ultimate fact, but if we should concede the rule to be as claimed, the finding that Isaac Ripperdan "was in full possession of his mental faculties and fully understood the transaction" amply covers the issue. Civ. Code, § 38, provides that "a person entirely without understanding has no power to make a contract of any kind. * * *" Section 39 reads: "A conveyance or other contract of a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission, as provided in the chapter on rescission of this Code." In the one case the contract is void, in the other merely voidable. See More v. Calkins, 85 Cal. 177, 24 Pac. 729. In the case at bar no rescission has been or is attempted. Plaintiffs claim that the deed and bill of sale were absolutely void from the beginning. They attempted to establish a case within the purview of section 38. The phrase "entirely without understanding," as used in used in that section, that section, means a want of capacity to understand transactions of the kind involved. Jacks v. Estee, 139 Cal. 507, 73 Pac. 247. It is impossible that a person without the capacity of understanding a particular transaction can in fact understand it. The finding, therefore, that at the time of the execution and delivery of the deed and bill of sale Isaac Ripperdan "fully understood the transaction," involves necessarily the inference that he was not "entirely without understanding," and is a finding of the ultimate fact in issue. Findings are to be construed so as to support the judgment, rather than defeat it (Warren v. Hopkins, 110 Cal. 506, 42 Pac. 986), and when, from the facts found by the court, other facts may be inferred which will support the judgment, such inference will be deemed to have been made by the trial court. Breeze v. Brooks, 97 Cal. 77, 31 Pac. 742, 22 L. R. A. 257; Krasky v. Wollpert, 134 Cal. 338, 66 Pac. 309.

The appellants base several contentions upon the fact, shown by the evidence, that the deed and bill of sale of May 4, 1901, were executed, together with the agreement above mentioned, whereby Mrs. Weldy and Mrs. Jones agreed that he should, to a certain extent, have the use of the property during his life, that they would give him certain care and attention, and that they would pay him $2,000 a year during his life. It is claimed that all the instruments must be read together, and that, so read, they constitute a conveyance to take effect at the grantor's death, reserving to the grantor the use and enjoyment of the property during his life. If this construction were adopted, it would not affect the validity of the deed as a conveyance. Any objection to which deeds creating estates to commence in future may have been subject at common law (Hawes v. Stebbins, 49 Cal. 369; Chandler v. Chandler, 55 Cal. 270) has been removed in this state by section 767 of the Civil Code

(Blakeman v. Miller, 136 Cal. 139, 68 Pac. 587, 89 Am. St. Rep. 120). Again, the argument is made that the effect of the various instruments of May 4, 1901, was to transfer the property to Mrs. Weldy and Mrs. Jones in trust for the maintenance of the grantor during his life-a purpose which, it is claimed, is not authorized by Civ. Code, § 857-or that, if the trust be valid, it terminated at the grantor's death, and there is a resulting trust in favor of his estate. We need not consider whether any trust was created or sought to be created by the transaction of May 4, 1901, for the reason that the question is not within the issues made by the pleadings. The complaint sets forth an ordinary deed and bill of sale, which, it is alleged, were procured without consideration by the undue influence and fraud (false and specious promises) of the defendants Weldy and Jones, and which were signed by one incompetent to transact business. These allegations were denied. The complaint nowhere charged that there was a conveyance upon express trusts, whether for authorized or unauthorized purposes. No issue was presented which would have authorized the court to set aside the deed except for fraud, undue influence, or incompetency. A determination that the conveyance was void because made in trust for purposes not permitted by the Code, or that it conveyed no beneficial interest beyond the life of the grantor, would have been outside of the issues, and a finding of facts from which such determination followed would, if made, have been entitled to no consideration.

Finally, with reference to this agreement, it is argued that the provision against alienating the estate during the lifetime of Isaac is void, and that with it the consideration for the deed fails. If the deed transferred a title in fee simple, a covenant by the grantees that they would not transfer the property is void, as repugnant to the interest created by the deed. Section 711 of the Civil Code declares against repugnant conditions restraining alienation. "But the rule does rot depend upon the mere form in which the restraint is imposed. It avoids, as well, covenants of the grantee against alienation as conditions of like nature imposed by the grantor. Such covenants, if not within the letter of section 711 of the Civil Code, are yet obnoxious to the policy of which that section is a partial expression." Prey v. Stanley, 110 Cal. 423, 42 Pac. 908. But the mere fact that a part of the consideration for the transfer consisted of a covenant which could not be legally enforced does not make the deed absolutely void. A deed made freely, voluntarily, and without fraud by one who is competent passes title, even though the consideration may fail in whole or in part. Whether the consideration failed or became void, so as to afford a basis for rescission, is another question, which does not arise here. If the invalidity of the prom

ise not to convey the property during Isaac's life furnishes a ground for rescission under sections 1689, 3406, and 3407 of the Civil Code (which may well be doubted), such ground has not been alleged, nor such relief sought. Appellants contend that under section 1608 of the Civil Code the entire contract is void if any part of the consideration is unlawful. Whatever may be the effect of this section as to contracts which are executory in whole or in part, we are satisfied that it cannot be construed so as to permit the grantor of property, who has received and retained the consideration for his conveyance, to recover the property conveyed upon the sole ground that the consideration was unlawful in part. It is the general rule that where a contract, based on a consideration contrary to law, immoral, or opposed to public policy, has been fully and voluntarily. executed, if the parties are in pari delicto, the courts will not interfere to disturb the acquired rights of either at the instance of the other. 9 Cyc. 549; Hill v. Freeman, 73 Ala. 200, 49 Am. Rep. 48; McGregor v. Donnelly, 67 Cal. 149, 7 Pac. 422; Patterson v. Doner, 48 Cal. 369; St. Louis, etc., R. R. Co. v. Mathers, 71 Ill. 592, 22 Am. Rep. 122; Myers v. Meinrath, 101 Mass. 366, 3 Am. Rep. 368; Brower v. Fass (Neb.) 83 N. W. 832. In view of this rule (in support of which many more cases might be cited), section 1608 must be held to have application only to contracts which are, in part at least, executory.

There are no other points which, in our opinion, require special notice.

The judgment and order appealed from are affirmed.

Cole & Cole for appellants. L. M. Fail, for respondents.

PER CURIAM. The motion of respondent to dismiss the appeal in the above-entitled cause is granted. The time for the filing of the appellant's points and authorities expired. long before the 18th day of April, 1906. No points and authorities had been filed up to the 7th day of May last, and on that day the motion to dismiss the appeal was filed in this court. The act of the Governor in proclaiming legal holidays, beginning with the 19th of April last, could have no effect whatever upon the right of the appellant to file his points and authorities in a case such as this, where his time had expired before any holidays were proclaimed.

(4 Cal. A. 78)

WEMPLE v. YOSEMITE GOLD MIN. CO. et al. (Civ. 180.)

(Court of Appeal, Third District, California. July 9, 1906.)

1. MINES AND MINERALS-MORTGAGES-MINING CLAIMS-DESCRIPTION.

When a mortgage on a mining claim was executed the mortgagor held a deed for an undivided interest in the "Slap Jack Mine," and also a deed of a mine known as the "Jim Blaine Mine," located by W., the boundaries of which coincided with the "Slap Jack Mine." The mortgage described the property as the "Jim Blaine Mining Claim," being the property located by W. on January 1, 1899, of record, etc., together with all mining property described in the deed of conveyance made by B. to the mortgagor, of record, etc. It was thereafter determined that the location of the "Jim Blaine Mine" by W. was ineffectual, and that B.'s deed to the mortgagor conveyed nothing. Held, that the description was sufficient to pass the interest acquired by the mortgagor in the "Slap Jack Mine."

2. MORTGAGES-PARTIES-JUNIOR LIENORS.

Code Civ. Proc. § 726, provides that no person holding a conveyance from or under the mortgagor of the property mortgaged or having a lien thereon, which conveyance or lien does not appear of record at the time of the commencement of the foreclosure proceedings need be made a party to the action, etc. Held that, where a junior mortgagee, whose mortgage appeared of record before the commencement of a suit to foreclose the senior mortgage, was not made a party to such suit, the rights of the junior mortgagee and his assignee were unaffected by the foreclosure decree.

[Ed. Note. For cases in point, see vol. 35, Cent. Dig. Mortgages, § 1692.]

3. SAME-REDEMPTION.

Where the holder of a junior mortgage was not made a party to a suit to foreclose a senior mortgage, the holder of such junior mortgage was only entitled to redeem as against the senior mortgage so foreclosed.

4. SAME-REDEMPTION-EFFECT.

Where the holder of a junior mortgage on certain mining property was not made a party to a suit to foreclose a senior mortgage, and the property was redeemed by the successors in interest of the mortgagors, such redemption operated as a payment of the senior mortgage debt, and the senior mortgage would not, there fore, be kept alive in equity for the benefit of

erty in question. Defendants subsequently filed an offer to allow said Britton, E. L. and A. L. Emerson to redeem said mine upon payment of a certain stated amount. E. L. was the husband of Mrs. A. L. Emerson. This offer was accepted and, by consent, judgment for the redemption was entered in favor of Britton, Emerson, and Emerson and they received the certificate of sale and on September 7, 1901, a judgment was entered adjudging that Britton, Emerson, and Emerson had redeemed said mine, from said foreclosure sale, within the time allowed by law, as successors in interest of the judgment debtors, the Argalls, Griswold, and F. L. Emerson, and that the judgment and decree has become final and has been fully satisfied; that on November 6, 1899, when said foreclosure action was commenced by Blanchard, the records of Tuolumne county did not show that the Yosemite Gold Mining Company had, or claimed to have, any interest in or to said mine, and that on that day there was no conveyance of record from the Argalls, Griswold, F. L. Emerson, or Jacob Miller to said last-named mining company. But the court found in the present case, and the evidence was, that the Argalls executed and delivered to the Yosemite Gold Mining Company, on October 2, 1899, a conveyance of 9/20 interest in said mine and that the said deed was duly recorded January 12, 1900. This is the source of the interest of the Yosemite Gold Mining Company in the mortgaged premises. The court also found that neither the mortgagee, Marsden, nor his assignee, Wemple, the present plaintiff, of the mortgage made October 25, 1899, now sought to be foreclosed, was made a party to foreclose the Blanchard mortgage and neither of them appeared in that action, and neither of them was a party to, or appeared in the action to redeem from the judgment in the Blanchard foreclosure. The court found that neither E. L. Emerson nor F. L. Emerson had any interest in the premises at the commencement of this action. It appeared also that Peter Berg conveyed to defendant, Yosemite Gold Mining Company, the "Jim Blaine," or "Slap Jack Mine," on June 1, 1899, recorded October 13, 1899..

The court found as conclusions of law: That the undivided 9/20 interest of the "Slap Jack" mining claim is subject to plaintiff's mortgage; that the claims of the Yosemite Gold Mining Company, and the Yosemite Gold Mining & Milling Company are, and each of them is, subsequent to the claim of plaintiff and his said mortgage; that the undivided 11/20 interest of said mine is owned by defendants, Mrs. A. L. Emerson, F. F. Britton, and Jacob Miller, and is not subject to said mortgage.

Appellants contend that the evidence is insufficient to justify the decision that 9/20 interest in the "Slap Jack Mine" was subject to the mortgage sued upon, because: First, the "Slap Jack Mine" was not de

scribed in the mortgage with sufficient definiteness; second, the title of appellants is superior to the mortgagor's title; third. whatever interest or equity of redemption the Yosemite Gold Mining Company, mortgagor of the mortgage sued upon, ever had in the mine in question, was foreclosed by the proceedings had in the foreclosure of the first. or Marsden mortgage, by Blanchard; fourth, there is a still further claim made by appellants: Considering that plaintiff's mortgage created a lien on the Argall interest, equity will keep alive the Blanchard mortgage as a protection to the redemptioners from the Blanchard foreclosure.

1. The description of the controverted premises stated in the mortgage of defendant company was as follows: "The Jim Blaine Mining Claim, being the same property located by R. S. McWhirter on January 1, 1899, of Record in Book 10, p. 271, Quartz Claims, Tuolumne County Records." Then follows the description of several other mining claims, at the close of which the mortgage continues: "All of said mines and mining property being the same described in that deed of conveyance made by Peter Berg to the Yosemite Gold Mining Company on June 1, 1899, of Record in Book A of deeds, vol. 41, p. 521, recorded on October 3, 1899, Tuolomne County Records." It is urged that because the location of the "Jim Blaine Mine" by McWhirter was ineffectual for any purpose, as found by the court, and because the deed of Peter Berg conveyed nothing, he having no interest to convey, the mortgage failed to describe or refer to the "Slap Jack Mine" and hence mortgaged no part of that mine. It is not disputed that the two designations referred to the same ground; it was so alleged by defendants and it so appeared from the testimony of defendants and was so understood by all parties. We do not think the mortgage was intended to embrace only such interest as the mortgagor acquired through the Berg deed or through the McWhirter location. When the mortgage was executed the defendant company held the deed of the Argalls to the "Slap Jack Mine" thus described. It seems to us that the description used in the mortgage was intended to identify the property mortgaged by reference to documents which referred to the same property as was referred to in the Argall deed. As the "Jim Blaine Mine" embraced precisely the same ground, we think there can be no mistaking the intention of the mortgage to include this ground. The purpose of the description of property mortgaged or deeded is to identify the property. and is not to indicate the source of the title. The property in a deed or mortgage may be sufficiently described by appropriate reference to any duly recorded document or public record containing the required description and proof of the description is complete by the introduction, in evidence of such document or record.

2. It is contended that the title of appel- | lants is superior, paramount, and adverse to the title mortgaged, and hence cannot be litigated in this action. The point is grounded upon the alleged fact that appellants are the owners of the "Slap Jack Mine" through the locator Coyle, while the mortgagor, the defendant company, claims the "Jim Blaine Mine" through McWhirter. We do not so understand the evidence. The McWhirter location was void. Defendant company claims through the Argalls, whose source of title in the Coyle location is the same as that of appellants. The real controversy in the case is as to the relative rights of the parties arising out of the Blanchard mortgage foreclosure and the Wemple, or plaintiff's mortgage foreclosure. The court decreed that certain defendants, Britton, Mrs. A. L. Emerson, and Miller, were the owners of 11/20 of the mine in question (about which there is no controversy); and that the remaining 9/20 interest therein was subject to plaintiff's mortgage, being the interest of the Argalls which they had conveyed to the defendant company.

3. The vital question in the case is thus stated by appellants: That whatever interest or equity of redemption the defendant company, the mortgagor, or the respondent, ever had in the "Slap Jack Mine," was foreclosed and lost by the decree, sale and proceedings had in the foreclosure of the Blanchard, or first mortgage. The point made that the mortgage of defendant company did not sufficiently describe the mine, has been already disposed of. The second reason given by appellants in support of their contention raises the question, namely, that whatever title the defendant company had was foreclosed and lost by the foreclosure of the first or Blanchard mortgage. The evidence is undisputed that the Blanchard mortgage was prior in date and recordation to plaintiff's mortgage. But when the Blanchard foreclosure suit was commenced (November 6, 1899), the second or plaintiff's mortgage was of record (October 29, 1899), and defendant company, the mortgagor, held a deed from the Argalls, executed and delivered October 2, 1899, a month before the Blanchard foreclosure suit was commenced; it was, however, not recorded until January 12, 1900. Blanchard was charged with constructive notice of plaintiff's mortgage, but he failed to make either plaintiff or his assignor a party to his foreclosure. Section 726 of the Code of Civil Procedure refers to persons having a lien on the mortgaged premises as well as a conveyance thereof. The result of this failure was to leave the junior mortgage and the rights of the junior mortgagee and his assignee unaffected. Carpentier v. Brenham, 40 Cal. 234; Henderson v. Grammar, 66 Cal. 332, 5 Pac. 488; Savings Bank v. Central Market, 132 Cal. 36, 54 Pac. 273; Hibernia Savings Bank v. London & L. Ins. Co., 138 Cal. 260, 71 Pac. 334; Frates v.

Sears, 144 Cal. 246, 77 Pac. 905. Whatever interest the junior mortgagee had in the mortgaged premises, by virtue of his mortgage, as against the senior mortgage, his right was the right of redemption, and it could not be taken from him by foreclosure of the senior mortgage, except by making him a party to that action. Id. The senior mortgage originally impressed a lien on 19/20 of the property-the entire interest except Miller's. The court found that of these 19/20 the junior mortgage impressed a lien upon 9/20 discharged from any lien of the senior mortgage, presumably because title thereto vested in the junior mortgagor, defendant company, by virtue of the deed from the Argalls to the defendant company, the deed inuring to the benefit of the mortgagee; or, in other words, the deed feeding the mortgage. In support of the view of the court, it is also contended by respondent that the turn which the foreclosure proceedings took in foreclosing the senior mortgage was such as to wipe out that mortgage, at least as to the Argall interest, and leave the property subject alone to plaintiff's lien. Indeed, unless by some means the lien of the Blanchard mortgage was lifted from the Ar galls' 9/20 interest, included in the senior mortgage, the Argalls could only convey their interest subject to the Blanchard mortgage. The argument of respondent upon the point that the Blanchard mortgage lien was discharged by the redemption, effected by the successors of the mortgagors' interest in the property, rests upon the following principles: That the exercise of the right of redemption confers no new rights and affects only the interest which the redemptioner was entitled to redeem; when redemption is made by the execution debtor, or his assigns, grantees, or successors in interest, the effect is merely to terminate the same and restore the property to its original condition. 20 Am. & Eng. Ency. of Law, pp. 639, 640. That the judgment and receipt of redemption in money discharges the judgment of foreclosure, sets aside all the proceedings thereunder and places the parties in the same position they were in before the suit was brought, except that the debt is paid. Citing Hocker v. Reas, 18 Cal. 650; Perkins v. Center, 35 Cal. 713; Eldridge v. Wright, 55 Cal. 531; also Stoddard v. Forbes, 13 Iowa, 296; Woodward v. Cowdery, 41 Vt. 496.

We do not understand that appellants controvert these principles, but they claim that appellants having redeemed the property from the Blanchard foreclosure, as successors in interest of the judgment debtors, they are in equity subrogated to all the rights and liens of the mortgagee in that action, and as between them and all prior lien holders, equity will preserve to them the lien of the prior mortgage. In Matzen v. Schaeffer, 65 Cal., at page 82, 3 Pac. 93, the principle is approved as laid down by Mr. Pomeroy in his Equity Jurisprudence,