the officer himself will not be prohibited from the performance of his duty. If that were permissible, the clerk of a court could be prohibited from issuing process, or the sheriff could be prohibited from executing it, or a tax collector from collecting the revenues of the state or a county, or from doing any other ministerial act, and thus the political affairs of the state would be involved in confusion. Hence we have uniformly held that the writ of prohibition does not run against ministerial acts: Le Conte v. Berkeley, 57 Cal., 269; People v. Board of Election Commissioners, 54 Id., 404; Maurer v. Mitchell, 53 Id., 289; Spring Valley W. W. v. San Francisco, 52 Id., 111.

Judgment and order reversed and cause remanded with direction to the court below to sustain the demurrer to the complaint.

THORNTON, J., Ross, J., MYRICK, J., MORRISON, C. J, and SHARPSTEIN, J., .concurred.

Nos. 8,736-8,737.

MARSHALL V. LIVERMORE SPRING WATER COMPANY ET AL.

Department One. Filed December 11, 1884.

LIEN ON REAL ESTATE-AGREEMENT FOR MUST BE IN WRIting. -An agreement for the purpose of creating a lien upon real estate is void unless the same is in writing, subscribed by the party to be charged. In an action to enforce such lien it is not necessary to allege that the agreement was in writing.

FORECLOSURE OF MORTGAGE-DECREE, WHAT TO EMBRACE.--A decree in an action to foreclose a mortgage can not direct a sale of a greater interest than that mortgaged. Thus, where the mortgage merely covered certain lands and improvements owned by the mortgagor at the time of the execution of the mortgage, the decree must be limited to such property, and cannot embrace property of the mortgagor subsequently acquired.

APPEAL from a judgment of the superior court for Alameda county, entered in favor of the plaintiff, and from an order denying the defendants a new trial.

M. Mullany and Joseph Leggett, for the appellants.

A. N. Drown and James Wheeler, for the respondent.

Ross, J. These appeals were submitted together, and will be so considered. Both are taken from a decree of foreclosure and sale, and from an order refusing a new trial of the action-one being brought by the defendant and the other by the intervenor. According to the averments of the complaint in intervention, the liens claimed by the intervenor grew out of contract. The agreements out of which they are alleged to have arisen are not in the pleading expressly stated to have been in writing, nor was that necessary. But if by statute they were required to be in writing, the intervenor was bound to prove them by the production of the writings or other competent evidence-issue having been taken on the making of such agreements: Vassault v. Edwards, 43 Cal., 463. By section 1,971 of the code of civil procedure it is provided:

"No estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust or power over or con

cerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered or declared, otherwise than by operation of law, or a conveyance, or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereto authorized by writing.

And sections 2,922 and 2.924 of the civil code read:

"2,922. A mortgage can be created, renewed or extended, only by writing, executed with the formalities required in the case of a grant of real property."

"2,924. Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage except when in the case of personal property it is accompanied by actual change of possession, in which case it is deemed a pledge."

At the trial the intervenor admitted that the alleged agreements were not in writing, but were entirely verbal. They were, therefore, void under the provisions of the statute, and being void, the court below rightly found that they were not made: Porter v. Muller, 53 Cal., 680.

But in one respect the decree appealed from is erroneous. It directs the sale of a greater interest than the defendant mortgaged. By this we must not be understood as saying that the plaintiff should not, in his complaint, have more specifically described the property mortgaged. On the contrary, whenever there is uncertainty in the description of the mortgage property, the action foreclosing the mortgage is the proper place in which to put an end to the uncertainty if it can be done: Crosby v. Dowd, 61 Cal., 602. But, of course, the decree cannot embrace property not included in the mortgage. Here, the defendant mortgaged, first, "all of its interest, claim, demand and property of, in and to the waters of the creek known as Mocho, and all easements, rights of way, dams, ditches, reservoirs, pipes, flumes, gates, faucets, connections and appurtenances used in appropriating said water, or in conducting the same to said town of Livermore or elsewhere;" second, "and also, all the water, water rights, pipes, flumes, lands, rights of way and property of every description now owned or used, (that is to say, at the time of the execution of the mortgage, owned or used) by said mortgagor, in, belonging to or in connection with its water-works, in the town of Livermore, in said Alameda county, and in or in connection with or belonging to the Las Pocitas Springs and creek, in said Murray township;" third "and also, all the lands and improvements which said mortgagor now (that is to say, at the time of the execution of the mortgage) owns on the elevated ground around or in close proximity to its reservoirs used in appropriating said waters of Las Pocitas springs and creek."

In making its decree the court below properly limited the sale it directed to be made of the property thirdly described in the mortgage to such of said property as the mortgagor owned at the time

of the execution of the mortgage, but, with respect to the property secondly described in the mortgage, the court decreed a sale of "all the waters, water rights, pipes, flumes, lands, rights of way and property of every description at the date of the said mortgage, or since, owned or used by the mortgagor in, belonging to, or in connection with its said water-works in the town of Livermore, in said Alameda county, and in or in connection with or belonging to Las Pocitas creek and springs in said Murray township.'

In directing a sale of such property, coming within the last above description as the mortgagor acquired since the execution of the mortgage, the court manifestly went beyond the limits of the mortgage. In that respect the decree may, and it is claimed by appellants that in fact it does, include property acquired by the defendant subsequent to the mortgage and which does not fall within either of the descriptions firstly and thirdly given in the mortgage. If we could see clearly that the rights of the respective parties could be protected by simply directing a modification of the decree to accord with the views above expressed, we would remand the cause for that purpose; but as the case is presented we are of opinion that the safest way is to direct a new trial.

trial.

Judgment and ordered reversed and cause remanded for a new MCKINSTRY, J., concurred.

MCKEE, J., I concur in the judgment.

No. 9,102.

TRUETT v. ADAMS.

In Bank. Filed December 11, 1884.

GRANT OF LAND-DESCRIPTION BY GENERAL NAME EXCEPTION FROM GRANT.--A grant of a tract of land with well-known boundaries, designated and known by a general name, passes all the land within the tract so named or designated; and, upon the same principle, where in the grant of a tract of land by metes and bounds, there is excepted therefrom a portion of the tract with well known boundaries, designated by a general name by which it is known, the tract so designated does not pass by the grant.

DOUBTFUL DESCRIPTION OF PREMISES-INTERPRETATION OF.--In determining what land was intended to be conveyed, where the description in the deed is doubtful, it is the duty of the court to assume as nearly as possible the position of the contracting parties, and to question the circumstances of the transaction between them, and then to read and interpret the words which they used in the light of these circumstances.

THE SAME EVIDENCE OF ACTS AND DECLARATIONS OF PARTIES.-Where the location of premises intended to be conveyed can be ascertained from the terms used in the instrument of conveyance, neither the acts nor declarations of the parties are admissible to show their understanding of the description contained in the conveyance. But where the terms used to describe the premises meant to be conveyed are equivocal, ambiguous or insufficient, the subsequent acts of the parties while in interest showing the practical construction put upon the terms of the description by them, may be resorted to for the purpose of ascertaining their intention. And where it is proved that a line has been agreed upon, either expressly or by long acquiescence, as the dividing line between two tracts of land, courts will not disturb the line.

APPEAL from a judgment of the superior count for Alameda county, entered in favor of the defendant and from an order denying the plaintiff a new trial. The opinion states the facts.

L. E. Bulkeley, for the appellant.
H. P. Irving, for the respondent.

MCKEE, J. This was an action to recover an undivided interest in a block of land situate within the city of Oakland, and embraced within what has been heretofore known as the "Encinal, or Ensinar, of Temescal."

To the original owners of the land, the Encinal of Temescal was wellknown as a tract of land bounded on the east by the estuary of San Antonio, on the south by said estuary and the bay of San Francisco, on the west by the bay of San Francisco, and having for its northern boundary a straight line running from the estuary of San Antonio to the bay of San Francisco; and, as known by these boundaries and that name, it formed part of the Temescal ranch, of which, it is admitted, Vincente Peralta was in the years 1851 and 1852, the owner and intpossession.

From Peralta, the plaintiff claims to have acquired title to the premises in dispute, by, through and under a deed from R. P. Hammond, to whom and others, Peralta, on the third day of August, 1853, granted a portion of the Temescal ranch by boundaries which would have included the Encinal of Temescal; but in the descriptive clause of the grant there is the following exception, viz.: "Excepting therefrom all the land comprehended in the Encinal of Temescal sold on the thirteenth of March, 1852, to John Caperton and others."

It is well settled that the grant of a tract of land with well known boundaries, designated and known by a general name, passes all the land within the tract so named or designated; and, upon the same principle, where, in the grant of a tract of land by metes and bounds, there is excepted therefrom a portion of the tract with well known boundaries, designated by a general name by which it is known, the tract so designated does not pass by the grant.

It would therefore seem that Peralta, by his grant to Hammond, intended to, and did, in fact, except from the operation of the grant the entire Encinal, either for those to whom he declared he had previously sold it, or for himself; and whether for them or himself, no part of the land "comprehended in the Encinal" passed to Hammond. So that the plaintiff, who claims only as the grantee of Hammond, acquired whatever right Hammond had to land outside the Encinal tract; and, as it is only by virtue of that right that she claimed title to the land in controversy, it was incumbent on her, in order to recover, to show that the land was not a part of the Encinal tract: City of San Jose v. Uridias, 37 Cal., 339. She, however, admitted it was within the Encinal, and, therefore, within the exception in her grantor's deed, if the description in the deed embraced the Encinal.

But the plaintiff's contention is that Peralta sold to Caperton and others only a portion of the Encinal, and that the land in controversy, although within the Encinal, was without the portion of it

which Peralta sold, and, therefore, not within the exception of the Hammond deed.

The court below, however, found as a fact, that, on the thirteenth of March, 1852, Peralta sold and conveyed the whole of the Encinal to Caperton and others. The finding is challenged as contrary to the evidence in the case. The evidence upon which the finding rests consisted of the contract of sale between the original parties, of date the thirteenth of October, 1851, and of the deed executed and delivered on the thirteenth of March, 1852, in fulfillment of the contract, and of parol testimony of the acts and conduct of the vendor and grantor and the vendees and grantees under the contract and deed, in connection with their claim of ownership and use of the Encinal. The contract and deed are both in the Spanish language. The deed, after reciting the fact that it was executed in fulfillment of the contract, designates the land conveyed as "Una porcion del terreno llamada El Encinal, descrito en dicho contrato," that is to say, in English: A portion of my land called "Ensinar," which is described in said contract. The contract describes the land thus: "lu parte de mi rancho llamada Ensinar comprendida desde la punta de la primera laguna que esta cerca de la casa de Valdez, linea recta, a la orilla y punta primera del Canal donde estan los alemanes actualmente; esto es todo el terreno desde esta linea al sur y donde quedan plantados hoy mismo dos estacas," that is to say, in English: The portion of my ranch called Ensinar, which is comprised from the point of the first lake which is near the house of Valdez in a direct line to the edge and first point of the canal where the Germans actually are; that is, all the land from this line-al sur"-to the south, and up to where are planted this day two stakes.

The first expression in this description shows that on that occasion Peralta sold that part of his ranch known by the name of Ensinar, and situated to the south of a line which he undertook to locate. For that purpose, as it was a peninsular tract of land, well known by the name by which he designated it, bounded on the southeast by the waters of the estuary of San Antonio, on the south by the waters of the same estuary, and on the west by the bay of San Francisco, it was only necessary to describe the line on the north, extending from the estuary on the east to the bay on the west, which separated the Encinal from the main land of the ranch. For that purpose the vendor used the natural objects of a lake near the house of Valdes to the east, and a canal to the west, near where some Germans were located.

The idiomatic forms of expression used by Peralta in describing that line on the north, and the land which he sold to the south of it, are not free from ambiguity. It is doubtful whether by them he intended to sell merely the land directly to the south of a straight line produced west from the point of the lake, near the house of Valdes, to a point where it touched the slough near the house of the Germans, or all the land to the south of such a line and from the west stake across the salt marsh to the waters of the bay, and from