Cited to same effect in Cullen v. Sprigg, 83 Cal. 62, as to deed of lot of specified area lying in specified block; Doboney v. Wowack, 1 Tex. Civ. App. 362, construing similar deed.

52 Cal. 658-661. ESTATE OF FREY.

Community Property-Election.-Widow does not renounce right to share in community by claiming and taking under will, p. 661.

Cited to same effect in In re Gwin, 77 Cal. 315, holding widow not estopped by facts from making election, even if it were necessary; In re Gilmore, 81 Cal. 242, 243, stating general rules as to construction of devise of such property and of election.

Will.-Husband can devise only one-half of common property, p.

661.

Cited in Estate of Wickersham, 138 Cal. 363, noted under Beard v. Knox, 5 Cal. 256.

Failure of Consideration of Note.-Verbal understanding that note should not be paid on happening of specified event is sufficient to show failure of consideration, p. 663.

Cited to same effect in concurring opinion in Langan v. Langan, 89 Cal. 195, holding, however, evidence is admissible to add to considerations stated; Jefferson v. Hewitt, 103 Cal. 630, on facts similar to those in main case.

Findings are Insufficient to Support Judgment where material issue omitted therefrom, p. 664.

Cited to same effect in Mahoney v. Braverman, 54 Cal. 571, and Gull etc. Co. v. School District, 1 N. Dak. 509, holding judgment reversible therefor, and on same point in Brady v. Bartlett, 56 Cal. 364; Cassidy v. Cassidy, 63 Cal. 353, as to issues raised by counter charges in divorce suit; Murphy v. Bennett, 68 Cal. 531, holding, however, findings unnecessary on affirmative defenses where plaintiff not prejudiced by failure: San Diego etc. Co. v. Neale, 78 Cal. 65, on point that new trial may be granted in lower court as to part of issues; and Duff v. Duff, 101 Cal. 4, on same point, sustaining such granting although motion made generally; and Lake v. Bender, 18 Nev. 373, as to new trial in divorce case as to property issues alone.

52 Cal. 664-672. FROST v. MEETZ.

New Trial-Notice of Intention.—Regularity as to form and time of giving will be presumed from recital of giving contained in statement, p. 670.

Cited to same effect in Randall v. Duff, 79 Cal. 123, holding giving of

notice shown from recitals in statement; Harrigan v. Lynch, 21 Mont. 42, noted under Williams v. Gregory, 9 Cal. 76.

52 Cal. 672-675. PENRY v. RICHARDS. Rereported, 52 Cal. 496. Description in Deed.-Map referred to in deed becomes part thereof for purposes of description, p. 675.

Cited to same effect in People v. Blake, 60 Cal. 508, discussing dedication, and holding such map to control imaginary lines or streets; dissenting opinion in Crosby v. Dowd, 61 Cal. 605, as to reference in mortgage and foreclosure proceedings to records of deeds.

Description. Monuments will control courses and distances, p. 675. Cited to same effect in Irrigation District v. DeLappe, 79 Cal. 355, as to petition for formation of irrigation district, and holding statement of distance controlled by location of stake; Bullard v. Kempff, 119 Cal. 14, as to conflict between fences and description in assessment roll; and see Oglesby v. Santa Barbara, 119 Cal. 119, discussing survey conEidered in main opinion.

VOLUME LIII.

By CHARLES T. BOONE.

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

Sale. Under contract to pay part of crop as rent, and to give lessor possession of whole crop until rent is paid, a sale by lessee does not pass title as against the lessor, p. 10.

Cited, in approval of the doctrine, in Sunol v. Molloy, 63 Cal. 370; Howell v. Foster, 65 Cal. 173; so in De Vaughn v. Howell, 82 Ga. 344, 14 Am. St. Rep. 164; Consolidated Land etc. Co. v. Hawley, 7 S. Dak. 233; and in Horseley v. Morse, 5 Tex. Civ. App. 345, maintaining the right of the parties to contract in regard to their ownership in the crops raised. Distinguished in Stockton Sav. and Loan Soc. v. Purvis, 112 Cal. 243, 53 Am. St. Rep. 215, in which case the contract was construed as intended to create a secret lien, as security for the payment of the rent, without complying with the Chattel Mortgage Act. Disapproved in Lawrence v. Phy, 27 Oreg. 510, holding that the lessee in such case has an interest in the crop that he may sell or mortgage before condition broken; Sanford v. Modini, 51 Neb. 735, quoting Consolidated etc. Co. v. Hawley, 7 S. Dak. 233; 37 Am. Dec. 321, note; and 14 Am. St. Rep. 166, note.

53 Cal. 13-14. KELLEY v. McKIBBEN.

Judgment must be certain as to property recovered, p. 14.

Cited to same effect in Cooke v. Aguirre, 86 Cal. 483, holding that a judgment merely describing the property as "two stallions," and not referring to any pleading or other paper for further description, is bad for uncertainty.

53 Cal. 15-16. CROGHAN v. SPENCE.

Parties to Foreclosure.-Persons claiming title adversely to mortgagor are not proper parties to a foreclosure suit, p. 16.

Affirmed in Houghton v. Allen. 75 Cal. 105, holding that a title claimed adversely to the mortgagor cannot be litigated in an action to foreclose the mortgage; Murray v. Etchepare, 129 Cal. 319, 321, noted under San Francisco v. Lawton. 18 Cal. 474; note to 68 Am. St.

Rep. 355; so, in approval of the doctrine in Wells v. Francis, 7 Colo. 415; Faubion v. Rogers, 66 Tex. 475; Wolf v. Harris, 20 Tex. Civ. App. 101: to the contrary in Bradley v. Parkhurst, 20 Kan. 465. Distinguished in Johnston v. San Francisco Sav. Union, 75 Cal. 140, 7 Am. St. Rep. 132, holding that while adverse interests cannot properly be litigated in foreclosure, yet if they are put in issue, tried and determined, the judgment is not void on a collateral attack. Cited in 89 Am. Dec. 434, extended note, discussing the subject.

53 Cal. 16-18. ALLEN v. TIFFANY.

Probate Jurisdiction.--Probate judge has exclusive jurisdiction to determine state of accounts between guardian and ward, p. 17.

Affirmed in Brodrib v. Brodrib, 56 Cal. 565. Cited in Silva v. Santos, 138 Cal. 541, and Cook v. Ceas, 143 Cal. 225, 234, noted under Graff v. Mesmer, 52 Cal. 638; Hautzch v. Massolt, 61 Minn. 364, as to nature of accounting between guardian and ward; 73 Am. Dec. 560, note, to ruling stated.

Action against guardian for default will not lie in district court until after an accounting and settlement in probate court, p. 18.

Cited in Chaquette v. Ortet, 60 Cal. 599, 600, in approval; so in Bisbee v. Gleason, 21 Neb. 539; and Hantzeh v. Massolt, 61 Minn. 364, to same effect; Reither v. Murdock, 135 Cal. 198, holding surety not liable when guardian's account was not legally settled; 51 Am. Dec. 534, note.

53 Cal. 18-19. PIERCE v. FELTER.

Action to determine adverse claim may be maintained by the owner of an estate in land less than an estate in fee, p. 19.

Approved in Stephenson v. Deuel, 125 Cal. 663, sustaining action by one in possession under sheriff's deed; Mora v. Le Roy, 58 Cal. 10, action by sole corporation, alleged in complaint to be the owner seised in fee of the land in controversy in trust for the use and benefit of the Roman Catholic Church; McKinnie v. Shaffer, 74 Cal. 616, action by owner of homestead interest to quiet his title thereto against the claim of others; Pennie v. Hildreth, 81 Cal. 130, action by administrator to quiet title to real estate which belonged to his intestate; Wisconsin etc. R. R. Co. v. Land Co., 71 Wis. 102, action of ejectment for lands brought before issue of patent from United States, against persons making an unlawful claim to the lands under a tax deed fair on its face; Rincon Water etc. Co. v. Anaheim etc. Water Co., 115 Fed. 548; 67 Am. Dec. 112, note.

53 Cal. 23-24. LIVINGSTON v. MORGAN.

Justice of Peace has jurisdiction of action for trespass on real

property, if the damages are laid at less than three hundred dollars, p.

24.

Cited in Schroeder v. Wittram, 66 Cal. 640, holding that the jurisdiction of a justice's court is not ousted by the fact that the title to land is incidentally called in question on the trial, but that, in order to occasion a loss of jurisdiction, the title or right of possession must be directly involved.

53 Cal. 24-26. LORENZ v. JACOBS. S. C. 59 Cal. 262, 263.

Partition. Whether a partition is to be ordered or a sale directed, an interlocutory decree must be first entered, definitely ascertaining the rights and interests of the respective parties, p. 26.

Ruling affirmed in Emeric v. Alvarado, 64 Cal. 618. So, to same effect in Grant v. Murphy, 116 Cal. 431, 432, 58 Am. St. Rep. 191. Cited in Wood v. Etiwanda etc. Co., 122 Cal. 156, discussing time for appeal from judgment under Code of Civil Procedure, section 939; Quirk v. Rooney, 130 Cal. 509, on point that interlocutory decree is final if not duly appealed from; Bell v. Staacke, 137 Cal. 308, dismissing appeal taken before entry of judgment; In re Rose, 80 Cal. 168, bearing on appeal from interlocutory order.

53 Cal. 26-28. CHRISTIE v. CHRISTIE.

Nonsuit.-Order refusing, is not appealable, p. 28.
Affirmed in Witkowski v. Hern, 82 Cal. 607.

53 Cal. 28-29. AMBROSE v. McDONALD.

Attorney at Law has no authority, in the absence of express instructions, to compromise a claim of his client, or receive any money thereon, until after suit brought, p. 29.

Cited in Whipple v. Whitman, 13 R. I. 514, 43 Am. Rep. 45, in approval, but holding that a fair and judicious compromise made by the attorney with the assent of the party in interest, although without the knowledge of the plaintiff of record, will not be disturbed; 76 Am. Dec. 262, extended note, discussing "powers of attorney at law."

53 Cal. 31-32. JAMES v. CENTER.

Judgment of dismissal may be entered by clerk, although a crosscomplaint has been filed, if it does not set up a counter claim, p. 32.

Explained and distinguished in McLeran v. McNamara, 55 Cal. 511, in which case the clerk did not enter judgment of dismissal but there was a stipulation on file upon which he might have done so, and the court could not have vacated the judgment so entered; Page v. Superior Court, 76 Cal. 375, to same effect; Boyd v. Steele, 6 Idaho, 629,