that every person is presumed of sound pronounced satisfactory by Schultze. On the mind, and possessed of testamentary capacity, until the contrary is shown; and unless a previous general insanity and mental derangement, as contradistinguished from occasional wandering of the intellect, is clearly established, the presumption is that the testator had testamentary capacity at the time of making his will. The evidence adduced had wholly failed to establish testamentary incapacity of the testator on the day he made his will; for none of it related to that time. Therefore the jury should have been instructed to find for the plaintiff. The defendants in error contended that the evidence adduced was amply sufficient to impeach the testamentary capacity of the deceased; and the Court below was clearly right in refusing to invade the province of the jury, and take away from them the question of fact, when there was so much evidence of the mental inability of the testator. The Supreme Court takes this latter view of the case, and says there was sufficient evidence to go to the jury on the question of testamentary incapacity. Judgment affirmed. PRIORITY OF MORTGAGES. A most important opinion has just been rendered by the Appellate Court of Illinois in the case of Mary Houfes v. George L. Schultze and others. It appears that on the 5th of February, 1870, appellant loaned to John Nash $4,500 for three years, secured by mortgage on certain premises. When the loan became due it was renewed, the papers being made out by Knauer Bros., and Bruno Knauer being named as trustee. The old mortgage was also released. Subsequently, and on March 26, 1873, Nash executed to George L. Schultze a note for $3,000, running three years, and secured it by a trust-deed on the same property mortgaged to Mary Houfes. This last trust-deed was recorded March 27, 1873; but it was agreed that it should not be delivered to the grantee, or used for the purposes for which it was designed, until an abstract of title to the land was obtained and 8th of April, 1873, the trust-deed to Mary Honfes-which had been executed in February preceding-was filed; and on the same day Schultze loaned Nash $3,000, and accepted the note and trust-deed executed in March preceding as good security, the title to the land having been previously examined and found satisfactory. In March last Mary Houfes filed a bill to foreclose her trust-deed, but before hearing the property was sold under the Schultze incumbrance, and bid in by him; and the Court thereupon dismissed her bill for want of equity. She then took an appeal. Judge Murphy, in deciding the case, said the material facts were all admitted; and the only question was one of law as to which trust-deed was the prior incumbrance-the one to Mary Houfes, executed first but recorded last, or the one to Schultze, executed later but recorded prior. It being conceded that the trust-deed for the use of appellant was executed and delivered on the 5th day of February, 1873, on a valid consideration, it must be held good and valid in equity against all subsequent grants, bargains, conveyances, or liens, except as to subsequent bona fide purchasers and incumbrancers. The evidence went far to show that the Houfes trust-deed was kept off the records until the Schultze trust-deed was recorded, in pursuance of a fraud and conspiracy between Knauer Bros. and Nash. The latter also admitted that such was the fact. It was expressly agreed that the Schultze trust-deed was not to take effect or be delivered until Schultze should be satisfied with the title to the property. It was not until April 5, 1873, that Schultze accepted the trust-deed; and only then did it become operative as a security. The execution and recording of it, and the procurement of the abstract of title, were only steps in one transaction, which was completed April 5th, when the trust-deed was accepted and the money paid. The execution and recording of the Schultze trust-deed was not a delivery in law; and there could be no delivery until Schultze was willing to accept it. On the 8th of April the Houfes trust-deed was filed, which was notice to Schultze; and absence of a separate assessment, that different tracts of land were of different values. But where separate parcels of land belonging to different owners were assessed together as one tract, neither owner had the means of determining the amount of taxes properly chargeable against his property, and could on that day the latter paid over the $3,000. A LITTLE TAX LAW. Another decision of importance, also by the Appellate Court of Illinois, is made in the case of Thomas Lyman v. The People ex rel. McCrea. The question was raised as to the validity of a tax sale of a tract of land which belonged in severalty to different par-ment, and such duty included the giving of a ties. It seems that in October, 1876, Walter Wright, then the owner of the east half of the northwest quarter of section 14, 38, 14, died, devising it to Thomas Jackson. The latter conveyed ten acres of the tract to L. D. Wright. He then went to the Assessor, and asked him to assess his ten acres separately; but the latter neglected to do it, and the whole tract was assessed together for the taxes of 1877. Lyman objected to paying taxes on the whole tract; but judgment was rendered against him, and he appealed. Judge Bailey, in delivering the opinion, said the law was well settled that where an entire tract of land was assessed as a single tract to one who owned only a portion of it, such assessment was illegal, and the taxes based thereon were void. The reason was that, there being ordinarily no uniformity in the value of different tracts of land, it would be presumed in favor of the taxpayer, in the correct description of the property assessed. It was his duty to assess the tracts separately. The error in the assessment was so far sub[stantial as to render the assessment ipso facto void. No omissions on the part of the owher in not bringing the matter before the Board of Review could have the effect of giving it vitality. Judgment reversed. HERE is a toast from a lawyer who, like most of his brethren, knew how to appreciate a good fee: Fee simple, and a simple fee, and all the fees in tail, fees-female. "IF you don't stop your coughing," said the judge, "I'll fine you a hundred dollars.” -"I'll give your honor two hundred if you can stop it," was the lawyer's reply. First-It was competent to the Public Adminis Appeal from the Sixth District Court, Yolo County trator as such to petition for and by the order of DENSON, Judge. CRIMINAL LAW-GAMING AT FARO. (Sec. 330, Penal Code applied.) Applicable only to the persons who own, conduct, or carry on the game, or their employees, and not to those who merely BET AT the game, and who cannot be said to PLAY the game within the meaning of that section. No other section of the Code applicable to the offense. ACCESSORY.-Nor can the person who bets at the game, etc., be held to be an accessory to the crime of gaming as therein defined. INTENT. The intent in the case of betting at the game is quite different from that in the case of gaming. * BY THE COURT. * * the Probate Court to receive letters of administration upon this estate. Third-Nor did the fact that Croly had been recommended to the Probate Court by the next of kin as being a suitable person to administer upon the estate (under the Code of Civil Procedure, section 1379, as amended in 1878), give him any preference over the Public Administrator in claiming the administration of the estate and this for two reasons: 1. The distributees and next of kin in this case are married women and incapable, therefore, themselves of administering upon the estate, and their expressed preferences for the appointment of Croly, as set forth in their petition filed in the Probate Court, were of no legal consequence what ever. It is alleged in the indictment that Ah Moon and Ah Tong and other persons, whose names were to the grand jurors unknown, were "dealing, playing and carrying on a certain game" for money, which game was a banking game; and that the 2. But had it been otherwise in this respect, and defendant "did then and there play at said game, had the next of kin been laboring under no such by wagering against the bank kept at said game a disability, their petitfon requesting the appointsum of money, subject to the chances of ment of Croly, was addressed to the mere discre said game." The words of section 330, of the tion of the Probate Judge; it did not operate to Penal Code "Every person who deals, plays, or supersede the claim of the Public Administrator, carries on, opens or causes to be opened, or who otherwise established under the statute, to reconducts, either as owner or employee, whether ceive letters of administration, and if not appearfor hire or not, any game of faro," etc., are appli-ing that the Probate Court in refusing to appoint cable only to the persons who own, conduct or carry on the game, or their employees, and not to those who merely bet at the game. The person who bets at a banking game, cannot be said to play the game, within the meaning of that section of the Code. There is no other section of the Code applicable to the alleged offense. Nor, in our opinion, can the person who bets at the game-who wagers a sum of money "against the bank, kept at the game"-be held to be an accessory to the crime of gaming, as defined in that section. The intent in the case of betting at the game, is quite different from that in the case of gaming. Ordered that the defendant be discharged. (Filed November 18, 1878.) Estate of CHARLOTTE H. MORGAN.-No. 6144. Appeal from Probate Court, Sacramento County. PROBATE PROCEEDINGE-APPOINTMENT OF ADMINIS Croly has abused the discretion confided to it in terms by the statute, the order will not be disturbed, but must be affirmed here. Order affirmed. CRUZ Remittitur forthwith. (Filed November 21, 1878.) No. 5897. MARTINEZ. Seventeenth District Court, Los PATENT-PUBLICATION OF SURVEY-EVIDENCE. 2-In order to impeach a patent it is not competent to STATEMENT OF CASE. Ejectment to recover possession of lands within the limits of the Pueblo lands of Los Angeles. Defense, the Statute of Limitations. Admitted that defendant held adversel for more than five years before suit. "The City of Los Angeles" is successor of "The Pueblo of Los Angeles," through the corporation known as the "Mayor and Common Council of the City of Los Angeles," and as such succeeded to the title of the Pueblo to its pueblo lands. The claim for such lands was presented to the Board of United States Land Commissioners, and decree confirming the same was entered February 5, 1856, becoming final by dismissal of appeals to the United States District Court, on the 1st of February, 1858. On the 9th of August, 1866, a patent was issued by the United States to the Mayor and Common Council of the City of Los Angeles, for its pueblo lands, as confirmed to it by said decree, which patent was recorded in the proper book in the General Land Office of the United States, on the same day. Plaintiff, his ancestor, predecessor or grantor has not been possessed of the land in controversy in five years next before the commencement of suit. Plaintiff, who claims under the city, for the purpose of showing that the patent is void, offered to prove that the survey therein recited had not been published as required by law, but the evidence was excluded by the court, and judgment was therefore given for defendant. A. J. King, and S. M. White, attorneys for plaintiff and appellant. Glassell, Chapman, and Smiths, attorneys for defendant and respondent. BY THE COURT. The patent to the City of Los Angeles, bearing date the 9th day of August, 1866, having been duly signed and recorded in the proper book in the General Land Office, vested in the city the legal title to the lands therein described. This proposition is fully sustained by Chipley vs. Farris, 45 Cal., 527; Le Roy vs. Clayton, 2 Sawyer, 496; Le Roy vs. Jameson, 3 Id., 391; Miller vs. Ellis, 51 Cal., 74; Houghton vs. Hardenburg, No. 3961, (decided at the July Term, 1878.) The plaintiff, who claims under the city, for the purpose of showing that the patent is void, offered evidence to prove that the survey therein recited had not been published as required by law, but it was excluded by the court. The patent is regular on its face. It is not required to recite that the survey had been published, and assuming that the law required a publication of the survey, it will be presumed, in support of the patent, that the proper officers of the Land Department determined, prior to the signature of the patent, that due publication of the survey had been made. The question whether they erred in such determination is not open to inquiry in this action. Upon that question the patent is conclusive upon the city and also upon the plaintiff claiming title under her. (Chipley vs. Farris, supra; Johnson vs. Fowsley, 13 Wal., 72; French vs. Fyan, 93 U. S, 169; Doll vs. Meador, 16 Cal., 324; Durfee vs. Plaisted, 38 Cal., 80.) The evidence was properly excluded. (Filed November 20, 1878.) Estate of AVELINE, Deceased.-6235. Appeal from Probate Court, San Bernardino County. ACCOUNTS, H. M. Willis, Judge. PUBLIC ADMINISTRATOR-SURETIES-SETTLEMENT OF 1-The authority of a Public Administrator over estates that remain in his har ds, contiuues after the expiration of his term of office and the sureties his official bond are as liable, in al such cases, after the expiratien of his term as before. 2-The settlement of the account of an administrator by the court, in his at sence, would bind him had he been duly cited, either actually or constructively, to render his account, and also conclusive against his sureties in an a tion against them. But if not so cited or notified, such settlement would not bind either. 3-Sureties on an administrator's bond, not being parties to proceedings resulting in an order de termining the amount due from such adminis trator, are not authorized in their own names to move the order to be set aside. STATEMENT OF CASE. Public Administrator of San Bernardino county; In September, 1873, Albert Rogers was elected on the first Monday of March, 1874, he qualified and entered upon the duties of his office, continuing to discharge the same until the first Monday in March, 1876: Letters upon the estate of John B. Aveline, deceased, were issued to him by the Probate Court of said county, January 10, 1876: An inventory of the personal property of said estate was filed January 14, 1876 and of the real estate Febuary 21, 1876: J. A. Rosseau, who was the suctered upon the duties of his office on the first cessor of Rogers in said office, qualified and enMonday of March, 1876, and continued to discharge the same until the first Monday in March, petition, in said Probate Court, praying an order 1878. On the 13th of March, 1876, Rogers filed his to sell the personal and real estate property of said estate; On April 15, 1876, the court ordered the sale accordingly, and Rogers reported $4,730 79 as the amount realized therefrom. Rogers never gave any other than his official bond, and he was removed from the administration of said estate on the petition of W. B. Fulweiler, July 30, 1877. On September 24, 1877, Fulweiler petitioned the court for a decree fixing the amount of the assets belonging to said estate remaining in the hands of Rogers and for leave to compromise with the sureties on his official bond; and thereupon and on the same day, September 24, 1877, the court entered its decree authorizing and directing said Fulweiler to receive and collect from Rogers, or the sureties on his official bond, $1,930, balance of assets remaining in his hands and for which they were liable. The sureties petitioned to be relieved against this decree and order, and the court declining to grant the same the matter came before the Supreme Court on appeal. L. W. Talbot, attorney for petitioner and appellant. BY THE COURT. Rogers,after his election, was appointed as the administrator of the estate of Aveline, deceased, and after the expiration of his term of office, he petitioned for and obtained an order for the sale of certain real estate, and thereafter sold the same and received the purchase money therefor. His authority as such administrator continued, notwithstanding the expiration of his term for which he was elected (Rogers vs. Hoberlin, 11 Cal., 120; Estate of Hamilton, 34 Cal., 468); and his official bond was as obligatory for the faithful performance of his duties as such administrator after the expiration of his term of office as during the term. The sureties upon the bond, remained such sureties for the faithful performance by Rogers of his duties as the administrator of said estate. It may be assumed that had Rogers, who had "fled the country, without having rendered any account"-as is recited in the order-been duly cited to render this account, the settlement of his accouut by the court in his absence would have bound him, and would also have been conclusive and binding upon his sureties, in an action against them. But if the Code requires that the administrator in such case be cited by either actual or constructive notice,-and it may be assumed that the statute so requires-then the settlement of his accounts, without such citation, and in his absence, would not bind him, and of course would be without effect as against his sureties. The sureties, however, were not parties to the proceeding which eventuated in the order of the 24th day of September, 1877, determining the amount due from Rogers, as such administrator to the estate; and were not authorized in their own names to move that the order be set aside, and therefore their motion to that effect was properly denied. Order affirmed. 1 OCTOBER TERM, 1878. Unwritten Decision. (Decided October 28, 1878.) H. M. JOHNSON, Plaintiff and Appellant.) vs. I. M. HELLMAN, Defendant and Resp't. driven away by Indians in February, 1868, never returned until 1873, since which they have done no work because of supposed Indian hostilities, of the expenditares involved, and of the belief that they had done all the work that was necessary; that from the fall of 1866, to December, 1872, the mine was in the Holcomb Valley Mining District, No. 5866. by the law whereof, three days work annually was required, in order to the validity of claims; that from 1868 up to and including 1873, persons pros Appeal from the Seventeenth District Conrt, Los pected the country in which the mine is located Angeles County. SEPULVEDA, Judge. APPLICATION FOR WRIT OF MANDATE. STATEMENT OF CASE. On application for a per-emptory writ of mandate, on the issues joined, it was found by the court that on the 30th of May, 1877, defendant was, and for more than three months prior thereto had been and still is Treasurer of the City of Los Angeles; that the Board of Public Works of said city, was organized April 27, 1876, under an act of the Legislature entitled "An Act too create a Board of Public Works in and for the City of Los Angeles," approved April 3. 1876; that on May 23, 1877, said Board drew a warrant for forty-four dol lars, in favor of plaintiff, on the Treasurer of said city, payable out of the salary fund of said city; that on May 30, 1877, plaintiff presented said warrant for payment and that payment thereof was refused; that at the time of the presentment of such warrant said salary fund was sufficient for the payment thereof; that there never has been an ordinance, resolution, or order, making such warrants payable out of any fund of said city; that by section 1, Art. 2 of an act entitled "An act to amend the charter of the City of Los Angeles, to define its limits and rights, to enlarge its powers and provide for its more efficient government," approved March 26, 1874, it was provided, (here the court incorporated said section at length); on all which it was adjudge that the prayer for a writ of mandate, commanding said City Treasurer to pay said warrant, be denied, and that defendant recover his costs. Brunson, Eastman & Graves, attorneys for plain. tiff and appellant. John F. Godfrey, attorney for defendant and respondent. On appeal to the Supreme Court the judgment of the District Court was affirmed. In ejectment for the recovery of a mining claim, the court found on the issues joined, that plaintiffs posted their notice of location in November, 1866, and that during the same fall, they entered and sunk a shaft from seven to nine feet deep; and then left on account of hostile Indians, who stole the horses of the Company, and committed other depredations in the vicinity; that they returned early in 1867, with men and tools and commenced and continued to work until February, 1868; that they paid their Superintendent, during the fall of 1867, and up to February, 1868, one thousand dollars to be expended on the mine; that they were ana at different times, during said years, Liners were engaged in the vicinity working and developing mines; that bands of sheep and horses were grazed in the vicinity and that, from 1869, there was nothing to prevent miners, with the exercise of reasonable prudence and caution, from working and prospecting mines; that in December,1872,defendant McFee and one Shelley entered upon and on the 12th day of January, 1873, located the mine, according to the rules of the Arlington Mining District, in which the same then was; that in June, 1873, they entered the same on the records of the Lone Valley Mining District in which the same then was, according to the rules of such district; that in April, 1873, McFee and Shelley exchanged deeds of partition whereby the east 750 feet was set over to McFee and the west deed, become owner of Shelley's part; that de750 to Shelly; that defendant L. D. Wilson has, by fendants Wilson and McFee have at all times, since their entry, complied with the Mining District laws in the performance of yearly labors; that they have sunk a shaft, through hard limestone, to the depth of 34 feet and that they have that in July, 1873, and again in May, 1874, plainbeen in actual possession since December, 1872; tiffs demanded of McFee possession which was refused. Whereupon the defendants took judgment. On appeal the judgment was reversed and tofore delivered to stand as the opinion of the cause remanded for a new trial, the opinion here court. In an action to determine the respective claims of plaintiff and defendant to purchase State land the complaint was demurred to on the ground, First: That it did not state facts sufficient to constitute a cause of action for that it stated "no facts relative to the location of California School Land Warrants in June, 1857, embracing the land in question;" Second: That the complaint was ambiguous, unintelligible and uncertain for that it did not state whether plaintiff's application to purchase was as lieu land, or under California School Land Warrants, or otherwise, wholly failing to state under what provision of the Political Code" the application was made; which demurrer was overruled. On appeal the judgment was reversed with directions to sustain the demurrer to the complaint. H. T Hazard, attorney for plaintiff and respondent. Henry Hancock, attorney for defendant and appellant. |