Ross, J., McKINSTRY, J. No sale of the interest of the deceased William Paty in the real estate in question was ever made by order of the court of first instance, and as the legislature of the state made no provision for the transfer of proceedings relating to the administration of the estates of deceased persons from the courts of first instance to the court of probate provided for by the probate act of April 22, 1850, the probate court under that acquired no jurisdiction of the estate of the deceased Paty, who died February 14, 1850: Grimes v. Norris, 6 Cal., 624; Tevis v. Pitcher, 10 Cal., 465; De la Guerra v. Packard, 17 Cal., 193; Soto v. Kroder, 19 Cal., 97; Downer v. Smith, 24 Cal., 114; People v. Senter, 28 Cal., 502; Wilson v. Castro, 31 Cal., 420; Coppinger v. Rice, 33 Cal., 408; Rider v. Cohn, 37 Cal., 69. Nor did the defendants acquire the title of Francis W. Paty in the premises by any of the other means relied on, and which are stated in the opinion of Mr. Justice McKee. We concur in the judgment.

No. 8,461.

ERENBIRG ET AL. v. PETERS ET AL.

Department Two. Filed November 20, 1884.

LEASE-CONTRACT IN WRITING-ALTERATION OF BY PAROL AGREEMENT. -The terms an provisions of a written lease cannot be altered by an unexecuted oral agreement between the lessor and lessee.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiffs. The opinion states the facts.

J. B. Hart, for the appellants.

Jos. Rothchild, for the respondents.

THE COURT. Action to recover rent due on a written lease; defense, a substituted oral agreement.

On the seventh of January, 1874, plaintiff's leased to defendants, by a lease in writing, a lot of land for five years; and during the term defendants erected a building thereon. On the seventh of January, 1879, another lease was executed for a term from February 11, 1879, to January 31, 1884. During the second term, to wit., January 27, 1881, the building was burned. An oral agreement was then made between plaintiffs and defendants, that the plaintiffs would erect another building on the lot, and that the plaintiffs would rent such building to defendants at an increased rent of ten dollars per month for the unexpired term of the second lease. The plaintiffs omitted to erect the building, and the defendants paid no rent after the fire.

The court below held that the lease of January 7, 1877, was still in force, and that the oral agreement was invalid and not binding, as

it was not an executed oral agreement. We think the court was correct.

Section 1,638, civil code: "A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise.'

We think the case is clearly within this section. The lease was a contract, not only on the part of the lessors, but on the part of the lessees, viz., to pay the rent named therein. The agreement set up by the defendants, would have the effect of altering the contract. Judgment affirmed.

No. 8,481.

EVANS V. BAILEY ET AL.

Department Two. Filed November 20, 1884.

ACTION FOR GOODS SOLD AND DELIVERED-EVIDENCE-VARIANCE. --A complaint for cer tain cattle sold and delivered is not sustained by evidence that such cattle were delivered to the defendant to be slaughtered and the meat sold on commission.

CORPORATION HOLDING STOCK OF ANOTHER CORPORATION-ULTRA VIRES.-It is not presumptively ultra vires for one corporation to hold or acquire the stock of another corporation.

SUBSCRIPTION FOR STOCK-SHAREHOLDER-BOOKS OF COMPANY.-The books of a corporation are competent evidence to prove the number of shares which had been subscribed for and issued at the time an alleged indebtedness arose, and who were the shareholders.

THE SAME ARTICLES OF INCORPORATION. The articles of incorporation of a company, dated in 1877, do not necessarily show who were the shareholders, or in what amounts respectively, during a subsequent period.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff and from an order denying the defendants a new trial. The opinion states

the facts.

Estee & Boalt and Ramon E. Wilson, for the appellants.

A. B. Hart, G. A. Heinlen and W. Saunders, for the respondent. THE COURT. 1. The cause of action, as stated in the complaint, is for goods sold and delivered to the defendant, the California Fruit and Meat Shipping Company, viz.: cattle to the amount of five thousand two hundred and fifty-three dollars and sixty cents, with a credit of seven hundred and fifty dollars, and that said defendant undertook and promised to pay said sum with interest. The plaintiff was the only witness sworn on his behalf; from his testimony it appears that one hundred and thirty-three head of the cattle were delivered to said company to be by it slaughtered and the meat sold on commission. The proof does not correspond with the allegation; the evidence does not sustain the finding in that regard. 2. The question of ultra vires, raised by the People's Ice Čompany, is not tenable. It does not appear that is was not within the scope of the powers of the People's Ice Company to acquire or hold stock of the California Fruit and Meat Shipping Company, under

any circumstance or for any purpose; and it does not appear under what circumstances the stock was acquired or held: Miners' Ditch Co. v. Zellerbach, 37 Cal., 578.

3. The books of the company were competent evidence to prove the number of shares which had been subscribed for and issued at the time the alleged indebtedness arose, and who were the shareholders.

4. The articles of incorporation, dated in 1877, would not necessarily show who were the shareholders, or in what amounts respectively, during the time from December, 1878, to February, 1879; therefore, no error is manifest in ruling out the articles.

For the error above noted, the judgment and order are reversed and the cause is remanded for a new trial.

No. 8,444.

PARKER V. BERNAL ET AL.

Department Two. Filed November 20, 1884.

ACTION TO ENFORCE STREET ASSESSMENT--PARTIES DEFENDANT-HEIRS NEED NOT BE JOINED. An action for the enforcement of the lien of a street assessment under section 17 of the act of April 1, 1872, may be brought against an executrix, without joining the heirs, of a deceased person, although the latter are in fact the owners of the land assessed. Such heirs, if originally joined in the action, may be dismissed, and judgment rendered against the executrix.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff. The opinion states the facts.

M. G. Cobb, for the appellants.

Charles H. Parker, for the respondent.

THE COURT. Street assessment suit.

The action was brought against several persons, heirs of one José Jesus Bernal, deceased, and two persons, executrixes of the will of deceased. The executrixes alone answered. After trial, the court found that at the time of the assessment, the said defendants were the owners of the premises on which the lien is claimed to exist. Some two years after, in rendering judgment, the action was dismissed as to all the defendants, except the executrixes, and thereupon judgment was rendered for plaintiff. We see no error in this affecting any substantial right of the defendants. According to section 17 of the act of April 1, 1872 (Stat. 1871-2, p. 818), the person owning the fee, or in the possession of the premises, or exercising acts of ownership for himself, or as administrator or guardian, or the person in whom the legal title appears by recorded deeds to be, shall be deemed the owner for the purposes of the act. It was, therefore, competent that the action should have been brought against the executrixes (equivalent for this purpose to administra

tor), even though the heirs of a deceased person be in fact the owners. That being the case, there was no error in dismissing as to the heirs, and rendering judgment as to the executrixes.

We cannot say that the description given does not give the boundaries of any land.

The other questions presented have been passed on by this court. Judgment affirmed.

No. 8,649.

GILMAN v. CURTIS.

In Bank. Filed November 20, 1884.

ASSIGNMENT OF POLICY OF LIFE INSURANCE AS COLLATERAL-RIGHTS OF ASSIGNEE.-The assignment of a policy of life insurance as collateral security for advances to be and which were made by the assignee, vests the legal title to the policy in the latter. The interest of the owner of the policy only extends to what remains of it after such advances have been repaid. Until such repayment the assignee cannot be made to surrender the policy. FINDINGS HELD INDEFINITE, UNCERTAIN AND INCONSISTENT.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The facts appear in the opinion, and in the opinion of the department reported, 2 West Coast Rep., 135.

C. F. Hanlon and G. W. Tyler, for the appellant.

H. G. Seiberst and G. F. Sharp, for the respondent.

Ross, J. Taking the most favorable view for the plaintiff of this case, as presented, it is clear that the decree entered in the court below cannot stand. Conceding that it appears with sufficient certainty that the policy in question was assigned by the plaintiff to the defendant to be held by him as collateral security for certain advances to be and which were made by him, the legal title to the policy passed by the assignment to the defendant. The court should not, therefore, have adjudged the plaintiff the owner of the policy and entitled to receive from the insurance company the whole amount due upon it. The interest of the plaintiff in the policy, upon that condition of fact, is in what remains of it after the advances, for the security of which it was assigned, have been satisfied, and defendant cannot be made to surrender it to the plaintiff until the advances made by him are repaid.

But the special issues, which were adopted by the court below as its findings, are indefinite, uncertain and inconsistent. For example, upon an important question in the case the answers of the jury to questions propounded were as follows:

8. When plaintiff reassigned the policy to her mother, did she make such assignment absolutely for the benefit of her mother? "Answer-For the benefit of her mother.

"9. If such assignment was not made absolutely and solely for the mother's benefit, was it made with an understanding that Mrs.

Curtis or defendant, Gilbert Curtis, should hold the policy subject to a trust in favor of plaintiff?

"Answer-Yes."

Judgment and order reversed and cause remanded with leave to the parties to amend their pleadings if they shall be so advised. MORRISON, C. J., SHARPSTEIN, J., MYRICK, J., MCKEE, J., THORNTON, J., and MCKINSTRY, J., concurred.

No. 7,923.

MARTIN v. HILL ET AL.

In Bank. Filed November 20, 1884.

JUDGMENT AND ORDER AFFIRMED after construing the contract sued on.

APPEAL from a judgment of the superior court for Marin county, entered in favor of the defendants, and from an order denying the plaintiff a new trial. The opinion states the facts. The opinion of the department is reported in 2 West Coast Rep., 895.

E. S. Lippitt, for the appellant.

A. W. Thompson, for the respondents.

Ross, J. Each of the parties to the agreement we are called upon to construe in this case was, at the time of its execution, in possession of a distinct portion of the Bojorques rancho, for the partition of which rancho an action of partition, entitled Gates v. Salmon et al., was then pending in one of the district courts of the state. Some of the parties to the agreement were holding under deeds from tenants in common of the rancho, purporting to convey the distinct parcels so possessed, and others of them were holding under deeds from tenants in common of the rancho, purporting to convey an undivided interest therein. The purpose of the agreement in question was to secure to the respective parties to it the portions of the rancho of which they were respectively in possession; and, lest it should turn out in the partition that their respective interests should not be sufficient to cover their respective possessions, it was determined to purchase, in the name of certain trustees, other and sufficient undivided interests in the rancho to carry out the wishes of the parties. The money required for such purchases was to be contributed by the parties to the agreement in proportion to the number of acres and value of the land included within their respective possessions. All this is embodied in the agreement, as we read it. Omitting some of its contents, not necessary to be stated, the agreement then proceeds: "And it is further agreed, that the property so acquired shall be used for and devoted to the purpose of quieting title to the said lands so in possession severally of the parties hereto, and for this purpose, and for all purposes under this agreement, it is stipulated that the parties hereto,