section, so far as relates to the interest ac- with the lien. The complaint charges that quired from her mother, for the statute had the claim filed stated the name of E. B. run against the mother before she conveyed Newkirk as the owner of said house, and to her daughters. As they are all concluded, a reputed owner of a leasehold interest in however, by the decree of partition, and said realty, and stating in said lien that the fee-simple title coming down to defend- the owner of the fee of said real estate was ant under it, he is not required to rest his not known. This averment shows a comdefense as against any of them on the stat-pliance with the requirement of the statute ute of limitations alone. Judgment and above quoted. It is substantially an averorder affirmed. ment that it was stated in the claim filed that neither the name of the real owner nor of the reputed owner was known to the plaintiff when he filed his lien. The plaintiff is only required to state the names mentioned, if known. If the names are not known, the claim filed is sufficient if it is silent on this subject.

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

WEST COAST LUMBER Co. v. NEWKIRK et al. (No. 13,026.)

(Supreme Court of California. Sept. 2, 1889.)

MECHANICS' LIENS-PLEADING-HARMLESS ERROR. 1. Under Code Civil Proc. Cal. § 1187, providing that a contractor's claim of lien shall contain, inter alia, the name of the owner or reputed owner of the realty, if known, where such name is not known, the claim need aver nothing on that subject.

2. Under Code Civil Proc. Cal. § 1192, providing that certain buildings constructed on land with the knowledge of the owner thereof shall be held to have been constructed at his instance, and the land shall be subject to a lien therefor, unless the owner shall give proper notice that he will not be responsible for such construction, the giving of such notice is matter of defense, and need not be denied in the complaint, in an action to foreclose such a lien.

3. Code Civil Proc. Cal. § 1185, provides that, if the person causing the construction of a building on land does not own the fee-simple thereof, then only his interest in such land shall be subject to the contractor's lien for such building, and section 1192 provides that, when the construction of a building upon land is known to the owner of any interest therein such interest shall be subject to the contractor's lien. Held that, where the construction is at the instance of a leaseholder, with the knowledge of the owner of the fee, not only the leasehold interest, but also the fee, is subject to

such lien.

4. Testimony to show the manner in which books were kept, and that they are correct, is admissible, where the books themselves are properly in evidence.

5. Improper allowance of a question, the answer given thereto having been admitted by the pleadings, is not prejudicial error.

BEATTY, C. J., dissenting.

In bank. Appeal from superior court, San Diego county; E. PARKER, Judge. John M. Lucas and Hunsaker, Britt & Lamme, for appellant. Oscar Trippett, for respondent.

It is further urged as a reason why the court erred in overruling the demurrer that it is not averred in the complaint that the appellant did not give notice that she would not be responsible for the materials furnished by the plaintiff. It is further said that it is not alleged that Roberts had notice of the construction of the building. We are of opinion that it is averred in the complaint that Roberts had notice of such construction. The allegation is "that such building was constructed upon the said land with the knowledge of each of said defendants." Roberts was one of the defendants referred to in this allegation. We do not think it necessary that it should be averred that the owner of the realty did not give notice that he would not be responsible for the construction of the building. Such notice, under section 1192 of the Code of Civil Procedure, if given, is matter of defense, to be set up by defendant. The averments of the complaint above referred to are, in our judgment, sufficient.

does not state a cause of action against It is further argued that the complaint appellant, for the reason that it is alleged in the complaint that she is the owner of the fee of the land upon which the building was constructed, and that defendant Newkirk, who caused the building to be constructed, is the owner of a leasehold interest therein, and it is provided in section 1185 of the Code of Civil Procedure that, if the person who caused the building to be constructed owned less than a fee-simple estate in such land, then only his interest therein is subject to such lien. The above, it is true, is the provision of section 1185 of the Code of Civil Procedure, but it is also proTHORNTON, J. Action to foreclose the vided in section 1192 of the same chapter lien of a material-man. Judgment for that every building or other improvement plaintiff. Motion for a new trial by the de- mentioned in section 1183 of this Code, confendant Roberts, which was denied. Ap-structed upon any lands with the knowlpeal by the same defendant from the judg-edge of the owner, or the person having or ment and order denying a new trial. De- claiming any interest therein, shall be held fendant Roberts demurred to the com- to have been constructed at the instance of plaint. The demurrer was overruled. It is argued that the court below erred in so ruling. It is said on behalf of appellant that there is no averment in the complaint that there was a statement in the claim of lien filed that the reputed owner of the fee was not known, and for this reason the demurrer should have been sustained. It is provided in section 1187 of the Code of Civil Procedure that the claim of lien filed with the recorder shall contain, inter alia, "the name of the owner, or reputed owner, if known," of the property to be charged

such owner or person claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration, or repair, or the intended construction, alteration, or repair, give notice that he will not be responsible for the same by posting a notice in writing to the same effect in some conspicuous place upon said land, or

upon the building or other improvement | mitted in evidence. Landis v. Turner, 14 situated thereon. Cal. 573. The defendant was not injured It is clear that the foregoing provisions by the allowance of the questions put to of sections 1185 and 1192 must be reconciled, the witness Baker in these words: 'State if they can be consistently, with a fair con- whether or not you knew at the time this struction of the words used in each sec- lien was filed on lot 1, block 755, of New tion; and in our judgment this can be done San Diego, the property on Columbia street, within the rule just above stated. We think who was the reputed owner of the real that the provisions referred to may and estate in fee-simple?" It was averred in should be read as follows: "If the person the complaint that at the time the lien was who caused the building to be constructed filed the plaintiff did not know who was owned, when the work was commenced or the owner or reputed owner of the fee of the materials for the same were furnished, the real estate involved herein. This was less than a fee-simple estate in the land to not denied in the answer. The witness, to be charged with the lien, then only his in- the above question, answered that he did terest in the land is subject to such lien; not know. It was entirely unnecessary provided, however, that if the building was under these circumstances to put the quesconstructed with the knowledge of the tion, but, the question having been put owner of the fee of such land, or the person and answered, as admitted by the pleadhaving or claiming any interest therein, ings, we cannot see that defendant sussuch building shall be held to have been tained any injury. Conceding that the alconstructed at the instance of such owner lowance of the question was error, still, as or person having or claiming any interest defendant was not injured by it, it is no therein, and the interest owned or claimed ground of reversal. shall be subject to any lien filed in accord- The court did not err in admitting in eviance with the provisions of this chapter, dence the claim of lien, nor in admitting the unless such owner or person having or lease from Roberts to Newkirk. The obclaiming an interest shall, within three jection to the claim of lien that it did not days after he shall have obtained knowl-state that the name of the reputed owner edge of the construction, give the notice above referred to.

of the fee was not known has been heretofore disposed of. If there is no finding that defendant did not give the notice spoken of in section 1192 of the Code of Civil Procedure, it must be regarded that no such notice was ever given. As such fact does not appear, it must be taken not to have existed. The evidence was sufficient to justify the finding that the materials were furnished by plaintiff to be used in the building mentioned in the complaint. The cartage complained of was a portion of the cost of the materials furnished, and, if allowed at all, was allowed as a part of the value of the materials.

In our view, the two sections, when reconciled, as they may be in the mode just pointed out, make the estate of the owner of the fee, (Roberts,) as well as the estate of the owner of the leasehold interest herein, subject to the lien sought to be enforced in this action. Our predecessors, in Phelps v. Mining Co., 49 Cal. 336, so construed like provisions in the act of 1868. This act was entitled "An act for securing liens of mechanics and others," and was approved March 30, 1868. The provisions of section 1185 of the Code of Civil Procedure are found in section 2, and the provisions of We find no error in the record, and the 1192 of the Code of Civil Procedure in sec-judgment and order are affirmed, with dition 4, of this act of 1868. St. 1867-68, pp. rections to the court below, on the going 589, 590. In the case cited the defendant down of the remittitur, to allow plaintiff, corporation above named was the owner, under section 1195 of the Code of Civil Proand one Gilbert Douglass was in posses-cedure, a reasonable fee for the services of sion as lessee of the owner for an unexpired its attorney in this court. Ordered accordterm of the land sought to be charged ingly. with the lien. The lessee, Douglass, caused the materials to be furnished for the repairs of the mill. The corporation knew that the work was being done, and gave no notice that it would not be responsible. In an action brought by the plaintiffs, who had furnished the materials, to enforce their lien, the court held that while the corporation was not personally responsible, under the act above cited, for the value of the materials, that its estate in the land as well as the estate of the lessee might be sold for the lien. 49 Cal. 338, 339. See, also, Fuquay v. Stickney, 41 Cal. 583, and Moore v. Jackson, 49 Cal. 109. The two cases last cited sustained the view of the statute taken in Phelps v. Mining Co., in 49 Cal., as well as the conclusion which we have herein reached.

There was no error in refusing defendants' motion to strike out a part of the testimony of C. A. Baker. This testimony was only introduced to show the mode in which the books were kept, and that they were correct. These books were properly ad

We concur: SHARPSTEIN, J.; MCFARLAND, J.; PATERSON, J.

I dissent: BEATTY, C. J.

WORKS, J., took no part in the decision of the above cause.

WEST COAST LUMBER Co. v. NEWKIRK et al. (No. 13,027.)

(Supreme Court of California. Sept. 2, 1889.) In bank. Appeal from superior court, San Diego county; E. PARKER, Judge.

John M. Lucas and Hunsaker, Britt & Lamme, for appellant. Oscar Trippett, for respondent

PER CURIAM. The same questions arise in this case as in the case of the same title, numbered the judgment and order herein are affirmed, with 13,026, ante, 231. On the authority of that case directions to the court below, on the going down of the remittitur, to allow plaintiff, under section 1195 of the Code of Civil Procedure, a reasonable

fee for the services of its attorney in this court. | ecutor of said will in this state, and has Ordered accordingly.

NON-RESIDENTS.

Code Civil Proc. Cal. § 1354, provides that "where a person absent from the state * is named executor, if there is no other executor, letters of administration with the will annexed must be granted," and § 1388 empowers the court to examine "on oath the party applying, and any other persons, "as to the value of the property; to determine the penalty of the bond required of an executor. Held, that a non-resident, named as executor in a will, may apply for and receive letters testamentary, and it is unnecessary that he be actually in the state when the order for issuance of the letters is made.

Commissioners' decision. In bank. Appeal from superior court, Sacramento county; W. C. VÂN FLEET, Judge. Clinton L. White, for appellant. Chauncey H. Dunn and Taylor & Holl, for respondent.

no authority to nominate an administrator of said estate, and his petition in that regard should be denied." In due time West moved the court to set aside the order denying his petition and granting that of Smith, and for a new trial, on the ground that the decision was not justified by the evidence. The motion was made on a brief statement of the case, and one of the specifications therein was as follows: "The evidence is insufficient to justify that portion of the finding of fact of the court as follows: 'But is absent therefrom, and has not been therein at any time pending said proceeding,' in this,-that the evidence shows that George A. West had never been a resident of the state of California or personally present therein; but that he duly filed his petition for the issuance to himself of letters testamentary, submitted to the jurisdiction of the court, and would have and will appear in person, and qualify as such executor, within a reasonable time after his appointment." The court granted the motion, and Smith appealed from the order.

The record presents but a single question for decision, viz.: Is a person who is named in a will as the executor thereof, but who is a non-resident of this state and has never been therein, for that reason alone the will here? The question must be solved by an examination of the provisions of the Code of Civil Procedure relating to proceed. ings in probate courts. Section 1369 declares that no person is competent or entitled to serve as administrator who is "not a bona fide resident of the state." Section 1350 declares what classes of persons are incompetent to serve as executors, but omits the clause above quoted from section 1369. It then provides that, "if the sole executor or all the executors are incompetent, or renounce or fail to apply for letters, or to appear and qualify, letters of administration with the will annexed must be issued," etc. Section 1354 provides that, "where a person absent from the state

BELCHER, C. C. Emeline V. Brown died on the 16th of February, 1888, and at the time of her death was a resident of the city of Philadelphia, in the state of Pennsylva-incompetent to be appointed executor of nia. She left real property situate in the city of Sacramento, in this state, of the value of about $15,000. She left a duly-executed will, disposing of all her property to certain legatees, who were non-residents of this state. In her will George A. West was named as sole executor. The will was duly admitted to probate on the 21st of February, 1888, in the orphans' court of Philadelphia, and letters testamentary were issued to said West. On the 6th of October, 1888, a copy of the will and the probate thereof, duly authenticated, was filed in the superior court of the county of Sacramento, and E. A. Burr, a resident of that county, filed a petition asking that letters of administration with the will annexed be issued to him. Subsequently, S. B. Smith, the public is named executor, if there is anadministrator of the county, filed his peti- other executor who accepts the trust and tion that letters of administration upon qualifies, the latter may have letters testathe estate with the will annexed be issued mentary, and administer the estate until to him. And thereafter George A. West, the return of the absentee, who named in the will as executor thereof, filed may then be admitted as joint executor. his petition, stating that he desired to act If there is no other executor, letters of adas executor of the will in the state of Cali- ministration with the will annexed must fornia, and asking that letters testament-be granted; but the court may, in its disary be issued to him. The petitions were cretion, revoke them on the return of the heard together, and an order was made absent executor." And section 1388 proadmitting the will to probate, and direct- vides that every person to whom letters ing the issuance of letters of administration testamentary are directed to issue must, with the will annexed to S. B. Smith, the before receiving them, execute a bond in public administrator. The petition of West an amount fixed by the court; and to dewas denied, because of his being a non-res- termine the penalty of the bond the court ident of the state. The finding on that must ascertain the value of the property point is as follows: "The petitioner,"by examining on oath the party applyGeorge A. West, was, at all the times ing and any other persons." named in his petition, and now is, a resident of the state of Pennsylvania, and is not now in the state of California, but is absent therefrom, and has not been therein at any time pending said proceedings.' And from the facts found the court concluded the law to be "that said George A. West is not eligible to appointment as ex

*

It is admitted by counsel for appellant that under these provisions a non-resident person may be appointed, and may serve as executor in this state, but it is contended that he must be in the state at the time of his appointment, and must personally submit himself to the jurisdiction of the court.

We think a non-resident may apply for

and receive letters testamentary in this HAWLEY, C. J. This is an action of ejectstate. His application may be made by ment. Appellant and respondent are the himself in person or by attorney, and, if owners of adjoining lots on E street, in Virmade by attorney, he is constructively ginia City. Appellant's house is situate on present. If required by the court, he must lot 2 in block 146, range D, and respondent's appear and testify when the penalty of his house is on lot 1 in the same block. There bond is fixed, and, at any rate, must ap- is a space of about six feet between their repear and qualify within a reasonable time. spective houses. The true division line is If he fails to make application for letters, nearly in the center of this space, and the or to appear and qualify within proper ground in controversy has a frontage of time, letters of administration with the about three feet adjoining the house of rewill annexed will be issued to some other spondent, and extends back the depth of person. Where, however, he has made ap- the lots. Appellant insists that there is no plication for letters, either in person or by evidence to sustain the verdict of the jury; attorney, it is not absolutely necessary that there is no conflict in the evidence; and that he be actually in the state when the that the court erred in refusing to grant her order is made directing the issuance of let- a new trial. Respondent holds the legal ters. If a bond is required, the court may title to the lot upon which her house stands. delay for a time fixing the penalty of it, or Appellant relies solely upon actual possesmay fix it by examining on oath other per- sion of the ground in dispute, claiming that sons, and, if the property requires immedi- she has occupied, and had the exclusive use ate care, a special administrator may be of, the entire space of ground between the appointed. Of course the appointee must two houses for a period of over 15 years. come here within a reasonable time, and Is this claim clearly established by the personally submit himself to the jurisdic-evidence? Appellant was the wife of John tion of the court, and personally conduct Murray, and about six months prior to his the settlement of the estate. What we have death, in 1870, they moved into the house said above is in harmony with the provis- on lot 2. She testified that at the time ions of section 1354, supra. The words," a "there was a fence on the north side markperson absent from the state," used in that ing the division line between the lot where section, mean, as we interpret them, a per- the defendant now lives" and her lot; that son both actually and constructively ab- "that fence continued there until Mr. Bielsent; that is to say, a person who is out of felt, who was then the owner of the lot the state, and has made no application for where defendant lives, built his house, when letters. In this case West was not thus the fence was torn down, and the south line, absent. The court, therefore, properly or side, of his house was built on the line granted his motion for a new trial, and the where the fence stood. That house is now order should be affirmed. occupied by defendant." She further testified as follows: "There is a space between my house and the south side of defendant's house, which is my yard. There is no entrance into the yard from Mrs. Fox's house, nor has there ever been any door or other opening, excepting the windows of defendant's house, to that yard. The door of my kitchen opens into this yard, and has always done so ever since I lived in the house, since 1869. No one has ever used my yard except myself and my first husband in his life-time, and myself afterwards, and my present husband, and those who lodged in my house. The space at the rear of this yard is filled by a privy, except about 14 inches between the privy and the defendant's house, and that privy has been there ever since 1869, and has never been used by anybody that ever owned or claimed defendant's lot. The front of the yard is closed by a door which extends from my house to defendant's house. This has always been so ever since 1874, when Mr. Bielfelt built his house. Last fall I had a fence built on my north line. This fence extended the Whole length or depth of my lot, and was up to the eaves of defendant's house, and covered the defendant's windows on both stories. On the 6th of November, 1888, the defendant tore this fence down, and built a fence south of her house and upon my lot, and took in the part of my lot last described in the complaint on file in this action. This fence extended from the door on E street to the middle of the door of the privy in the rear, being about two feet ten inches of my lot on E street, and four feet two inches in the rear. * Defendant has he possession ever since. She was never in n.

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

PER CURIAM. For the reasons given in the foregoing opinion the order appealed

from is affirmed.

MCDONALD V. Fox. (No. 1,309.) (Supreme Court of Nevada. Sept. 23, 1889.)

ADVERSE POSSESSION-Evidence.

In an action to recover land claimed by plaintiff on the ground of adverse possession, it appeared that the land lay between plaintiff's house and that of defendant, which, with plaintiff's permission, had been built on what plaintiff testified was the line between the two lots, theretofore marked by a fence; but it did not appear that there was then any dispute as to the land; and there was evidence that the parties mistakenly supposed that the fence marked the line. Plaintiff testified that the front of this strip of land was closed by a door extending from her house to that of defendant; that for more than 15 years she had had the exclusive use and occupancy of said land, and defendant had never come upon it, except with her permission; that, within a year prior to the suit, plaintiff had built a fence along the line as claimed by her, which was torn down by defendant, who thereupon built a fence inclosing the land sued for. Defendant showed the paper title to the land. It was not shown who had erected the door between the houses. There was evidence that plaintiff had never asserted any claim to the land until she built

her fence. Held, that a verdict for defendant was warranted.

Appeal from district court, Storey county; RICHARD RISING, Judge.

W. E. F. Deal, for appellant. Chas. E. Mack, for respondent.

*

*

yard except by permission until she tore on to establish an adverse possession, In down my fence and put up hers. When she cases of this kind, must be clearly proved. came to live at the house on her lot, about The law presumes that the possession of a year ago, she could not find the keys, and land is always under the regular title. The she, by my permission, came into my yard presumption, therefore, is that the respondand got into her house through one of the ent and those under whom she claims and windows, and afterwards she went into my derives title, having entered into the possesyard to fix her stovepipe." Edward Mc-sion of the house on lot 1 under the legal title, Donald, the present husband of appellant, were in the possession of the entire lot,testified that"when Bielfelt built the house of all the ground called for by their deeds,now on defendant's lot, in 1874, he wanted which includes the strip of ground in conto build his house right up to his south line, troversy. To overcome this presumption, and asked permission of plaintiff to take the burden was upon appellant to affirmadown the fence and build his house up to tively establish such facts, by clear and comthe division line between the two lots, and petent proof, as are necessary to constitute make the south side of his house the divis- an adverse possession. The actual and ion line between the two lots. By my ad- peaceable possession of land does not necesvice the plaintiff gave Bielfelt permission to sarily make the possession adverse to the do as he asked, and the south side of his true owner. It depends upon the intention house was built up to the place where the of, and the character of the claim asserted fence was." The testimony of appellant by, the party in possession. The posseswas corroborated by the testimony of other sion, to be adverse, must be inconsistent witnesses as to the situation of the prem- with the title of the true owner, who is out ises, and as to the use and occupancy of the of possession, and of such a character as to space between the houses. operate as notice to him that the possession is held under a claim of right, or color of title, sufficient to establish an ouster of the owner. It must be accompanied with a claim, by the party in possession, exclusive of the right of others. It must be hostile in its inception; actual, peaceable, open, notorious, continuous, and uninterrupted for the period prescribed by the statute. Thompson v. Pioche, 44 Cal. 517; Thompson v. Felton, 54 Cal. 547; Mauldin v. Cox, 67 Cal. 387, 7 Pac. Rep. 804; Gildehaus v. Whiting, 39 Kan. 711, 18 Pac. Rep. 916; Yelverton v. Steele, 40 Mich. 538; Sherin v. Brackett, 36 Minn. 154, 30 N. W. Rep. 551; Dixon v. Cook, 47 Miss. 220; Mining Co. v Mining Co., 15 Nev. 101; Satterwhite v. Ros

Two witnesses on the part of respondent testified, one of them, that he had known lots 1 and 2 for 26 years, the other, for 16 years; that they had passed by them almost daily during that time, and did not remember of seeing any fence between said lots before Bielfelt built his house. Two other witnesses testified that they had frequently passed the gate between the two houses, and always saw it opened, and that the boards between the privy in the rear of the space between the two houses appear to have been placed there recently, and that they never saw them until recently. Respondent introduced conveyances of the east 50 feet of lot 1 in block 146, range D, conveying title thereto, through divers par-ser, 61 Tex. 171; Bracken v. Jones, 63 Tex. ties, from September 18, 1861, up to and in- 184; Evans v. Templeton, 69 Tex. 378, 6 S. cluding a deed to Bielfelt on October 31, 1874. W. Rep. 843; Tyler, Ej. 860, 864, 874-883; In 1875, Bielfelt gave a mortgage to said Ang. Lim. § 390, p. 396. It was for the jury, lot, which was foreclosed in 1881, and J. C. guided by these elementary principles, to Hampton, the purchaser at sheriff's sale, determine, from the evidence, the real intenconveyed the premises to respondent by a tion of appellant. "It is the occupation, with quitclaim deed in February, 1887. Respond- an intent to claim against the true owner, ent, in her own behalf, testified as follows: * * which renders the entry and posses"When I bought the lot on which my house sion adverse. * Indeed, that it is the stands, in February, 1887, J. C. Hampton intention to claim title which makes the postold me that the south line of the session of the holder of the land adverse is lot ran where the fence now stands between the doctrine upon which the decision in my house and plaintiff's house. I put up every case proceeds. If it be clear that that fence last November, after I had a high there is no such intention, there can be no fence torn down, which plaintiff had built pretense of an adverse possession. along the south side of my house, which Questions of adverse possession thus deshut out the light and covered my win-pending upon the intention of the possesdows on the south side of my house up to sor, and the knowledge, or the means of the eaves. * When I went to look at knowledge, on the part of the owner of the the house on my lot, before I bought it, the land, are questions of fact (as well as of keys could not be found, and I got into my law) to be determined by a jury as the best house by going through the gate between means of ascertaining their truth. They are my house and plaintiff's house. *questions of law on which the court has a Since I bought the house I went into the right to instruct the jury; and, in finding space to fix a stovepipe on that the quo animo, the jury must, of course, be side of my house. Plaintiff never made any left to their own view of the effect of the eviobjection to my going there. Iclaimed the dence." Id. p. 399. part of the lot I fenced in as part of my lot I bought from Mr. Hampton. I never made any use of it except as I have stated. * The door between plaintiff's house and mine is between an inch board fastened to my house and a similar board fastened to plaintiff's house."

*

The question as to whether there was any fence upon the premises prior to the building of the Bielfelt house is rendered doubtful, and the jury may have believed from the testimony that no such fence existed, or, at least, that appellant was mistaken in testifying that there was a fence "marking the It is well settled that the facts relied up-division line" between the two lots, for the