NOTE. Implied or constructive notice may be as effectual as actual notice, and such con structive notice may arise from possession alone; but such possession must be open, rotorious, exclusive, and unequivocal, and while actual residence is not necessary when there is no actual pedis possessio, dominion must be manifested by such open and notorious acts of ownership as will naturally be observed by others, and the acts must be of a character so certain and definite in denoting ownership as not to be liable to be misunderstood or misconstrued. Hodge's Ex'rs v. Amerman, (N. J.) 2 Atl. Rep. 257. Possession of land by parties at the time of the levy of an attachment is notice of their rights and equities in the premises to a purchaser at a sale under such levy, and he takes the property subject to the rights and equities which are capable of being enforced by the party in possession against the judgment creditor. Story v. Black, (Mont.) 1 Pac. Rep. 1. To the same effect are Ray v. Birdseye, 5 Denio, 626; Jones v. Marks, 47 Cal. 242; McKinzie v. Perrill, 15 Ohio St. 168; Hughes v. U. S., 4 Wall. 232; Landes v. Brant, 10 How. 348. See, also, In re Howe, 1 Paige, 128; Ells v. Tousley, 1 Paige, 283: White v. Carpenter, 2 Paige, 219; Buchan v. Sumner, 2 Barb. Ch. 181; Lounsbury v. Purdy, 11 Barb. 494; Kiersted v. Avery, 4 Paige, 15; Averill v. Loucks, 6 Barb. 27; Mason v. Wallace, 3 McLean, 148; Strong v. Smith, Id. 362; Bank of Muskingum v. Carpenter's Adm'rs, 7 Ohio, 21; Lake v. Ďoud, 10 Ohio, 515. (68 Cal. 618) LUCAS v. RICHARDSON. (No. 9,656.) Filed February 25, 1886. 1. APPEAL REJECTION OF EVIDENCE, WHEN REVIEWABLE. Unless an exception was reserved to the ruling of a trial court in rejecting evidence, the action will not be reviewable on appeal. 2. DEPOSITIONS-TIME AND PLACE OF TAKING-NOTICE. The statutory requisites concerning the taking of depositions must be strictly followed; and the requirement of notice of time and place of taking is insufficient if it fails to inform the adverse party of the place of business or office of the notary before whom the deposition is to be taken, if the same is to be taken in a city having a population of 50,000 inhabitants or over, and in which the streets are named and numbered. 3. EJECTMENT-STATUTE OF LIMITATIONS. In ejectment, if the defendant sets up the statute of limitations, evidence that he leased the land to a tenant, and instructed him to keep stock of other people off the land, is admissible as tending to sustain his allegation of possession.1 4. APPEAL-FINDINGS AS TO ULTIMATE AND PROBATIVE FACTS-FINDINGS-Ev IDENCE. Findings held supported by the evidence. Where an ultimate fact in favor of an appellant has been found, an erroneous finding on the probative facts covering the same issue is not prejudicial to him, so as to warrant reversal. Commissioners' decision. In bank. Appeal from the superior court, county of Stanislaus. G. A. Whitby and Wright & Hazen, for appellant. J. B. Hall, for respondent. SEARLS, C. This is an action of ejectment by plaintiff, as the heir and devisee of George C. Lucas, to recover 160 acres of land situate in the county of Stanislaus. Defendant denies plaintiff's title, avers title in himself, interposes the plea of the statute of limitations, and as a further and equitable defense sets out, in apt language, a verbal contract made in 1870 between himself and plaintiff's predecessor, 1 For a general discussion of the statute of limitations, and when the statute begins to see German Savings & Loan Soc. v. Hutchinson, (Cal.) 8 Pac. Rep. 627, and note, 628-641, and Glenn v. Saxton, (Cal.) 9 Pac. Rep. 420, and note, 423. run, George C. Lucas, by the terms of which defendant agreed to purchase upon certain terms-since that date fully complied with by him— the demanded premises. The cause was tried by the court, and defendant had judgment. The findings were against defendant upon the plea of the statute of limitations. The only additional facts necessary to be stated are that the legal title to the locus in quo vested in plaintiff as the heir and devisee of George C. Lucas, and that, under his contract of sale with said Lucas, defendant acquired an equitable title which, for the purpose of this decision, we shall assume was, if it still remains in him, or may be set up in this action, sufficient to bar plaintiff's right of recovery. At the trial plaintiff offered to prove that subsequent to the acquisition by defendant of the equitable title he instituted proceedings in bankruptcy, in the district court of the United States for the district of California, in which proceedings an assignment in due form and sufficient in law to pass all the estate of said defendant to A. W. Moulton, the assignee therein named, was duly executed; also a final discharge in bankruptcy of said defendant in said cause, duly made and entered therein. The papers in bankruptcy were, and each of them was, duly certified and authenticated, so as to entitle them to be admitted in evidence, if they were material and proper testimony in the cause. To the introduction of this documentary evidence, counsel for defendant objected upon the ground "that it is irrelevant and immaterial." The objection was sustained by the court. We find no exception to this ruling, and are not, therefore, called upon to consider the question presented. The evidence was sufficient to warrant the findings of the court, and we are of opinion they cover all the material issues, and show such an equitable title in the defendant under an executed verbal contract for the purchase of the premises, accompanied by possession, as warranted the judgment in his favor. The deposition of B. F. Marckiey, offered by plaintiff, was properly excluded. The method of taking testimony by deposition is statutory, and all the essential requirements of the statute must be complied with. Among these requirements is a notice of the time and place of taking the deposition. Williams v. Chadbourne, 6 Cal. 559. It appears that the action was pending at Modesto, in Stanislaus county, and was set for trial on the twenty-second day of May; that defendant's attorney resided in Stockton; that on the fourteenth of May defendant's attorney received a written notice that the deposition in question would be taken on the twenty-first day of May, between the hours of 10 o'clock A. M. and 5 o'clock P. M., before Lee D. Craig, a notary public, in San Francisco, but the office or place of business of the said notary was not given; that to have reached Modesto at 10 A. M. of the 22d a passenger would have been compelled to leave San Francisco by train as early as 4 P. M. of the 21st. Defendant was not represented at the taking of the deposition, the time for giving notice of the taking of which had been shortened by an order of the judge. In view of the fact that the notice of taking the deposition was short, and that it was to be taken in a city like San Francisco, the notice should have apprised the attorney for defendant of the office or place of business of the notary, and, not having done so, and no one having been present on behalf of defendant, the court was authorized, under section 2033 of the Code of Civil Procedure, to exclude the deposition. It may be difficult to formulate a general rule in reference to the particularity as to place required in notices of this character. Under section 2033, supra, something is left to the discretion of the court in excluding depositions, upon proof that sufficient notice was not given, or that "the taking was not in all respects fair." It would seem, however, that where depositions are to be taken in incorporated cities having a population of 50,000 inhabitants or over, in which the streets are named and numbered, the office or place of business of an officer before whom a deposition is to be taken. should be specified by reference to the street and number, or by such other designation as will make the place easy of ascertainment. The exceptions taken to the rulings of the court in permitting plaintiff's counsel to ask the witness John Richardson, on cross-examination, what use the defendant made of the land in dispute, and in permitting him to testify that he was instructed by defendant to keep stock of other people off the land, and that he did so, cannot be sustained. The testimony was proper in support of the possession which defendant had set up in himself, and tended to support his plea of the statute of limitations. The same considerations apply to the objection made and exception taken to the testimony showing a lease of the premises by defendant to Robert Young. If Young took a lease of the land in question from the defendant, and entered and held under such lease, his possession was that of his landlord, and was proper to be shown. So, too, the judgment roll in Lucas v. Young was admissible to show that the latter was in possession of the land, not as the tenant of the plaintiff, but under and by virtue of a lease from the defendant, Richardson, thus going to sustain the allegation of the defendant's answer as to his possession of the premises. We think the evidence was sufficient to sustain the eighth finding of the court, which was to the effect that defendant paid all the taxes levied and assessed upon the land in suit from and including the year 1874-75 to the present time, except for the fiscal year 1880-81, the taxes for which year were paid by plaintiff. The contention of appellant is that for two years Moulton paid the taxes, and that for a third year the property was assessed to unknown owners, and it cannot be determined who paid the tax. The whole evidence in relation to the payment of taxes was introduced in support of the plea of the statute of limitations. By section 325 of the Code of Civil Procedure payment of all taxes levied upon the premises is an essential requisite in support of the bar of the statute of limitations. In the present case the court found that defendant did not pay the taxes for the year 1880-81, and found against defendant upon his plea of the statute. The ultimate fact being found in plaintiff's favor, it cannot matter to him whether certain probative facts bearing upon the same issue were found for or against him. We have said the findings are supported by the evidence, and it seems hardly necessary to quote from the testimony to show that the second, fourth, sixth, seventh, and eleventh findings are so supported. A perusal of the testimony convinces us, not only that there was evidence to warrant the findings, but that as to most of them there was little or no conflict. We are of opinion the judgment and order appealed from should be affirmed. BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed. (68 Cal. 642) HORTON V. DOMINGUEZ and others. (No. 11,178.) Filed February 27, 1886. 1. APPEAL-FINDINGS-PRESUMPTION IN FAVOR OF. Where nothing appears in the record to the contrary, it will be presumed that there was evidence introduced at the trial to sustain the findings. 2. SAME-FINDING WITHOUT ISSUES, EFFECT OF. Where the record shows that the cause was tried as if certain facts found were put in issue, if no objection was made in the court below to the admissibility of the evidence supporting the findings, an objection that the findings were without issues will not be considered on appeal. Department 2. Appeal from superior court, county of Ventura. Hall & Hamer, for appellant. Blackstock & Shepherd, for respondent. THORNTON, J. The motion to dismiss the appeal is denied. Conceding that the contract made before the patent was issued was void, as against the states of the United States, it appears from the findings that after the patent was issued in November, 1879, another agreement was entered into between the parties, which is not void. This last agreement is as follows: "That afterwards, to-wit, on or about the twenty-fifth day of December, 1882, in said Ventura county, defendants again demanded that said deed of conveyance should be executed to said lands to said Mercedes D. Dominguez, and that plaintiff then and there agreed he would execute and deliver said deed to said lands so described in his complaint when he, the said defendant, would execute and deliver to him, the said plaintiff, a deed of conveyance to a one-half interest in his, the said Prudencia Dominguez's, water-right, known as the Pires Ditch,' the said interest being the one-third, and said water-right so demanded by said plaintiff to be conveyed being described as follows: that certain ditch and water formerly owned jointly by Jose Ygna cio del Valle, Alfredo Salazar, and Prudencia Dominguez, which said ditch is taken out of the Pires creek at the mouth of the canon, and which passes through the lands of Esteban Dominguez, A. Salazar, R. Strathern, and J. M. Horton; that defendants, in consideration that said plaintiff would then or soon thereafter execute and deliver to said Mercedes A. Dominguez the deed of conveyance to lands so described in his complaint, did execute and deliver to said plaintiff a deed to said water-right as above set forth in this finding, (No. 9;) and that at said time plaintiff accepted said deed in full compensation for said agreement to so convey said land, and caused the same to be recorded in Book 12 of Deeds, of Ventura county records, pp. 121, 122." It is objected that the finding is not within the issues. As the record shows nothing to the contrary, we must presume that testimony was introduced to establish the facts found by this finding. It does not appear that any objection was made by the plaintiff to the evidence that it was inadmissible under the pleadings, as not being within the issues joined. As the record stands, it appears that the cause was tried as if the agreement found was put in issue. Under such circumstances, we cannot permit the objection to be now made that this finding is of matters outside of the issues joined in the cause. It should not be permitted that the plaintiff should allow the cause to be tried as if issues are regularly joined, and, when the result is a judgment adverse to his claims, urge in this court that no such issue was made in the court below. The judgment must be affirmed. So ordered. HOYT V. NEVADA Co. NARROW-GAUGE R. Co. (No. 9,971.) Filed February 27, 1886. WAREHOUSEMAN-LIABILITY OF RAILROADS FOR NEGLIGENCE. Where a judgment is rendered in favor of plaintiff in an action against a railroad company to recover for loss of goods occasioned by its negligence in the course of its duty in its capacity as warehouseman, such judgment, if sup ported by the evidence, will not be reversed merely because the complaint avers that defendant is liable in its capacity of "common carrier." MYRICK, J., dissenting. In bank. Appeal from superior court, county of Nevada. Cross & Simonds, for respondent. BY THE COURT. The complaint herein does not entirely fail to aver such negligence or want of ordinary care as would make the defendant liable in its capacity of warehouseman. It contains an averment of negligence of the defendant in storing the goods,-an averment not necessary to an action for failure to perform a carrying contract. The defendant, after alleging that it had possession of the property as warehouseman, averred due care, etc. Here was a |