[4] It follows herefrom that Hubbard, in taking mortgage security from Becker upon the property of Becker for the value of the material which he might sell to him, did not lose his right to a mechanic's lien, either by virtue of section 726 of the Code of Civil Procedure, nor by the just application of any rule of deci sion holding that the taking of other security destroys the right to such lien.

S. F. 6106: The evidence in this case showed that Becker had paid to Hubbard $1000 which he directed should be applied on certain specified accounts, none of which was the Careaga account. The court found that Becker paid the $1000 to Hubbard "on his general account and not on account of material furnished for the construction of said building for said Mollie A. Careaga". This is a sufficiently explicit finding that Hubbard's account with Becker on account of material furnished to the Careaga building was not reduced by any specific payments, and appellant has no just cause for complaint over this finding. [5] S. F. 6300: In this case the suit of Hubbard to foreclose his lien and the suit of Hart to foreclose his lien were consolidated. The Home Union, a corporation, was a defendant and cross-complainant. It was not given notice of the setting of the case for trial and did not appear at the trial. It moved for a new trial. The amount of its lien claim was $22.98. The court granted the motion conditionally, declaring that if the amount due the Home Union was deposited in court the motion would be denied. Subsequently the court entered its further order, reciting that the total amount due the Home Union was $26.98, and that Henry Hart had deposited $27 with the clerk of the court in full satisfaction of the claim and demand of the Home Union Company, and the motion for new trial was denied. This was irregular, in that the Home Union was not allowed to file a cost bill and establish the amount to which it was entitled in addition to its claim of lien. The amount involved may be trifling, but the principle is of consequence. A party under such circumstances who, by the finding of the court is entitled to prevail in the action and to have judgment accordingly, is likewise entitled to his hearing in court upon the question of the settlement of the legal costs which he has incurred.

It follows from the foregoing that Hubbard is entitled to share in the funds admittedly applicable to the payment of the liens by mechanics and materialmen, and that the Home Union is entitled to a reversal of the order denying it a new trial for the reasons indicated.

[6] The motion to dismiss this appeal is denied. The appeal was taken under the new or alternative method. The notice of appeal was filed with the clerk thirty-one days after judgment was filed. No other notice of appeal was required. (Code Civ. Proc., sec. 941b; Lang v. Lilley etc. Co., 161 Cal. 295; Fraser v. Sheldon, 164 Cal. 165.)

Wherefore the judgments and orders appealed from are reversed and the causes remanded.

We concur:

HENSHAW, J.

ANGELLOTTI, C. J.

SHAW, J.

SLOSS, J.

MELVIN, J.

LORIGAN, J.

S. F. No. 6364. In Bank. February 11, 1915. EDWARD J. O'ROURKE, Administrator of the Estate of Owen McCabe, Deceased, NELLIE MCCABE ROSENBERGER and EDWARD J. O'ROURKE, Plaintiffs and Respondents, v. FRED C. SKELLENGER, Defendant and Appellant.

[1] APPEAL-NEW METHOD TYPEWRITTEN RECORD-FAILURE TO DESIGNATE PORTIONS RELIED UPON-EFFECT UPON REVIEW.-Where the record on an appeal is typewritten and made up in the manner prescribed in section 953a of the Code of Civil Procedure, and the appellant fails to comply with the requirement of section 953c of such code to the effect that in filing briefs the parties must print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court, the appellate court is fully justified in refusing to examine the record.

[2] ID. RESULTING TRUST-ACQUISITION OF MORTGAGED LANDAGREEMENT BETWEEN HEIRS OF DECEASED MORTGAGOR AND THIRD PARTY.-Where title to mortgaged land belonging to the estate of a deceased person is acquired by a third person under an arrangement between him and the heirs by the terms of which he is to hold the land in trust for them and be repaid the amount of his outlays and interest, a resulting trust in their favor is created, and he has only a lien for his reimbursements.

[3] ID.-ID.-ID.-ID.-ACTION TO DECLARE TRUST-PLEADING-PARTIES ADMINISTRATOR PROPER PLAINTIFF.-The administrator of the estate of the deceased is a proper party plaintiff in an action to declare such a trust.

Appeal from the Superior Court of the City and County of San Francisco James M. Troutt, Judge.

For Appellant-J. E. Barry, Edward Lande.

For Respondents-Brennan & Lane.

This is an appeal by the defendant from the judgment. The object of the action is to declare and enforce an alleged trust in certain parcels of land of which the decedent Owen McCabe, died seized. By his will he devised the land to his wife, Ellen McCabe, for her natural life, with remainder to his children, Nellie McCabe Rosenberger, Margaret C. Skellenger and Eugene McCabe. Ellen died on March 2, 1907. Eugene, on October 30, 1905, conveyed his interest in the land to the plaintiff, O'Rourke. Margaret C. Skellenger was the wife of the defendant. She died on November 3, 1909.

[1] The record on appeal was made up in the manner prescribed in section 953a. It is not printed. Section 953c provides that

such transcripts need not be printed, but it adds that "In filing briefs on said appeal the parties must, however, print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court." The appellant has not complied with this requirement of the statute. Some short extracts from the record are printed in his briefs, but not enough to enable us to determine the issues or the questions presented for review. In this condition of the case we do not think we are required to make more than a cursory examination of the typewritten record on file. Indeed, we would be fully justified, under the provision above quoted, in refusing to examine it at all.

From the examination we have made we find the case, as alleged, proven and found by the court, is in substance and effect as follows:

Owen McCabe, in his lifetime, had mortgaged the land to one Forster and the mortgage remained unpaid at his death. Forster began a foreclosure suit thereon. Thereupon the defendant agreed with the heirs of McCabe that he would advance for them the money to buy the Forster mortgage, that he would buy said mortgage therewith, that he would then have himself substituted in the suit as plaintiff, obtain judgment by default against the estate and heirs for the foreclosure thereof, cause execution to issue thereon, buy the land in his own name at the foreclosure sale for the amount of the mortgage debt, interest and costs, obtain the foreclosure deed therefor to himself at the expiration of the period of redemption, and thereafter hold the said land in trust for the benefit of the estate of Owen McCabe and the heirs, it being agreed by them that they would repay him the amount advanced by him in the transaction in the purchase of the mortgage and payment of costs, together with legal interest thereon. In pursuance of this arrangement, he purchased the mortgage and, as arranged, acquired the title to the land under the foreclosure sale. The defendant denied the agreement and denied that he held the land in trust as alleged.

The court adjudged that he held the land in trust for the heirs subject to a lien for his advances and interest.

There were some additional allegations and findings tending to show fraud by the defendant and confidential relations between him and the heirs who made the agreement. We do not deem it necessary to state the facts in greater detail.

[2] The decisions of this court establish the proposition that, under the circumstances stated, the defendant will be held bound as trustee of the land for the benefit of the heirs of McCabe, and that in equity he is entitled only to be reimbursed for his outlays, with interest, with a lien on the land to secure him in the repayment thereof. The consideration for the purchase of the mortgage from Forster, and of the land at the foreclosure sale, is, under the circumstances stated, deemed to have been paid by the heirs, and a resulting trust is created accordingly. The rule is stated in Brown v. Spencer, 163 Cal. 592, 593, and many of our decisions in which may be found illustrations of the

applications of the rule, are there cited. It is not necessary to consider the question at further length. The court below was correct in its conclusion that the defendant was chargeable as a trustee. Its judgment, in so far as it departed from the strict letter of the prayer for relief, was authorized by the alle. gations, under section 580 of the Code of Civil Procedure.

[3] There was no misjoinder of parties plaintiff. The administrator with the will annexed of Owen McCabe's estate was a proper party plaintiff. The estate was interested in having the trust declared and enforced.

The judgment is affirmed.

We concur:

ANGELLOTTI, C. J.

SLOSS, J.

LORIGAN, J.

MELVIN, J.

HENSHAW, J.

SHAW, J.

S. F. No. 5623. In Bank. February 11, 1915. *EVELINA REMILLARD, Plaintiff and Respondent, v. BLAKE & BILGER COMPANY (a Corporation), Defendant and Appellant, THE UNION SAVINGS BANK (a Corporation), CHARLES T. RODOLPH and A. E. HI. CRAMER, Defendants and Respondents. [1] APPEAL HEARING AFTER JUDGMENT IN DISTRICT COURT OF APPEAL-ADOPTION OF OPINION AS PART OF OPINION OF SUPREME COURT. It is held on a hearing of this appeal in the supreme court after decision by the district court of appeal, that the opinion of the latter court (15 Cal. App. Dec. 740) is adopted as part of the opinion of the supreme court.

OF

[2] ID. STREET LAW-IMPROVEMENT OF SEVERAL STREETS-SINGLE CONTRACT-POWER OF MUNICIPAL AUTHORITIES-CONSTRUCTION VROOMAN ACT.-Under section 2 of the "Vrooman law" it is within the power of the municipal authorities to order several different streets improved in one proceeding and as one improvement, to be performed under one contract.

[3] ID.-ACTION TO FORECLOSE STREET LIEN-INVALIDITY OF AsSESSMENT-DEFENSE SUBJECT TO WAIVER.-A defense to an action to enforce a lien for street work based upon any illegality in the proceedings under the resolution of intention may be waived.

[4] ID.-IMPROVEMENT OF SEVERAL STREETS IN SINGLE PROCEEDING -STREETS OF VARYING WIDTHS-PROCEEDING NOT INVALIDATED.-The right of municipal authorities to include work upon more than one street in a single scheme of improvement is not affected by the fact that some of the streets are wider than others, as the assessment is to be supported upon the ground that each owner is charged with an amount equal or proportionate to the benefit conferred upon his property by the entire improvement.

[5] ID.-ID.-CONSTRUCTION OF STATUTE EFFECT OF-BAR OF WORK BY PROTEST-RIGHT OF MAJORITY OWNERS NOT IMPAIRED.— Such a construction of the statute does not impair the right of the majority of owners of any single street to bar the work, by protest, for six months, as the Vrooman act does not give this right to the owners of the majority of the frontage on a street, but to

*On hearing after judgment in District Court of Appeal, First District (15 Cal. App. Dec. 740).

"the owners of a majority of the frontage of the property fronting on said proposed work or improvement", and if the "work or improvement" may cover more than one street, a majority of the frontage on all the streets covered by the proposed work must join to make the protest effectual.

[6] ID.-RESOLUTION OF INTENTION-CONSTRUCTION OF "WOODEN BRIDGES" AT CROSS-WALKS-DESCRIPTION OF KIND OF WOOD UNNECESSARY. A resolution of intention providing that "wooden bridges" be constructed at each end of cross-walks at certain points is not deficient for failure to describe the kind of wood to be used in such bridges.

Appeal from the Superior Court of Alameda County-John Ellsworth, Judge.

For Appellant-Johnson & Shaw; H. S. Craig and W. B. Rinehard, Amici Curiae.

For Respondent-R. M. F. Soto; Reed, Black & Reed.

After judgment on the appeals here presented had been rendered in the district court of appeal for the first appellate district, an order was made transferring the cause to this court for hearing and determination.

[1] Our further examination has led us to the conviction that the district court of appeal made a correct disposition of the cause. The opinion in that court, prepared by the late Mr. Justice Hall, was as follows:

"Plaintiff filed her complaint against Blake & Bilger Company, seeking to quiet her title to a piece of land situate in the town of Emeryville. Blake & Bilger Company filed its answer, setting up a claim of lien for an assessment made for street work done under the 'Vrooman law', so called, and its amendments, and also a cross-complaint in the usual form for a foreclosure of such lien. "The other defendants were made parties to the proceeding under the cross-complaint, but according to the statement of counsel they now have no interest in or claim upon the property. Hereinafter when we refer to defendant we shall mean Blake & Bilger Company.

"Plaintiff made answer to the cross-complaint of defendant, and the action resolved itself into an action to foreclose the lien of defendant for the asserted assessment.

"The theory of plaintiff is that the street assessment is void, because it was based upon a single proceeding, order and contract for the doing of street work of various kinds upon several different streets. In other words, the work was treated and carried out by the town authorities as one improvement, and not as several and distinct improvements.

"The trial court adopted as correct the theory of plaintiff, and made findings accordingly, and gave judgment for plaintiff, and denied defendant any relief upon its cross-complaint.

"The work called for by the resolution of intention consisted of various sorts of street work authorized by the statute, and to be done upon several distinct streets. The principal street embraced in said resolution was Adeline street. All the other streets intersect said Adeline street at various points with the exception of Peralta street and Magnolia street, which are distant therefrom one