guilty of any negligence. On the contrary, it affirmatively appears therefrom that he had used ordinary care in attending to and managing the closet in qucзtion. It follows that the defendant was entitled to have had the jury instructed to find a verdict in his favor; and, as for that reason there should be no new trial, the judgment will be reversed, and the cause remanded, with instructions to dismiss the action.

SCOTT, ANDERS, and STILES, JJ., Con

cur.

(6 Wash. 534)

PACKSCHER v. FULLER et al. (Supreme Court of Washington. June 22, 1893.)

LIMITATION OF ACTIONS - RETROSPECTIVE EFFECT OF STATUTE-LOCATION OF BOUNDARY LINES.

1. The period of limitation allowed by Code Civil Proc. § 26, limiting the time for commencing actions to recover possession of land, began to run, as to rights of action already accrued, from the date of the taking effect of the act, there being nothing in the act to show that it was intended to have a retrospective operation.

2. The line between the northeast and northwest quarters of a quarter section is to be extended south from a point midway between the northeast and northwest corners, rather than from a point on such line 1,320 feet from one of the corners.

Appeal from superior court, Pierce county; Frank Allyn, Judge.

Action by Sarah Packscher against John N. Fuller and others for the possession of land. From a judgment for defendants, plaintiff appeals. Reversed.

Pritchard, Stevens, Grosscup & Seymour, for appellant. Carroll & Carroll, for respondents.

ANDERS, J. On August 22, 1868, Howard Carr, who, as grantee of the United States, was the owner of the N. E. 14 of section 31, township 21 N., of range 3 E., conveyed by deed duly executed and recorded to the appellant a portion thereof, described as follows: "Commencing twenty rods south of the northeast corner of the northwest quarter of the northeast quarter of section 31, township 21 north, of range 3 east, running thence eight rods west, thence twenty rods south, thence eight rods east, thence twenty rods north, to the place of beginning, containing one acre." And on October 2, 1872, Howard Carr and wife conveyed by deed duly executed to one Job Carr another portion of his said land, described as follows: "Beginning at the northwest corner of the northeast quarter of the northeast quarter of section 31, township 21 north, of range 3 east of the Willamette meridian, running thence south forty rods, thence east twenty rods, thence north forty rods, thence west twenty rods, to the place of beginning, and containing five acres." This five-acre tract of land

Job Carr in the year 1873 surveyed and platted as Job Carr's First addition to Tacoma City. On December 13, 1880, lots 8 and 9 and fractional lot 7 of block 30 of this addition, according to the plat thereof, were conveyed to the respondent Matthews, who, on April 10, 1883, conveyed by deed an undivided one-half of the same to the respondent John N. Fuller. These lots, as designated on the ground, were, when purchased by respondents, inclosed by a fence, which seems to have been maintained ever since, and which was built perhaps as early as the year 1875. The land within the inclosure has been in the possession of the respondents and their grantors ever since the fence was erected, and each and every occupant has considered and claimed it as a part of Job Carr's First addition to Tacoma, and not as a part or parcel of any other premises.

It will be seen by an inspection of the description of the premises conveyed to the respective parties to this controversy that the land of the appellant lies on the west and that of the respondents on the east side of the dividing line between the N. W. 1⁄4 of the N. E. 14 and the N. E. 4 of the N. E. 14 of section 31, township 21 N., of range 3 E.; and while the respondents at all times believed that their fence was upon this division line, the appellant has at no time claimed to be the owner or entitled to the possession of any land to the east of said line. But in the year 1889 the appellant caused the land described in her deed to be surveyed, and claims to have then ascertained that a portion of her premises 119 feet long and 19 feet wide at one extremity and 17 feet wide at the other was within the inclosure of the respondents. She demanded the removal of the fence. Her demand was not complied with, and she thereupon instituted this action for the possession of said strip of land, and for damages for the wrongful detention thereof. It would seem from the pleadings in this case that the real contention between these parties is as to the location of the true line dividing their respective premises; but from the course taken at the trial it appears that the cause also proceeded upon the further theory of the respondents that they were entitled to the disputed premises by virtue of having been in adverse possession thereof for the period of time prescribed by the statute of limitations. The court recognized the question of adverse possession as being properly involved in the case, and instructed the jury upon that subject. The court, in effect, charged the jury that 10 years' adverse possession would bar plaintiff's right of recovery. This, the appellant claims, was error, and insists (1) that the statute passed in the year 1881, (Code 1881, § 26; 2 Hill's Code, § 112,) limiting the time for the commencement of actions to recover the possession of real estate to

10 years after the cause of action shall have accrued, is not applicable to this case; and (2) that, if it is applicable, then the time must be computed from the taking effect of the statute, and that the jury should have been so instructed. We think the statute of 1881 must govern, unaffected by the provisions of the prior law, and that the plaintiff (appellant here) had the full period of 10 years after it took effect in which to commence her action. No mention is made of existing rights of action in this statute of 1881, and we cannot presume that the legislature intended it to have a retrospective operation, in the absence of anything more indicative of such an intention than the general language of the provision itself. Sohn v. Waterson, 17 Wall. 596. The rule as to which statute governs when a change has been made in the period of limitation is laid down in Wood on Limitation of Actions, (pages 30, 31,) as follows: "If before the statute bar has become complete the statutory period is changed, and no mention is made of existing claims, it is generally held that the old law is not modified by the new, so as to give to both statutes a proportional effect, but that the time past is effaced, and the new law governs; that is, the period provided by the new law must run upon all existing claims in order to constitute a bar. In other words, the statute in force at the time the action is brought controls unless the time limited by the old statute for commencing an action has elapsed, while the old statute was in force, and before the suit is brought, in which case the suit is barred, and no subsequent statute can renew the right or take away the bar." It is true that section 133a of the Code of Procedure provides that when a limitation or a period of time prescribed in any existing statute for acquiring a right or barring a remedy has begun to run before this Code takes effect, and the same or any other limit is prescribed in this Code, the time which has run shall be deemed part of the time prescribed by such limitation; but this court held, in Baer v. Choir, 32 Pac. Rep. 776, that, inasmuch as this provision was not a part of the general statute of limitations found in chapter 2 of the Code of 1881, as passed by the legislature, but was originally section 1294 of the act of November 16, 1881, relating to crimes and punishments and proceedings in criminal cases, and also section 1683 of the act of November 4, 1881, defining the jurisdiction and practice of probate courts, said general statute is not affected or controlled by it. That section can therefore have no bearing upon this case, and will not be further considered. It is not contended by the respondents that this action was not begun within 10 years after the statute of 1881 went into operation, and it therefore follows from what we have already said that the question of ad

verse possession must be eliminated from the consideration of this case. And, indeed, the same result would follow if the former statute of limitation of 20 years could be pleaded in bar of the action.

This leaves but one question to be determined, namely, what is the proper method of determining the location upon the ground of the dividing line between the subdivisions above mentioned of the land formerly owned by Howard Carr? It is claimed by the respondents that this line was correctly ascertained and established, when the addition to the city was surveyed and platted, where respondents and their grantors have always claimed it to be, and that it cannot now be changed, after the lapse of so many years. In mak ing the survey of the five-acre tract conveyed to Job Carr the surveyor located the northeast corner of the northwest quarter of the northeast quarter of section 31-the starting point mentioned in the deed and also in that of the appellant-at a point on the north line of the section 1,320 feet west of the northeast corner thereof as estab lished by the government survey, on the theory that, as the patent to Howard Carr stated that that quarter section contained 160 acres of land, the point sought for must of necessity be that distance-one-fourth of a mile from the corner post. From the point thus established he proceeded to lay off the land covered by the deed by following the courses therein specified, and it is insisted that the north and south line thus located is the true line between the premises in dispute. This is controverted by the appellant, and it is urged on her behalf that the starting point called for in the deeds from Howard Carr lies midway between the northeast and the northwest corners of that quarter section. On this theory the appellant's survey was made. The surveyor who did the work testified that he ascertained this starting point by first platting the entire section, according to the government survey as shown by the original government posts, all of which were found, as well as the witness trees to those posts; that he carefully measured the four bounda ries of the northeast quarter, and estab lished the middle points of those boundaries, and then struck lines across, and quartered the northeast quarter; that in fact all of the boundaries were less than half a mile in length, although represented as be ing half a mile in the government field notes. In other words, he fixed his starting point exactly in the middle of the line between the northeast corner of the section and the half-mile post west on the north line, according to actual measurement upon the ground; and we think that the point so established was the true starting point called for in the deeds, and that a line drawn south from that point to the middle point of the south boundary is the true line

CLEARY v. FOLGER. (No. 15,103.) (Supreme Court of California. Aug. 10, 1893.) SALE OF LAND-RESCISSION-LAW OF THE CASENONSUIT-ESTOPPEL-HARMLESS ERROR.

1. Where the vendee of land notifies the vendor that he cannot and will not complete the purchase, the vendor need not offer to perform, and by failing to do so does not authorize the vendee to consider the contract as rescinded, so that he can recover the payments made by him.

2. The fact that on an appeal from a judgment of nonsuit the court treats certain facts as established, does not make these facts the law of the case, so that defendant cannot on a new trial prove a different state of facts.

3. A judgment against plaintiff at the close of his evidence on the ground that he has not made out his case is a judgment of nonsuit, though part of the evidence introduced by him was a stipulation with'defendant which provided that it could be used as evidence by either party.

4. The withdrawal of defendant's cross bill for specific performance would not estop him to claim damages under the prayer of his an

swer.

5. Allowing defendant to prove damages because of plaintiff's failure to complete his purchase is harmless error where he was not allowed to recoup for the reason that plaintiff did not make out his case, and there was therefore nothing against which defendant could recoup.

Commissioners' decision. Department 2. Appeal from superior court, Alameda county; John Ellsworth, Judge.

Action by Michael Cleary against J. A. Folger, Jr., to recover an installment paid on a contract for the purchase of land. Judgment for defendant. Plaintiff appeals. Affirmed.

B. McFadden, for appellant. R. M. Fitzgerald and F. S. Stratton, for respondent.

TEMPLE, C. This is the second appeal in this case. 84 Cal. 316, 24 Pac. Rep. 280. The former appeal was from a judgment of nonsuit, and the judgment was reversed, and the cause remanded for trial. In the lower court the defendant amended his answer, adding a claim for recoupment against the demand of plaintiff. On the last trial the defendant proved and the court found that before the time for performance arrived, according to the terms of the contract, plaintiff had notified defendant that he could not

and would not complete the purchase, or pay anything further on account thereof. The court therefore held that defendant was excused from offering to perform, and had not made default, and had not, therefore, authorized plaintiff to consider the contract rescinded. The evidence justified this conclusion, and, of course, it follows that plaintiff cannot maintain his action.

The appellant contends that certain facts were considered by this court as established on the first appeal, and that it was error to allow such facts to be controverted at the trial, as they had become the law of the case. But in this contention appellant's counsel entirely misapprehends what is meant by the "law of the case." That doctrine is merely that when this court has decided that from the facts presented by the record certain legal conclusions follow, such legal conclusions must be accepted by the parties upon a retrial, if the same facts are again established. This will not prevent the parties, however, from proving an entirely different state of facts upon the retrial, and, in so far as the facts proven are different, the case will not be controlled by the first decision. As the first appeal was from a judgment of nonsuit, which this court held was erroneous, it would necessarily follow that the defendant should then have an opportunity of putting in his case. The former decision was merely that, taking plaintiff's evidence as true, it made a prima facie case for plaintiff. But plaintiff maintains that the first judgment was not a judgment of nonsuit, because, he says, plaintiff put in evidence a stipulation as to certain facts, in which it was stipulated that it could be used by either party. This, he says, constituted evidence for the defendant, which he claims would prevent a nonsuit, and necessitate a judg ment on the merits. Conceding the rule to be as claimed, still there is nothing in this contention. All the evidence put in by plaintiff is available to defendant as evidence for him, and it makes no difference whether plaintiff proves his case by testimony or by admissions and stipulated facts. If, when he has put it in, it does not make out his case, a nonsuit is proper. The first judgment was strictly a judgment of nonsuit.

On the last trial defendant put in evidence tending to show damage because of the failure of plaintiff to complete the purchase. This was objected to by plaintiff, and is here assigned as error. Counsel says he cannot comprehend how damages can be recovered for the breach of a stipulation in a contract which has been canceled by mutual consent, or has been abandoned by both parties. How can there be a right of action upon a contract which has become nonexistent, and when, because it has become nonexistent, payments made upon it are without consideration, and may, therefore, be recovered as money had and received to the use of the

payor? Of course, under such circumstances, no such action could be maintained, and I think it hardly fair to say that it has ever been so held in any authoritative decision. No such claim was asserted on the former appeal, and no such question was before the court. The remarks alluded to were evidently made in momentary forgetfulness of the main idea advanced in the opinion, to wit, that the contract had been abandoned and canceled. In none of the subsequent cases in which the suggestion is cited with apparent approval was any such question involved, and all that is said is plainly obiter. See Drew v. Pedlar, 87 Cal. 443, 25 Pac. Rep. 749; Newton v. Hull, 90 Cal. 487, 27 Pac. Rep. 429; Phelps v. Brown, 95 Cal. 572, 30 Pac. Rep. 774. In each of these cases the citation is rather to the doctrine, coupled with the statement in regard to recoupment, to the effect that, when both parties have failed to perform the contract, either may elect to consider it rescinded and recover moneys paid upon it. But if such be the law of this case, it would justify the admission of the evidence complained of, unless there be other grounds of objection. Plain

tiff claims that such ground there is, because the defendant had by consent dismissed a cross complaint, in which he asked for specific performance of the contract, each party paying his costs; and he cites as authority for the proposition Merritt v. Campbell, 47 Cal. 542, and Parnell v. Hahn, 61 Cal. 131. Notwithstanding these authorities, I think it is at least doubtful whether the mere withdrawal of the claim to equitable relief under the circumstances can operate as an estoppel upon defendant's right to claim damages. It left defendant still an answer in which he claimed damages, to wit, the installment paid. In one point of view the decision may be understood as holding that, while defendant cannot retain the installment as liquidated damages, he may retain sufficient to cover actual damage. But defendant did not recover any damage under this plea, the court holding that the agreement had not been canceled or abandoned, and that, therefore, plaintiff could not recover the installment paid, and there was, therefore, nothing against which a recoupment could be made. It would Beem to follow that before plaintiff can com plain of this evidence as injurious error he must show his right to recover the money he had paid. As we have seen, he did not make out such a case, and therefore, whether the ruling were right or wrong, he was not injured. I think the judgment and order should be affirmed.

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

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(99 Cal. 278)

COLTON LAND & WATER CO. v. SWARTZ et al. (No. 19,131.)

(Supreme Court of California. Aug. 15, 1893.) JUDGMENT-COLLATERAL ATTACK-EFFECT OF APPEAL-RECORDED MAP AS EVIDENCE-LOCATION OF LAND.

1. Where a judgment roll offered in evidence contains two judgments, the last in point of time will be treated as the true and final judgment, and the prior judgment will not be considered as forming part of the roll so as to affect its admissibility.

2. Under Code Civil Proc. § 942, providing that an appeal does not stay the execution of a judgment unless an undertaking is given as therein provided, one claiming under an execution sale cannot be deprived of the right to use the judgment roll as evidence in support of his title during the pendency of an appeal from the judgment, unless such undertaking was given.

3. The map of an "addition," which is of record in the office of the county recorder, is not inadmissible in evidence because not acknowledged.

4. The fact that a tract of land is within the limits of a city may be shown by oral testimony.

Department 1. Appeal from superior court, San Bernardino county; John L. Campbell, Judge.

Ejectment by the Colton Land & Water Company against Daniel Swartz and others. From a judgment for defendants, and order denying a new trial, plaintiff appeals. Affirmed.

Chas. R. Gray, for appellant. Frank F. Oster, for respondents.

HARRISON, J. Ejectment for a lot of land in the city of Colton. Judgment was rendered in favor of the defendants, and the plaintiff has appealed. The title of the defendants is derived from the plaintiff through a sale under an execution issued upon a judgment against it in favor of the San Bernardino National Bank, rendered by the superior court of San Bernardino county; and, unless the judgment under which that sale was had is valid, the judgment herein should have been in favor of the plaintiff. The appellant contends that the superior court had no jurisdiction to render the judgment under which the sale was had, and that the execution issued thereon and the sale by virtue thereof were void and ineffective to transfer any title to the property sold. The action of the San Bernar dino National Bank against the present plaintiff was commenced March 27, 1889, and, a demurrer to the complaint therein having been overruled, judgment was ordered in favor of the plaintiff as asked in the complaint, and entered May 29, 1889. Subsequently the plaintiff herein filed an answer to the complaint, and upon the issues presented by its answer a trial was had, and findings filed by the court, upon which judgment was entered November 21, 1889. Upon this judgment an execution was issued, and by virtue of a sale there

under is derived whatever title the defendants have to the demanded premises. When this judgment roll was offered in evidence the appellant objected to its introduction, upon the ground that it was incompetent, irrelevant, and immaterial, and now urges that the court erred in admitting it, and that it is not entitled to be considered as evidence in establishing the transfer of title to the land, for the reason that the judgment of May 29th was the final judgment in the case, and that, upon its entry, the court lost jurisdiction to enter any other judgment in the action, so long as that remained upon its record; and that, inasmuch as there was no evidence introduced showing that it had been vacated or set aside, the judgment of November 21st was void, and not the basis of an execution or sale.

1. A judgment roll is defined in section 670, Code Civil Proc., and consists of the papers therein enumerated. This "roll" does not depend upon the fact that the clerk has fastened these papers together, nor do any other papers which the clerk may have joined with those which the statute declares shall constitute the judgment roll become a part of such roll by reason of having been so joined. The papers thus designated as forming the judgment roll are those which are elsewhere mentioned in the Code as a part of the proceedings culminating in the judgment. The "judgment," of which a copy is to be included in the "roll," is the judgment defined in section 577, Code Civil Proc., as "the final determination of the rights of the parties in an action or proceeding;" and, as there can be but one "final determination" in an action, it follows that there can be but one judgment in the judgment roll, and that if during the proceedings in an action a judgment shall be set aside, and another one thereafter entered, only this last judgment can form a part of the judgment roll, just as, when the complaint or answer is amended, only the amended pleadings or those upon which the cause was tried form the "pleadings" which are a part of the judgment roll. In Paige v. Roeding, 96 Cal. 388, 31 Pac. Rep. 264, the plaintiff appealed from the judgment, and brought up in the judgment roll a judgment that had been entered in the records of the court. The respondents caused to be certified to this court a judgment that had been previously entered in the same cause, and claimed that this prior judgment was the only one that could be considered. It was held, however, that the statute clearly contemplates that there shall be but one judg ment in a judgment roll, and that, if two are found therein, the last in point of time is the only one which can be considered as a part thereof. When, therefore, the defendants offered in evidence "the judgment roll" in the action of the San Bernardino National Bank against the plaintiff herein, as is stated in the statement on motion for

a new trial, it must be assumed that the judgment roll so offered consisted of only the papers which are designated by the statute as constituting the judgment roll; and also that, if there were any other papers bound up with that, they were not considered by the court as forming a part of said roll, and consequently could not impair its admissibility in evidence. Neither does the fact, found by the court, that a judgment between the parties had been previously rendered in the same action, impair the effect of this judgment, which forms a part of the judgment roll. If upon a direct appeal the fact that a prior judgment does not impair the efficiency of the judgment appealed from, (Paige v. Roeding, supra,) much less can such prior judgment be invoked to impeach a subsequent judgment when the same is collaterally attacked. The. court had jurisdiction of the parties to the action and of the subject-matter, and upon a collateral attack every presumption will be indulged in support of its judgment. If necessary, therefore, it will be assumed that the former judgment was vacated by consent of the parties, and that an order showing such consent and the vacating of the judgment appears in the minutes of the court. Any entry in the minutes vacating the judgment, whether by consent of the parties or upon an order of the court after a new trial had been granted, would form no part of the judgment roll, and it was not necessary to offer any evidence to show that the former judgment had been annulled. Carpentier v. Oakland, 30 Cal. 439; Drake v. Duvenick, 45 Cal. 455; Crim v. Kessing, 89 Cal. 478, 26 Pac. Rep. 1074; Caruthers v. Hensley, 90 Cal. 560, 27 Pac. Rep. 411. "Circumstances may have arisen wherein the trial court would have been justified under the law in setting aside the first findings and judgment, and in filing the second findings and judgment; and, with no showing to the contrary, we must assume that such circumstances did arise." Paige v. Roeding, 96 Cal. 391, 31 Pac. Rep. 264.

2. The sale under this judgment was made December 23, 1889, and the sheriff's deed issued to the purchaser June 24, 1890. On the 21st of November, 1890, the plaintiff herein appealed from the judgment of November 21, 1889, in favor of the San Bernardino National Bank, and now contends that by virtue of such appeal the judgment was not admissible in evidence. No such objection, however, was made at the trial, and, as it does not appear that the fact of an appeal from the judgment had been shown at the time when the judgment was offered in evidence, it was not embraced in the objection that the judgment roll was incompetent, irrelevant, and immaterial. The judgment was not offered as evidence of any issue in the case, or for the purpose of showing that the matters in controversy in this action had been determined in an