ART. 413, Sec. 25. The term "lands," as used in this act, shall be construed as co-extensive in meaning with lands, tenements and hereditaments, and the terms "estate and interest in lands," shall be construed to embrace every estate and interest, present and future, vested and contingent, in lands, as above defined.

ART. 414, Sec. 26. The term "conveyance," as used in this act, shall be construed to embrace every instrument in writing, except a last will and testament, whatever may be its form, and by whatever name it may be known in law, by which any estate or interest in lands is created, aliened, assigned or surrendered.

Act of May 11, 1853, in relation to Personal Mortgages.

ART. 415, Sec. 1. A mortgage for a good and valuable consideration upon possessory claims to public lands, all buildings and improvements upon such lands, all quartz claims, and all other such personal property as shall be fixed in its structure to the soil, acknowledged in manner and form as mortgages upon real estate are required by law to be acknowledged and recorded in the office of the recorder of the county in which the property is situated, shall have the same effect against third persons as mortgages upon real property.

Seest

ART. 416, Sec. 1. Chattel mortgages may be made on the following property to secure the payment of just indebtedness: Upholstery and furniture used in hotels and public boarding-houses, when mortgaged to secure the purchase money of the identical articles mortgaged, and not otherwise; mining claims, saw mill, grist mill and steamboat machinery; tools and machinery used by machinists, foundrymen and other mechanics; steam boilers, steam engines, printing presses and other printing materials; possessory claims on the lands of the state, with the improvements thereon; quartz claims, with the machinery and buildings connected therewith; water ditches, flumes and aqueducts; tunnels, cuts and other improvements in mining claims; instruments and chests of a surgeon, physician or dentist, with their professional library, and libraries of all other persons; stock in any incorporated company. No mortgage, made by virtue of this act, shall have any legal force or effect (except between the parties thereto) unless the residence of the mortgagor and mortgagee, their profession, trade or occupation, the sum to be secured, the rate of interest to be paid, when and where payable, shall be set out in the mortgage, and the mortgagor and mortgagee shall make affidavit that the mortgage is bona fide, and made without any design to defraud or delay creditors; which affidavit shall be attached to such mortgage.

See StART. 417, Sec. 2All mortgages made in pursuance of this act, (with the affidavit

the county where the property is located; provided, that property in transitu from the possession of the mortgagee to the county of the residence of the mortgagor, or to a location for use, shall, during a reasonable time for such transportation, be considered as located. It shall be the duty of the county recorders of this state to provide proper books of record and of index, in which they shall make a true copy or record of all mortgages made in pursuance of the provisions of this act and left with them for record, and they shall enter, in alphabetical order, the names of the mortgagee and mortgagor in such index books. The recorders shall note on the mortgages and in the index books the time (in like manner as mortgages on real estate,) when the same was received into the office for record, and the recording shall take effect from that time. The recorder's fees for recording and indexing shall be the same as are allowed him by law for like services for recording deeds of real estate, to be paid in advance by the person presenting the same for record.

ART. 418, Sec. 3. No chattel mortgage shall be valid (except between the parties thereto) unless the same shall have been made, executed and recorded in conformity to the provisions of this act; provided, however, if the mortgagee receives

and retains the actual possession of the property mortgaged, he may omit the recording of his mortgage during the continuance of such actual possession.

ART. 419, Sec. 4. A right of redemption shall remain in the mortgagor until the same shall have been foreclosed by due process of law, or by agreement between the parties to the mortgage; which agreement shall be entered on the record of the mortgage, and for the entering of which the recorder shall be entitled to the same rate of fees as for recording the original, to be paid in advance by the parties to the mortgage.

ART. 420, Sec. 5. All property mortgaged in pursuance of the provisions of this act may be attached at the suit of the creditors of the mortgagor or mortgagee. When attached at the suit of the creditor of the mortgagor, such creditor shall pay or tender to the mortgagee the actual amount due him on such mortgage, before the officer making such attachment, shall be entitled to the actual possession of such property. When property thus situated, and thus redeemed, shall have been sold by the officer by virtue of due legal proceedings, out of the proceeds of the sale he shall: 1. Pay to the creditor the amount advanced by him to pay the mortgagee, with legal interest thereon. 2. Pay all legal costs and fees appertaining to the judgment, execution and sale. 3. Pay the judgment creditor the amount of the judgment, and any remaining surplus pay to the judgment debtor. If the creditor of the mortgagor prefers, he may cause to be attached the right of redemption of said mortgagor, and cause the same to be sold, subject to the rights of the mortgagee. Such attachment shall be made by leaving a copy of the writ of attachment, with notice of the attachment, with the mortgagee. When a sale of such equity is made on an execution obtained by such attaching creditor, the sum realized shall be applied to the payment of costs, fees, discharge of the execution, and any remainder paid to the judgment debtor. When the interest of the mortgagee shall be attached, a copy of the writ of attachment shall be left with the mortgagor, with notice of the attachment; and any payment made by him to the mortgagee after such notice, shall not release the attachment or affect the rights of the attaching creditor; but said mortgagor may pay the amount due on said mortgage to the officer who made the attachment, and thereupon said officer shall release said attachment, and hold the money so paid him in the same manner as if he had originally attached said money.

ART. 421, Sec. 6. This act shall not be so construed as to interfere or conflict with the lawful mining rules, regulations or customs in regard to the locating, holding, or forfeiture of claims, but in all cases of mortgages of mining interests under this act, the mortgagee shall have the right to perform the same acts that the mortgagor might have performed for the purpose of preventing a forfeiture of the same under the said rules, regulations, or customs of mines, and shall be allowed such compensation therefor as shall be deemed just and equitable by the court ordering the sale upon a foreclosure; provided, that such compensation shall in no case exceed the amount realized from the claim by a foreclosure and sale.

ART. 422, Sec. 7. The mortgagee in all mortgages made under this act, shall be allowed one day for every twenty miles of the distance between his residence and the county recorder's office, where such mortgage ought by law to be recorded to conform to the provisions of this act, before any attachment shall be valid made by the creditors of the mortgagor.

ART. 423, Sec. 8. Mortgages may be made on all kinds of water craft of five tuns burden or upwards, custom-house measurement, whether propelled in whole or in part by steam, or wind; provided, that the requirements of the preceding sections are complied with; and, provided further, that an indorsement shall be made on the custom-house register or enrollment of such vessel, showing the amount for which the same is mortgaged, and the place, book and page where the same is recorded; and, provided also, that this section shall not be construed to affect or impair, in any way whatever, maritime liens.

Act of April 16, 1852, to legalize Acknowledgment of Deeds taken before County Recorders. ART. 424, Sec. 1. All acknowledgments of deeds and other instruments in writing, whereby real estate is conveyed, or may be affected, taken before county recorders and by them certified in usual legal form, prior to the twenty-sixth day of March, one thousand eight hundred and fifty-one, shall have the same force and effect, and the records thereof, and of the deeds and instruments so acknowledged if they shall have been admitted to record, shall impart notice to the same extent as though such acknowledgment had been taken before, and certified by, an officer authorized by law to take and certify such acknowlegments.

Act of April 21, 1851, to limit the term of Leases.

ART. 425, Sec. 1. No lands within this state shall hereafter be conveyed by lease or otherwise, except in fee and perpetual succession, for a longer period than ten years; nor shall any town or city lots, or other real property, be so conveyed for a longer time than twenty years.

Sec. 2. All leases hereafter made, contrary to the provisions of this act, shall be void.

See Land, Crimes and Punishments, Husband and Wife.

JUDICIAL DECISIONS.

1. A DEED purporting to convey real estate, executed by an agent, in his own name, instead of that of his principal, will not transfer the title. Fisher v. Salmon, 1 Cal. 413.

2. Acknowledgments of conveyances taken out of the state must be taken before some judge or clerk of any court of the United States or territory having a seal, or by a commissioner of this state. If taken before a notary of another state, it is not sufficient. Lord v. Sherman, 2 Cal. 498.

3. A deed void by reason of fraud cannot be made valid by an act of the legislature, so as to affect the rights of third persons. Smith v. Morse, 2 Cal. 524.

4. The evident intention of the statute providing for the proof and registration of conveyances is to protect subsequent purchasers, without notice either actual or constructive, Call v. Hastings, 3 Cal. 179.

5. The doctrine of constructive notice has always been regarded as a harsh necessity; and the statutes which create it have always been subjected to the most rigid construction. Id.

6. The act of 1851, section 21st, gives to papers properly recorded the like effect as the originals, but it does not dispense with proof of their execution. Powell & Co. v. Hendricks, 3 Cal. 427.

7. The record of a deed, not conforming strictly to the statute, will not have the effect of charging constructive notice. Hastings v. Vaughn, 5 Cal. 315.

8. An impression upon paper constitutes a good seal, and this may be made as well by a pen as by a stamp. A scrawl, with the initials L. S. written within, is sufficient. Id.

9. Delivery, Id. Acknowledgment, Id.

10. A deed for "one-half of my lot," accompanied by proof that the grantor owned at the time but one lot in the place, is not void for uncertainty in the description. Lick v. O'Donnell, 3 Cal. 59.

11. But such deed can only convey an undivided half of said lot, and the grantee can only take as tenant in common with the grantor. Id.

12. To sustain a title by virtue of a tax collector's deed, every pre-requisite to the power of sale by the officer must be shown to have been accomplished. Norris v. Russell, 5 Cal. 249; Ford v. Holton, 5 Cal. 319.

13. The recent statutes make tax collector's deeds prima facie evidence of title. Id. But when the claim accrued previous to the new statute it does not come within its provisions. Id.

14. Lien for purchase money. Cahoon v. Robinson, July T. 1856.

Acknowledgment-Wolf v. Fogarty, July T. 1856. Description of land-Mesick v. Sunderland, July T. 1856. Recordation-Id. Tax deed-Palmer v. Boling, Oct. T. 1856. Specific performance-Pearis v. Covilland, Oct. T. 1856. Notice of record-Dennis v. Burrett, Oct. T. 1856. Form-Smiley v. Van Winkle, Oct. 1856. Sale of personal property-Courtwright v. Phoenix, Jan. T. 1857; Hewlet v. Flint, Jan. T. 1857. Conveyance by attorney-Billings v. Morrow, Jan. T. 1857.

CONTRACT.

15. Contracts, like statutes, under which a forfeiture is claimed to have accrued, should be construed strictly, and the facts urged in support of the forfeiture ought to be clear and explicit, and not be left to inference or argument. Van Schmidt r. Huntington, 1 Cal. 55.

16. A written contract must be construed so as to give effect, if possible, to all its parts. Mickle v. Sanchez,

1 Cal. 200.

17. Parole evidence is inadmissible to vary terms of a written contract. Lennard v. Vischer, 2 Cal. 37.

18. As to when a contract of sale is complete before actual delivery, so as to throw the risk of loss on the vendee, see the opinion of the referee in Tyson v. Wells, 2 Cal. 122.

19. A party cannot ask the recision of a contract on account of an obstacle to its completion, caused by his own fault. Salmon v. Hoffman, 2 Cal. 138.

20. Caveat emptor applies in sales of real estate where there is no fraud, warranty, etc. Id.

21. A deed executed by an agent, (holding a power of attorney from his principal,) in his own name, though inoperative as a conveyance, will be good as an agreement, and the principal may be decreed to convey. Id. 22. Where the consideration of a contract is expressed in writing, although fictitious, it satisfies the statute of frauds. Happe v. Stout, 2 Cal. 460.

23. If there be no consideration, that ground may be urged specially as a good ground of defense. Id. 24. Parties may reduce their contracts to writing, and if afterwards it is agreed that such writing contains their true intention, and they proceed according to such memorandum, it will be as binding as if signed by them respectively. Lafonton v. Gaucheron et al. July T. 1856.

25. Where a person agrees to work for a certain period, at such a price, or to perform certain services for such an amount, he cannot break off at his own pleasure and maintain an action for the work so far as he has gone. Performance is a condition precedent to payment. Hutchinson v. Wetmore, 2 Cal. 310.

26. A parol agreement to rescind a contract under seal, is good, if such parol agreement is executed, and such agreement may be presumed from the acts of the parties. Green v. Wells, 2 Cal. 584.

27. Where the contracts were entire and the covenants dependent, and the plaintiff has declared his inability to keep it and afterward actually abandoned it, held that these facts formed a defense to his action for a claim under the contract. Id.

28. A contract entered into by a number of individuals, describing themselves in the contract as "directors of a company," and signed by them individually, is their individual contract and not that of the company. Whiting . Heslep, 4 Cal. 327.

29. Where the contract is entire, a breach of part is a breach of the whole, and discharges the party complaining of it from the performance of any of the conditions on his part and gives him a complete right of action. Haskell v. McHenry, 4 Cal. 411.

30. If the grantor of an estate, upon condition subsequent, does not complain of a breach, it does not lie in the mouth of any one else to do so. Holliday & Warner v. West, Oct. T. 1856. Where there are two grants of same land to different parties. Id.

31. The mere non-performance alone within the stipulated time does not annul a contract ipso facto, unless time is the very nature and essence of the contract. Id. Brown v. Covilland, Oct. T. 1856.

MORTGAGE.

32. No particular form of words is necessary to constitute a mortgage, and where two instruments taken together described the property and the amount of indebtedness, and conveyed the premises as security for the indebtedness, held to be a sufficient mortgage. Woodworth v. Guzman, 1 Cal. 203.

33. A court of equity will, as against the mortgagor, correct a mistake in the description of the mortgaged premises as a matter of course; and a person claiming under the mortgagor and having notice of a prior lien upon the premises, is in no better condition than the mortgagor himself. Id.

34. A prior unrecorded mortgage has priority of lien over a subsequent recorded mortgage, where the second mortgagee had notice of the existence of the first incumbrance. Id.

35. Where a power of sale is contained in a mortgage, and under a sale by virtue of such power the mortgagee becomes the purchaser, the equity of redemption still attaches to the property in favor of the mortgagor. Benham v. Rowe, 2 Cal. 387.

36. It is the duty of a mortgagee in possession to exercise the same care and supervision over the property, as a prudent man would over his own. Id.

37. A mortgagee in possession is not entitled to make any charge, by way of compensation, for his trouble in managing the property and collecting and receiving the rents. Id.

38. A stipulation that a party should be protected for his advance of money to be expended in building upon a mortgaged lot, by the mortgagee, is a promise to repay the money so expended out of the mortgaged premises. Godeffroy v. Caldwell, 2 Cal. 489.

39. The purchaser of a mortgage is subrogated to the rights of the mortgagee. Johnson v. Dopkins, 3 Cal. 391.

40. An unrecovered mortgage has priority over a mechanic's lien which attached subsequently to the execution of the mortgage. Rose v. Munie, 3 Cal. 173.

41. A conveyance of real estate, conditioned to be void on payment of a given sum of money on a given day, otherwise to be and remain in full force and virtue, is a mortgage, and not a conditional sale. Ferguson v. Miller, 4 Cal. 97.

42. A mortgage is a mere security for a debt, and cannot pass without a transfer of the debt. Peters v. Jamestown B. Co. 5 Cal. 334.

43. A mortgage is the incident of the debt, and the indorsement of a promissory note, secured by mortgage, carries with it the security, without a formal assignment of the mortgage. Phelan v. Olney, Oct. T. 1856; Berri r. Minturn, Oct. T. 1856.

44. An acknowledgment of a mortgage which does not state that the party executing the instrument was known or proved to the officer to be the party who executed the same, is insufficient, and its record imports no notice. Kelsey v. Dunlap, Jan. T. 1857.

Vallejo v. Randall, 5 Cal. 461; Bennett v. Taylor, 5 Cal. 502; Guy e. Carriere, 5 Cal. 511; Ord v. McKee, 5 Cal. 515; Meyer v. Gorham, 5 Cal. 322; Cheever v. Fair, 4 Cal. 337; Dillon e. Byrne, 5 Cal. 455; Abel r. Coon, July T. 1856; Ferguson v. Miller, Oct. T. 1856; Dennis v. Burrett, Oct. T. 1856; Abel r. Coon, Jan. T. 1857.

FRAUD.

45. The question of fraudulent intent is a question of fact. Billings r. Billings, 2 Cal. 107.

46. In an assignment for the benefit of creditors, a power to the assignee to sell on credit is presumptive evidence of fraud. Id.

47. Fraud discovered after suit brought will entitle the party to amend his action so as to include it. Truebody r. Jacobson, 2 Cal. 269.

48. Where fraud is charged express proof is not required; it may be inferred from strong presumptive circumstances. McDaniel v. Baca, 2 Cal. 326.

49. Where the consideration of a contract is expressed in writing, although fictitious, it satisfies the statute of frauds. Happe e. Stout, 2 Cal. 460.

50. An executed parole agreement is a good defense against an action upon a specialty. The statute of frauds contains uo provision with regard to the dissolution of agreements or contracts under seal for the sale of lands. Beach v. Covilland, 4 Cal. 315.

51. A court of equity will not interfere at the instance of a creditor, and set aside fraudulent conveyances of the debtor's property, until the remedy at law has been exhausted by execution and return of nulla bona. Heyneman v. Dannanburg, Oct. T. 1856.

52. No one but the creditor, hindered, delayed and defrauded, has any right to complain of a fraudulent conveyance. Dewey v. Latson, Oct. T. 1856.

53. Constructive notice not sufficient to charge a party with fraud. Dennis v. Barrett, Oct. T. 1856. Fraud-Spencer e. Banely, Oct. T. 1856.

54. Growing crops upon land are not goods and chattels within the meaning of the statute of frauds. Bourse v. Webster, Oct. T. 1856.

55. Defendant bought the property and recorded his deed, but by mistake the number and description of the lots were omitted in the record. Plaintiff subsequently bought the same lots of the same grantor, and afterward the grantor of both procured the record of defendant's deed to be amended by interlineation of the description. Held, that plaintiff had no notice of the previous conveyance of property to defendant. Chamberlain . Bell, Jan. T. 1857.

56. A creditor at large cannot impeach a sale of property by his debtor to a third person until he has taken out an execution or some other writ giving him a specific lien thereon. Thornburgh . Hand, Jan. T. 1857. 57. The act requires conveyances made before its passage to be recorded as well as those made subsequently. Stafford v. Lick, April T. 1857.

Cal. S. N. Co. v. Wright, July T. 1856; Heyneman v. Dannanburg, Oct. T. 1856; Dewey v. Latson, Oct. T. 1856; Hayes v. Bona, Jan. T. 1857; Lucas, Turner & Co. v. Payne & Dewey, Jan. T. 1857: Kinder v. Macy, Jan. T. 1857; Annan v. Bidleman, Jan. T. 1857; Gillan v. Metcalf, Jan. T. 1857; Hazeltine v. Larco, Jan. T. 1857; Joyce v. Joyce, 5 Cal. 161; Carpentier v. Hart, 5 Cal. 406; Riddell v. Shirley, 5 Cal. 488; Ellis v. Jeans, April T. 1857. See Land, Bills of Exchange and Promissory Notes, Constitutional Construction.

XSt. C

1552

432. Coroner may issue subpenas and summon sur- 443. Account of coroner, how audited.

ARTICLE 426, Sec. 1. Every person who may be chosen coroner of any county, shall, before he enters upon the discharge of the duties of his office, take the oath of office prescribed by the constitution of this state, and give bond in the sum of five thousand dollars.

ART. 427, Sec. 2. The coroner shall perform the duties of sheriff in all cases where the sheriff is interested, or otherwise incapacitated from serving; and also in cases of a vacancy by death, resignation, or otherwise, in the office of sheriff, the coroner shall discharge the duties of such office until a sheriff is elected and qualified.

ART. 428, Sec. 3. Whenever the coroner acts as sheriff, he shall possess the powers, and perform all the duties of sheriff and shall be liable on his official bond in like manner as a sheriff would be, and shall be entitled to the same fees as are allowed by law to the sheriff for similar services.

ART. 429, Sec. 4. When a coroner has been informed that a person has been killed, or has committed suicide, or has suddenly died under such circumstances as to afford a reasonable ground to suspect that his death has been occasioned by the act of another, by criminal means, he shall go to the place where the body is, and forthwith summon not less than nine, nor more than fifteen persons, qualified by law to serve as jurors, to appear before him forthwith at the place where the body of the deceased is, to inquire into the cause of the death.

ART. 430, Sec. 5. Every person summoned as a juror who shall fail to appear without having a reasonable excuse, shall forfeit any sum not exceeding one hundred dollars, to be recovered by the coroner in the name of the people of the state, before any justice of the peace, in the proper township, and when collected, to be paid over to the county treasurer for the use of the county.

ART. 431, Sec. 6. When six or more of the jurors attend, they shall be sworn by the coroner to inquire who the person was, and when, where, and by what means he came to his death, and into the circumstances attending his death; and to render a true verdict thereon, according to the evidence afforded them, or arising from the inspection of the body.

ART. 432, Sec. 7. The coroner may issue subpenas for witnesses, returnable forthwith, or at such time and place as he may appoint, which may be served by