with it depends upon the intent to be deduced from all the surrounding circumstances. Id.

14. THE SAME-ASSENT OF GRANTEE.-The assent of the grantee is necessary to the delivery of a deed, whether such delivery is actual or constructive. Id. 15. DELIVERY TO THIRD PERSON-DEED-CONSENT OF GRANTEE-RELATION.-The delivery of a deed to a third person, not authorized by the grantee to receive it, and without his knowledge, can not operate to defeat the rights of creditors of the grantor, attaching subsequent to such delivery, and prior to the time when the grantee manifested his assent, although such deed was beneficial to the grantee. The subsequent assent of the grantee, under such circumstances, does not operate by relation, to pass the title as of the time of delivery to such third person. Id.

16. A DEED TAKES EFFECT ONLY FROM ITS DELIVERY.—If delivery is wanting, the deed is void ab initio. Bank of Healdsburg v. Bailhace et al. (Cal.), III, 149.

17. MARRIED WOMAN'S DEED-ACKNOWLEDGMENT-DELIVERY.-The deed of a married woman, until it is acknowledged and certified according to the formalities prescribed by sections 1186 and 1191 of the civil code, has no validity, and is not in a condition to be delivered and accepted. Id.

18. DELIVERY OF DEED-HANDING DEED TO DIRECTOR OF GRANTEE.-Handing a deed to one of the directors of the grantee, a bank, upon the condition that the same is not to be delivered until certain matters in dispute between the parties to the deed are settled, nor until the depositary is instructed to make such delivery, is not a delivery to the bank, nor can delivery be made until such instructions are given. Id. 19. MARRIED WOMAN'S DEED-ACKNOWLEDGMENT.-The deed of a married woman, acknowledged as the deed of a feme sole, conveys no title, and her subsequent proper acknowledgment of the same will not operate, by relation, to pass title as of the date of the first acknowledgment. Durfee et al. v. Garvey (Cal.), III, 356. 20. SHERIFF'S DEED UNDER VOID JUDGMENT-COLOR OF TITLE. - A sheriff's deed, although given under a void judgment, may give color of title to the purchaser. Packard v. Johnson (Cal.), III, 763; Packard v. Moss (Cal.), III, 769.

21. A QUITCLAIM DEED IS AS EFFECTUAL TO PASS title as a grant or bargain and sale. Such a deed gives color of title. Id.

22. GRANT OF LAND-DESCRIPTION BY GENERAL NAME-EXCEPTION FROM GRANT.A grant of a tract of land with well-known boundaries, designated and known by a general name, passes all the land within the tract so named or designated; and, upon the same principle, where in the grant of a tract of land by metes and bounds there is excepted therefrom a portion of the tract with well-known boundaries, designated by a general name by which it is known, the tract so designated does not pass by the grant. Truett v. Adams (Cal.), IV, 633.

23. DOUBTFUL DESCRIPTION OF PREMISES INTERPRETATION OF.-In determining what land was intended to be conveyed, where the description in the deed is doubtful, it is the duty of the court to assume as nearly as possible the position of the contracting parties, and to question the circumstances of the transaction between them, and then to read and interpret the words which they used in the light of these circumstances. Id.

24. THE SAME EVIDENCE OF ACTS AND DECLARATIONS OF PARTIES.--Where the location of premises intended to be conveyed can be ascertained from the terms used in the instrument or conveyance, neither the acts nor declarations of the parties are admissible to show their understanding of the description contained in the conveyance. But where the terms used to describe the premises meant to be conveyed are equivocal, ambiguous, or insufficient, the subsequent acts of the parties while in in'terest, showing the practical construction put upon the terms of the description by them, may be resorted to for the purpose of ascertaining their intention. And where it is proved that a line has been agreed upon, either expressly or by long acquiescence, as the dividing line between two tracts of land, courts will not disturb the line. Id.

25. GRANT OF A PRIVATE RIGHT TO QUARRY ROCK ON THE GRANTOR'S LAND, with a right of way to and from the quarry for the purpose of its removal, does not give the grantee an exclusive right of possession, or a right to any possession disconnected with the purposes of the grant. Such grantee can not authorize a railroad to occupy such land for the ordinary purposes of its business, and if he does so, the grantor, as the owner in fee of the land, may maintain ejectment against it. Snell v. Wasatch & Jordan Valley Railway Company (Utah), I, 631.

26. ASSOCIATION, MEMBERS OF, AND INTEREST THEREIN.-Where W., by deed, conveyed certain real estate to "an association of persons," without naming all of the persons who composed that association at the date of the deed, the court will, upon issues raised thereon, inquire into and determine who composed the association at the time of the conveyance to it, and the interest which each member of the association took in the property conveyed to the association. Pratt v. California Mining Company (U. S. Cir. Ct., Or.), I, 87.

27. PRESUMPTIONS ARISING FROM A DEED MAY BE OVERCOME by evidence, clear and convincing, contradicting such presumptions. Id.

28. PARTIES, CONDUCT AND ACTION OF.-The contemporaneous and subsequent action of parties in disposing of property in which they are jointly interested, may be considered as illustrating and evincing their understanding of their rights and interests in that property at the time such interests were acquired therein. Id.

29. THE INSERTION OF THE NAME "THOMAS HEPTUM" IN A BOND FOR A DEED signed by Thomas Hepburn is immaterial. Hall v. Rice (Cal.), I, 346.

See BOUNDARIES; BONA FIDE PURCHASER, 2; CONSIDERATION, 1, 2; CORPORATIONS, 11, 18, 19; ESTOPPEL, 3-8; EVIDENCE, 34; FINDINGS, 25; Fraud, 1, 8, 13; GIFT; MORTCAGE, 1-11; OREGON DONATION ACT; TRUSts, 2.

DEFAULT.

1. GRANTEES OF A DEFENDANT IN THE SUBJECT-MATTER OF AN ACTION ARE HIS "LEGAL REPRESENTATIVES," as that phrase is used in section 473 of the code of civil procedure, and as such are entitled to represent him and defend said action in his name. Plummer v. Brown (Cal.), I, 255.

2. SUCH LEGAL REPRESENTATIVES OF A DEFENDANT ARE ENTITLED TO RELIEF from a default taken against their grantor, upon such terms as appear just to the court. Id.

3. THE TAKING OF A DEFAULT AGAINST THE DEFENDANT UPON FAILURE TO PLEAD IS A PRIVILEGE of the plaintiff, and if he chooses to waive it previous to trial it is not a matter of which the party in default can complain, nor can it affect the validity of the judgment. The only purpose of a default is to limit the time during which the defendant may file his answer, and such time never extends beyond a trial and judgment. Manville v. Parks (Col.), I, 603.

See DEMURRER, 17; Pleading and Practice, 62; Remittitur, 1.

DELAY.
See EQUITY.

DELINQUENT TAXES.

See APPEAL, 77; CORPORATIONS, 58-60; TAXATION, 55.

DELIVERY.

See RELEASE.

DEMAND.

See INSOLVENCY, 10; REPLEVIN.

DEMURRER.

1. DEMURRER TO SEPARATE ALLEGATIONS IN PLEADING.-Disconnected averments in a pleading can not be separately demurred to. Herefort v. Cramer (Cal.), IV, 229. 2. A DEMURRER MUST BE DIRECTED TO THE WHOLE OF A PLEADING, or to a particular and separate statement of a cause of action or defense. It can not be directed to certain lines thereof. Locke v. Peters (Cal.), II, 725.

3. THE DEMURRER TOO BROAD.-When a complaint states a cause of action, some part of which is barred and some not barred, a demurrer to the whole complaint, on the ground that it does not state facts sufficient to constitute a cause of action, should be entirely overruled. Clark v. Smith (Cal.), IV, 91

4. DEFENDANT IN DEMURRING TO A COMPLAINT FOR FAILURE TO STATE FACTS SUFFICIENT to constitute a cause of action, and specifying in his demurrer certain grounds of insufficiency, can only rely upon the defects specified. It is otherwise if the demurrer is general, and without specification. Lopez v. Central Arizona Mining Co. (Ariz.), I, 41.

5. OBJECTION THAT AN ANSWER DOES NOT CONTAIN FACTS SUFFICIENT to constitute a defense may be made in the supreme court for the first time. If, however, the answer contains any defense, the objection must be overruled. Caldwell v. Ruddy (Idaho), I, 295.

6. OBJECTION THAT AN ANSWER CONTAINS INCONSISTENT DEFENSES CAN NOT BE MADE by demurrer, but by motion to strike out or to require the defendant to elect upon which he will stand. Id.

7. OBJECTION RAISED TO A COMPLAINT BY DEMURRING for a misjoinder of causes of action is waived by answering. Hammersmith v. Avery (Nev.), I, 662.

8. MISJOINDER OF CAUSES OF ACTIONS AND OF PARTIES ARE WAIVED unless objection thereto be taken by demurrer. Learned v. Castle (Cal.), III, 154.

9. DEMURRER-JOINDER OF CAUSES OF ACTION.-An objection that two causes of action are improperly united in one count can not be raised by demurrer. Bernero v. Insurance Cos. (Cal.), III, 292.

10. DEMURRER-MISJOINDER OF DEFENDANTS-IMMATERIAL ERROR.-Where certain persons are made defendants in an action to foreclose a mortgage, on the ground that they claim some right or interest in the land subsequent to the lien created by the mortgage, and they demur because of their misjoinder, the action of court in overruling such demurrer, although erroneous, will not warrant a reversal, if the court finds that they had not acquired any rights in the mortgaged premises. Watt v. Wright (Cal.), IV, 622.

11. DEMURRER TO COMPLAINT-MISJOINDER OF DEFENDANTS.-A demurrer to a complaint on the ground of a misjoinder of parties defendant should be disregarded, unless it specifies in what the misjoinder consists, and which of the defendants are misjoined." Irwin et al. v. Wood et al. (Col.), IV, 212.

13. JOINDER OF DEFENDANTS SEVERALLY LIABLE FORM OF JUDGMENT.-Under section 13 of the code of civil procedure several promisors under a written contract, who promise to do certain acts, "each for himself and not for the others," may be joined in an action for a breach of such contract. The judgment in such action should be entered against the defendants severally, in proportion to their respective liabilities. Id.

14. JOINDER OF DEFENDANTS--INCONSISTENT DEMURRERS.-A defendant having demurred to a complaint, on the ground that his co-defendant was improperly joined, can not, after the complaint has been amended by omitting such party, demur thereto, on the ground that he should have been joined.-James v. Leport (Nev.), IV, 584.

15. QUESTION AS TO THE SUFFICIENCY IN LAW OF AN ANSWER IS RAISED by the filing of a demurrer to a replication. Brown v. Tucker (Col.), I, 489. 16. PLEADING.-When a special count of the declaration has been demurred to, and the demurrer sustained, and the plaintiff has thereupon filed other amended counts, upon which issue has been joined, it is error for the trial court, against an objection by the defendant, to submit to the jury any issues as arising on such original count, to which a demurrer had been sustained. Luna v. Mohr (Ñ. M.), I, 673. 17. OVERRULING DEMURRER-NOTICE OF APPEAL-DEFAULT JUDGMENT.-Failure of the plaintiff to notify the defendant of the overruling of his demurrer can not be taken advantage of by the latter on an appeal from a judgment against him, entered upon his default. Such error can only be reviewed upon an appeal from an order denying the defendant's motion to set aside the default. Baily v. Sloan (Cal.), III, . 18. DEMURRER TO COMPLAINT OBJECTION TO OVERRULING, WHEN NOT WAIVED.-A plaintiff does not waive his objection to a wrongful ruling of the court in sustaining a demurrer to his complaint, by filing an amended complaint, when, in consequence of such ruling, judgment is given for the defendant. Wood v. Mastick (Wash.), II, 549.

295.

19. OVERRULING DEMURRER-TIME TO ANSWER.-During the term the court may limit the time in which the defendant may answer, after a demurrer to the complaint has been overruled, to two days. De Walt v. Hartzell (Col.), IV, 572.

20. DEMURRER TO THE COMPLAINT HELD PROPERLY OVERRULED. Samuels v. Younger · and Wife (Cal.), IV, 614.

DIGEST I-IV. 5

21. DEMURRER HELD PROPERLY OVERRULED, and no error in refusing to set aside the judgment. McCormick v. Fitzpatrick et al. (Cal.), IV, 614.

22. JUDGMENT REVERSED, WITH DIRECTION TO SUSTAIN THE DEMURRER.

v. Mason et al (Cal.), III, 30.

McFadden

See APPEAL, 52, 84; CRIMINAL LAW AND PRACTICE, 7, 33; DENVER TOWN SITE; EMINENT DOMAIN, 5; FRAUD, 13-15, 19; GUARDIAN AND WARD, 1; JUDGMENT, 61; PLEADING AND PRACTICE.

DENVER TOWN SITE.

1. TITLE TO A LOT IN THE ORIGINAL TOWN SITE OF THE CITY OF DENVER, entered by James Hall, probate judge of Arapahoe county, on May 6, 1865, by virtue of the act of congress for the relief of the citizens of Denver, approved May 28, 1864 (13 Stats. at Large, 94), can be acquired only in the manner designated by such act and by the territorial acts carrying the same into effect. Downing et al. v. Bartels (Col.), II, 506. 2. THE SAME-VALIDITY OF DEED FROM PROBATE JUDGE-ATTACK ON.-The validity of a deed to a portion of such town site, executed by the successor in office of such probate judge, in pursuance of the territorial act of February 8, 1872, can not be attacked in a strictly legal action of ejectment, by evidence showing that the preliminary steps and conditions required to a valid conveyance had not been complied with by the grantee prior to the execution of the deed, when the deed is regular upon its face and purports to have been executed to the person found to be entitled thereto under the laws of congress and statutes of Colorado, and by the officer intrusted by the government with the legal title, and duly authorized to convey. In executing the authority vested in him by such act, the probate judge exercises judicial functions, and his voidable acts can only be impeached in direct proceedings to set them aside. Id.

See DEDICATION, 5.

DEPOSIT.

See PLEDGF, 3, 4; STATUTE OF LIMITATIONS, 13, 14; TAXATION, 51.

DEPOSITIONS.

1. SUBPOENAS ISSUED BY A NOTARY PUBLIC IN PROCEEDINGS BEFORE HIM, to take the depositions of witnesses, can not be quashed by the court on the ground that the affidavit upon which they were issued was not sufficient. Pfister v. Superior Court (Cal.), 1, 134.

2. PARTY DESIRING HAS THE RIGHT TO TAKE DEPOSITIONS, and the adverse party may object to them when the same are offered in evidence, if the proceedings are irregular. Id. 3. DEPOSITIONS TAKEN IN AN ACTION IN ANOTHER COURT BETWEEN THE SAME PARTIES, and in regard to the same subject-matter, are admissible in evidence upon parol proof of the existence of such former action. Ayers v. Chisum (N. M.), I, 520.

4. DEPOSITION-ADMISSIBILITY OF, AT SUBSEQUENT TRIAL.-A deposition taken pending the action is admissible at the trial thereof, although subsequent to the taking of such deposition the complaint has been amended, provided the subject-matter of the action and the issues therein have remained substantially the same. Anthony et al. v. Savage (Utah), II, 674.

DETAINER.

See FORCIBLE ENTRY AND DETAINER.

DEVISE.

See WILLS.

DIRECTORS.

See CORPORATIONS.

DISBURSEMENTS.

See COSTS.

DISCHARGE OF MORTGAGE.

See MORTGAGE.

DISCLAIMER.

See PLEADING AND PRACTICE.

DISMISSAL OF ACTION.

1. DISMISSAL OF ACTION-ANSWER CLAIMING AFFIRMATIVE RELIEF.-A plaintiff can not, of his own motion, dismiss, before trial, an action in which the answer of the defendant claims affirmative relief. Thompson et al. v. Spray (Cal.), III, 433. 2. A PLAINTIFF CAN NOT DISMISS his action where the answer prays for affirmative relief. Robinson v. Placerville and Sacramento R. R. Co. (Cal.), III, 23.

DISMISSAL OF APPEAL.

See APPEAL, 75-96; Judgment, 18.

DISQUALIFICATION OF JUDGE.

See JUDGE, 1; VENUE, 14, 17.

DISTRICT ATTORNEYS.

See TAXATION, 70.

DISTRICT COURT.

See ARREST AND BAIL, 6.

DITCH.

See DEDICATION, 5; Nuisance, 18.

DIVORCE.

1. LEGISLATIVE DIVORCE-VALIDITY OF.-The territorial legislature of Oregon had power, under the organic act of congress creating the territory, to grant special divorces. The exercise of such power is not in conflict with the provision of the United States constitution prohibiting states from passing laws impairing the obligations of contracts; nor by the last clause of article 2 of the ordinance of 1787 for the government of the terrritory north-west of the river Ohio, providing "that no law ought ever to be made or have force in said territory that shall in any manner whatsoever interfere with or affect private contracts or engagements, bona fide and without fraud previously formed;" nor by article 4 of said ordinance prohibiting the territorial legislatures from interfering "with the primary disposal of the soil by the United States in congress assembled, nor with any regulations congress may