voluntarily as a means of entrapping the opposite party into mere abstract errors. We do not think the question of a defendant's power to waive a constitutional right is involved. The thing complained of here is, at worst, only an irregularity, which should have been objected to when the opportunity was offered." So in this case we cannot allow defendant to consent to a general order to view the entire premises, and stand mute while the officer is pointing out various objects, and consent to it all when the jury returns to court, and now for the first time claim that something was possibly said outside the record. It would shock one's sense of justice and fair practice to allow such thing. The learned judge of the court below appears to have dealt fairly with defendant, and guarded all his rights. It was due to the judge that he should be dealt with fairly by defendant. The constitution gives to a defendant a right to a speedy trial, and the Penal Code expressly provides that the court must order the prosecution dismissed, unless good cause to the contrary be shown, where a defendant is not brought to trial within 60 days after the finding of the indictment or filing of the information; yet where defendant was brought to trial, and the jury were impaneled, and sworn, without previous objection that the 60 days had expired, it was held that he waived his right of dismissal. People v. Hawkins, 127 Cal. 374, 59 Pac. 697. In Shular v. State, 105 Ind. 293, 4 N. E. 870, 55 Am. Rep. 211, the court, on motion of defendant, sent the jury to view the premises where the crime was committed. Defendant did not accompany the jury, and claimed on appeal that evidence was received in his absence. It was held that, as defendant made no request to accompany the jury, he waived his right. In the case many American authorities are collected and quoted. In State v. Sasse, 72 Wis. 4, 38 N. W. 343, it was held, in a case where the jury were ordered to view the premises, that defendant waived his right to be present. And the same ruling was made in Blythe v. State, 47 Ohio St. 234, 24 N. E. 268; State v. Congdon, 14 R. I. 462; State v. Buzzell, 59 N. H. 70; State v. Ah Lee, 8 Or. 214. It has been held, in conformity with the above decisions, by this court, that defendant may waive his right to a public trial (People v. Tarbox, 115 Cal. 57, 46 Pac. 836), or to be confronted with the witnesses (People v. Bird, 132 Cal. 262, 64 Pac. 259).

There was no error in the admission of the evidence of the witness Jansen as to the contents of a bottle found the morning after the fire on the floor under the wood shed near the place where the fire occurred, nor in admitting the bottle in evidence. The witness testified that she knew alcohol by its color and smell, and that the bottle contained alcohol.

The judgment and order should be affirmed.

KENNEY v. PARKS et al. (L. A. 1,187.) (Supreme Court of California. Oct. 26, 1902.) DEEDS-DELIVERY-LIMITATION OF ACTIONS-REVERSAL ON APPEAL-EFFECTMISTAKE AND FRAUD.

1. Code Civ. Proc. § 355, which provides that, if a judgment for plaintiff be reversed on appeal, the plaintiff may commence a new action within one year after the reversal, permits a new action of any kind, having for result the same relief as was obtained in the original action, to be brought within the year.

2. Code Civ. Proc. § 338, which provides that an action for relief on the ground of fraud or mistake shall be brought within three years, has no application where a wife executed deeds to her husband on his representation that they would have no validity until recorded, and on his promise that he would not have them recorded unless he should survive her, and placed them in his possession, and he subsequently recorded the deeds without her knowledge, as the wife's right to assert her title to the lands is complete, without regard to fraud or mistake.

3. Where a wife executed two deeds to her husband, and on his representation that they would not have any validity until recorded, and on his promise that he would not have them recorded unless he survived her, placed them in his possession, there was no delivery of the deeds, as there was no intent that they should become operative as such.

Commissioners' decision. Department 1. Appeal from superior court, Santa Barbara county; W. S. Day, Judge.

Action by Sarah J. Kenney against W. S. Parks and another, executors of Joseph A. Kenney, deceased, and others. Judgment in favor of plaintiff for part of the relief sought, and she appeals. Reversed.

See 54 Pac. 251, and 57 Pac. 772.

B. F. Thomas, for appellant. J. W. Taggart, for respondents

SMITH, C. The suit was brought by the plaintiff, who is widow of the defendants' intestate, to assert her claim to the two lots of land described in the first and third counts of the complaint, and to an undivided half of the lot described in the second count, and for recovery of possession of the same. Judgment was rendered in her favor for an undivided half of the lot described in the third count, and against her as to the other half, and as to the lots described in the first and second counts. She appeals from so much of the judgment only as relates to the causes of action set out in the first and second counts, which alone, therefore, need be considered.

Upon the facts alleged in this part of the complaint, all of which are found by the

1. See Limitation of Actions, vol. 33, Cent. Dig.

$555.

court to be true, and upon other facts found, the case presented for review is as follows: The plaintiff, being the owner of the lot and undivided half of a lot described in the first two counts of the complaint, signed, without consideration, two writings in the form of deeds, the one of date January 30, 1888, the other of date March 12, 1887, purporting respectively to convey them to Kenney, her husband; and at his request, and upon his representation that under the laws of the state the deed would be of no validity until recorded (which both parties believed to be true), and on his promise that he would not have them recorded unless he should survive her, the deeds were placed by her in his possession. It was at the same time understood and agreed, as to each deed, that the instrument "should never have any effect as a conveyance" unless Kenney should survive his wife. The deeds were subsequently recorded by Kenney, whose promises not to record them were made without intention to keep them. The plaintiff did not learn of the record of the deeds until July 3, 1894, two days prior to Kenney's death; nor did she learn that the law as to the effect of deeds before record was otherwise than as represented to her by him until September, 1894. She remained in possession of the lands in question, and received the rents, issues, and profits therefrom, until July 5, 1894, the day of the death of Kenney, when she was ousted by the defendants, the executors; and it is found by the court that she "was seised and possessed of the three parcels of land described in the complaint down to" that date. In the following May she commenced an action against the defendants to recover these and other lands, and for other purposes, and on October 14, 1896, under a judgment recovered therein, was placed in possession of the lands, remaining in possession until October 28, 1899, when, upon reversal of the judgment by this court, and the filing of the remittitur, she was dispossessed. See report of case, 125 Cal. 146, 57 Pac. 772. The remittitur was filed in the lower court July 21, 1899, and this suit commenced June 4, 1900. It is found by the court that plaintiff's first two alleged causes of action are barred by the provisions of section 338 of the Code of Civil Procedure. The sole question involved is whether, on the facts found, this proposition can be sustained.

The contention of the appellant's attorney is that, on the specific facts found, it appears conclusively there was no delivery of the deeds, and hence no transfer of Mrs. Kenney's title to her husband, from which it would follow that section 338 of the Code could have no application to the case. On the other hand, it is claimed by the attorney of respondents that the deeds were delivered, and hence that the plaintiff's action is to be regarded as "an action for relief on the ground of fraud or mistake," and conse

quently as barred by the provision of the Code cited.

With regard to the statute of limitations, if we could assume that the provision of the statute pleaded (Code Civ. Proc. § 338) applies to the case, it is yet doubtful whether the finding could be sustained. Within three years from the discovery of the fraud or mistake of the defendants' intestate, the plaintiff recovered judgment against the defendants, and was put in possession of the land, and the suit was commenced within a year of the judgment. The case, therefore, we think, comes within the provisions of section 355 of the Code of Civil Procedure, which provides that "if an action is commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff may commence a new action within one year after the reversal." The language of this provision is not as clear and definite as it might be, but, having regard to the reason of the enactment, we think it must be construed as permitting a new action of any kind having for result the same relief as was obtained in the original action, which is the case here.

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But under no view of the case, we think, can it be regarded as coming within the application of section 338 of the Code. Mistake and fraud are, indeed, alleged and found, but the plaintiff's cause of action is complete without regard to either of these facts. For, eliminating these elements from the case entirely, there still remains the fact that the deeds were placed in the possession of her husband upon the understanding that they were to have effect only upon the contingency of her death before that of her husband. It follows that there was no delivery, or that the deed took effect subject to a trust in favor of the plaintiff for a reconveyance on the failure of the condition. Hence, upon the former hypothesis, the provision of the statute applying to the case would be section 318 of the Code; on the latter, section 343; and in neither case could section 338 have any application. It is clear, therefore, this being the only provision of the statute pleaded,-that the plaintiff is entitled to relief; and it remains for us to consider only what relief will be appropriate. This must depend on the view we take of the question of delivery. If there was no delivery, all that plaintiff can require is the quieting of her title, and the recovery of possession of the land, with rents and profits. Otherwise, in addition to this relief, and as preliminary thereto, she will be entitled to a reconveyance of the land. The question, therefore, is not of much practical importance, but, as determinative of the kind of judgment to be entered, it will be necessary to consider it. On this point, also, we are clear the appellant's contention must be sustained. To constitute delivery of a deed, it is not sufficient that there be a mere delivery of its possession, but this act must be accompanied with the intent that the deed

shall become operative as such. 2 Boone, Real Prop. § 295a; Black v. Sharkey, 104 Cal. 281, 37 Pac. 939; Denis v. Velati, 96 Cal. 227, 31 Pac. 1; Harris v. Harris, 59 Cal. 622. Here both parties understood that the deed could have no effect until recorded, and there was therefore no intent that it should become immediately operative, or that it should ever become operative during the life of the grantor, or afterwards, unless the grantee should survive her. The case, therefore, comes within the principle of the decision in the former case of Kenney v. Parks, 125 Cal. 146, 57 Pac. 772, where the parties were the same as here, and the same general transaction was involved. It was there held there was no delivery of the deed of Kenney to his wife, the ground of the decision being that, though not expressed, "the intention of both parties is plain that the party surviving should have his or her deed returned in case the other party should die." The only difference between the cases is that in the former case the deeds were deposited with a third party, and in this case with the grantee.

But this does not affect the application of the principle.

We do not deem it necessary to discuss here the decisions in which it has been held that the delivery of a deed to the grantee, to take effect upon the death of the grantor, is an effective delivery, or the construction of the much-misunderstood rule laid down in section 1056 of the Civil Code. To justify the application of the rule, there must at least be a delivery of the deed, which implies the intent that it shall become at once operative, either absolutely or conditionally. Wheelright v. Wheelright, 2 Mass. 447, 3 Am. Dec. 69; Black v. Sharkey, 104 Cal. 279, 37 Pac. 939; Denis v. Velati, 96 Cal. 223, 31 Pac. 1. But such is not the case here, where the understanding, and therefore the intent, that it should or could take effect presently, was lacking. Nor do we deem it necessary to refer to the doctrine of escrow, and to the ancient rule that delivery of a deed to the grantee as an escrow is to be taken as an absolute delivery further than to say that these doctrines, and especially the latter, have often been misunderstood and misapplied. 2 Bl. Comm. 307; Shep. Touch. 58; Co. Litt. 36a; 9 Coke, 137a. All that need be said is, they can have no application here. Kenney v. Parks, 125 Cal. 149, 57 Pac. 772. Nor do we

deem it necessary to consider the contention of the respondents that the plaintiff is estopped by the former case of Kenney v. Parks, 125 Cal. 149, 57 Pac. 772. It does not appear that any judgment was ever entered in the case, nor is any judgment pleaded.

It results that plaintiff is entitled to judgment quieting her title to the lot or parcel of land described in the first count of the complaint, and to the undivided half of the

lot described in the second count, and for possession thereof, and for costs. She is also entitled to receive from the defendant executors the rents and profits of the lands recovered, but, as there is no finding as to the amount of these, it will be necessary for the court, before entering judgment, to assess the amount due to the plaintiff on this account.

We advise that that portion of the judgment appealed from be reversed, and the cause remanded for further proceedings, and the entry of judgment in accordance with this opinion.

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

PER CURIAM. For the reasons given in the foregoing opinion, that portion of the judgment appealed from is reversed, and the cause remanded for further proceedings, and the entry of judgment in accordance with this opinion.

(11 N. M. 505)

DE HARRISON et al. v. PEREA et al. (Supreme Court of New Mexico. Aug. 28, 1902.)

APPEAL-INTERLOCUTORY ORDER. 1. An appeal will not lie from an interlocutory order.

(Syllabus by the Court.)

Appeal from district court, Santa Fé county; before Justice John R. McFie.

Action by Guadalupe Perea de Harrison and others against Pedro Perea and others. Judgment for plaintiffs, and defendants appeal. Dismissed.

Catron & Gortner, for appellants. W. B. Childers, for appellees.

BAKER, J. This is an appeal from the district court of Santa Fé county, from the following order: "This cause coming on to be heard on demurrer heretofore filed in the above-entitled cause, and the court having heard counsel for both plaintiff and defendants, and being now sufficiently advised in the premises, the said demurrer is overruled." In the opinion of the court, this is an interlocutory order, from which an appeal will not lie. At the last sitting of this court it was so held in Jung v. Myer, 68 Pac. 933; Machen v. Keeler, Id. 937; Board v. Blackington, Id. 938.

Appeal dismissed, and cause remanded for further proceedings.

MILLS, C. J., and McMILLAN and PARKER, JJ., concur. McFIE, J., having tried the case below, did not participate in this decision.

1. See Appeal and Error, vol. 2, Cent. Dig. §§ 329, 369.

APPEAL-REVIEW-FINDING OF COURT.

1. A finding of fact by a trial court, like that of a jury, will not be disturbed unless it is clearly against the weight of the evidence, or not supported by sufficient evidence.

(Syllabus by the Court.)

Appeal from district court, Eddy county; before Justice Daniel H. McMillan.

Action by John W. Rush and others against Thomas J. Fletcher. Judgment for plaintiffs, and defendant appeals. Affirmed.

G. A. Richardson, for appellant. Freeman & Cameron, for appellees.

BAKER, J. This is a controversy over the right to the possession of and title to two tracts of land situate in Eddy county, territory of New Mexico, tried by the court without the intervention of a jury. Appellant asks a reversal solely upon the grounds of alleged erroneous findings of fact by the trial court, and the omission to find certain facts from the evidence.

In the finding of each fact, the trial court was confronted with conflicting testimony. Each finding of fact is warranted by the evidence. It is a universal rule that a finding of fact by a trial court, like the verdict of a jury, will not be disturbed unless it is clearly against the weight of evidence, or not supported by sufficient evidence. Gale v. Salas (N. M.) 66 Pac. 520; Waldo v. Beckwith, 1 N. M. 97; Badeau v. Baca, 2 N. M. 194; Territory v. Webb, Id. 147; Territory v. Maxwell, Id. 250; Territory v. Hicks, 6 N. M. 596, 30 Pac. 872; Trujillo v. Territory, 7 N. M. 43, 32 Pac. 154; Torlina v. Trorlicht, 5 N. M. 148, 21 Pac. 68; Zanz v. Stover, 2 N. M. 29. For the reasons given, the findings of fact by the trial court in this case will not be disturbed.

The discussion of the evidence, in this opinion, upon which the several facts were found by the trial court, could not serve as a precedent, nor in any way serve the litigants in this case, nor could it be of aid to the profession. This case depends almost entirely upon the evidence of Surveyors Numyer and Reed, each being corroborated on various points by other witnesses. We are not only of the opinion that the trial court's several findings of fact were supported by sufficient evidence, but we are also of the opinion that they were established by a preponderance of the evidence. It was not necessary, for a just conclusion of the controversy, that the court should have found "where the monuments were located east of the lands in controversy, designating the line between the state of Texas and the territory of New Mex ico," nor "the correct location of the Texas line, as shown by the natural and artificial monuments in the neighborhood of the tracts of land in controversy."

There being no error, the judgment of the lower court is affirmed.

MILLS, C. J., and McFIE and PARKER, JJ., concur. MCMILLAN, J., having tried the case below, did not participate in this decision.

(11 N. M. 555)

ROMERO v. COLEMAN et al. (Supreme Court of New Mexico. Aug. 28, 1902.)

APPEAL-REVIEW-CREDIBILITY OF WIT

NESSES.

1. The findings of fact by a trial court will not be disturbed unless they are clearly against the weight of the evidence.

2. When a case is tried to the court, the court is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony.

(Syllabus by the Court.)

Appeal from district court, San Miguel county; before Justice William J. Mills.

Action by Cleofas Romero against Fannie Coleman and others. Judgment for plaintiff, and defendants appeal. Affirmed.

W. C. Reid, for appellants. Charles A. Spiess, for appellee.

BAKER, J. This is an action to foreclose a mechanic's llen, coming here on appeal from San Miguel county, Fourth judicial district. There seems to be no dispute that the material for which the lien is claimed was furnished in the construction of the buildings upon the real estate described in the complaint, and that the appellee, Romero, was never paid for the same. The real question is, whose material was it? It is contended by appellee that the material furnished for which a lien is asked was his personal property before it was placed in the houses erected for appellants on the lots described in the complaint. The case must therefore be de termined upon matters of fact. Cleofas Romero testified in effect that there was an agreement between him and Elisandro Montoya that Montoya was to tear down the three-story structure known as the "Baca Building," and, as consideration for his work in so doing, he was to receive one-half of the

material contained in the second and third stories. All of the stone was to go to Romero, and the adobes to Montoya. The testimony of Montoya was to the effect that the agreement to tear down the building was that he (Montoya) should do so for one-half of the material. The referee and the court found in favor of the contract as stated by Romero, and there seems to be evidence sufficient to support such finding. After the tear. ing down of the building had proceeded until the third and most of the second story had been taken down, the evidence warrants the statement that Montoya had used all of

2. See Appeal and Error, vol. 3, Cent. Dig. 8904 Rehearing denied January 13, 1908.

his share of the material up to that time, and a part at least of Romero's. At that time there was a new agreement, as testified by both Montoya and Romero, to the effect that the tearing down process should continue, and that all the stone which comprised the first story of the building, as well as all the rest of the material then in the Baca building, should go to Romero; and for the fur-. ther labor of tearing down the building Montoya was to receive no consideration other than that he had already received in materials before that time taken by him from the Baca building. On or about this time Montoya entered into a contract or agreement to build three stone houses upon the property described in the complaint, and in carrying out the contract for the construction of these houses he used the material thereafter taken from the Baca building, except as to 75 perch of stone, concerning which there is a conflict of testimony as to whether it was furnished before or after the second agreement between Romero and Montoya for the tearing down of the remaining portion of the Baca building. It is contended by appellants that if the 75 perch of stone were furnished before the second agreement between Romero and Montoya, then said 75 perch furnished in the construction of the three houses were joint property of Romero and Montoya. It seems the referee and the court found, from the conflicting testimony, that Romero always (so far as this contention is concerned) owned the stone of the first story of the Baca building. That finding was based upon sufficient evidence to support it, and, that being true, it is immaterial whether the 75 perch were furnished before or after the second agreement or contract between Romero and Montoya.

The testimony of Montoya and Romero is to the effect that all material furnished from the Baca building which went into the three houses constructed for appellant, Coleman, was the exclusive property of the appellee, Romero. It is true that Romero says: "Montoya was practically my partner," but this statement is a mere conclusion, and the testimony of Romero, taken as a whole, does not warrant it. The fact of ownership of the material furnished was one to be determined by the trial court from the evidence in the case. It seems the referee in the first instance, and the court in the second instance, relied upon the testimony of the witnesses Romero and Montoya. The trial court is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Jarrell v. Barnett, 9 N. M. 254, 50 Pac. 318. It has been settled many times by this court that it will not interfere with the findings of fact of the jury or a trial court when there is any evidence to support such finding, unless it is clearly against the weight of the evidence. Waldo v. Beckwith, 1 N. M. 97; Badeau v. Baca, 2 N. M. 194; Territory v. Webb, 2 N. M. 147; Territory

Lynch v. Grayson, Hooper v. Brown

v. Maxwell, 2 N. M. 250; 7 N. M. 26, 32 Pac. 149; ing, 19 Neb. 420, 27 N. M. 419. The testimony in this case is conflicting upon every point. Therefore, in accordance with the cases cited, the findings of the trial court on the evidence in the report of the referee will not be disturbed. And the same rule applies with equal force to the evidence as to the amount of stone furnished as to any other fact. We may add, however, that the question of the amount of stone furnished was not raised in the lower court, and will not, therefore, be considered for the first time in this court. Coleman v. Bell, 4 N. M. (Gild.) 21, 12 Pac. 657; Conway v. Carter (N. M.) 68 Pac. 941.

Under section 2217, Comp. Laws 1897, "Every person performing labor upon or furnishing material to be used in the construction of any building has a lien up

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on the same for material furnished whether furnished at the instance of the owner of the building or of his agent; and every contractor shall be held to be the agent of the owner for the purposes of this act." Therefore the transaction between Romero and Montoya was the transaction, in fact, by virtue of section 2217, supra, between Romero and Coleman. The witnesses Romero and Montoya each testified that the contract price for the stone to go into the houses for appellants was 75 cents per perch as it stood in the walls of the Baca house. This, it seems, would fix the price which appellants were to pay for the stone. The contract by Montoya with Romero would be binding upon the appellants, unless for fraud, extravagance, or a disregard of the price to be paid out of the money of his principal. The testimony of several of the witnesses fixes the market value of like stone at that time in Las Vegas to be about 80 cents per perch. It will be observed that the stone was not delivered at the Coleman property, but was to be paid for at 75 cents per perch in the wall at the Baca building. This may be a little excessive, according to the price established by the witnesses, but the market price is always fixed by averaging the highest and lowest prices. There is not such a variation in the market and contract price of the stone as to warrant finding the contract between Romero and Montoya void.

Appellants complain of the form of the judgment, for the reason that it is a judg ment in personam, against appellants. In the first part of the judgment is the following recital: "It is therefore ordered. adjudged, and decreed by the court that the plaintiff, Cleofas Romero, have and recover of and from the defendants Fannie Coleman and Elisandro Montoya the just and full sum of seven hundred and four dollars and eightyseven cents for and on account of the materials set out in the plaintiff's complaint." Standing alone, this would seem to indicate a personal judgment against appellants for