Commissioners' decision. In bank. peal from superior court, Los Angeles county; H. K. S. O'MELVENEY, Judge. Action by H. Banning, William Banning, and J. B. Banning against Mary H. Banning for partition of land. Judgment for plaintiffs, and defendant appeals.

Houghton, Silent & Campbell and J. S. Chapman, for appellant. Smith & Patton and F. H. Howard, for respondents.

Ap-in due form; and it is not alleged or pretended by the defendant that she did not voluntarily sign and deliver the deeds; nor that she did not voluntarily, and without the hearing of her husband, acknowledge the execution of them through the tele phone, after having been informed by the notary of their contents; nor that any deception or fraud was practiced to induce her to execute the deeds; nor even that the plaintiffs had notice of the manner in which VANCLIEF, C. Action for partition of it is alleged that she acknowledged the exeland. The complaint is in the most gen-cution through the telephone. These pareral form, alleging that the parties own ticulars are not stated for the purpose of the land as tenants in common, and speci- maintaining that, under any circumstances, fying the undivided portion to which each an acknowledgment of a deed may be taken party is entitled. The answer denies that through a telephone, but for the sole pureither of the plaintiffs has any estate in the pose of showing that there is no pretense land, and alleges that the defendant is the of fraud, duress, or mistake. sole and exclusive owner and in the exclusive possession thereof. In addition to her answer the defendant filed what she denominated a cross-complaint, which, in substance, was only a repetition of her answer. The plaintiffs unnecessarily answered this so-called cross-complaint by repeating the substance of their complaint, and further alleging, among other things, that they derived title to the undivided portion of the land claimed by each of them directly from the defendant. Upon these pleadings a trial was had, and, on August 2, 1888, the court made and signed written findings upon all the issues in favor of the plaintiffs, and especially found that "the aforesaid interests of the plaintiffs are all and each of them deraigned from the defendant by conveyances from the defendant to the plaintiffs respectively, by her duly signed, acknowledged, and delivered to the plaintiffs respectively." After the aforesaid findings were written and signed, the court, at the request of the defendant, made and signed additional findings on a separate paper, which was filed August 3, 1888; and the original findings of August 2d were also filed on August 3d, on which day the interlocutory decree in favor of plaintiffs, from which this appeal is taken, was filed.

The appeal rests upon the judgment-roll alone, including the additional findings; and appellant's counsel contend that the findings do not support the judgment, for the reason that they do not show that defendant executed the deeds to the plaintiffs by which plaintiffs claim title. The special and only ground of objection to the sufliciency of the execution of those deeds is that at the time the deeds were acknowledged the defendant was a married woman, and was not visibly, and therefore not personally, present before the notary at the time he took her acknowledgment through a telephone, she then being three miles distant from him, as appears by the additional findings. The answer to this objection is that, in the absence of fraud, duress, accident, and mistake, the certificate of the notary in due form of law is conclusive of the material facts therein stated. The facts stated in the additional findings were not admissible as evidence to dispute the official certificate of the notary; and, if admitted, should have been disregarded, as they evidently were, by the trial court. It is admitted that the certificate of the notary is

In De Arnaz v. Escandon, 59 Cal. 489, the court below had found that the defendant, a married woman, had acknowledged a deed through an interpreter, who did not correctly interpret the contents of the deed, but misrepresented the deed as being a mortgage to secure the payment of $3,000, when in fact it was an absolute deed. This court said: "But it is not alleged, found, or claimed that the plaintiff had any notice of those facts. It is clear, therefore, that the notary's certificate is conclusive as to the facts stated in it." Citing Jones, Mortg. § 538; Grant v. White, 57 Cal. 141; Baldwin v. Snowden, 11 Ohio St. 203.

# #

In Grant v. White, supra, this court said: "We do not see that fraud or imposition was practiced upon her at the time of the execution of the mortgage. We think the rule, regarding the execution of instruments by married women, is correctly stated by Mr. Jones, in his work on Mortgages, § 538." In the section referred to, Mr. Jones says: "As to statements of fact contained in a certificate of acknowledgment which is regular in form, such, for instance, as the fact that the grantor appeared and acknowledged the execution of the instrument, they can only be impeached for fraud. Evidence which is merely in contradiction of the facts certified to will not be received." To the same effect is the decided weight of authority in other states. I think the judgment should be affirmed.

We concur: BELCHER, C. C.; HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed.

DALY V. SOROCCO et al. (No. 13,119.) (Supreme Court of California. Sept. 3, 1889.) QUIETING TITLE-FINDINGS.

plaintiff was not the owner of the property in con1. In an action to quiet title a finding that troversy, and was not entitled to possession thereof, is a finding of the fact in issue, and is sufficient without a finding of the facts respecting such ownership.

2. As the right to maintain the action is based a failure to find on certain other issues is not cause wholly on the ownership and right to possession, for reversal.

In bank. Appeal from superior court, Plumas county; F. D. SOWARD, Judge. John Gale and F. B. Whiting, for appel

lant. Goodwin & Goodwin, for respondents.

WORKS, J. Action to quiet title, and for an injunction. The complaint contained the usual allegations of ownership and right to possession in the plaintiff, and certain other facts, the only object or purpose of which must have been to obtain the injunction prayed for. The answers of the defendants put in issue the allegations of the complaint, and certain affirmative matters were pleaded. The court found that the plaintiff was not the owner of the property in controversy at the time the action was commenced, and was not entitled to the possession thereof. There were certain other special findings immaterial to the question presented on this appeal. I

The appellant contends that the finding that the plaintiff was not the owner of the property was a finding of a conclusion, and that the facts showing that he was not the owner should have been found. If so, the plaintiff's complaint was bad also. It alleged the ownership as a fact, and the finding was as broad and as specific as the allegation of the appellant's pleading. But the finding was sufficient. Where a party alleges his ownership of real estate in an action of this kind, a finding that he was or was not such owner is a finding of a fact, the fact in issue,-and the evidence going to prove such ownership need not, and should not, be pleaded or found. Payne v. Treadwell, 16 Cal. 247; Smith v. Acker, 52 Cal. 217; Frazier v. Crowell, Id. 399; Murphy v. Bennett, 68 Cal. 528, 9 Pac. Rep. 738.

WORKS, J. A statement of this case will be found in 77 Cal. 353, (Sansome v. Myres, 19 Pac. Rep. 577,) where the allegations of the respondent's answer are stated. We there held that the answer was sufficient. Subsequently the issues arising upon the petition and answer were referred for trial and determination to Hon. W. C. VAN FLEET, judge of the superior court of Sacramento county, with directions to report his findings to this court, which he has done. The findings are as follows: “(1) That said proposed bill was noticed for settlement on the 17th day of April, 1888, and was on said day called up by petitioner's counsel before said respondent, judge. for settlement, but was at the request of the district attorney continued to the 24th day of April, without at that time any examination or discussion of its contents. On said 24th day of April, petitioner's counsel again called said proposed bill to the attention of respondent, at which time the district attorney, through his assistant, objected to the settlement of said bill, on the ground that it was not a fair and truthful statement of the proceedings at the trial, and was a mere skeleton thereof. These objections were verbally made during the argument by counsel in which he went over said proposed bill, and pointed out what he conceived to be the defects and objectionable features thereof. During a reply to this argument, by the petitioner's counsel, the proceedings were interrupted by other business of the court, and the further hearing of said matter was continued by respondent to the 1st day of May. On that date, counsel for the prosecution being absent, the matter was again thereof had until the 8th day of May. At this last date the prosecution renewed their objection to the settlement of said bill, and after some argument by both parties, the respondent refused to settle said bill, and made his indorsement thereon, wherein he set forth his reasons for said refusal. Said indorsement will be found attached to said original proposed bill, which is hereafter referred to, and made part of these findings. The prosecution did not at any time present amendments to said proposed bill, but contended that it was a mere skeleton, and that neither they nor the respondent were called upon to amend the same, or make it truly present the facts; and that it was petitioner's duty to present to respondent a fair and truthful bill for settlement. that said bill was good and sufficient in The petitioner, contending substance, did not at any time ask permisSion to correct or amend the same; nor did the respondent at any time make any direction or suggestion to the petitioner's counsel to take said proposed bill and

The appellant further contends that the cause should be reversed because the court failed to find upon certain other issues pre-postponed, and no further consideration sented. But his right to maintain the action was based wholly on his ownership and right to possession, and these being found against him, it was immaterial to him whether the court found as to the other facts or not, as the judgment must have been against him whatever the other findings might have been. Under such circumstances the failure to find on certain issues is not cause for reversal. McCourtney v. Fortune, 57 Cal. 617; Murphy v. Bennett, supra.

Judgment affirmed.

We concur: BEATTY, C. J.; MCFARLAND, J; SHARPSTEIN, J.; PATERSON, J.; THORNTON, J.

SANSOME V. SUPERIOR COURT. (No. 20,452.) (Supreme Court of California. Sept. 11, 1889.) BILL OF EXCEPTIONS-SETTLEMENT AND SIGNING. A trial judge is not justified in refusing to "settle" a bill of exceptions on the ground that it is inaccurate, untrue in many respects, deficient in statement, and contains a mere skeleton of the tes-amend or change it in any respect; and timony, where he does not direct petitioner to make amendments, and the adverse party offers none.

In bank. On petition for mandamus. John Sansome sues for a writ of mandate to compel B. F. Myres, Judge, superior court, Placer county, to settle a bill of exceptions.

L. L. Chamberlain and A. L. Hart, for petitioner. F. P. Tuttle, Dist. Atty., and John M. Fulweiler, for respondent.

the statement in the answer of respondent herein that continuances of the settlement were had to enable petitioner to present a full and fair bill is not sustained by the evidence, but is repudiated by the respondent. (2) That the document marked Exhibit B,' hereunto attached and made part of these findings, is the original proposed bill of exceptions as the same was presented by petitioner herein to the respondent for

been made perfect by the appealing party in the first instance. Such a course, whether it results from a design to gain an undue advantage, or from indolence, should be severely condemned, and the party practicing it should be required by the judge to make and present a proper statement.

It is evident that the proposed statement in this case was prepared by a novice. It is unskillfully drawn, but we cannot say that it was prepared with a view to obtain an undue advantage in this court. It may be, as is contended, that the evidence was not set out as fully as it should have been, but as the evidence was all taken down in short-hand, the defect can be remedied without serious inconvenience to the respondent. In the preparation of a statement, the evidence should be condensed and put in narrative form. To set out the questions and answers in full is unnecessary, and only increases the labor of this court, and the expense of the appeal.

settlement, together with the respondent's complete, a statement that should have indorsement at the end thereof showing his refusal to settle said bill; and that the document marked Exhibit C,' hereunto attached and made part hereof, is a transcript of the reporter's notes of the testimony of the proceedings had and taken at the trial of the case of People v. Sansome, and upon which said proposed bill of exceptions is based. (3) NOTE-Petitioner desired a finding upon the questions raised by respondent's answer as to whether the proposed bill is a fair one or merely a skeleton. This I refused for the reasons stated on page 16 of Exhibit A, and because I conceived that question can only be answered by an inspection of the record which is before this honorable court, and involved, to my mind, if not a question of law purely, at least a mixed question of law and fact, upon which it was not my province to pass." The reasons of the respondent for refusing to settle the proposed statement were stated in his indorsement on the same, which was as follows: "The within bill of exceptions being this day finally submitted to me for settlement, I hereby refuse to settle the same upon the ground that it is inaccurate, and, in many respects, untrue, and contains but a meagre and partial statement of the facts and proceedings leading up to, and connected with, and upon which the rulings of the court therein were had that are complained of, and, also, a mere defective skeleton of the testimony and evidence submitted to the jury, and upon which they rendered their verdict of guilty."

We think the petitioner is entitled to have his statement settled as prayed for, and that the peremptory writ should issue. It is so ordered.

We concur: SHARPSTEIN, J.; Fox, J.

MCFARLAND, J. İconcur in the judgment upon the grounds-First, that if the document presented was not in reality a bill of exceptions that fact should have been called to the attention of the attorney presenting it; the judge should have informed him that for such reason the document would We do not regard these as sufficient not be considered as a bill of exceptions, grounds for refusing to settle a statement. and that he must prepare a real bill within If anything was omitted from the state- a reasonable time; and, second, that the ment, or any matter was incorrectly stated, document presented in the present instance it was the duty of the district attorney to was not so entirely defective as to justify propose such amendments as would correct the treatment which it received. But I do the omissions or errors. His failure to do not subscribe to the doctrine (apparently his duty in this respect did not justify the stated in the majority opinion) that no respondent in arbitrarily refusing to act in matter how fraudulent and worthless a the matter As was said in the former de- document may be that is presented and cision in this case, it was not the duty of called a "bill" or "statement," still the the judge to prepare a statement, but it judge, or opposing counsel, must either prewas his duty to see that one was properly pare a bill himself, or suggest in detail what prepared, and then sign it. If the attorney the bill should be. In such a case the judge for the petitioner had omitted anything has a right to say to the attorney for apmaterial the judge should have directed pellant: "This thing which you give me is and required him to insert it; or if matter a fraud; I will not consider it; I will give was incorrectly stated he should have re- you a reasonable time within which to quired him to correct it, if the district at-prepare something that will be, not a mere torney had neglected his duty by failing to name, but a real bill within the meaning of propose the necessary amendments, which the Code; and, if you do not do so, I will he seems to have done. If the petitioner take no further action in the matter." had refused or neglected to so correct the proposed statement as directed, the judge would, no doubt, have been justified in refusing to settle the same, but not otherwise. This the findings show was not done. The respondent refused in the first instance to settle the statement, not to sign it. This we think he had no right to do. To so hold would place it in the power of the trial judge to deprive a litigant of his right of appeal by simply refusing to perform a plain duty. We must not be understood as intending to justify the too prevalent habit on the part of some attorneys of presenting an imperfect statement, thereby casting upon opposing counsel and the court the labor of piecing out, and making

BEATTY, C. J., (concurring.) In addition to what has been said by Mr. Justice WORKS, in whose conclusion and views I concur, I wish to say that in my opinion the fault imputed to the proposed bill of exceptions in question here, viz., that it is too meager, is one that is entitled to some indulgence. The great and crying evil is not that such drafts are too short, but that they are generally too long, and that being allowed substantially on the scale and in the form in which they are presented, the counties are burdened with the expense of transcribing or printing masses of rubbish which serve merely to cumber the records, and waste the time of this court. We have

As to other grounds of exception, the statement of evidence necessary to present them fairly is usually short, and even when it is unfairly set out in the draft no great amount of labor is ordinarily required to amend it. It is better in my opinion that the judge, with the advice and assistance of the district attorney, should perform such labor than refuse to settle the bill of exceptions upon the ground that counsel preparing the draft has attempted to practice a fraud upon the court, unless the evidence of such design is far more gross and manifest than it can be said to be in this case.

I concur: PATERSON, J.

HUBBARD V. Dusy et al. (No. 12,983.) (Supreme Court of California. Sept. 2, 1889.) BOUNDARIES-EVIDENCE.

the government survey, evidence of the location of 1. Upon an issue as to the location of a line of monuments is not overcome by field-notes of the original survey, taken at the time of the erection of said monuments or subsequent thereto.

2. As between complicated descriptions of a line dividing two sections or quarter sections, that one is to be adopted which is most in conformity with the monument established by the government

survey.

decided that the judges of the superior was introduced on the part of the people courts are justified in refusing to settle a tending to prove all the allegations of the bill of exceptions, where the draft proposed indictment or information, which is all contains a full transcript of the short-hand that would be necessary to render the exnotes of the trial, (People v. Sprague, 53 ception harmless. Cal. 423,) and over and over again we have called attention to section 1175 of the Penal Code, which provides: "A bill of exceptions must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken; and the judge must, upon the settlement of the bill, whether agreed to by the parties or not, strike out all other matters contained therein." Possibly some good has been accomplished by these admonitions, but the evil referred to, if ameliorated, is by no means cured. For this reason, I repeat that if counsel in a particular case happens to commit the unusual error of making his draft too brief, the fault is one that merits some indulgence, especially as it cannot result in any very serious inconvenience to the judge who is called upon to settle the bill of exceptions. In our practice the motion for a new trial is always made before judgment (Pen. Code, § 1182) and without any preliminary statement of the evidence or specifications of error. People v. Fisher, 51 Cal. 319. If one of the grounds of the motion is that the verdict is contrary to the evidence, that ground will generally be abandoned after the motion is overruled in all cases where there is a substantial conflict of evidence upon the material issues, and there will be no exception to the order on the ground 3. As between different monuments, those best that the evidence is insufficient. If, how-identified should prevail, independent of anything ever, the defendant insists upon presenting in the field-notes of the original or any subsequent the question of the sufficiency of the evi- survey. dence to this court upon appeal, he is forbidden to make a complete transcript of the reporter's notes into his proposed bill of exceptions, and must put the testimony of the witnesses in narrative form with as little repetition as possible. In attempting to do this every lawyer, even the most experienced, is liable to err on one side or the other, and usually, as we have seen, his error is in the direction of unnecessary prolixity. In such case it is made the duty of the judge who settles the bill of exceptions to strike out all redundant and superfluous matter, as well as to see that what remains conforms to the truth. This necessarily involves a careful reading and comparison of the draft with the reporter's notes or other record of the proceedings, and it follows, a new trial. of course, that the longer the draft the The determination of the issue depended greater is the amount of laborimposed up-solely upon the true location of a line of the on the judge. If on the other hand it hap-government survey between townships 14 pens, as in this case, that the draft of the and 15 S., M. D. B. and M., it being adbill contains no adequate statement of the mitted that the plaintiff owned the demandevidence, it is a very simple matter, involved premises described in his complaint as ing a trifling amount of labor, to remedy" the S. of the S. E. of section 31, township the defect. If the omissions are compara- 14 S., range 22 E., M. D. B. and M., lying tively slight the judge, with the assistance immediately north of and adjoining the N. of the district attorney, may suggest the necessary amendments. If the omissions are serious and extensive counsel may be required to present a full statement of the evidence for the people, or to abandon his exception on the ground of insufliciency The statement on motion for new trial of the evidence. If he refuses or neglects to shows that evidence was introduced and do either then the judge would be justitied witnesses examined tending to prove the alin adding to his statement of the evidence legations of the complaint, and that the a general statement that other evidence land in dispute was within the south half

4. Where it is doubtful which of two lines of

monuments is the true government line, other things being equal, that one is to be so considered which most nearly conforms to the field-notes. MCFARLAND, J., dissenting.

In bank. Appeal from superior court, Fresno county; M. K. HARRIS, Judge.

Ejectment by H. Hubbard against Frank Dusy and William M. Cooledge. Judgment for plaintiff, and defendants appeal.

Wharton & Short, for appellants. S. J. Hinds, for respondent.

PER CURIAM. Action of ejectment tried by a jury. Verdict and judgment for plaintiff. Defendants appeal from the judgment, and from an order denying their motion for

E. of section 6, township 15 S.," but denied that it included the land in dispute, it being claimed by defendants that the land in dispute is a part of N. E. 1⁄4 of section 6, township 15.

of the quarter section owned by plaintiff; | which is the true line of government monubut does not state the evidence or testi- ments, then, other things being equal, the mony thus tending to prove plaintiff's case. monuments, or line of monuments, most The statement also shows that evidence nearly conforming to the field-notes would was introduced on the part of the defend- be most likely to be, and would be considants tending to prove the denials and alle ered to be, the true government corner or gations of their answer, and that the land corners." in dispute was in the N. E. of section 6, township 15, "including a duly certified copy of the original field-notes of the United States government survey of the south boundary line of township 14 S., range 22 E., M. D. M. ;" but contains no other statement of the evidence tending to prove the defense. The only questions presented for decision relate to the propriety of the instructions given to the jury, as to the effect of the field-notes of the government survey as evidence of the true location of the township line.

Counsel for appellants contend that the court erred in giving the first and second instructions reqested by plaintiff, and in refusing the third instruction as requested by defendants, and in giving it as amended by the court, for the reason that each of these instructions denied to the field-notes of the government survey proper and lawful effect as evidence tending to prove the location of said township line as actually surveyed by the government of the United States.

I dissent: MCFARLAND, J.

PEOPLE V. FITZPATRICK. (No. 20,551.) (Supreme Court of California. Sept. 13, 1889.) RECEIVING STOLEN GOODS-VIEW-OBJECTIONS

WAIVED-INSTRUCTIONS.

2. An instruction under which the jury might have found defendant guilty, though he had not received all the cattle mentioned in the indictment, is not erroneous, as the value of the property is not a material element of the offense.

We have examined the instructions complained of, and are of opinion that they At request of plaintiff's counsel the court fairly and correctly directed the jury as to gave to the jury, among others, the follow-the law bearing on the case. Judgment and ing instructions: First. "Evidence has been order affirmed. introduced by plaintiff tending to prove the existence of a monument fixed by the United States survey at the S. E. corner of section 31; and, also, evidence tending to prove a like monument at the S. W. corner of the land claimed by Mr. Hubbard on the middle south line of said section 31. Now the court instructs you that if you believe from the evidence that these two monuments have 1. Though an order on a trial for receiving been established by plaintiff, and the dis- stolen property, that the jury be taken to view an puted land is north of said monument, as animal alleged to be one of the cattle stolen, is not claimed by plaintiff, then said evidence is within Pen. Code Cal. § 1119, authorizing similar not overcome by any field-notes of the orig-orders whenever, in the opinion of the court, it is inal survey taken at the time said monu- proper that the jury should view the "place" in ments were found to have been erected; nor inspection was not conducted as a part of the regwhich a material fact oecurred, and though such will such evidence be overcome by the field-ular trial, those objections cannot be raised for the notes or courses or distance of any subse- first time on appeal. quent survey. When there are complicated descriptions of a line dividing two sections or two quarter sections of land, that one must be adopted which is most stable and certain, and which is more in conformity with the monument established by the United States government survey, and which would be least likely to mistake or be affected by error. Second. Monuments left by the United States survey on the grounds are the best evidence as to where the land should be, and any monument so established can only be antagonized by evidence of other monuments. As between different monuments, the jury should look to the evidence identifying them, and those monuments best identified should prevail, inde-der denying a new trial. pendent of anything even in the field-notes 1. What, at first glance, seems to be the of the original or any subsequent survey." most important contention made by appelAt the request of the defendants' counsel, the lant is that the court erred in ordering the jucourt gave among others the following, ry to be conducted to a corral, to view a cerexcept that the third, as requested, did tain steer alleged to have been one of the catnot contain the words "other things be- tlestolen. The court seems to have thought ing equal," which were inserted by the that the order was permissible under section court as an amendment to the instruction, 1119 of the Penal Code. But that section only as requested. "First. The court instructs provides that a similar order may be made you that you are to find where the true cor-"when, in the opinion of the court, it is ners are located on the line in dispute, not proper that the jury should view the place from any isolated part of the testimony, but in which the offense is charged to have been from a full and careful consideration of all of committed, or in which any other material the testimony relative thereto. Second. I fact occurred;" and as a steer is not a further instruct you that in the absence of “place," it is quite evident that the order monuments the field-notes would govern made in the case at bar is not within the and determine the true line. Third. I fur-provision of that section of the Code. If, ther instruct you, in case there are two therefore, the proper objection to the prolines of monuments, or supposed monu-ceeding had been made by appellant, a very ments, so located as to render it doubtful serious question would have arisen. It is

In bank. Appeal from superior court, Fresno county; M. K. HARRIS, Judge. G. G. Goucher and L. J. Maddux, for appellant. George A. Johnson, Atty. Gen.,. for the People.

MCFARLAND, J. The defendant was convicted of the crime of receiving personal property (several head of cattle) knowing the same to have been stolen; and he appeals from the judgment and from an or