(the principal in said undertaking) agrees to furnish to these plaintiffs certain Texas land-warrants for three thousand two hundred (3,200) acres of land; said war. rants to be of the nature and character more particularly specified in said undertaking, (and to be deposited by said defendant Jones on or before the 1st day of April, A. D. 1881, at the banking-house of John Bremon, in the city of Austin, in said state of Texas.) That the condition therein specified, to-wit, the deposit of said Texas land-warrants, has not been fulfilled and carried out by said defendant Jones, or by any of or either of said defendants, and said defendant Jones has wholly failed and neglected to comply with the said condition on or before said 1st day of April, 1881, or at any time, and still fails and neglects to comply with the same. That by reason of the neglect and refusal of said defendant Jones to comply with the condition of said undertaking, as aforesaid, there was and became due on, to-wit, the 2d day of April, A. D. 1881, to these plaintiffs from these defendants, under and by the terms of said undertaking, the sum of $4,800, which sum, or any part thereof, the said defendants then, and ever since then, have wholly failed and refused to pay, and still so fail, neglect, and refuse. Wherefore plaintiffs pray for judg ment against said defendants in the sum of $4,800, and for their costs. " The bond mentioned therein is as follows: Know all men by these presents, that we, C. J. Jones, and J. C. Fisk and J. C. Beatty as sureties, parties of the first part, are held and firmly bound unto Wm. Rayner and Maggie Rayner, his wife, of the city of San Francisco, state of California, party of the second part, in the sum of four thousand eight hundred ($4,800) dollars, gold coin of the United States of America, to be paid to the executors, administrators, or assigns, for which payment well and truly to be made we biud ourselves, heirs, executors, administrators, firmly by these presents. Sealed with our seals, and dated the eighth day of February, A. D. one thousand eight hundred and eighty-one. The condition of the above obligation is such that, whereas, the party of the first part has sold to the party of the second part Texas land-warrants for three thousand two hundred (3,200) acres, and has received payment in full, except three hundred and fifteen ($315) dollars, which is secured by promissory note made and executed by Wm. Rayner and Maggie Rayner, his wife: Now, the party of the first part agrees to furnish Texas landwarrants for the above number of acres; said warrants to be of such a series that they can be located upon any of the unlocated public lands of the state of Texas; said warrants to be free from all liens, incumbrances, and transfer fees, and depos ited with the banking-house of John Bremon, in the city of Austin and state of Texas, and to be held by him until the said note of three hundred and fifteen ($315) dollars is paid. The said warrants and note to be deposited by the party of the first part on or before the first day of April, A. D. 1881, at said banking-house, and the said Rayner to have any time there

after, and before the first day of January, A. D. 1882, to pay said note, and secure the transfer of said warrants. Now, if the said Jones shall well and truly deliver said warrants on or before the first day of April, A. D. 1881, then the above obligation to be void; otherwise, to remain in full force and virtue." A demurrer was interposed to the complaint, and overruled. A motion for a nonsuit was made, and denied. The cause was then tried, aud resulted in a judgment for the plaintiffs in the sum of $1,350 and costs.

Sec

A notice of motion for a new trial was served and filed in due season, and upon the hearing of the motion the trial court dismissed it, upon the theory, evidently, that, as the judgment made and entered had been appealed from when the motion for a new trial came on for hearing, the court below had lost jurisdiction to determine it. This view of the matter is untenable, and the court should have heard the motion, and either granted or denied it, upon the bill of exceptions presented, which is a part of the record here on the appeal from the order of dismissal; the action of the court being, in legal effect, a denial of the motion for a new trial. tion 946, Code Civil Proc.; Naglee v. Spencer, 60 Cal. 10; Hayne, New Trials, § 2, p. 26; Carpentier v. Williamson, 25 Cal. 167, 168; Hayne, New Trials, p. 494; Chase v. Evoy, 58 Cal. 352. The case, then, is to be considered here as on appeal from the judgment and an order denying a new trial. As against the demurrer as filed, we think the complaint sufficient, although a special demurer to it, as not properly alleging damages suffered, might have been sustained. After making certain findings of fact based upon evidence adduced on the trial, the court reached the conclusion of law that the plaintiffs should recover "the value of equity, over and above the mortgage, on the real estate in San Francisco, conveyed by the plaintiffs to defendant Jones, which was $1,000; also the value of the San Diego lot, amounting to $350,-making, in all, $1,350,-with interest from commencement of the suit." And the judgment of the court rendered thereupon went upon the idea that Jones and his sureties were responsible to the plaintiffs, by the terms of this bond, for the nondelivery of the warrants, to the extent of the difference between the value of certain real estate not mentioned or referred to in the bond sold and conveyed to defendant Jones, and the mortgage thereon, made before that time in favor of other parties, which Jones had assumed to pay as a part of the purchase price. This contract did not assume to fix the amount of damage in anticipation of a breach of the obliga. tion of the instrument, as condemned by section 1670 of the Civil Code; nor does it appear from it, or the evidence, that it would be impracticable or extremely difficult to fix the actual damage as allowed by section 1671 of the Civil Code.

The court below, as we think, improperly admitted evidence against the objection of the defendants, and made findings thereon upon the theory that the measure of damages recoverable for the failure to deliver the warrants at the time and place

specified in the bond was the difference between the value of certain real property which the plaintiffs had sold and deeded to the defendant Jones (which was the origin of the execution of the bond) and the amount of a certain mortgage debt existing as against a portion of the property conveyed; that is, the sum of $1,350. It is found, upon sufficient proof, in the twelfth and thirteenth findings of fact: "That on the 1st day of April, A. D. 1881, and for several months thereafter, the market value of land-warrants specified in finding 7th have been $47.50 each at Austin, Texas, and readily obtainable in and on the market at said city of Austin, Texas, at said price of $47.50 each, on said 1st day of April, A. D. 1881, and at any time for and during the several months thereafter, if they had seen fit so to do. "That said warrants set out in finding No. 7 are of the same class and kind that the defendant Jones was to deliver to the plaintiffs, under the terins of said undertaking, and that they are and were free from all liens and incumbrances and transfer fees, and are and were of the character to be delivered by said Jones to said plaintiffs; that each warrant is locatable on 640 acres of land, on the conditions in said warrant specified." It would appear, therefore, that the measure of damages recoverable in the action was the value of the warrants as specified in the twelfth finding, viz., $237.50, with legal interest on same from the time when they should have been deposited according to the terms of the bond, subject to a reduction of $315 for amount due on the note. As it appears that the trial court erroneously measured the damages by a different rule, to the manifest prejudice of the appellants, the judgment and order should be reversed, and the cause remanded for a new trial.

2. A deed of trust purporting to be signed by the trustee is not affected by his failure to sign it, if his signature formed no element of the consideration for the signatures of the other parties, and the deed expressly provides that it shall be binding regardless of the trustee.

3. A judgment rendered in one state appointing a trustee to enforce a trust for the conveyance of land situated in another state will not be reversed on the ground that a third person, to whom the donor conveyed the land after his execution of the deed, was not made a party, if it does not affirmatively appear that such party was a resident of the state in which the court had jurisdiction.

Department 1. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge.

Whittemore & Sears and James G. Maguire, for appellants. James L. Crittenden, for respondent.

GAROUTTE, J. Respondent filed his complaint in equity to appoint a trustee, and to have the execution of a trust relating to certain lands in Washington Territory decreed. The complaint filed May 23, 1885, alleges that on July 27, 1881, said Smith and Davis executed and delivered each to the other a certain document, purporting. to be an "indenture tripartite," whereby they purported to convey said land to the London & San Francisco Bank, Limited, (a corporation) in trust for certain specified purposes; that by the terms of its charter said bank was incapable of taking the title sought to be conveyed by the indenture, and was without power to act as trustee in the indenture specified; that defendant Davis refused to regard and carry out the conditions of the indenture; and plaintiff asks that the court appoint a trustee, and that the said trustee be directed to execute the trusts therein contained. Defendants filed a general demurrer, which was overruled, when defendant Davis answered, setting out, among other things, that after the filing of the complaint in this action be sold and transferred all his interest and right in the land described to one Margaret H. McDonald, and that since that time he has had no interest in and to said real estate. The defendant bank answered that it had no legal capacity to take the title sought to be conveyed; never consented to act as trustee, and refused so to act. The findings of the court are in consonance with the allegations of the complaint; and the court also found that defendant Davis had transferred his interest as set forth in his answer. This appeal is from the judgment appointing a trustee, and directing an execution of the trust.

Appellants insist that the court had no jurisdiction or authority to appoint or constitute a trustee of land lying outside of the territorial limits of the state of California. There is no question as to the general principle of law that in respect to realty every attempt of any foreign tribunal to found a jurisdiction over it must, from the very nature of the case, be utterly nugatory; for land is held by the laws of the country where it is situated, and the tribunals administering those laws are the proper forums in which titles to realty should be litigated. The effect of a court's decree is necessarily limited by the boundary lines of its jurisdiction. In the case of Lindley v. O'Reilly, 50 N. J. Law, 636, 15 Atl. Rep. 379, where a court of Pennsylvania adjudged a conveyance of land in New Jersey to be a mortgage, and canceled the same, all the parties living in Pennsylvania, the court said: "The decree cannot operate ex proprio vigore upon the lands in another jurisdiction to create, transfer, or vest a title. The courts of one state or country are without jurisdiction over title to lands in another state or country." While the rule

should apply to and be binding upon such trustee. There can be no question but that this indenture is still alive and in full force and effect as between the plaintiff and defendant Davis, for they expressly provided that such should be the fact.

Upon a careful reading of the decree of the court we find it simply appoints a trustee, and commands him to enforce the trust; there is nothing contained therein purporting or attempting to transfer title to or vest title in the trustee appointed by the court. If title to the Washington Territory realty does not vest in the trustee, then appellant is not injured, and his contention has no support. If the title to this realty does vest in the trustee, it must be by operation of law or by virtue of the contract of the parties, for the decree does not so provide, and does not purport ex proprio vigore to vest a title in the trustee Brittan. In this case the trust did not fail, as between the parties, by reason of the incapacity and refusal of the original trustee to act. "The assent of the trustee is not necessary to the validity of the trust-deed. He may refuse to act, be unable to comply with the statute, or die, and in such or similar cases a court of chancery will execute it." Furman v. Fisher, 4 Cold. 630 Field v. Arrowsmith, 39 Amer. Dec. 185, and note; Flint, Trusts, § 132. In Vidal v. Girard's Ex'rs, 2 How. 188, Justice STORY said: "It is true that, if the trust be repugnant to or inconsistent with the proper purposes for which the corporation was created, that may furnish a ground why it may not be compellable to execute it, but that will furnish no ground to declare the trust itself void, if otherwise unexceptionable; but it will simply require a new trustee to be substituted by the proper court possessing equity jurisdiction to enforce and perfect the objects of the trust. This will be sufficiently obvious upon an examination of the authorities, but a single case may suffice. In Sonley v. ClockMakers' Co., 1 Brown Ch. 81, there was a device of freehold estate to the testator's wife for life, with remainder to his brother C. in tail male, with remainder to the Clock-Makers' Company in trust to sell for the benefit of testator's nephews and nieces. The devise, being to a corporation, was by the English statute of wills void, that statute prohibiting devises to corporations; and the question was whether, the devise being so void, the heir at law took beneficially or subject to the trust. Mr. Baron Eyre in his judgment said that, although the devises to the corporation be void at law, yet the trust is suficiently created to fasten itself upon any estate the law may raise.' This is the ground upon which courts of equity bave decreed in cases where no trustee is named."

The objection to the complaint that it is fatally defective in this: that it shows affirmatively that the indenture or deed of trust was intended to be signed by three parties, and was signed by only two,-cannot be sustained. The signature of the party of the third part formed no element of the consideration for the signature of the other two parties, and

they expressly agreed that the indenture should be binding as between them, regardless of the third party.

The appellant insists that the judgment should be reversed because Margaret H. McDonald is not made a party defendant in this action. If said Margaret was a resident of the state of California when the answer was filed, we are at a loss to understand why she was not joined as a co-defendant, either upon the application of one of the parties or upon motion of the court. In order for appellant to suc cessfully maintain his position he must show affirmative error, and in this case he has not shown by the record that she was a resident of the state of California, and therefore that the court had the power to order her joined as a defendant. We are not called upon to determine to what extent Margaret H. McDonald's interests have been adjudicated in this action. Respondent's position is that, owing to the fact she had notice of the recordation of the indenture in Washington Territory, and also purchased the land from appellant after the commencement of this action, that, therefore, she is bound in all respects by the judgment, to the same ex. tent as if she were a party defendant. In this action no lis pendens was filed; indeed, it is quite difficult to see how or where one could have been filed to have had any vitality or effect. In this state the act of filing a complaint is no notice to the world of the matters contained therein, and, said Margaret having no actual or constructive notice of the proceedings at the time she purchased the realty, it is difficult to discern how she is in any worse position by reason of hav ing purchased after the filing of the complaint than if she had purchased prior to that event. Again, the fact that she pur chased with notice of the indenture of trust did not give the trial court the right of jurisdiction to litigate her title to the land. Appellant in making a deed to her undoubtedly repudiated the entire theory of trust, and she has probably bought and now holds in hostility to the trust; the question of her title is a matter to be hereafter considered in locus rei sitæ.

But, aside from all these considerations, how is the defendant injured by the fact of not having the company of this lady as a codefendant during the progress of the liti gation? and, if her company, aid, and as. sistance were necessary to the best welfare of his interests in the cause, why did he not ask the court to have her joined with him? The court is expressly authorized by statute to make such order in a proper case. What is appellant's cause of complaint? If he has no interest in the subject-matter of this litigation, why did he not file a disclaimer in the lower court, and thus rid himself of the vexations of the law, and thereby escape a judgment against him for costs? If he has any interests which are affected by the judgment in this cause, he has had his day in court, and was held to be in the wrong. Why should he demand a new trial because a third party bad interests which were not litigated? If the plaintiff has secured a judgment against the wrong party, he has

done an idle thing, and his sins rest on his own head. We think the appellant should not be heard to insist upon a reversal of the judgment upon the last ground considered. Let the judgment be affirmed.

We concur: BEATTY, C. J.; HARRISON, J.

(90 Cal. 95)

SMITH et al. v. BUTTNER. (No. 13,241.) (Supreme Court of California. June 30, 1891.) NEGLIGENCE DEFECTIVE PREMISES - PLEADING.

In an action for personal injuries, the complaint alleged that, while plaintiff was in possession of defendant's house as tenant, he raised it, and failed to provide safe or suitable means of exit therefrom; that, by reason of his negligence in failing to provide safe and proper means of exit, plaintiff, in attempting to descend to the ground from the house, fell, and was injured. Held, that the complaint did not state a cause of action, since it did not show whether the cause of the accident was a latent or patent defect.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; JOHN F. FINN, Judge.

Joseph Leggett, for appellants. Otto Tum Suden, for respondent.

TEMPLE, C. This appeal is on the judgment roll from a judgment against the plaintiffs on the pleadings. The plaintiffs are husband and wife, and the action is brought to recover damages for injuries received by the wife. Plaintiffs were occupying a house belonging to defendant as a residence, being his tenants from month to month. The complaint shows that some time prior to June, 1887, while plaintiffs were in possession as tenants, defendant caused the dwelling-house to be raised some six or seven feet; that plaintiffs continued to reside in the house after it had been raised, and to pay rent to defendant as before: that after raising the house, and while plaintiffs and their family were living in it, defendant wholly failed and neglected to provide any safe and proper means of entrance to or egress from the house, and, "by reason of the negligence and failure of defendant to pro vide safe, suitable, or proper means of exit from said house, said plaintiff Dora Smith, on said 30th day of June, 1887, in endeavoring to descend from said house to the ground, for a proper and lawful purpose, while in the exercise of due care and diligence, and without any fault or negligence on her part, fell to the ground, and dislocated her left wrist, and broke the bone of her left arm near the wrist, and sustained other severe and painful injuries," etc. To this complaint the defendant answered, specifically denying every allegation, except as to the relation of landlord and tenant. A jury being impaneled for the trial of the cause, plaintiff Dora was sworn as a witness, and her testimony taken. Thereupon counsel for the defendant moved for judgment on the pleadings, and the motion was granted.

It is manifest from the the complaint that the injury to plaintiff Dora did not occur while the work of raising the house

was in progress. The complaint fails to show how long before the injury it was since defendant had been engaged in the work, but it is averred that they continued to occupy the house after it had been raised, and paid rent as before, and that the injury occurred after. The negligence consisted simply in failing to provide a safe, proper, and suitable means of entrance to or egress from the house, and it is alleged that this negligence caused plaintiff to fall. But no fact is averred which shows that such negligence had anything to do with the accident. How did it cause her to fall? It may have been because defendant neglected to provide any means of egress whatever, or through some patent defect in the plan of the contrivance, whatever it was. In such case plaintiff could not recover in this action. Sieber v. Blanc, 76 Cal. 173, 18 Pac. Rep. 260. It may have been, consistently with this general statement, because the structure was insufficiently secured, and therefore gave way, although properly used. In such case, perhaps, plaintiffs might recover. Such complaint does not state the facts constituting plaintiffs' cause of action. It is well settled that negligence may be charged in general terms; that is, what was done being stated, it is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent. But it must appear from the facts averred that the negligence caused or contributed to the injury. To illustrate: Suppose a plaintiff injured by the falling of a sign, negligently and insecurely fastened by defendant. It would not suffice for him to allege the negligence in hanging the sign; that plaintiff, in lawfully and without negligence passing under it, was thrown down and injured through such negligence. This would be a mere assertion of the cause. It would be necessary to show that the sign fell upon him in consequence of such negligence, thereby causing his injury. Such a complaint would, however, be less objectionable than this now under consideration, for there would be but one conceivable way in which the injury could be supposed to result from the negligence; but, as here, that the negligence was the cause would rest upon the naked assertion as to causalty, and would not appear through the statement of a fact. In construing pleadings before judgment, it is presumed the pleader has stated his case in the most favorable manner to himself possible. As we have seen, it is entirely consistent with the allegations of this complaint to suppose the injury occurred because defendant neglected to provide any mode of egress whatever. We are not at liberty to suppose anything gave way through the latent insecurity of the structure, for it is not so alleged. The presumption is, therefore, that the accident arose from a patent defect, and that the pleader has failed to make a more specific statement, because such a statement would have weakened his case. We think the judgment should be affirmed.