifteen and five per cent. penalties upon the first and second installments, as provided by section 3756 of the Political Code as amended in 1891. (11) Interest on the amount obtained by adding 9 and 10 together from January 1, 1892, at 7 per cent. per annum. (12) State and county taxes for the year 1892-93, figured upon the assessed valuation of that year at the rate of taxation for said year. (13) Fifteen and five per cent. penalties upon delinquency upon the first and second installments thereof, as provided by section 3756 of the Political Code as amended in 1891. (14) Interest on the amount obtained by adding 12 and 13 together, from January 1, 1893, at 7 per cent. per annum. (15) Fee of auditor for making the estimates, $2.00." The defendant demurred to the affidavit or complaint, making several specific assignments. The court sustained the demurrer as to certain of the items, and overruled it as to others. The parties declined to amend, and judgment was accordingly entered directing the defendant, as auditor, to make the estimates as per the rulings of the court on demurrer. Both parties appeal from the judgment, and the questions for determination relate to the construction of section 3817 of the Political Code, in force at the date of the sale, as to the proper items required to be paid in order to redeem land sold to the state for delinquent taxes.

The redemption of land so sold to the state is governed by the law in force at the date of the sale. Water Co. v. Shaffer, 116 Cal. 518, 48 l'ac. 613, 58 Am. St. Rep. 194. It was provided in said section that the person whose real estate had been sold to the state should have the right to redeem the same before it had been disposed of by the state by paying to the county treasurer as follows: "The amount of taxes due thereon at the time of said sale, with interest thereon at the rate of seven per cent. per annum; and also all taxes that were a lien upon said real estate at the time said taxes became delinquent; and also for each year since the sale for which taxes on said land have not been paid, an amount equal to the percentage of state and county tax for that year, upon the value of said real estate assessed for the year of the sale, with interest from the first day of January of each of said years respectively, at the same rate; and also all costs and expenses, and twenty-five per cent. penalty, which may have accrued by reason of such delinquency and sale, and the costs and expenses of such redemption, as hereinafter specified." We will discuss only the objections made to the items of the auditor's estimate, as no other questions are before us. The property was sold to the state on the 19th of March, 1890. At the time the taxes became due and at the time of the sale, section 3756 of the Political Code provided that all taxes became delinquent on the last Monday in December, and thereafter the tax col

lector must collect an additional sum of 5 per cent. The plaintiff contends that the computation of interest, in item 4 of the auditor's estimate, upon the items 2 and 3 as to the 5 per cent. penalty and costs was not permissible under the statute, and we think his contention is correct. When the statute says "the amount of taxes due thereon at the time of sale and interest thereon," it clearly means interest upon the taxes due. At the time of the sale there was a penalty due and certain costs, but the statute has only provided for the collection of interest upon the taxes due. The penalty was not taxes due, neither was the costs. The statute furnishes the rule, and we cannot depart from its letter in proceedings of this nature.

The next objection is made to item 5 of the estimate, which included 25 per cent. penalty on the sum of the amounts set forth in items 1, 2, and 3. This objection should have been sustained. The statute requires the party redeeming to pay all costs and expenses "and twenty-five per cent. penalty which may have accrued by reason of such delinquency and sale." There is no penalty of 25 per cent. by reason of any delinquency and sale, unless the words above quoted create it. The language evidently refers to a penalty that has already accrued by reason of the delinquency and sale. The penalty for delinquency was fixed at 5 per cent., and the sale to the state was "for the taxes and costs due." Pol. Code (in force in 1890), §§ 3756, 3770, 3773. The statute, therefore, must be held to mean the 5 per cent. penalty which accrued by reason of the delinquency and sale, and, as there is no provision for any penalty except upon the taxes due and unpaid, the 5 per cent. should be calculated upon the amount of the original taxes.

Item 6 should have included the taxes upon the value of the real estate for the year of the sale 1889-90. The rate should be the percentage of state and county taxes for each year after the sale as fixed by the proper authorities for such year, but upon the value as fixed and assessed the year of the sale and upon which the sale was based. This is the evident meaning of the statute. It may be that the property was of greater value for the succeeding years after the sale, and that the owner, by allowing it to be sold, and redeeming, will in fact pay less taxes; but, on the other hand, it may be that it depreciated in value. However this may be, the statute fixes the rule by which the owner may be relieved from the burden placed upon his lands, and when he complies with the statute he is entitled to the relief.

It follows that item 7, fixing a penalty of 5 per cent. upon the taxes for 1890-91, is incorrect. The statute does not authorize any such penalty. Item 8 should have included interest on the taxes for 1890-91 levied and assessed as herein before stated. Item 9 should have included taxes levied upon the assessed valuation as per the year of the

sale, and so for each succeeding year. In each case the computation should be based upon the value assessed for the year of the sale, and at the rate for the year in which the assessment would have been made, if the property had still belonged to the owner. Finally, the 5 per cent. penalty which accrued by reason of the delinquency should be paid, and this penalty is to be computed upon the amount of the original tax, and no other penalties are to be computed.

Item 15 should be eliminated. The section provided at the time of the sale that the county auditor shall be paid by the redemptioner the sum of $2 for making out the estimate. The section was amended in 1895, and in its amended form it is made the duty of the auditor to make the estimate without any fee therefor. It is now part of his official duty. The legislature, by the amendment, could not impose additional burdens upon the party desiring to redeem, but it could relieve him of burdens. The amendment eliminating the charge of $2 went to the remedy, and was valid to this extent. Oullahan v. Sweeney, 79 Cal. 538, 21 Pac. 960, 12 Am. St. Rep. 172.

The judgment is reversed, and the court below directed to enter judgment in accordance with the views herein expressed.

(137 Cal. 323) SAN DIEGO INV. CO. v. SHAFFER, County Auditor. (L. A. 1,068.)

(Supreme Court of California.

Sept. 17, 1902.) TAX SALES-REDEMPTION-SUMS TO BE PAID. 1. Under Pol. Code, § 3817, as amended February, 1895, providing for redemption from tax sale to the state by paying taxes due at the time of sale, with interest thereon, and a penalty increasing in per cent. according to the time elapsing before redemption, the penalty is to be computed on the taxes, and not on the interest.

2. Under Pol. Code, § 3817, as amended February, 1895, providing for redemption from tax sale to the state by payment of taxes, interest, penalties, "and costs and expenses of redemption," costs and expenses the amounts due as computed according to the statute.

mean

Department 2. Appeal from superior court, San Diego county; E. S. Torrance, Judge.

Application by the San Diego Investment Company for writ of mandate to E. E. Shaffer, auditor of San Diego county. From the judgment, both parties appeal. Reversed.

Collier & Smith, for appellant. T. L. Lewis, Dist. Atty., and A. Haines, Dep. Dist. Atty.. for respondent.

PER CURIAM. This is an application upon verified petition to compel defendant, as auditor of San Diego county, to furnish correct estimates of the amounts required to redeem certain lands sold to the state for delinquent taxes on July 1, 1895. Certain questions were presented upon demurrer, and, after determining the questions of law thus rais

ed, the court ordered judgment that the writ issue in accordance with the rulings on demurrer. Both parties appeal from the judgment. It is not necessary to discuss in detail the various items and the rulings of the court in connection therewith. The statute in force at the time of the sale, and by which the right to redeem must be governed, is section 3817 of the Political Code, as amended in February, 1895. The statute, so far as applicable here, provided that after the sale of land to the state the owner should be entitled to redeem upon paying "the amount of taxes due thereon at the time of said sale, with interest thereon at the rate of seven per cent. per annum; and also all taxes that were a lien upon said real estate at the time said taxes became delinquent; and also for each year since the sale for which taxes on said land have not been paid, an amount equal to the percentage of taxes for that year upon the value of the real estate as assessed for that year; or, if not so assessed, then upon the value of the property as assessed in the year nearest the time of such redemption, with interest from the first day of January of each of said years, respectively, at the same rate, to the time of redemption; and also all costs and expenses of such redemption, as hereinafter specified, and penalties as follows, to-wit: Ten per cent., if redeemed within six months from the date of sale; twenty per cent., if redeemed within one year therefrom; forty per cent., if redeemed within two years therefrom; sixty per cent., if redeemed within three years therefrom; eighty per cent., if redeemed within four years therefrom; and one hundred per cent., if redeemed within five or any greater number of years therefrom. The penalty shall be computed upon the amount of each year's taxes in like manner, reckoning from the time when the lands would have been sold for the taxes of that year, if there had been no previous sale thereof." Under the above statute the interest should have been computed upon the taxes "due thereon at the time of sale," and not upon any penalties or costs. Collier v. Shaffer (L. A. No. 1,067, this day decided) 70 Pac. 177. The original amount of taxes, with interest thereon at the rate of 7 per cent. per annum and a penalty of 10 per cent. upon said original amount if redeemed within six months, 20 per cent. if within one year, and so on, as the statute provides, is all that can be claimed on the amount of the taxes due at the time of sale. To this is to be added the amount of taxes, based upon the rate and valuation for each succeeding year after the sale and prior to redemption. These amounts are to draw interest at the rate of 7 per cent. from the 1st day of January after such taxes for the succeeding years become due respectively. The penalties as provided in the section shall be computed upon the amount of each year's taxes in like manner, reckoning from the time when the lands would have been sold for the taxes of that year if there

had been no previous sale thereof; the penalties to be computed upon the amount of taxes for the succeeding years as if they had actually been sold at the time provided for such sale if there had been no previous sale. The "costs and expenses of redemption" referred to in the statute means the amounts due as computed according to the statute. The result is that a party whose lands are sold for taxes may redeem within six months after the sale for a less amount than the land sold for, as the sale is required to be for the 20 per cent. penalty and costs. But the legislature has provided the mode of redeeming, and we cannot require more than the measure of the statute.

The judgment is reversed, with directions to the court below to enter judgment in accordance with the views herein expressed.

(137 Cal. 372) MITCHELL v. BOARD OF EDUCATION OF CITY AND COUNTY OF SAN FRANCISCO. (S. F. 2,479). REEVES v. SAME. (S. F. 2,974.) (Supreme Court of California. Sept. 20, 1902.) APPEAL UNDERTAKING-SCHOOL DISTRICTWAIVER.

1. A school district, being a distinct corporation, though having the same name and embracing the same territory as a city, is not within Code Civ. Proc. § 1058, exempting a county or city from giving security in a civil action.

2. Under Code Civ. Proc. § 940, declaring the appeal ineffectual for any purpose unless within five days after service of notice of appeal an undertaking be filed, or the undertaking be waived by the adverse party in writing, a stipulation merely extending time for filing briefs and for like purposes does not waive the undertaking.

In bank. Appeal from superior court, city and county of San Francisco; William R. Daingerfield, Judge.

Two actions, one by R. H. Mitchell, the other by Irene D. Reeves, against the board of education of the city and county of San Francisco. Judgment for plaintiffs, and defendant appeals. Dismissed.

Franklin K. Lane, City Atty., and W. I. Brobeck, for appellant. Henley & Costello, for respondents.

HENSHAW, J. Motions are made to dismiss the appeals herein upon the ground that no undertaking upon appeal has been filed in either of the cases, and that no order of the trial court has been made dispensing with the giving of them.

Section 1058 of the Code of Civil Procedure provides that "in any civil action or proceeding wherein the state or the people of the state is a party plaintiff, or any state officer in his official capacity or on behalf of the state, or any county, city and county, city or town is a party plaintiff or defendant, no bond, written undertaking or security can be required of the state or the people thereof,