impeach the title to property acquired by an innocent purchaser at judicial sale, the plaintiff cannot contradict the record by proof that there was in fact no service of summons, or that the judgment was obtained by fraud, pp. 651, 652.

Approved in McCauley v. Fulton, 44 Cal. 361, deciding that upon collateral attack recitals in the judgment of service upon the defendants are conclusive of the question of jurisdiction of the person when rendered by a court of competent jurisdiction. Affirmed in Jones v. Gillis, 45 Cal. 543, and Stokes v. Geddes, 46 Cal. 19. Distinguished in Martin v. Parsons, 49 Cal. 98, and holding that while a court of equity will not vacate a judgment obtained by the wrongful act of a party without service of summons, still it will interfere to prevent the party thus obtaining it from using it as an instrument of injustice. Cited in dissenting opinion of Crockett, J., Mayo v. Haynie, 50 Cal. 75. Proof of the execution of a deed, and of the judgment and execution are sufficient for recovery in ejectment against the debtor: Kelley v. Desmond, 63 Cal. 519. Referred to in Rollins v. Wright, 93 Cal. 400. Domestic judgment of a superior court must be presumed to have been rendered with jurisdiction over the person of the defendant, when offered in evidence in another action, although there is no proof of service of summons, and although the judgment itself is silent concerning jurisdiction over the defendant. In re Eichhoff, 101 Cal. 603, referring to the leading case as a holding on a cognate subject. Leading case cited and principle applied in Bagley v. Sligo Furnace Co., 120 Mo. 251; Leonard v. Sparks, 63 Mo. App. 612; Roush v. Fort, 2 Mont. 485, holding that the sale of real property under execution, which has been issued in excess of the judgment through the fraud of the creditor, and which the debtor has not sought to correct by an amendment, does not affect the rights of bona fide purchasers; and Marrow v. Brinkley, 85 Va. 61.

Sheriff's Sale.-In a complaint to set aside an execution sale on account of matters extrinsic to the judgment, if there is no averment that the purchaser had notice of such extrinsic facts, he will be deemed a purchaser without notice, p. 649.

Cited and approved in Heard v. Stack, 81 Mo. 616.

Taxes-Public Record.-Assessment of taxes and the lien which it creates are matters of public record, of which all purchasers are bound to take notice, p. 654.

Cited and approved in Empire etc. Co. v. Engley, 18 Colo. 393; and Adams v. Osgood, 42 Neb. 457. Distinguished in Page v. W. W. Chase, 145 Cal. 582, purchaser who took title from defendant in foreclosure of street assessment lien pending action, without actual notice of its pending, is not bound by judgment therein.

VOLUME XLIV.

By CHARLES T. BOONE.

Revised to include citations to Volume 147, by CHARLES L. THOMPSON.

44 Cal. 3-17. MOSS v. ATKINSON.

Notice. Possession of land under contract of sale is notice sufficient to put purchasers on inquiry, p. 17.

Affirmed in Pacific Mut. L. Ins. Co. v. Stroup, 63 Cal. 152; Scheerer v. Cuddy, 85 Cal. 272. Approved in Tate v. Pensacola etc. Co., 37 Fla. 452, 53 Am. St. Rep. 258, holding that notice in such cases is a legal deduction from the fact of possession; Scott v. Lewis, 40 Or. 41, purchase money mortgagee who voluntarily releases mortgage and takes reconveyance of mortgaged premises, knowing or having means of knowing that mortgagor has executed title bond, takes property subject to equity so created.

Statute of Frauds.-Letter signed by owner of land addressed to A, stating that he has agreed to sell the land to B, giving the general terms of agreement, description of land, and price, is a sufficient memorandum of the sale within the statute of frauds, and may be enforced by B, in equity, p. 16.

Principle of decision approved in McDonald v. Huff, 77 Cal. 282, where the contract to convey was delivered to a third person in escrow, without the signature of the vendee or any contract in writing from him, and the vendor was held bound. Cited in Estate of Robinson, 142 Cal. 156, ruling similarly as to memorandum of executor's sale.

44 Cal. 18-29. COX v. WESTERN PACIFIC RAILROAD COMPANY.

S. C. again on second appeal, 47 Cal. 87; explained, Cox v. MeLaughlin, 52 Cal. 595; Same v. Same, 76 Cal. 62; 9 Am. St. Rep. 164. Contract to grade section of railroad for a fixed sum is entire, notwithstanding provision for payment of installments as the work progresses, p. 28.

Referred to in Cox v. McLaughlin, 52 Cal. 595, involving same contract, and holding that failure to pay an installment did not amount to prevention; so in Same v. Same, 54 Cal. 605; 63 Cal. 205; and 76 Cal. 62,

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9 Am. St. Rep. 164, allowing an amendment of the complaint averring a claim for the value of the services actually done as upon a quantum meruit; Cited in Atlantic etc. Co. v. Delaware etc. Co., 98 Va. 508, holding contract for certain railroad construction an entire one.

Mechanic's Lien.-If contract is entire, no liens can be filed from time to time, as the work progresses, p. 28.

Principle approved in Farmers' Loan and Trust Co. v. Railway Co., 127 Ind. 259; Merchant v. Water Power Co., 54 Iowa, 455. Affirmed in Dingley v. Greene, 54 Cal. 335; and distinguished in Whittier v. Blakely, 13 Oreg. 562; Wortman v. Kleinschmidt, 12 Mont. 349, dissenting opinion of De Witt, J.

Lien for work or materials cannot be acquired on a portion of a railroad, but must be filed on the entire road, p. 28.

Cited in Bringham v. Knox, 127 Cal. 43, holding claim sufficient as against entire road; Adams v. Grand Island etc. Co., 10 S. Dak. 248, holding lien not enforceable when against portion only; Fields v. Daisy Gold Min. Co., 25 Utah, 86, where materials are furnished for separate and distinct purposes under separate contracts requiring cash payments under circumstances tending to rebut presumption of continuous dealing, lien for materials dates from date when materials were commenced to be furnished on respective contracts; Williams v. Mountaineer Gold Min. Co., 102 Cal. 140; Knapp v. Railway Co., 6 Mo. App. 208; and Eclipse Mfg. Co. v. Nichols, 1 Utah, 259, holding that a mechanic's lien cannot be claimed upon part of a structure, or portion of materials furnished. Explained and distinguished in Pacific etc. Co. v. Bear Valley etc. Co., 120 Cal. 96, 98, 65 Am. St. Rep. 160, 162, allowance of lien claim on section of canal.

44 Cal. 29-32. COHEN v. SHARP.

Cloud on Title.-Equity will not interfere to cancel a deed as cloud on title, when the deed is void on its face or the result of proceedings void upon their face, and requiring no extrinsic evidence to disclose their illegality, p. 30.

Approved in Archbishop of S. F. v. Shipman, 69 Cal. 591, 592, refusal to enjoin a sale under a judgment for the foreclosure of a lien; Roth v. Insley, 86 Cal. 140, in which case the sale of a homestead under execution was enjoined, as it would be necessary, in ejectment by the purchaser under the sale, for the owner to introduce extrinsic evidence to show that the execution sale, valid on its face and under a valid judgment against him, did not pass title to the property; Gilman v. Van Brunt, 29 Minn. 272; Rosenbaum v. Foss, 4 S. Dak. 195, both in approval of the doctrine stated; and Miles v. Strong, 62 Conn. 105, holding that jurisdiction to try titles to land in a court of law cannot be transferred to a court of equity upon pretense of removing cloud from

44 Cal. 32-35. EX PARTE HARTMAN.

Where party is in custody under an order regular on its face, and which the court had power to make, he cannot be discharged upon habeas corpus because of error in granting the order, p. 35.

Approved in Ex parte Cohn, 55 Cal. 197; Ex parte Barnett, 51 Ark. 218; Ex parte Renshaw, 6 Mo. App. 475; and Ex parte Degener, 30 Tex. Cr. App. 576, all of the effect that the writ of habeas corpus cannot be made to serve the office of an appeal or writ of error; In re Mahany, 29 Colo. 446, habeas corpus does not lie where defendant charged with murder convicted of manslaughter, and court, over objection of defendant, set verdict aside and ordered new trial, and defendant pleaded jeopardy; 26 Am. Dec. 40, note; Territory v. Conrad, 1 Dak. Ter. 355. in approval of principle of decision.

44 Cal. 36-43.

POLACK v. MANSFIELD.

13 Am. Rep. 151.

Ejectment. Mere servant or employee, not claiming any interest in the premises nor right to their possession, and only in that manner occupies the premises, cannot be sued in ejectment for them, p. 39.

Cited in Morrison v. Holladay, 27 Oreg. 187, as authority to the ruling stated. Approved in Carothers v. Mining etc. Co., 122 Fed. 308, resident agent of foreign corporation who has merely served notice to quit, signed by himself as managing director, cannot be made party defendant to ejectment against corporation to prevent removal of cause.

Same. Ejectment will lie against an officer of the United States in possession of the demanded premises on behalf of the government, pp. 40-43.

Affirmed in King v. La Grange, 61 Cal. 227, 230; and doctrine approved in Lee v. Kaufman, 3 Hughes, 98, 137; Miller v. Blackett, 47 Fed. Rep. 548.

44 Cal. 43-46. GALE v. TUOLUMNE COUNTY WATER COMPANY. Grounds of special demurrer not presented in court below, will not be considered on appeal, p. 45.

Cited in Kippen v. Ollasson, 136 Cal. 642, as to objection of misjoinder of plaintiffs. Referred to in Hemenway v. Francis, 20 Oreg. 459, discussing question of sufficiency of defendant's answer in ejectment.

44 Cal. 46-50. KARR v. PARKS.

Party to Action.-Infant appearing in action by guardian is none the less the real party in interest, p. 48.

Approved in Emeric v. Alvarado, 64 Cal. 593; Dixon v. Cardozo, 106 Cal. 507, the latter case holding that the appointment of a guardian of an insane person does not vest in him a cause of action in favor of the insane person, nor deprive the latter of his right or property therein.