porting to have been paid on August 27, 1884. It was alleged that the notes and mortgage had been transferred, through several hands, for a valuable consideration, to S. D. Cubberly. Among others, William H. Wiscomb, L. J. Wiscomb, and the Monadnock Savings Bank were made parties defendant, it being stated that they claimed an interest in the property sought to be foreclosed, which was alleged to be inferior to that of Cubberly. By the answer of the Wiscombs it appears that prior to February 1, 1886, they acquired the mortgaged property, and, after an attempt to obtain a release of the prior mortgage executed to Vancil, made, executed, and delivered to the Topeka Loan & Investment Company a mortgage for $550, due five years after date, and from the answer of the savings bank it appears that they purchased the Wiscomb note and mortgage believing that the prior mortgage to Vancil had been released and discharged, and the bank claimed the protection of an innocent purchaser for value. When the cause was called for trial the Wiscombs and the savings bank, each for themselves, demanded a jury to try the issues of fact, which demand was overruled. The court sustained the validity of the Cubberly mortgage, and found there was due him thereon the sum of $701.73, and, further, that there was due to the savings bank the sum of $761.21; and the amount found due to Cubberly was adjudged to be a first lien upon the real estate mortgaged, while that found due to the savings bank was decreed to be a second lien. The savings bank and the Wiscombs complain of this ruling, and ask a reversal.

It is contended that the court erroneously denied the demand of the defendants Wiscombs and the savings bank for a jury to try the questions of fact put in issue between the parties. The pleadings, as framed, did present the issue of the payment of the notes which were secured by the Cubberly mortgage, and also that the first of these notes was barred by the statute of limitations. There was indorsed on the note a payment of $12.50, which, if it was paid at the time stated in the indorsement, and as a part payment of that note, enlarged the time so as to take it out of the statute of limitations. Upon the issues so framed the defendants would ordinarily be entitled to a jury trial, and a refusal of a demand seasonably made would be error. In connection with this demand there is a statement in the record which is inconsistent with the demand, and leaves nothing for consideration in the case except the priorities of the respective liens of Cubberly and the savings bank. The court recites that it "was stated in open court that the only matters in issue were the priorities of different alleged liens." This statement, if liberally interpreted, so as to sustain the ruling of the court, brushes away the defense of payment

v.33P.no.6-21

and the statute of limitations. If the defendants publicly announced that they claimed nothing under those defenses, and relied alone on the priority of the savings bank lien over that of the Cubberly lien, a jury trial was unnecessary, and could not be compelled. Neither could the court, after such an announcement, be required to enter upon an examination of the merits of these questions. It further appears that judgment for the full amount of the notes, less the amounts indorsed upon them, was rendered against the Caylors, Vancil, and Hutchinson, by default, on May 3, 1888, and the trial of the issues between the remaining parties upon the priorities of the liens was not had until July 1, 1889. Under these circumstances, and considering the above-mentioned statement made by the court, there was no error in refusing the jury, nor was there anything left for the consideration of the court but the question of priorities.

Can it be said that the court erred in holding the savings bank mortgage to be inferior and second to the Cubberly mortgage? The Cubberly mortgage was executed February 1, 1881, in favor of Izri B. Vancil, who transferred it to John Hutchinson on July 18, 1881, by a written assignment; but this assignment, although recorded, was not acknowledged as the statute requires. Hutchi....son assigned and transferred the mortgage to C. J. Cartwright on January 31, 1882, but the assignment was not recorded until December 19, 1887. According to the testimony of Cubberly, he acquired the note and mortgage, by assignment and purchase, on August 25, 1885. It appears that the Caylors conveyed the fee of the mortgaged land to Vancil on January 28, 1882, who in turn conveyed it to one Lorenzo Car.wright on January 31, 1882. The last transfer was made subject to the Cubberly mortgage, and it was so stated in the deed of conveyance. In November, 1883, Lorenzo Cartwright conveyed the fee of the property to William H. Wiscomb by general warranty deed. On February 1, 1886, Wiscomb obtained a loan of $550 from the Topeka Investment & Loan Company, and executed a mortgage upon the land in question to secure the same, and on February 20, 1886, this mortgage was assigned and transferred to the Monadnock Savings Bank. Prior to the execution of the latter mortgage, Wiscomb, believing that the first mortgage had been paid and discharged by Cartwright, applied to Hutchinson, a previous assignee, for a release of the mortgage. On December 24, 1885, in response to this request, Hutchinson executed a release acknowledging the same, which recited an assignment of the mortgage from J. B. Vancil to Hutchinson, and which was placed on record in December, 1885. The savings bank alleges that it purchased the second mortgage relying on the records showing a release of the first mortgage by Hutchinson, and without any notice that it was

unsatisfied. The testimony is sufficient, however, to sustain the holding of the court that the debt secured by the Cubberly mortgage was unpaid, and that the lien was undischarged. It is strange that Cubberly delayed the collection of the debt and the foreclosure of the mortgage for more than two years after they were assigned to him, but his good faith and honesty in the transaction have been settled in his favor by the general finding of the district court. If Hutchinson had had any right to execute a release, or if the Wiscombs or the savings bank had had any right to rely on the release executed by Hutchinson, they might reasonably claim that their mortgage was superior to Cubberly's. When Hutchinson undertook to release the Cubberly mortgage, he was not an owner of the mortgage, nor an assignee with the right to release the same. Nearly four years before that time he had assigned and transferred the same to Cartwright. It is true that a mortgagee, and probably an assignee who had assigned a note and mortgage, may sometimes release the same so that a bona fide purchaser would take them free from the mortgage lien, although the note and mortgage are in the hands of an innocent holder, and wholly unpaid; but before this can be done it must affirmatively appear from the record that such mortgagee or assignee had authority to release. In this case, however, no one had any right to rely on the release by Hutchinson. The assignment from Vancil to him was not acknowledged, and, although it was recorded, it does not impart constructive notice of such assignment. No such instrument is entitled to record unless it is acknowledged, and the placing on record of an unacknowledged instrument, without authority of law, imparts no notice whatever. O'Neill v. Douthitt, 40 Kan. 689, 20 Pac. Rep. 493; Fisher v. Cowles, 41 Kan. 418, 21 Pac. Rep. 228; Meskimen v. Day, 35 Kan. 46, 10 Pac. Rep. 14; Kelley v. McBlain, 42 Kan. 764, 22 Pac. Rep. 994; Wickersham v. Zinc Co., 18 Kan. 481; Lewis v. Kirk, 28 Kan. 505; Devl. Deeds, § 656; Warv. Abst. 344. The assignment to Hutchinson was indorsed upon the mortgage, but this did not make it a part of that instrument, nor did it cure the defect in the matter of acknowledgment. Fisher v. Cowles, supra.

It is said that the savings bank is an innocent purchaser for value, and as such is entitled to protection. Can it be so regarded in this instance? It knew of the existence of Cubberly's mortgage, and that it secured negotiable notes liable to be transferred from hand to hand. It also knew of the defective transfer which had been attempted, and it must be held to know that an unacknowledged assignment could not legally be admitted to the record, and that, therefore, Hutchinson had no apparent right to discharge the mortgage of record. The release was made by a person who no longer had any interest in the

note or mortgage, who in fact had no right to give a release, and, more than that, the records failed to affirmatively show that he ever had any right to discharge the mortgage of record. It is stated that Cubberly claims title to the security through the same assignment, and should not be permitted to treat the transfer as valid as to himself, but void as to the plaintiffs in error. By the findings of the court, Cubberly obtained them from the actual owner, and is a bona fide holder of the same. The assignment may be valid for the purpose of transferring title, and yet be insufficient to impart constructive notice of its existence. The release that Hutchinson attempted to make recited a conveyance made to J. B. Vanci' when the mortgagee's name, as has been seen, is Izri B. Vancil. Nothing was paid to Hutchinson at the time the release was executed, and it was done upon the representation of Wiscomb that the mortgage had been paid, and that it was his duty to discharge it from the record. Cubberly's conduct in failing to have the Cartwright assignment recorded, and in failing to apply to the Wiscombs for payment, or to take steps towards the enforcement of the collection of this mortgage for more than two years after he acquired the same, is criticised. Some testimony is also offered that there was actually a payment in discharge of the mortgage by Cartwright, and it is evident that this was Wiscomb's understanding of the situation. Some of these transactions are not easily understood, but, as has been stated, the bona fides of the transaction, so far as Cubberly is concerned, has been sustained by the court. It may be said, however, that Cubberly testifies that he did apply to Wiscomb for payment, but that he was relying chiefly upon Cartwright, and he further states that he had no actual knowledge of the savings bank mortgage until about the time he began this foreclosure proceeding. But in view of the condition of the record at the time of the execution of the savings bank mortgage it must be held, under the authorities cited, that it was taken subject and second to the unsatisfied Cubberly mortgage. The judgment of the, district court will therefore be affirmed. All the justices concurring.

(98 Cal. 487) PACIFIC YACHT CLUB v. SAUSALITO BAY WATER CO. (No. 14,965.) (Supreme Court of California. June 8, 1893.) ACTION TO QUIET TITLE IN EASEMENT-VENUE.

An action to determine plaintiff's right to the use of the waters of a spring on defendant's land, and to maintain pipes for the enjoyment of such use, is an action to quiet title to realty, within the meaning of Const. art. 6, § 5. requiring such actions to be brought in the county in which the land is situated. Fritts v. Camp, 29 Pac. Rep. 867, 94 Cal. 394, followed. Department 1. Appeal from superior court, city and county of San Francisco; Walter N. Levy, Judge.

Action by the Pacific Yacht Club against the Sausalito Bay Water Company. Plaintiff had judgment, and defendant appeals. Reversed.

Kellogg & King, for appellant. John H. Dickinson, for respondent.

GAROUTTE, J. This litigation arises over an alleged right by plaintiff to the use of the waters of a certain spring, and the right to maintain pipes for the enjoyment of such use. The complaint, in effect, alleges "that the plaintiff is the owner of a certain tract of land in Marin county; that when plaintiff bought said land there was situated upon the adjoining land of the Old Sausalito Land and Dry Dock Co., plaintiff's grantor, a spring of water; that this spring was and is the only available water supply for the use of plaintiff's property; that plaintiff specially contracted and agreed with the Old Sausalito Land and Dry Dock Co. that, as part of the consideration for the purchase price of the land aforesaid, plaintiff should have the privilege of laying pipes from said spring over the adjoining land of said grantor, to plaintiff's clubhouse, and should have the free and uninterrupted use of water from said spring forever; that plaintiff has had the free, uninterrupted, and continuous use and adverse possession of the water pipes aforesaid, and the water of said spring, in the manner above described, ever since the 10th day of May, 1879, and that all claims against said easement and adverse thereto are barred by the statute of limitations; * that defendant claims some right or interest to the land upon which said spring is situated, and upon which said water pipes are laid, and further claims the exclusive right to use and sell the water of said spring; that any right defendant may have was acquired subsequently to the right granted to this plaintiff and from the same grantor; that defendant claims the right and privilege to charge the plaintiff herein water rates for the use of the water of said spring, and demands of plaintiff that it pay to defendant at the rate of 75 cents per 1,000 gallons for the water plaintiff uses; that defendant threatens to disconnect plaintiff's pipes from said spring, and shut off the sup ply of water from plaintiff's clubhouse, unless plaintiff pays at once said water rates." Wherefore plaintiff asks for an injunction restraining defendant from interfering with the water pipes running from plaintiff's club. house to the spring above described, and from shutting off from said pipes the supply of water furnished thereto by said spring, or any part thereof, and for general relief.

This action was brought in the city and county of San Francisco, and the subjectmatter of the action is all situated in the county of Marin. Defendant demurred to the complaint, upon the ground that the court had no jurisdiction of the subjectmatter of the action by reason of the fact

that it was brought in the city and county of San Francisco, instead of the county of Marin. The point made is jurisdictional, and if it has merit the demurrer was not necessary. It is provided in se tion 5, art. 6, of the constitution, "that all actions for the recovery of the possession of, quieting title to, or for the enforcement of liens upon real estate shall be commenced in the coun

ty in which the real estate, or any part thereof affected by such action or actions, is situated." A fair construction of the complaint in this case proves it to be an action to quiet. plaintiff's title to an easement in the waters of a spring situated upon defendant's land, and the right of way over defendant's land for the purpose of conducting such waters. This fact is fully exemplified by an examination of the findings and conclusions of law. An adjudication of plaintiff's title to the easement is the principal relief granted, and the restraining order is merely incidental thereto, and follows an affirmance of plaintiff's title as a matter of course. There can be no question but that a complaint might be framed, alleging title to an easement, a threatened interference therewith, and asking for an injunction, which could not be considered an action to quiet title, for in a case of that character the defendant in his answer might concede the easement, and deny the interference; but here the complaint alleges title in the plaintiff, and adverse claims upon the part of the defendant, and that the defendant justifies its acts by reason of such claims. Upon a careful examination of the complaint in the case of Fritts v. Camp, 94 Cal. 394, 29 Pac. Rep. 867, we find it in all essential particulars similar to the complaint in the case at bar. The cause of action appears to be the same, the prayer for relief is the same; and that action was dismissed upon the ground that the court had no jurisdiction, it being brought in the wrong county, thereby violating the provision of the constitution heretofore quoted; and upon the authority of that case we think the court had no jurisdiction over the subject-matter of the present action. Judgment and order reversed, and cause remanded, with directions to the lower court to dismiss the action.

We concur: HARRISON, J.; PATERSON, J.

(97 Cal. 532) GOULD v. WISE. (No. 19,021.) (Supreme Court of California. April 28, 1893.) MORTGAGES PRIORITIES-DELIVERY.

1. Defendant agreed with A. to sell him certain land, part cash, and balance secured by mortgage. Defendant went with A. to a notary's office, where a deed was executed. While the mortgage was being prepared. A. said, "Let me see that deed," and took it from the table, and went. without defendant's knowledge, to plaintiff, from whom he negotiated a loan. A. then returned to defendant, paid him

PER CURIAM. Rehearing denied.

BEATTY, C. J., (dissenting.) Having dissented from the order denying a rehearing of this cause, I desire to state briefly the grounds of my dissent. The decision of the court is based upon the single proposition that on the facts testified to by the appellant he was not estopped to deny the delivery of his deed as against an innocent purchaser for value from his grantee. There are other questions presented by the record, which have been fully argued by counsel; but, since they have been left unnoticed by the court they will not be considered here, it be ing my intention merely to state my reasons for dissenting from the proposition decided, as to which alone the case becomes a precedent.

If there were no doubt of the soundness of the conclusion that on the facts as stated by the appellant there was no estoppel, it would still, in my opinion, be insufficient to warrant a reversal of the judgment and order of the superior court; for the judge who tried the cause was not bound to ac cept the appellant's version of the facts upon his own uncorroborated testimony. The possession by his grantee of his deed, fully and formally executed, acknowledged, and certified, and containing a recital that the purchase price had been fully paid, was prima facie proof of a delivery. It created a presumption against appellant which it became necessary for him to rebut, and his testimony that there was no delivery merely produced a conflict of evidence upon which the finding of the judge who tried the cause should be held corclusive. To rebut the presumption of delivery in such a case for the purpose of defeating the title of an innocent purchaser who has paid a valuable consideration on the faith of the grantee's possession of a deed to which every appearance of validity has been imparted by the voluntary act of the grantor, it is necessary to show not only that there was no delivery as between the parties to the instrument, but that the grantor did not voluntarily intrust it to the custody of the grantee, or allow him to obtain the custody by any culpable negligence; for, if the grantor has voluntarily intrusted such evidence of title to one who abuses his confidence, or even if he has neglected reasonable precau

tions to prevent his perfected deed from being stolen, he is estopped from denying a delivery as against an innocent purchaser for value. All the authorities sustain this proposition, and none more emphatically than those cited in support of the opinion This being so, upon what principle can it be held that a trial court must accept the uncorroborated testimony of the grantor that he did not intrust his grantee with the possession of his deed, and that he was not guilty of culpable negligence in allowing him to get possession of it? It seems to me a sufficiently dangerous rule to hold that such testimony may be accepted to defeat the apparent validity of

the deed.

To hold that as matter of law

it necessarily defeats its validity, or, in other words, that when the trial judge has found in favor the presumption and against the testimony of the interested party, his finding of fact must be reversed on the ground that it is contrary to the evidence, is going beyond all reason and in the face of numerous decisions of this court. It es tablishes a new rule, which not only puts it in the power of a party to relieve himself of the consequences of his own folly or negligence at the expense of innocent purchasers, but opens a wide door to deliberate fraud; and this in a class of transac tions of every-day occurrence, which it should be the policy of the law to guard against every element of danger or uncertainty.

But, aside from this consideration, which is sufficiently serious, I am entirely satisfied that there is no authority for holding that, on a fair construction of the appellant's own statement of the manner in which Adams obtained and kept possession of his deed, he is not estopped to deny a delivery. Two decisions only are cited in the opinion of the court to sustain its conclusion upon this point. In one-Burson v. Huntington, 21 Mich. 416-it was held that the maker of a negotiable promissory note was not es topped to deny its delivery as against an innocent holder for value; and in the other -Tisher v. Beckwith, 30 Wis. 55-it was held that a grantor of land was not estopped to deny a delivery of his deed against an innocent purchaser for value. But in each of those cases the instrument in question had been obtained by theft, and without the consent, express or tacit, of the maker. It had not, in other words, been intrusted by the maker or grantor to the custody of the payee or grantee, and the only question was one of culpable negligence. The opinion of the court in each case fully and expressly concedes that, if the instrument had been voluntarily intrusted to the party making a fraudulent use of it, the loss must have fallen upon the maker or grantor. It was also conceded that the same result must have ensued if the instrument had come into the hands of the grantee or payee by rea