known as claimants 'by special location,' shall be deemed and admitted to be, respectively, the owners in fee simple of the tracts of land described in their respective deeds under said special location, and that for any lands in their possession not included within the lands described within their said deeds, they and each of them may purchase of the parties hereto, acting jointly as aforesaid, such title as may be requisite for their protection in and acquirement of title to the said lands outside of the special locations, or not included within said descriptions in the deeds, and the price to be paid therefor shall be at the rate per acre that the title by them so bought has cost in the original purchase of undivided interests in the whole rancho; the number of acres pertaining to the undivided interests so bought to be ascertained from the report of the commissioners in partition, without reduction by reason of special locations. And the parties claiming as tenants in common shall also have the privilege of buying, in the same manner and at the same price as last above provided, whatever number of acres they may have in possession in excess of their present undivided interest in said rancho, as shown by the report and survey of said commissioners in partition. And it is further agreed that all property, advantages and profit derived from purchases made under this agreement shall belong to the parties hereto in proportion to their several contributions, and that none of the provisions of this agreement shall inure to or in any way protect any person not a party to these presents."

The plaintiff, who was a party to this agreement, was, at the time of its execution, the owner of an undivided interest in the rancho, and was in possession of that portion thereof involved in the present action. He derived his undivided interest from one Walker, pending the partition suit-Walker retaining other interests therein. Subsequent to the agreement, and pending the partition action, the trustees named purchased certain undivided interests in the rancho, for the purpose contemplated by the agreement-the money with which the purchases were made being contributed by the respective parties to the agreement in proportion to the number of acres and the value of the land embraced in the respective possessions.

The plaintiff was not made a party to the action of partition after his purchase from Walker of an undivided interest in the rancho, but, with respect to that interest, the action was continued in the name of Walker; and in the final decree of partition there was awarded to Walker a portion of the rancho equivalent to the undivided interest conveyed by him to the present plaintiff, and to the undivided interest retained by him after that conveyance. The portion of the rancho so awarded to Walker did not include any portion of the tract actually possessed by this plaintiff, but the tract actually possessed by the plaintiff was, in and by the final decree in the action of partition, awarded to the trustees named in the agreement in question in lieu of the undivided interest in the rancho purchased by them, pending the action of partition, under and by virtue of the agreement, and with money contributed in ac

cordance with its provisions. And the plaintiff brings this action to compel the assignee (with notice) of the trustees to convey to him the title to the portion of the rancho actually possessed by him at the time of the execution of the agreement, upon the payment by him, which he tenders, of a price at the rate per acre paid by the trustees in their purchase of the undivided interests in pursuance of the provisions of the contract.

It will be seen, therefore, that the case turns upon the construction to be placed on the agreement in question, the most material part of which has been hereinbefore quoted. If, under that agreement, the plaintiff could permit the undivided interest, which he held in the rancho at the time of the execution of the agreement, to be set off in the name of his grantor, so as not to include any part of the land in his actual possession, and then claim to purchase the whole of the land so actually possessed by him from the trustees under the agreement, then the plaintiff should recover in the action. If, on the other hand, the purpose of the agreement was to enable plaintiff to obtain the title to such portion of the land actually possessed by him as his individual interests might prove insufficient to cover, then he should not succeed in his present suit. The latter, we think the true construction of the agreement, and the judgment and order are therefore affirmed. SHARPSTEIN, J., and McKINSTRY, J., concurred. MCKEE, J.-I concur in the judgment. THORNTON, J., dissented.

No. 8,297.

KELLEHER V. Kenney et AL.

Department Two. Filed November 21, 1884.

NEW TRIAL-NEW DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE.-An order refusing a new trial on the ground of newly discovered evidence will not be reversed if the newly discovered evidence is merely cumulative, and every material fact stated in the moving party's affidavits, is contradicted by counter affidavits.

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

P. G. Galpin, for the appellant.

Pillsbury & Titus, for the respondents.

THE COURT. Plaintiff moved for a new trial on newly-discovered evidence. Affidavits and counter-affidavits were filed. We are not informed, except by the certificate of the clerk, that the affidavits were used on the motion; but no point being made thereon, we pass to the point presented.

The evidence set forth in the affidavits of plaintiff was clearly cumulative. It was in effect denied by the counter-affidavits. The

real issue on the trial of the case was, whether plaintiff's intestate had delivered to defendants certificates for the six hundred shares of stock in dispute; not whether they were delivered on the tenth of December, 1877, or on or about the tenth of January, 1878. The date of delivery was not the material fact.

If the alleged newly-discovered evidence is merely cumulative, and every material fact is contradicted by counter affidavits, and the appellate court cannot clearly say that the court below erred in refusing it, the order refusing it will not be reversed: Doyle v. Sturla, 38 Cal., 456. See also People v. McCauley, 45 Cal., 146. Order affirmed.

No. 9,192.

CALKINS v. STEINBACH.

Department One. Filed November 21, 1884.

A tenant

REDEMPTION BY TENANT IN COMMON-RIGHTS AND LIABILITIES OF CO-TENANTS. in common of land, or his successor in interest, who redeems the whole of the common property from a sale under a judgment against all the co-tenants, acquires thereby an equitable lien upon the interests of his co-tenants for their just proportion of the money paid by him in effecting the redemption; and he may maintain an action to recover such proportion and a decree to the effect that, in default of such payment, the interests of the co-tenant in the land be foreclosed.

THE SAME EFFECT OF REDEMPTION BY JUDGMENT DEBTOR.-The effect attending a redemption of property sold subject to redemption, depends upon the character of the person making the redemption. If made by a "redemptioner," as that term is defined in subdivis ion 2 of section 701 of the code of civil procedure, and there be no further redemption within the statutory period, the redemptioner is entitled to a deed from the sheriff, conveying to him the interest of the judgment debtor therein. But if made by the judgment debtor or his successor in interest, the effect of the sale is terminated, which fact is made to appear of record by a certificate of redemption and a note thereof on the margin of the certificate of sale.

APPEAL from a judgment of the superior court for Santa Barbara county, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts.

B. S. Brooks and Gordon Blanding, for the appellant.
Estee & Boalt and P. R. Wright, for the respondent.

Ross, J. The case made by the complaint is this: Three persons-Gallagher, Mahé and Pavillier-were seized in fee of certain lands. Being so seized, they executed a mortgage upon the lands to secure the payment of their promissory note to Gasper Orena and wife.

The mortgage was subsequently foreclosed, because of default in the payment of the money, and under and pursuant to the decree of foreclosure, the lands were regularly sold at public auction to one Le Roy for eighteen thousand eight hundred and thirty-seven dollars and eighty-nine cents, who received from the sheriff a proper certificate of sale, which was duly recorded in the county where the lands were situated. Within six months after the sale, one of the mortgagors and judgment debtors-Gallagher-executed to the plaintiff

a deed conveying to him all of his (Gallagher's) interest in the lands, which deed was duly recorded in the proper county; and within six months from the date of the sheriff's sale, plaintiff as successor in interest of the judgment debtor Gallagher, redeemed the lands by paying to the sheriff the full amount of money necessary for that purpose, aggregating twenty thousand nine hundred and eighty-five dollars and forty cents, upon the receipt of which the sheriff executed to plaintiff a proper certificate of redemption, which was duly recorded in the office of the recorder of the county, and afterwards paid over the redemption money to Le Roy, who received it in full satisfaction of his rights as purchaser at the foreclosure sale. Prior to the plaintiff's purchase from Gallagher, the defendant Steinbach acquired by purchase the interest of Pavillier in the lands, a deed for which was put of record, and subsequently, but before the commencement of the present action, Steinbach acquired through a sale made under and pursuant to proper probate proceedings, all of the interest of the estate of Mahé in the lands, Mahé having deceased. The complaint alleges these facts and then avers "that more than sixty days have expired since the plaintiff redeemed the above described land and premises from foreclosure sale, and neither of the defendants herein (defendants being Steinbach, one Dussol and the administrator of the estate of the deceased Mahé) have redeemed, or offered to redeem, any part or portion of said land or premises, or interest therein, from him. That all of the defendants herein have had notice of plaintiff's said redemption, and plaintiff has frequently since said redemption demanded of the said defendants, and each of them, that they and each of them pay to the plaintiff such proportion of the said sum of twenty thousand nine hundred and eighty-five dollars and forty cents, so as aforesaid paid by plaintiff in redeeming said land and premises, together with interest thereon, as the interest of each of said defendants in said land and premises bears to the whole thereof. That nevertheless the said defendants claim some right or title to said land and premises by reason of the former co-tenancy as aforesaid. That the defendants and each of them hitherto wholly refused and still do continue to refuse to pay to plaintiff or contribute any portion of said money so paid by him on said redemption." And the prayer of the complaint is:

"1. That the defendants and each of them be forever barred from setting up any claim to the said land and premises or any part thereof.

"2. That plaintiff be decreed to be the owner in fee of the whole of said land and premises.

"3.

For costs of suit and for such other or further relief as to the court may seem meet and equitable."

The court below adjudged the plaintiff the owner in fee of the entire lands, and further decreed that the defendants and each of them "be and are forever barred from setting up any claim to said lands and premises or any part thereof."

The judgment is clearly erroneous. The effect of the redemption by plaintiff was precisely the same as if it had been made by Gallagher, it was as successor in interest of Gallagher that plaintiff became entitled to redeem: Code of civil procedure, section 701. Upon his redemption the effect of the sale was terminated and he thereupon acquired an equitable lien upon the interests of his cotenants in the lands for their just proportion of the money paid by him in effecting the redemption; and he had his action to recover such proportion and a decree to the effect that, in default of such payment, the interests of the co-tenants in the lands be foreclosed. Those were the relative rights and duties of the respective parties. There is no such thing under our statute as a redemption from a successor in interest of one of two or more judgment debtors who redeems lands sold subject to redemption. Our code provides for the redemption of the property so sold, first, by the judgment debtor or his successor in interest in the whole or any part of the property, and second, by a creditor having a lien by judgment or mortgage on the property sold, or on some share or part thereof, subsequent to that on which the property was sold.

The persons mentioned in the second subdivision of the statute are termed redemptioners. If property sold be redeemed by such a redemptioner, another redemptioner may, within sixty days after the redemption, again redeem it from the last redemptioner, on making the payments prescribed by section 403 of the code of civil procedure. And the property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty days after the last redemption, upon making the payments and taking the steps prescribed by the statute. If so redeemed, whenever sixty days have elapsed, and no other redemption has been made, and notice thereof has been given, and the time for redemption has expired, the last redemptioner or his assignee is entitled to the sheriff's deed. If, however, the debtorwho in all cases has the entire period of six months from the date of the sale for the purpose-redeem, the effect of the sale is terminated and he is restored to his estate. The same effect must be held to attend a redemption by the successor in interest of the judgment debtor, since the right of redemption which is by the statute given to the judgment debtor, is also given to his successor in interest. Where the redemption is by the debtor (or his successor in interest), the person to whom the payment is made is required to execute and deliver to him a certificate of redemption, acknowledged or proved before an officer authorized to take acknowledgments of conveyances of real property, which certificate must be filed and recorded in the office of the recorder of the county in which the property is situated, and the recorder is required to note the record thereof in the margin of the record of the certificate of sale: Sections 701-2-3, code of civil procecure.

It will be seen therefore that the effect attending a redemption of property, sold subject to redemption, depends upon the character of