and we have no doubt that as to innkeepers the true rule forms no exception to the general principle we have declared. For the foregoing reasons, it is ordered that the judgment be reversed and the cause remanded.

HARRISON, J. I concur.

PATTERSON, J. I concur in the judg ment on the first ground stated by Mr. Justice GAROUTTE.

(100 Cal. 302)

SCHMITT v. CITY AND COUNTY OF SAN FRANCISCO. (No. 14,419.)

(Supreme Court of California. Nov. 10, 1893.)

DEDICATION-OFFER OF-REVOCATION.

1. The drawing of side lines through a block in a plat of land, indicating that it may be intended for a street, but not designating it by name as such, is merely an offer to dedicate; and where the land so designated is not a continuation of any existing street, and has not been accepted or used by the public, and no one has acted on the offer by purchasing lots on the faith of the delineation of the land as a street, the owner may revoke the offer.

2. A deed of the entire block by the owner, describing it by metes and bounds, without reference to the alleged street delineated on the plat, and conveying it as part of the land sold, operates as a revocation of the offer to dedicate.

3. The fact that after such revocation the city attempted to accept the offer of dedication by delineating the street on the official city maps is immaterial, since, after the revocation of the offer, the land became private property.

Commissioners' decision. Department 2. Appeal from superior court, San Francisco county; J. P. Hoge, Judge.

Action by George Schmitt against the city and county of San Francisco to quiet title to land alleged by defendant to be a street.

From a judgment in defendant's favor, plaintiff appeals. Reversed.

F. J. Castelhun, for appellant. John H. Durst, for respondent.

TEMPLE, C. This is an action to quiet title to portion of block 226, Western addition to San Francisco. The defendant claims that it has been dedicated to the public use as a street. Whether it has or not is the only question involved. The defendant had judg ment, and plaintiff appeals from the judgment, and from the refusal of a new trial. It appears from the findings that in 1855 one Thomas Hayes owned a large tract of land within the city of San Francisco, called the "Hayes Tract;" that in June, 1859, he caused the whole tract to be surveyed and subdivided into blocks and lots, extending through it the streets already existing in the city. A map was made by Hayes showing these streets, blocks, and lots, and indorsed, "Map of the Hayes tract, lots and blocks, according to the official survey by M. Hoadley." Upon this map, Hayes indorsed his certificate, which contained the following: "I, Thomas Hayes, proprietor of the land as herein subdivided within the dotted lines indicated by magnetic courses in red ink, hereby declare this map, for all time to come to be unalterable, and have this day filed the same in the recorder's office of the city and county of San Francisco for description and legal reference," etc. The certificate was dated June 10, 1859, and the map was filed on that day, and has ever since remained on file. A section of this map was put in evidence, showing the tract in controversy, and a part of the north and west lines. of the Hayes tract. The following is a copy:

The tract in controversy here appears as a cul-de-sac. It is contended that it forms a part of Elm street. Elin street does not appear on any official map, so far as the evidence shows, prior to 1866. Hayes tract did not touch the supposed street at any other point. The Van Ness map includes block 226, and according to it there is no street dividing block 226. I find no evidence in the record that such street has been in fact opened and used at any point. The official map of 1866, however, shows such a street, and represents it as extending through block 226. Hayes caused to be printed upon his map a notice that the property delineated would be sold at public auction at a stated time and place, and accordingly the greater part of the tract was sold and Hayes deeded to the purchasers the lots according to the map. April 26, 1862, the legislature passed an act entitled "An act to establish the lines and grades of the streets in the city and county of San Francisco," whereby a board was constituted to survey all the streets, and fix the lines thereof, and to make maps showing the width of all streets. Under this act, surveys were made which were completed, and maps made by another board created by an act passed in 1864. The maps and surveys having been made and filed, the board of supervisors gave notice for three weeks, as required by statute, that the maps and surveys were filed, and open for public inspection. Under the act any property holder dissatisfied was authorized to file objections, which should be considered by the boar of engineers, and afterwards the map, as finally passed by that board, should be reported to the board of supervisors, who were then empowered to approve the same, and, if approved, the map was to stand as the legal and official map of the city, and determine the lines and grades of the streets. It is found that all of these requirements were complied with, and the map was duly approved January 30, 1866, and became and is the official map. The tax rolls and block books from the office of the assessor and tax collector were introduced in evidence for the fiscal year 1863-64 and succeeding years. The block books show the premises in controversy as a part of Elm street. The descriptions in the assessments and tax receipts, however, do not show, except by reference to the assessor's maps, that any part of block 226 was exempted from assessment and taxation. The court found from this evidence that the property had been exempt from taxation as a street since 1862. June 7, 1862, Hayes sold and conveyed to L. L. Hawley all of block 226, which was within his tract, describing it as follows: "Commencing at the northwest corner of Tyler and Laguna streets; running thence westerly, along the north line of Tyler street, to the northwestern boundary line of the Hayes tract; thence northeasterly, along said boundary line, to the south line of Turk street;

thence easterly, along the said line, to the west line of Laguna street; thence, at right angles, southerly, and along the last said line, two hundred and seventy-five feet, to the point of commencement, being a portion of block No. 226, Western addition, and a part of the Hayes tract." This was the only sale or conveyance ever made by Hayes of any land in block 226. This part of Elm avenue or street has never been used as a street. At the time of the conveyance, a high ridge of sand covered the land in dispute, and extended across Laguna street, and into Jefferson square. There does not appear to have been any improvement in the block, except a vegetable garden on Tyler street. Hawley graded the portion purchased by her, including the land in controversy, as also Laguna street, and immediately inclosed her land, building a bulkhead along Laguna street the whole distance, which still remains.

Do these facts show a dedication of the land to the public as a street, which was irrevocable? And, if not, did the deed to Hawley operate as a revocation? It will not be disputed that the survey and map, accompanied by the solemn declaration of the owner, followed by sales and conveyances of a large portion of the property described by reference to the map, constituted, as to the owner, a complete dedication of the property designated on the map as streets. The property in question, although side lines were drawn which might indicate that it was intended to be a street, was not by name designated as such, and was not the continuation of any street. Since a street was subsequently laid out there, extending through the entire block, as well as other blocks, it is probable that such a street had been proposed. As to this property, the marks upon the map may be supposed to indicate a willingness on the part of Hayes to allow a street to be established there. Treating it as an offer, could he then withdraw it? In Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839, it is said: "When the owner of property which is within the limits of an incorporated city or town makes and records a map of such property, by which he subdivides the same into blocks and lots bounded by streets which are continuations of other streets already laid out by the city or town, and sells and conveys the lots abutting upon those streets, he thereby dedicates to the publie the streets so laid out by him as prolongations of other streets, as well as the other streets which are laid out upon such map. intersecting and connecting the same; * The property dedicated has become public property, impressed with the use for which it was dedicated, and neither can the public divert it from that use, nor can it be lost by adverse possession. Nor is the effect of such dedication impaired by any delay in the use of the land for which it was set apart. Whether the owner by making sales according to such map or des

ignation, has made the offer with reference to other streets than those by which the lots sold are bounded, is a fact that the court must determine from the circumstances of each case; * * The owner, after selling some of the lots according to such map, might, either with the consent of the purchasers, or if he should himself repurchase all of the lots so sold, withdraw such offer at any time before the public had acquired any interest in the streets, either from formal acceptance or by actual user." In other words, if the dedication has not been accepted or the property used by the public, it is purely a question of estoppel in pais. If no one has acted upon the offer in such a mode that they would be injured by the revocation, the owner may revoke the dedication, even though it be an actual dedication, and not a mere offer. This doctrine has been frequently announced by the courts, and, so far as I can discover, has never been questioned. In Cincinnati v. White, 6 Pet. 431, it is said: "After being set apart for public use, and enjoyed as such, and private and individual rights acquired with reference to it, the law considers it in the nature of an estoppel in pais, which precludes the original owner from revoking such dedication." See 2 Dill. Mun. Corp. p. 744, note 1, where numerous authorities are cited to the same effect; also, Elliott, Roads & S. 91, 92, and note.

Applying that principle to the case under consideration, I see no reason why a revocation might not have been made as to this property at the time Hayes conveyed to Hawley. It may be conceded that the purchasers from Hayes had a right to insist upon the entire scheme under which they were induced to purchase, so far as any benefit could possibly accrue to them therefrom. but they could have no interest in having a cul-de-sac established in a block which was then entirely unimproved. Until a business was established there, or improvements which they might be interested in having maintained, it must have been an immaterial matter to those who owned no property in the block. Bridges v. Wyckoff, 67 N. Y. 130. If, at the time Hayes conveyed to Hawley, he had a right to revoke the dedication or offer to dedicate the land in controversy, there can be no doubt that conveyance had that effect. The description made no reference to the alleged street, but conveyed it as part of the tract sold. If the map and other facts show an offer to dedicate only, a conveyance without reservation must amount to a revocation, unless the purchaser had notice of some fact which would estop the grantor from revoking. It is a proposal to donate, and, if the proposed donor transfers the property before it has passed to the donee to another, it is no longer his to give. The block map was entirely immaterial, in any view. It could not conclude the property owner. San Leandro v. Le Breton, 72

Cal. 170, 13 Pac. 405. At the time those books were made, there was no pending offer to dedicate, and, if there had been, the assessor had no authority to accept for the public.

Nor do I think the engineer's map of 1866 can conclude the plaintiff. The land, at the time that map was made, had become private property. It was affirmatively shown that no street or way existed at this point when the Van Ness ordinance was passed, and it was not so marked on the Van Ness map. Under such circumstances, I can discover no respect in which the case differs in principle from Whelan v. Boyd, 93 Cal. 500, 29 Pac. 69. The opinion in that case, it is true, states that the land in that case was held under an alcalde grant, but that fact does not distinguish that case from this. In either case the title is from the same source, the Pueblo or its successor, the city; and I do not understand that the city has reserved any right with reference to lands acquired under the Van Ness ordinance which would justify the appropriation of them without compensation, beyond those selected by the commission thereby provided for. The land in controversy was rot so selected. To this it may be added that it does not appear from what source Hayes derived his title. The proposition, of course, is that the land was designated as a street on the engineer's map, and that notice was given requiring property owners to come in and make objections, if any they had, to the proposed map as showing the streets and other public grounds claimed by the city, and the provision that the board of engineers should consider such objections, and might alter the map if so disposed, and that the map, as finally approved, should be the official map, and constitute evidence of streets, etc. Even had there been no authority upon the subject, I think this map alone could not be held conclusive upon this subject. There has been, however, very little discussion of that matter in the briefs, and, as it has been decided. it is not worth while to consider the matter further. I think the judgment and order should be reversed, and a new trial had.

C.

We concur: VANCLIEF, C.; BELCHER,

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and a new trial ordered.

(25 Or. 95)

PEIRCE v. KELLY. (Supreme Court of Oregon. Nov. 27, 1893.) FRAUDULENT CONVEYANCES-UNRECORDED CHATTEL MORTGAGE-CHANGE OF POSSESSION-WHAT SUFFICIENT OF EVIDENCE.

1. Under Code, § 776, subd. 40, providing that every mortgage of personal property capa

ble of immediate delivery which is not filed or recorded shall be presumptively fraudulent as to the mortgagor's creditors unless accompanied by immediate delivery and followed by an immediate change of possession of the mortgaged property, the possession of the mortgagee, where his mortgage is not recorded, must be exclusive, and accompanied with such outward acts of ownership as to apprise the public that the property has changed hands; and a joint possession with the mortgagor is not sufficient.

2. Where an employe of a person operating a store takes a mortgage on the goods, which is not recorded, the fact that he thereafter purchases other goods without disclosing the fact that he claimed possession of the goods in the store under his mortgage does not necessarily raise a presumption of fraud if he paid for them; but, if the purchase is made through a prior employe of the mortgagor, without notice to the seller of the change in his employment, it tends to show that there was no such change in the possession of the goods in the store.

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by E. D. Peirce against Penumbra Kelly. There was judgment for defendant, and plaintiff appeals. Affirmed.

plaintiff; but the mortgage was never filed for record, although Larsen & Co. had notice of its existence before the goods were attached. The evidence tends to show that plaintiff thereupon opened a new set of books, notified the delivery man to report to him, and proceeded to sell the goods at retail, replenishing the stock by cash purchases from time to time, Apach remaining in and about the store, apparently exercising control as if interested in the business, and to all outward appearances there was no change in the business or the manner of conducting it. The business was thus conducted until the 22d day of August, 1892, when the stock was attached as herein before stated. The questions to be determined in this case arise out of certain instructions given and refused by the trial court.

1. The first instruction excepted to is as follows: "In this case you will have to consider another proposition, and that is whether there was such a delivery of these goods as took the place of the recording of the mortgage. The mortgage has never been

BEAN, J. This action was brought by a mortgagee after condition broken to recover possession of the mortgaged property, consisting of a stock of merchandise which had been attached by the defendant, as sheriff, under a writ of attachment in an action brought by E. S. Larsen & Co. against the mortgagor to recover the value of goods, wares, and merchandise sold and delivered to him prior to the delivery of the mortgage. The defense to the action is that the mortgage is void, because made to hinder, delay, and defraud creditors. A trial before a jury resulted in a verdict and judgment in favor of the defendant, from which plaintiff appealed.

The facts, as disclosed by the bill of exceptions, are substantially that one Matthias Apach was, on the 11th day of August, 1892, and for some time prior thereto had been, conducting, as owner and proprietor, a retail grocery store in Albina, and plaintiff had been in his service as bookkeeper for a number of years, but, it is claimed, had never been paid for his services, although he had demanded payment, or that the amount due him be secured by a mortgage on the stock of goods. On the 5th of August, 1892, Apach, without the knowledge of the plaintiff, made and executed a promissory note in his favor for $911, payable on demand, and secured the same by a mortgage on the entire stock of goods in the store. Apach retained the note and mortgage in his possession, without informing plaintiff of their execution, and continued to conduct the business, buying and selling goods as he had been accustomed to do, until the 11th day of August, when he delivered the note, and, it is claimed, the store and its contents, to

question then arises as to the actual, continual change of the possession of the goods. On that point you should consider what the relations of these parties have been before the execution of this mortgage. Mr. Peirce and Mr. Apach are claiming, by their counsel, as I understand them, to have occupied the relation of employer and employe before this mortgage was made. Mr. Peirce was about the store there, transacting business, delivering goods, receiving moneys, etc., but as the employe of Apach. After the mortgage was made, it is claimed that the position was reversed; that Apach became the employe, and Peirce the principal. I instruct you that, in order to have a complete, actual change of the possession of these goods, and to have divested the case of those presumptions of fraud which arise where there is a lack of continual possession of the goods, there should have been some public notice given of the relations they are assuming, that those who deal with the firm might have been able to see and know the change in the situation. And if you believe that to all appearances, so far as the creditors of Apach were concerned, the situation of affairs and control of the goods was the same after the execution of the mortgage as it was before, then it is one of those cases where the presumption of fraud as to creditors would attach, because the possession had not been changed, and the change in possession had not been continued." By subdivision 40, § 776, of the Code, it is provided. in substance, that every mortgage of personal property capable of immediate delivery which is not filed or recorded shall be presumptively fraudulent as to creditors of the mortgagor unless it is accompanied by an immediate delivery, and be followed by an actual and continued change of possession.