The facts appear in the opinion.

Crane & Boyd and H. P. Irving, attorneys for appellant. H. H. Haight, attorney for respondent.

OPINION BY THE COURT.

The action was commenced before the Codes took effect, and its object is to quiet the plaintiff's title to a parcel of land included in the "Rancho de Herman," which was granted by the Mexican Government to one Rufus, and the title to which has been finally confirmed and patented to Meyer, Bennitz, Hendy, Glein and Duncan, as the successors in interest of Rufus. The petition for confirmation was filed in 1852, in the names of Meyer, Bennitz, Hendy, Glein and Duncan, to whom the patent subsequently issued and the plaintiff derains his title under Meyer and Bennitz, and the defendant Platt under Glein and Hendy, all subsequently to the filing of the petition for confirmation. The complaint avers that at the time of the commencement of the action, the plaintiff was the owner in fee simple absolute, and in the quiet and peaceable possession of the land described in the complaint, and that he and his grantors had been in the actual quiet, adverse and peaceable possession, claiming title under deeds purporting to convey the land to the plaintiff and his grantors, for more than fifteen years last past. At the trial, the plaintiff derained his title through-first, a deed from Rufus (the original grantee) to Hugal, made in the year 1847, purporting to convey a specific parcel of land by metes and bounds, which, it is claimed, include the premises in controversy; second, a deed from Hugal to Meyer and Bennitz, made in the year 1849, purporting to convey the same premises; third, a deed for the same premises from Meyer and Bennitz to the plaintiff and one Wagner, made in the year 1855, and a subsequent deed from Wagner to the plaintiff: fourth, a patent from the United States, issued in the year 1872, to Meyer, Bennitz, Glein, Hendy and Duncan, under the decree of confirmation for the Rancho de Herman. In his defense the defendant Platt put in evidence: Ist, the two deeds made from Rufus to Glein, made in the year 1847, purporting to convey by metes and bounds two specific parcels of land included in the Rancho de Herman;

2d, a deed from Glein to Adams, made in 1869, purporting to convey the same lands; 3d, a subsequent deed from Adams to Platt for the same lands; 4th, a deed from Hendy to Platt, made in the year 1869, conveying all the right title and interest of former in and to the Rancho de Herman; 5th, a deed made in the year 1869, from Glein to Adams, conveying all the right, title and interest of the former in and to the Rancho de Herman, and a subsequent deed from Adams to Platt conveying the same interest.

So far as appears from the record before us, the decree of confirmation was to Meyer, Bennitz, Glein, Hendy and Duncan as tenants in common, each for an equal undivided interest; and in this respect the patent follows the decree. It purports on its face to convey the title to the five patentees as tenants in common, and there is nothing in the record to indicate that either the decree of confirmation or the patent in any manner recognizes the five patentees as holding in severalty, or otherwise, than as tenants in common. It is clear, therefore, that the legal title conveyed by the patent vested in the five patentees as tenants in common, or in their grantees, holding either under conveyances made after the filing of the petition for confirmation, or if made before that time, containing such covenants as would convey the after-acquired title by way of estoppel. (Schults vs. Giovanari, 43 Cal. 617.) The plaintiff's title is derived from Meyer and Bennitz, two of the patentees, under a conveyance made after the petition for confimation was filed, and the title of the defendant, Platt, is derained from Glein and Hendy, also two of the patentees under the same circumstances. The legal title, therefore, passed by the patent to the plaintiff, to the defendant and to Duncan, (who is not a party to the action) as tenants in common. If the plaintiff is entitled to any equities founded on the deed from Rufus to Hugal, which should control the legal title, conveyed by the patent, his complaint is not so framed as to entitle him to relief on that ground. No facts are alleged in the complaint as the basis for equitable relief, founded on that conveyance. On the contrary, the complaint alleges that the plaintiff "is the owner in fee simple absolute" of the premises

in controversy—a fact which was disproved by the production of the patent, by which it was established, in connection with the conveyances to the plaintiff and the defendant Platt, that he and the plaintiff, together with one Duncan, are tenants in common of said premises. If the plaintiff were to obtain a decree in this action, founded on his alleged equities arising from the deed from Rufus to Hugal, quieting his title to the particular tract in controversy, as against the defendant Platt, the result would be that the plaintiff would continue to be a tenant in common with Platt and Duncan as to the remainder of the tract, while holding in severalty as against Platt, but not as against Duncan (who is not a party to the action) the particular tract now in controversy. We are of the opinion that whatever equities, if any, the several parties may have, founded on the conveyances made by Rufus, must be determined in an action with appropriate pleadings, in which all the necessary parties are before the court.

Judgment and order reversed and cause remanded.

Notes of Unwritten Opinions.

IN Gottschalk vs. Kester, just decided by our Supreme Court, the material' facts are these: The plaintiff brought suit in ejectment for certain premises of defendant bought by plaintiff at a constable's sale, upon an execution and attachment in an action by Frank & Dallemand against defendant. The defendant claimed the premises as his homestead, his declaration of homestead having been filed and recorded in October 26, 1875. On October 27th Frank & Dallemand commenced action in Justice Court for debt, and levied on the premises of defendant. The point upon which the decision turned was that of actual residence at time of filing the declaration. The facts shown were that the defendant, Kester, removed the most of his family and household goods from his said premises on December 1st, 1874, to the "Spring Valley House," about a mile away, which he had leased for one year, but leaving a minor son and some goods upon the premises, which

he still cultivated. This lease was cancelled on October 12th, 1875. His family still remained at the "Spring Valley House" till November 10th, but he returned and slept in his house on said premises on the night of October 24th, thereby clai ning a continuance of residence. The Court below held that it was not actual residence sufficient to justify his declaration, Fence the sale resulting was valid and judgment was for plant if This judgment was affirmed.

I the case of Coburn vs. Ames, action was brought to recover & tract of land and wharf and chute located thereonentred June 15th, 1876. Judgment rendered against defendaris.

CJ 22d of the same year, Judge appointed receiver witt notice to defendants. The appeal is confined solely wer of the Court to make such order.

to:

J

tral waived in the Court below.

Cour, finds that the plaintiff is entitled to recover posses of land and wharf and chute, from which decision defendants aypealed. Decision affirmed.

IN Zeile vs. Hood, the plaintiff and defendant owned adjoin ng lots. Defendant gave notice to the plaintiff that he inte del excavating his lot for the purpose of building, and requ stod him (plaintiff) to secure his walls from falling. The defendant himself underpinned plaintiff's wall at a cost of $15.54, but the plaintiff believing the underpinning not sufficient to secure the wall, expended the sum of $410.50. The que tion raised is whether the plaintiff shall pay defendant $152.54, or whether the defendant shall pay the plaintiff $41.50. The Court below gave judgment for the plaintiff and the Supreme Court affirms the judgment.

IN Friedman vs. Nelson, the following order was entered by the Court: Re-argument of this case ordered upon the question whether the plaintiff derives through "a conveyance duly made by the Commissioners of the Funded Debt," etc., so a to bring the case within the benefit of the Van Ness Ordinance, so-called-and in this connection whether the Act of April 14th, 1857, entitled, “An Act to legalize certain convey, nces operated to validate the conveyance of September 15, 1852, from the Board of Commissioners of the Funded Debt, to Gordon, within the interest of the section of the Van Nes Ordinance already referred to."

Legal Notes.

IN the matter of Seale vs. the Board of Suspervisors of the City and County of San Francisco, the judgment of the Court below was affirmed, no accompanying opinion having been filed. The following is a summary of the facts in the case:

This is an application for a mandamus to compel the Supervisors of the City and County of San Francisco to draw warrants on the Treasurer of said City and County in payment of arbitration award rendered in favor of the appellant.

By the Act of April 4th, 1870, a Board of City Hall Commissioners was created and empowered to enter into contracts for the construction of a City Hall, for the City and County of San Francisco, and to draw warrants upon the City and County Treasury for the payment of the same, under which Seale entered into and performed contracts for which he claimed $154,032 20, on which said Board from time to time paid him in warrants, $114,064 26, leaving a balance of $39,967 94.

The Legislature subsequently substituted the Board of Supervisors as Commissioners, and made that body ex officio members of the Board of City Hall Commissioners, authorizing them to adjust and pay all existing contracts in the same manner as the original Board. The same act provided for the issuance of $750,000 in bonds, to be used in payment of warrants already drawn by the original Board, or that might be issued by the Supervisors acting as such Board of Commismisioners, and persons holding such warrants had the privilege of exchanging them dollar for dollar for bonds, all of which were issued, but only a portion was so exchanged.

After the Board of Supervisors had entered upon their duties as a Board of City Hall Commissioners, Seale presented his claim of $39,000 to them and demanded that they adjust and draw warrants in his favor for the same; wherepon the Board referred said claim to a committee for investigation and report.

By agreement between the parties, the matter was referred