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PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed.

(90 Cal. 64)

DORE V. THORNBURGH. (No. 13,477.) (Supreme Court of California. June 30, 1891.) ACTION ON FOREIGN JUDGMENT-PLEADING-LIM

ITATIONS.

1. A complaint, in an action on a judgment given against defendant in a foreign court, which alleges that, in the action in which the judgment was obtained, plaintiffs signed final judgment for £3,920, "which said judgment was then and there duly given, made, and entered," is not demurrable on the ground that it does not aver that the court ever made or gave the judgment.

2. Code Civil Proc. Cal. § 339, requiring to be brought within two years an action upon a contract, obligation, or liability, founded upon an instrument of writing "executed" out of the state, does not apply to actions on a foreign judgment, but such action is within section 343, providing that "an action for relief not hereinbefore provided for must be brought within four years after the cause of action shall have accrued. "

Commissioners' decision. Department 2. Doyle, Galpin & Zeigler, for appellant. T. 1. Bergin, for respondent.

FITZGERALD, C. Appeal from a judg ment of the superior court of the city and county of San Francisco. This action was commenced by plaintiff on the 4th day of October, 1888, to recover upon a judgment given against the defendant on the 9th day of May, 1885, in the queens' bench division of the high court of justice in England. The complaint is demurred to on the grounds: (1) That it does not state facts sufficient to constitute a cause of action; (2) that the alleged cause of action is barred by the provisions of section 339 of the Code of Civil Procedure. The demurrer was sustained by the court below, and, upon plaintiff failing to amend the complaint, judgment final was rendered in favor of defendant. The appeal is taken upon the judgment roll alone.

The objection raised under the first ground of demurrer-that there is no averment in the complaint that the court ever made or gave the alleged judgmentis not well founded. The complaint alleges "that thereafter, to-wit, upon the 9th day of May, 1885, the said plaintiffs signed final judgment in the said action for the said sum of £3,920, in accordance with the terms of the said order, and which said judgment was then and there duly given, raade, and entered." This allegation we think sufficient, as against a general demurrer.

Under the second ground of demurrer, the question presented for our determination is whether this action, which is founded upon a judgment rendered by an English tribunal, is barred by the statute of limitations within two years. Subdivision 1. § 339, Code Civil Proc., upon which respondent relies in support of her contention that the action is barred within that time, reads as follows: "An action upon a contract, obligation, or liability, not founded upon an instrument of writing, or founded upon an instrument of writing executed out of the state." That the judgment herein is not such an instru

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ment in writing (Patten v. Ray, 4 Cal. 287) is evident from the use here made of the word "executed," which must be construed to apply to the act of the party sought to be charged. But it is a contract in writing in the full sense of the term "contract or obligation, as employed by our statute, (Stuart v. Lander, 16 Cal. 375; Reed v. Eldredge, 27 Cal. 346; Wallace v. Eldredge, Id. 498; Bean v. Loryea, 81 Cal. 152, 22 Pac. Rep. 513;) and, as such, is not embraced in the two-years limitation prescribed by the provisions of that subdivision of the section. Section 343, Code Civil Proc., (“An action for relief not herein before provided for must be commenced within four years after the cause of action shall have accrued, ") was construed by this court in Piller v. Railroad Co., 52 Cal. 42, (which was an action for damages for injuries caused by the alleged negligence of the defendant,) to apply "to all suits in equity not directly of concurrent cognizance in law and equity," and that the two-years limitation found in the first clause of the first subdivision of section 339 is applicable to all actions at law not specifically mentioned in other portions of the statute." In Lux v. Haggin, 69 Cal. 269, 10 Pac. Rep. 674, which was an action for equitable relief, its meaning was extended so as to embrace "all suits in equity as well as at law." And, while we do not think that the construction put upon this section was necessary to the decision of either case, we are satisfied with the reasoning and the conclusion reached in the latter, and regard it as the correct interpretation of the intention of the legislature as there expressed.

We are therefore of the opinion that this action, which is not specifically provided for by any other section of the statute of limitations, falls within the meaning of section 343; and, as it was commenced within the period of time therein prescribed, it follows that the court below erred in sustaining the demurrer. We advise that the judgment be reversed, with directions to the court below to overrule the demurrer.

We concur: FOOTE, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is reversed, with directions to the court below to overrule the demurrer.

ALLEN V. ALLEN et al. (No. 13,005.) (Supreme Court of California. June 30, 1891.) MORTGAGES-REDEMPTION CONFLICT OF LAWS

LIMITATIONS-PLEADING.

1. Appellant caused land in California to be conveyed absolutely to respondents as security for a loan made in New York, of which state all were residents. After respondents' right to sue for the money loaned was barred in New York, appellant sued in California to redeem. Held that, as respondents' right of action for the loan was barred in New York, a suit by them to foreclose the mortgage was barred in California, under Code Civil Proc. Cal. § 361, which provides that when a cause of action has arisen in another state, and by the laws thereof an action cannot be maintained by reason of the lapse of time, an

action cannot be maintained against him in California, except in favor of one who has been a citizen of California. The right to foreclose being barred in California, the right to redeem was barred also.

2. The time for redemption from a mortgage is fixed by the laws in force at the time the mortgage is given, and cannot be extended by subsequent legislation.

3. Persons entering into a contract, relying on a decision of the supreme court, are bound in the performance thereof by the law as declared by a subsequent decision of the same court overruling the former decision as erroneous.

4. Under Code Civil Proc. Cal. § 458, providing that in pleading the statute of limitations it is not necessary to state the facts showing the defense, but it may be generally stated that the cause of action is barred by a certain section of the Code, and, if such allegation be controverted, the party pleading must establish the facts showing the bar, a plea of the statute of limitations to a cause of action which arose in another state need not allege facts to show that the cause of action arose in that state, and under the laws of that state is barred by the statute of limitations.

Department 1. Appeal from superior court, Humboldt County; J. J. DE HAVEN, Judge.

J. N. Gillett and E. W. Wilson, (Stanley, Stoney & Hayes, of counsel,) for appellant. Chamberlin & McGowan and S. M. Buck, for respondents.

PATERSON, J. Appellant received from the state a certificate of purchase for the lands described in the complaint on March 28, 1860, and in August following assigned the same to one Collins to secure an indebtedness of $30, and thereafter a patent was issued from the state to Collins. Appellant paid Collins the amount due him; and the latter, by request of appellant, conveyed the land to John H. Allen, who paid no consideration therefor. Respondents thereafter advanced to the appellant certain sums of money for the payment of taxes which had become delinquent, and, to secure the repayment to them of said sums the appellant, on June 12, 1869, caused said John H. Allen to convey the lands to them as security for the repayment of the money they had advanced. This deed was absolute in form. John H. Allen received no consideration for the deed. Neither of the parties has ever been in actual possession of the land. The contract of loan was oral, and no time was fixed in which appellant was to make repayment. Plaintiff never made any demand for an accounting, or any offer to redeem, prior to the year 1885, and defendants did not prior to that time assert any claim of title to the lands adverse to plaintiff's right to a reconveyance upon payment of the indebtedness. This action was commenced March 15, 1887. The court below rendered judgment for the defendants. A motion for a new trial was denied, and plaintiff appealed from the order, and from the judgment.

1. The court below held that plaintiff's cause of action was barred by the provis. ions of section 361, Code Civil Proc. That section provides: "When a cause of action has arisen in another state or in a foreign country, and by the laws thereof an action thereon cannot be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained

against him in this state, except in favor of one who has been a citizen of this state, and who has held the cause of action from the time it accrued." It is claimed by appellant that under that section it was incumbent on respondents to set out the facts upon which they rely, to show that the cause of action arose in the state of New York, and that under the laws of that state it was barred by the statute of limitations. A complete answer to this contention is found in section 458, Id., which provides: "In pleading the statute of limitations, it is not necessary to state the facts showing the defense, but it may be generally stated that the cause of action is barred by the provisions of section [giving the number of the section and subdivision thereof, if it is so divided, relied upon] of the Code of Civil Procedure; and, if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred." The rule thus established was intended to simplify the form of pleading such defenses, and is one which the court cannot depart from on a conjecture that the legislature intended to except from its operation cases of this kind. The contract was made in New York, where all the parties resided, and neither of them was in this state thereafter until the year 1885; and it is claimed by appellant that under sections 346, 351, Id., and 2903, Civil Code, the respondents right to foreclose their mortgage was not barred at the date of the commencement of this action; that appellant remained the equitable owner of the property, and his right to redeem was kept alive. Those sections read as follows: "Sec. 346. An action to redeem a mortgage of real property, with or without an account of rents and profits, may be brought by the mortgagor, or those claiming under him, against the mortgagee in possession, or those claiming under him, uniess he or they have continuously maintained an adverse possession of the mortgaged premises for five years after breach of some condition of the mortgage." "Sec. 351. If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited after his return to the state; and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action." "Sec. 2903. Every person, having an interest in property subject to a lien, has a right to redeem it from the lien at any time after the claim is due, and before his right of redemption is foreclosed." Civil Code. In support of this contention, counsel for appellant say, in substance: "Respondents' action to foreclose could have been brought only in this state. The word 'return,` as employed in section 351, supra, is applicable to persons coming from abroad, as well as to citizens who have left the state for a temporary purpose, and returned thereto. The statute had not commenced to run in 1885, because the respondents had never been in the actual occupancy of the premises. Section 2903, Civil Code, and section 346, Code Civil Proc., provided

rules of limitation different from those which had previously been followed by the courts of this state, and those new rules are applicable to mortgages made before, as well as those made after, the adoption of the Codes, unless the remedy was extinguished at the time the Codes took effect. Respondents were not only mortgagees, but trustees, of appellant; and the statute could not commence to run in their favor until an offer to redeem was made by appellant. There could be no laches on the part of appellant, because the legal title remained in him, and no adverse claim was made by respondents." These contentions cannot be lightly passed over. They deserve to receive, and they have received, our careful consideration.

In the solution of the question presented as to the effect of the deed, we must read as a part of the contract the laws of this state existing at the time the contract was made, (Klinck v. Price, 4 W. Va. 4; U. S. v. Crosby, 7 Cranch, 115,) although the nature and construction of the contract of loan, which was made in New York, are determined by the laws of the latter state, (De Wolf v. Johnson, 10 Wheat. 367.) It is true, an action to foreclose must be brought where the property is situated; but it does not follow that respondents could have maintained an action to foreclose at the time this suit was commenced. Both parties resided in the state of New York, where the contract was made, and either could have maintained an action there on the contract. The plaintiff could have enforced his right to redeem, and the defendants could have recovered the amount for which they held the land as security. Montgomery v. Spect, 55 Cal. 352: Kanawha Coal Co. v. Kanawha & O. Coal Co., 7 Blatch. 415; Gardner v. Ogden, 22 N. Y. 327; Williams v. Fitzhugh, 37 N. Y. 444. In this state, when an action on a promissory note, secured by mortgage of the same date upon real property, is barred by the statute of limitations, the mortgagee has no remedy upon the mortgage. Lord v. Morris, 18 Cal. 482; Heinlin v. Castro, 22 Cal. 100. The debt is regarded as the principal, and the mortgage as a mere incident. When the debt is barred, the remedy upon the mortgage is also barred. McCarthy v. White, 21 Cal. 495. If, therefore, respondents could not maintain an action in New York for the recovery of the money due, they could not maintain an action in this state to foreclose the mortgage. Section 361, Code Civil Proc. At the time the conveyance was made by John H. Allen to the respondents, a deed absolute in form, but intended as a mortgage in this state, transferred the legal title, and there was left in the person executing it a mere equity of redemption; and whenever the debt, to secure which the deed was made, became barred by the statute of limitations, the right to redeem was barred. Hughes v. Davis, 40 Cal. 117; Espinosa v. Gregory, Id. 58. The right to redeem and the right of the creditor to sue on a contract were reciprocal. Where one was lost, the other could not be enforced. Cunningham v. Hawkins, 24 Cal. 403; Arrington v. Liscom, 31 Cal. 366; Grattan v. Wiggins, 23

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Cal. 35. No subsequent legislation could change the rights or obligations of the parties, or extend the time for action. The right and time to redeem were fixed by the laws in force at that time. Bronson v. Kinzie, 1 Пlow. 316; Walker v. Whitehead, 16 Wall. 318; Heyward v. Judd, 4 Minn. 483, (Gil. 375;) Phinney v. Phinney, 81 Me. 450, 17 Atl. Rep. 405. Under the decisions just cited, section 346, Code Civil Proc., is inapplicable, because it would effect a material change in the rights and obligations of the parties. Phinney v. Phinney, 81 Me. 450, 17 Atl. Rep. 405; Heyward v. Judd, 4 Minn. 483, (Gil. 375.) And for the same reason Raynor v. Drew, 72 Cal. 307, 13 Pac. Rep. 866, and other and later cases declaring the rule stated in that section are not in point. They are based upon that section of the Code, and it was passed posterior to the time the parties entered into the contract.

That plaintiff's cause of action was barred by the laws of New York at the time this action was commenced there can be no doubt; and it is immaterial whether the court below based its conclusion upon the proper section of the statute of limitations of that state or not. It was shown that both of the parties resided in the state of New York for 16 years after the contract was entered into before they came to this state, and during that time no action was taken by either of them to put the other in default; and, if it be conceded that the section of the statute of New York which was put in evidence has no bearing upon the question at issue, it must be presumed that the laws of that state are the same as our own. Marsters v. Lash, 61 Cal. 624; Tolman v. Smith, (Cal.) 24 Pac. Rep. 744; Osborn v. Blackburn, (Wis.) 47 N. W. Rep. 175.

It is claimed that at the time the contract was entered into it was the established rule in this state that a conveyance absolute in form, but intended merely as security, did not pass the legal title to the grantee. It is true, there had been decis. ions to that effect; but, in the year following, it was held (Espinosa v. Gregory, and Hughes v. Davis, supra) that a deed absolute in form, intended as a mortgage, did convey the legal title. These decisions did not change the law; they simply declared what was the law. Every one is conclusively presumed to know the law, although the ablest courts in the land often find great difficulty and labor in finally determining what the law is. The courts cannot make or repeal a law. "They can say what a law means; and if, afterwards, they see that they have made a mistake, they can correct their error by an overruling of a former decision; the consequence of which overruling is that the blunder is thenceforward deemed never to have been law." Bish. Cont. § 569; Boyd v. Alabama, 94 U. S. 649. It has been held here that, although it appears the parties have entered into a contract relying upon a previous decision of the su preme court, they will not be relieved from the obligations thereof because of a subse quent decision by the same court overrul ing the former one, and declaring a differ ent rule upon the same subject. Kenyon

v. Welty, 20 Cal. 637. There are some cases in which the supreme court of the United States has held that the construction given to a statute by the highest tribunal in the state, whether sound or not, must be taken as correct, so far as contracts made under the act are concerned, and no subsequent decision altering the construction can impair their validity. The construction becomes a part of the statute; as much so as if it were an amendment made by the legislature. Gelpcke v. Dubuque, 1 Wall. 175; Louisiana_v. Pilsbury, 105 U. S. 294; Douglass v. Pike, 101 U. S. 677; Thomson v. Lee, 3 Wall. 327. These cases, however, all involved the question as to the validity of negotiable securities, and in one of them a distinction is made between cases of that kind and cases like the one at bar in which the court had previously applied the doctrine stated above. Gelpcke v. Dubuque, supra, 214. We think the court below held the right view of the case, and the judg ment and order are therefore affirmed.

We concur: HARRISON, J.; GAROUTTE, J.

STEVENS V. LOVEJOY. (No. 13,825., (Supreme Court of California. July 2, 1891.) SWAMP LAND-APPLICATION BEFORE SURVEY.

The swamp lands granted to the state by Act Cong. Sept. 28, 1850, are not subject to application for purchase until they have been segregated to the state by a United States survey, and an application filed prior to such segregation confers no rights on the applicant, though it is subsequently approved, and a certificate of purchase issued after segregation. Following Buchanan v. Nagle, (Cal.) 26 Pac. Rep. 512.

In bank. Appeal from superior court, Tulare county; WILLIAM W. CROSS, Judge. Action by Stevens against Lovejoy to determine a contest arising in the state land-office as to the right to purchase from the state certain swamp and overflowed lands granted to the state by Act Cong. September 28, 1850. The court below found, among other things, that defendaut's application to purchase was made before the land was surveyed and segregated to the state by the United States, and that no rights attached by reason of the application or its subsequent approval, and the issuance of a certificate of purchase based thereon. Judgment for plaintiff, new trial denied, and defendant appeals.

N. O. Bradley and G. E. Lawrence, for appellant. W. B. Wallace, T. McNamara, and Mickle & Irwin, for respondent.

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good faith, without notice, and paid the proceeds to the thief, relying on his representations of ownership. BEATTY, C. J., and PATERSON, J., dissenting.

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

Wilson & Wilson, for appellant. Tilden & Tilden, for respondent.

DE HAVEN, J. The plaintiff was the owner of 100 shares of stock of a mining corporation, issued to one H. B. Parsons, trustee, and properly indorsed by him. This stock was stolen from plaintiff by an employe in his office, and delivered for sale to the defendant, who was engaged in the business of buying and selling stocks on commission. At the time of placing the stock in defendant's possession, the thief represented himself as its owner, and the defendant relying upon this representation, in good faith, and without any notice that the stock was stolen, sold the same in the usual course of business, and subsequently, still without any notice that the person for whom he had acted in making the sale was not the true owner, paid over to him the net proceeds of such sale. Thereafter the plaintiff brought this action to recover the value of said stock, alleging that the defendant had converted the same to his own use, and, the facts as above stated appearing, the court in which the action was tried gave judgment against defendant for such value, and from this judgment, and an order refusing him a new trial, the defendant appeals. It is clear that the defendant's principal did not by stealing plaintiff's property acquire any legal right to sell it, and it is equally clear that the defendant, acting for him and as his agent, did not have any greater right, and his act was therefore wholly unauthorized, and in law was a conversion of plaintiff's property. "It is no defense to an action of trover that the defendant acted as the agent of another. If the principal is a wrong-doer. the agent is a wrong-doer also. A person is guilty of a conversion who sells the property of another without authority from the owner, notwithstanding he acts under the authority of one claiming to be the owner, and is ignorant of such person's want of title. Kimball v. Billings, 55 Me. 147; Coles v. Clark, 3 Cush. 399; Koch v. Branch, 44 Mo. 542. In Stephens v. Elwall, 4 Maule & S. 259, this principle was applied where an innocent clerk received goods from an agent of his em ployer, and forwarded them to such employer abroad; and, in rendering his decision on the case presented, Lord ELLENBOROUGH Uses this language: "The only question is whether this is a conversion in the clerk, which undoubtedly was so in the master. The clerk acted under an unavoidable ignorance and for his master's benefit, when he sent the goods to his master; but, nevertheless, his acts may amount to a conversion; for a person is guilty of conversion who intermeddles with my property, and disposes of it, and it is no answer that he acted under the authority of another, who had himself no authority to dispose of it." To hold

the defendant liable, under the circumstances disclosed here, may seem upon first impression to be a hardship upon him. But it is a matter of every-day experience that one cannot always be perfectly secure from loss in his dealings with others, and the defendant here is only in the position of a person who has trusted to the honesty of another, and has been deceived. He undertook to act as agent for one whom it now appears was a thief, and, relying on his representations, he aided his principal to convert the plaintiff's property into money, and it is no greater hardship to require him to pay to the plaintiff the value of this property than it would be to take it away from the innocent vendee who purchased and paid for it. And yet it is universally held that the purchaser of stolen chattels, no mat. ter how innocent or free from negligence in the matter, acquires no title to such property as against the owner, and this rule has been applied in this court to the innocent purchaser of shares of stock. Barstow v. Mining Co., 64 Cal. 388, 1 Pac. Rep. 349; Sherwood v. Mining Co., 50 Cal. 413.

The precise question involved here arose in the case of Bercich v. Marye, 9 Nev. 312. In that case, as here, the defendant was a stockholder who had made a sale of stolen certificates of stock for a stranger, and paid him the proceeds. He was held liable, the court in the course of its opinion saying: "It is next objected that, as the defendant was the innocent agent of the person for whom he received the shares of stock, without knowledge of the felony, no judgment should have been rendered against him. It is well settled that agency is no defense to an action of trover, to which the present action is analogous." The same conclusion was reached in Kimball v. Billings, 55 Me. 147, the property sold in that case by the agent being stolen government bonds, payable to bearer. The court there said: "Nor is it any defense that the property sold was government bonds payable to bearer. The bona fide purchaser of a stolen bond payable to bearer might perhaps defend his title against even the true owner. But there is no rule of law that secures immunity to the agent of the thief in such cases, nor to the agent of one not a bona fide holder. The rule of law protecting bona fide purchasers of lost or stolen notes and bonds payable to bearer has never been extended to persons not bona fide purchasers, nor to their agents. Indeed, we discover no difference in principle between the case at bar and that of Rogers v. Huie, 1 Cal. 571, in which case, BENNETT, J., speaking for the court, said: "An auctioneer who receives and sells stolen property is liable for the conversion to the same extent as any other merchant or individual. This is so both upon principle and authority. Upon principle, there is no reason why he should be exempted from liability. The person to whom he sells, and who has paid the amount of the purchase money, would be compelled to deliver the property to the true owner or pay him its full value; and there is no more hardship in requiring

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the auctioneer to account for the value of the goods than there would be in compel ling the right owner to lose them, or the purchaser from the auctioneer to pay for them." It is true that this same case afterwards came before the court, and it was held, in an opinion reported in 2 Cal. 571, that an auctioneer, who in the regular course of his business receives and sells stolen goods, and pays over the proceeds to the felon, without notice that the goods were stolen, is not liable to the true owner as for a conversion. This latter decision, however, cannot be sustained on principle, is opposed to the great weight of authority, and has been practically overruled in the later case of Cerkel v. Waterman, 63 Cal. 34. In that case the defendants, who were commission merchants, sold a quantity of wheat, supposing it to be the property of one Williams, and paid over to him the proceeds of the sale before they knew of the claim of the plaintiff in that action. There was no fraud or bad faith, but the court held the defendants there liable for the conversion of the wheat. In this case it was the duty of the defendant to know for whom he acted, and, unless he was willing to take the chances of loss, to have satisfied himself that his principal was able to save him harmless if in the matter of his agency he incurred a liability by the conversion of property not belonging to such principal. Judgment and order affirmed.

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1. Where a counter-claim for damages for breach of covenant by a landlord to build a laundry on the premises was set up in an action for rent, and that issue tried, the overruling a demurrer to the complaint, on the ground that it neither alleged performance nor excused nonperformance of the covenants, was error without prejudice, where it appears that the tenants agreed to use other portions of the building as a laundry, and that the verdict for plaintiff for rent was diminished by more than the amount of damages shown to have been sustained by the breach.

2. Where a complaint contained a count for rent due on a lease, and one for damages for breach of covenant by the tenant to restore the property to its former condition, error in overruling a demurrer on the ground of misjoinder is without prejudice, where the count for damages was abandoned on the trial, and the court so charged, and the verdict was for less than the rent claimed.

3. Questions as to the monthly value of the use of a laundry attached to the leased building, or one like it, do not correctly state the rule of damages for breach of covenant to build a laundry on the premises, and are properly disallowed. 4. Error in excluding competent evidence is cured by afterwards admitting.

5. Where counsel fail to indicate the particu lar objections to a charge, errors assigned there on will not be considered on appeal.

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