pellant's main contention is that the superior court of Fresno county, having first heard and passed upon an application for letters of administration, had sole and exclusive jurisdiction of the estate, and that the superior court of Tulare county was without jurisdiction to make the order appealed from. The facts concerning the proceedings in the two courts appear more fully in the opinion of this court in Dungan v. Superior Court (Cal.) 84 Pac. 767, which was a controversy between the same parties, and raised the same point here involved. It was there held that "jurisdiction in such matters attaches upon the filing of the first petition, to the superior court in which the petition is filed, and continues during the pendency of the proceeding thus instituted, and that this jurisdiction is exclusive, precluding any other court from effectually acting in the matter." That ruling is conclusive against the appellant's argument as to jurisdiction.

If, then, the superior court of Fresno county had no power to appoint an administrator, pending the proceedings in Tulare, the appellant had no interest in opposing the appointment of another in Tulare county. He was not himself an applicant for letters in the latter county, but was merely opposing any action by the court. In view of the determination that the Tulare county court had the power to appoint, the appellant, who did not himself seek appointment, is not affected by the grant of letters to any one else. He was not a "person interested," and had no standing to oppose Dungan's appointment. Code Civ. Proc. § 1374. It is, therefore, unnecessary to consider the point urged that the court below was without power to appoint an administrator except upon probate of the will said to have been left by the decedent.

The order is affirmed.

We concur: ANGELLOTTI, J.; SHAW, J.

(149 Cal. 540)

OLDHAM v. RAMSNER et al. (Sac. 1,412.) (Supreme Court of California. Aug. 13, 1906.) 1. QUIETING TITLE-EVIDENCE-ADMISSIBILITY.

In a suit to quiet title to certain numbered lots in M.'s addition to the city of S., lying without the city, a tax deed to lots so numbered in M.'s addition 66 # > ** lying within the city,' and showing the assessment to have been against such numbered lots in M.'s addition "lying within the city," was inadmissible, there being nothing on the face of the description tending to show any error in description, and the courts not being able to take judicial notice that there was no M.'s addition within the city.

2. TRIAL

EVIDENCE-OFFER OF PROOF-PUR

POSE OF ADMISSION.

Where, in a suit to quiet title, defendant offered a tax deed, which, on its face, did not embrace the land in controversy, its exclusion was not error on the ground that it should have been admitted for the purpose of allowing him to show other facts to make certain the de

scription, or by way of estoppel, where, in offering the deed, he did not state any such intention or offer any such additional evidence. [Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, § 118.1

Department 1. Appeal from Superior Court, San Joaquin County; Frank H. Smith, Judge.

Suit by Florence B. Oldham against John L. Ramsner and others. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant Alonzo Hewlett appeals. Affirmed.

Joshua B. Webster and Charles H. Fairall, for appellant. Buck, Miller & Clark and Miller & Clark, for respondent.

ANGELLOTTI, J. Plaintiff instituted this action to quiet her title to certain land, and obtained judgment, and defendant Hewlett appeals from such judgment, and from an order denying his motion for a new trial.

The land involved in this action is all of the land situated in San Joaquin county, state of California, particularly described as follows, to wit: All of lots numbered 9 and 10 in block C in McCloud's addition to the city of Stockton, according to the official map or plat of said McCloud's addition to the city of Stockton, on file in the office of the county recorder of the county of San Joaquin, state of California. It was admitted that this property was a part of the school district containing the city of Stockton, and was assessed by said city for school purposes for the year 1900, but that it was wholly outside of the corporate limits of said city of Stockton. Upon the trial. plaintiff showed ownership of this property in one Mary E. Baright, and then introduced in evidence a deed of conveyance thereof from said Mary E. Baright to her, executed and recorded prior to the commencement of the action. Appellant's sole claim was that he acquired the title of said Mary E. Baright to said property, under a tax sale thereof made by the city of Stockton based upon an assessment for school purposes for the year 1900. For the purpose of showing this he offered in evidence a tax deed from the tax collector of the city of Stockton to one John L. Ramsner, proposing to follow this with a deed from Ramsner to himself. The plaintiff's objection to the introduction of this deed was sustained, and the only question presented by this appeal is as to the correctness of this ruling.

Several points are made by plaintiff in support of this ruling, but it will be necessary to consider only one. According to the deed, the land sold by the tax collector at the tax sale and conveyed by said deed was described as follows, viz.: "Lying and being within the said city of Stockton, county of San Joaquin, state of California, described as follows, to wit: Lots nine (9) and ten (10), block C in McCloud's addition." Upon the face of the deed, it further appeared that the assessment upon which the deed is based

was of land lying "within the city of Stockton," and that the only other description thereof in the assessment was: "Lots nine (9) and ten (10) block C in McCloud's addition." It is claimed by plaintiff, that this deed did not purport to convey the land described in the complaint and involved in this action, and we are of the opinion that this claim must be held good. It appears very clear that the deed did not, upon its face, refer to or purport to convey any of the land in controversy. That land lay wholly without the city of Stockton, while the deed was plain to the effect that the land assessed, sold and thereby conveyed was within said city. The remainder of the description is not such as to warrant the rejection of the words "lying and being within the said city of Stockton" as a superfluous recital, or the substitution of the word "without" for the word "within." There is absolutely nothing on the face of the description given in the deed from which it can be concluded that there is any error in such description, or that the same does not correctly describe property in the city of Stockton. It is entirely within the possibilities that there may be a "McCloud's addition to the city of Stockton" without the city, and a "McCloud's addition" within the city, and we cannot take judicial notice that this is not the case. Under the plain and explicit words of the deed, the only land assessed by the assessor, sold by the tax collector, and conveyed by the deed. was certain land lying within the city, and we are not at liberty, in plain disregard of these words, to construe the description as including only lands lying outside the city. To so do would be to include in the deed land not now affected thereby. It is, of course, not disputed that no right can be asserted under a tax deed, except as to such property as is described therein.

It is claimed that, admitting the description to have been insufficient, the deed should still have been admitted, for the purpose of allowing appellant to show other facts "to make certain the description of the land, or by way of estoppel," such as that the property in controversy was commonly known in the community in the way it was described in the deed; that there was only one McCloud's addition in the county; that the owner made the return to the assessor and is estopped; and that taxes of former years had been levied by the same description, and had been paid. In regard to this claim, it is sufficient to say that, if it be assumed that any such evidence would have been admissible, appellant did not offer the same, or even state to the court, in connection with his offer of the deed, his intention to so do, though one of the specific objections made to the deed was that it did not purport to convey any of the property described in the complaint, but only property within the city of Stockton. Appellant simply offered a deed which, upon its face, did not refer to any

of the land in controversy, and which, therefore, was not admissible, in the absence of other evidence showing its relevancy to the issues. In view of what we have said, the trial court did not err in excluding from evidence the deed from the tax collector to Ramsner. There was, of course, no error in refusing to admit the deed from Ramsner to plaintiff, for the deed from the tax collector being refused admission, there was nothing to show any title in Ramsner.

The judgment and order are affirmed.

On appeal from an order sustaining a demurrer to a complaint in a suit in equity to set aside a judgment, judicial notice could not be taken of the record on an appeal from ai order denying a motion to set aside such judgment between the same parties.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 62-65.] .

3. JUDGMENT - VACATION-FRAUD-REMEDIES -EQUITY SUIT-MOTION.

Where a foreclosure decree was taken against plaintiffs for an excessive amount, by means of a fraudulent and collusive agreement between plaintiffs' attorney and the attorney for the holder of the mortgage, plaintiffs were entitled to maintain a separate suit in equity to vacate such judgment, though they had notice of its entry and of fraud in its procurement in time to have moved to set the same aside on affidavits, as authorized by Code Civ. Proc. § 473.

[Ed. Note.-For cases in point, see vol. 30. Cent. Dig. Judgment, $ 768-771.] 4. SAME RES JUDICATA.

Where the plaintiffs moved to set aside a judgment against them on the ground of want of authority in their attorneys to stipulate for judgment, the overruling of such motion was no bar to a subsequent suit in equity to vacate the judgment as entered under a fraudulent and collusive agreement between plaintiffs' attorney and the attorneys for the holders of the mortgage.

5. SAME-LACHES.

The period of limitation for actions for relief on the ground of fraud being three years from the discovery of the fraud, a suit to vacate a judgment for fraud brought less than two years after its commission was not barred by laches.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 863-866.]

6. SAME-CONDITIONS-ABILITY TO REFund. The ability of certain mortgagors to pay the amount found due on an accounting was not

from May 1, 1898. The sum so claimed was, on any calculation, more than could have been due at that date, after deducting the payments alleged to have been made. These plaintiffs retained an attorney to defend the suit to foreclose, and communicated to him the facts constituting their defense. He interposed a demurrer to the complaint, which was subsequently overruled by his consent; time being allowed to answer. A week be fore the time to answer expired he signed and filed in the action the following stipulation: "The defendant Francisco Estudillo, and Felicitas Estudillo, his wife, named in said action, having appeared therein by their attorney, Wilford M. Peck, and demurred to the plaintiff's complaint, and said demurrer having been overruled by the above-entitled court on the 8th day of February, 1899, by an order duly entered in the minutes of said court: Now, therefore, it is stipulated and agreed by and between the plaintiff represented by its undersigned attorney, duly authorized thereto, and the said defendants Francisco Estudillo and Felicitas Estudillo, his wife, by their said attorney duly authorized thereto, that said defendants waive the service of notice of overruling of said demurrer, and further waive the right to and refuse to further appear or answer in said action, and that the plaintiff shall be entitled to take judgment in accordance with the prayer of its complaint, or as may otherwise be ordered by the court on the hearing of said cause. Dated February 21, 1899. R. H. F. Variel, Attorney for Plaintiff. Wilford M. Peck, Attorney for said Defendants." the same day the cause was heard and judgment of foreclosure entered. The mortgage indebtedness according to the complaint and judgment amounted at that date to $18,464.98, to satisfy which and costs the lands were ordered sold. There was besides a personal judgment entered against these plaintiffs for $1,000 attorney's fee. According to the allegations of the complaint in this action, a much smaller sum remained unpaid on the mortgage debt than was found due by said judgment, and the mortgagee must be deemed to have known that it was taking judgment for an excessive amount upon the stipulation of an attorney who was sacrificing the interest of his clients in abandoning their valid defense to a large portion of the claim asserted against them. It is charged, and by the demurrer admitted, that the mortgagee knew prior to the date of the stipulation that said attorney had been instructed to file an answer for these plaintiffs, and that he had no authority to stipulate for a judgment by default. That the stipulation was collusive and fraudulent in fact and in intent is repeatedly charged, and is by the demurrer admitted. These facts so admitted constitute a fraud extrinsic and collateral to the issues in the cause which entitles the plaintiffs to relief in this action unless it

On

shall be held that their sole remedy was by motion in the foreclosure suit to vacate the judgment on the ground of surprise and excusable neglect. Code Civ. Proc. § 473.

The facts relevant to this question are that plaintiffs first learned of the stipulation and subsequent proceedings on the 14th of April, 1899, and immediately discharged their said attorney, and on the 19th of the same month filed a motion to set aside their default and vacate the judgment. This motion was overruled by the superior court June 14th. An appeal from that order was taken to this court, and was still pending when the present action was commenced in December, 1900. The grounds upon which that motion was based are not stated in the complaint, but counsel in their briefs make frequent reference to the report of our decision on the appeal from the order (Security Loan & Trust Company v. Estudillo, 134 Cal. 166, 66 Pac. 257), from which it appears that the whole question mooted was that of the authority of the attorney to make the stipulation. It does not appear from that decision that any question of fraud on the part of the loan and trust company was litigated or involved in that proceeding unless it was necessarily involved in the question as to the authority of the attorney to stipulate. But we are clearly of the opinion that in this case we cannot take notice of the record on that appeal. We are here confined to the facts alleged in this complaint, which merely shows that the motion to vacate was made and overruled, and that an appeal from the order was pending when this action was commenced. It is alleged that the frauds and fraudulent conduct of the defendant corporation were discovered about the 10th of October, 1899, which was more than six months after the entry of the judgment. These alleged frauds consisted, in addition to what is above stated, in inducing the attorney to execute and deliver the stipulation for judgment, and to conceal his unauthorized proceedings in the action, in ignoring the proper description of the lands in the foreclosure judgment, and causing them to be described in the decree and order of sale as nine parcels or tracts, which could not be identified by reference to the recorded map of the premises, in naming the defendant Keefe as commissioner to make the sale, when he was clerk in the office of the corporation's attorney, and in causing him to do and to omit to do various things in connection with the sale in disregard of the rights of these plaintiffs, all with the intent and purpose of enabling the corporation to deprive plaintiffs of their lands.

If the right of plaintiffs to maintain this action depends upon their discovery of the frauds here alleged too late to make them the ground, or one of the grounds, of their motion to vacate the default judgment in the foreclosure suit, it must be held that their complaint does not state facts sufficient to

constitute a cause of action. They allege It is true that the frauds of the corporation defendant were discovered about the 10th of October, 1899, but they also allege that they had notice of the judgment and the stipulation upon which it was entered in April, 1899. Necessarily they also knew before that date of their instructions to their attorney to make their defense in the action and of his betrayal of their cause. They knew that the judgment was for an excessive amount and that the corporation must have been aware of the fact when its complaint was filed. They knew how the land was described in the decree, and the manner in which it had been arbitrarily subdivided for the purposes of the sale. They knew that Keefe had been appointed commissioner to make the sale, and what his connection with the corporation's attorney and with the litigation was. In short, they knew all the facts which they now allege for the purpose of showing the fraud, except the fact that the corporation induced their attorney to enter into the stipulation, and to conceal his proceedings. That their attorney was induced by the corporation to consent to the default judgment was a fact necessarily to be inferred from the facts which they knew, and since they discovered his proceedings in time to make their motion, his attempted concealment, whether collusive or not, is a circumstance entirely immaterial here.

We must therefore treat this complaint as showing, not that the alleged frauds were first discovered in October, 1899, but as showing that they were known to plaintiffs at the time they gave notice of their motion to vacate the default judgment. So regarding it, the question presented for decision is whether a party against whom a judgment excessive in amount has been entered upon a fraudulent and collusive agreement between his attorney and the opposing party can maintain a separate suit in equity to vacate such judgment, or enjoin its enforcement when it appears that he had notice of its entry and the fraud in its procurement in ample time to have moved for relief under section 473 of the Code of Civil Procedure. Upon this question there seems to be a conflict of authority in other jurisdictions, and we have not been referred to any decision of this court in a case clearly calling for a determination of the precise point. The general principle that equity will not interfere to vacate or enjoin the execution of a judgment at law when the party aggrieved has a plain, speedy, and adequate remedy by motion to vacate the judgment or quash the execution, or by an appeal, is recognized and applied in many cases, but the question whether a summary motion to be supported by affidavits is an adequate remedy, and therefore exclusive, in a case such as this, has not been directly involved or decided in any of the cases that have come to this court, with the possible exception of California Beet

Sugar Co. v. Porter, 68 Cal. 370, 9 Pac. 313. That was a case very much like this, in which the superior court sustained a demurrer to the complaint, and where, on the appeal, respondent contended that the action was not maintainable because the plaintiff had a plain, speedy, and adequate remedy by motion. In response to this objection the court said: "It has been held in Bibend v. Kreutz, 20 Cal. 109, Ketchum v. Crippen, 37 Cal. 223, and Ede v. Hazen, 61 Cal. 360, that so long as the statutory remedy by motion to set aside a judgment exists, the assistance of a court of equity cannot be invoked. But none of those cases involved the question of judgment fraudulently taken against an injured party and executed by a sale of his property." Further on the opinion says: "It is a general rule that if relief be obtainable against mistakes or errors of law or fact committed in a judicial proceeding the statutory remedies for relief must be resorted to in the proceeding itself. But, as the Supreme Court of the United States says in U. S. v. Throckmorton, 98 U. S. 65, 66, 25 L. Ed. 93, 'there is an admitted exception to this general rule in cases where, by reason of some thing done by the successful party to the suit, there was in fact no adversary trial or de cision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise, or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff, or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat, or where the attorney regularly employed corruptly sells out his client's interest to the other side, these and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a suit may be sustained to set aside and annul the former judgment or decree and open the case for a new and a fair hearing.'" From all this it would seem that the judgment of reversal in that case was intended to be rested upon a distinction as to the remedy between cases of judgments obtained by fraud of the plaintiff, and judgments suffered by reason of surprise or excusable neglect on the part of the defendant. It is not, however, entirely clear from the report that the question was necessarily involved, though it may have been. But, even if what was said in that case should be regarded as obiter, it is still entitled to respect, and in the absence of direct authority upon the question ought to be followed if no good reason appears for laying down a different rule; and no such reason is suggested. On the contrary, it appears to me to be a salutary rule. The bur den of proof rests upon no one more heavily than upon a plaintiff seeking relief upon the ground of fraud, and he ought not to be