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and disseizin of the co-tenant, and possession is adverse, and if continued for a sufficient period, will bar the right to recover by the cotenant. Weisinger v. Murphy, 2 Head, 674; Bogardus v. Trinity Church, 4 Paige, 178; Leonard v. Leonard, 10 Mass. 281.

So long as one of two tenants in common remains in possession, as he is presumed to hold for himself and for his co-tenant, his acts of ownership will naturally be construed as evidence of the possession of both; but, independent of authority, we can see no good cause in reason why a sale of the entire property by a tenant in common, who places the grantee in full possession, in consonance with his deed, and who thereupon claims title to the whole, should not be treated as an ouster of the co-tenant whose rights and possession have been thus signally ignored. “It is not necessary, in order to prove that a tenant in common has claimed the whole exclusively, that it should be proved that he made an express declaration to that effect, for it may be shown clearly by acts as well as words. Where one enters and takes the profits exclusively and continuously for a long period, under circumstances which indicate a denial of a right in any other to receive them, as by not accounting, with the acquiescence of the other tenants, an ouster may be presumed in this country, as well as it has appeared it may in England under like circumstances.” Ang. Lim. § 432; Law v. Patterson, 1 Watts & S. 191; Bracket v. Norcross, 1 Greenl. 89; Simmons v. Nahant, 3 Allen, 316; Lefarour v. Homan, Id. 354; Frederick v. Gray, 10 Serg. & R. 182.

What constitutes color of title is a question of law for the court. The question of occupancy under it is one of fact for the jury, and we have referred to the foregoing rules and authorities touching this last question that the sufficiency of the evidence introduced may be more readily understood and compared.

There was testimony tending to show that defendant Moss took possession of the land immediately after receiving his deed, in December, 1864, and went to improving the land and making up the fences; that he constructed levees to protect it from overflow, at an expense of about $12 per acre; that he had and claimed the exclusive possession, and received all the rents and profits, and paid all taxes thereon; that he inclosed the land with a fence of posts and boards, most of it five boards high and part four; that he moved some of the fences placed there by Sanor in 1862; and that he repaired the fences and “put it under good fences;” that he had a conversation with plaintiff soon after purchasing, from which it appeared plaintiff knew of his purchase. There was also testimony tending to show that as far back as 1861 plaintiff signed and swore to a petition to the swamp land commissioners which stated Sanor, the grantor of defendant, to be the owner of the land in question.

We conclude from our examination of the case— First, that defendant entered in possession of the premises under a claim of title, exclusive of other right, founded upon a written instrument, purporting to convey the property, and that such conveyance gave him color of title to the premises. Second. That the testimony was sufficient to warrant the jury in finding, as a matter of fact, that defendant had held the land adversely to plaintiff for more than five years next before the commencement of this action, and that the court did not err in its instructions to the jury, given at request of defendant, or in its refusal of certain instructions asked by plaintiff. In reaching this conclusion, we have assumed as correct the position that the statute of limitations did not begin to run as against the title of plaintiff, founded upon his certificate of purchase from the state, until the land was certified to the state in December, 1866, as stated in the opinion of department 1 of this court in Packard v. Johnson, (No. 8,550,) supra.

No doubt the possession of defendant, and of Sanor, his grantor, prior to 1866, was adverse to any right of entry which plaintiff then had; but it is well settled that where there are two separate rights of entry, the loss of one by lapse of time does not impair the other, and if a person acquires a second right, he is allowed a new period in which to pursue his remedy, although he has neglected the first. Cruise, Dig. 498. It does not follow, however, that the possession of defendant, which before was adverse to the plaintiff, ceased to be so when, in December, 1866, plaintiff's title was perfected, or the badges of occupancy and possession with which defendant had surrounded the property, or had placed upon it, ceased to be evidence of a continued adverse holding against the new title. We are of the opinion the judgment of affirmance heretofore entered should stand as the judgment of the court.

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BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(2 Cal. Unrep. 372)

PACKARD V. JOHNSON. (No. 8,550.

Filed November 27, 1885. In bank. Appeal from superior court, county of San Joaquin. The facts in this case were similar to those in Packard v. Voss, ante, 818.

J. B. Hall, for appellant.
J. H. Budd and T. T. Baldwin, for respondent.

BY THE COURT. Upon the authority of Packard v. Moss, (No. 8,551,) ante, 818, the judgment and order are affirmed.

(68 Cal. 156) HIBERNIA Sav. & Loan Soc. v. Moore and another. (No. 8,589.)

Filed November 30, 1885. 1. MOTION FOR NEW TRIAL-WAIVER OF IRREGULARITIES.

Irregularities in the proceedings leading up to or in connection with the settlement of a statement on motion for a new trial, if not objected to, cannot be

availed of in the supreme court for the first time. 2. NEW TRIAL-DENIAL OF-RECORD ON APPEAL.

The statement of motion for a new trial duly prepared, together with the judgment roll, is the record on appeal from the order denying the motion for

a new trial. 3. DECISION-INCLUDES FINDINGS OF FACT.

“Decision” includes not only the conclusions of law, but the facts found; and a notice of intention to move for a new trial which designates, as ground of the motion, that the evidence does not warrant the decision, is equivalent

to a notice stating that the findings are not supported by the evidence. 4. PRINCIPAL AND AGENT/JUDGMEXT AGAINST AGENT.

Under a finding that the money for which a note and mortgage were given was borrowed by one purporting to act as agent solely for and on account of the principal, personal judgment against the agent on the note is not war

ranted. 5. FINDINGS-AUTHORITY OF AGENT TO EXECUTE NOTE.

A finding that a note and mortgage purport to be executed in the name of the principal by her attorney in fact, who, in executing them, assumed to be authorized, is not equivalent to a finding that such attorney in fact was au

thorized to execute the note and mortgage. 3. AGENT-POWER TO MORTGAGE PRINCIPAL'S LAND FOR OWN DEBT.

An attorney in fact cannot give a mortgage on his principal's land to secure his own debt, though he had authority to borrow money and mortgage the land of his principal; and a mortgage so given is not binding on the principal if the mortgagee knew that the agent intended to use the money.borrowed for his individual purpose. In bank. Appeal from superior court, city and county of San Francisco.

Shafter, Parker & Waterman, for appellant.
Tobin & Tobin, for respondent.

McKEE, J. The action in hand was brought for the recovery of a money judgment and foreclosure of a mortgage upon real property, alleged to have been given by the defendants, Charles C. Moore and his mother, Mary A. Moore, to the Hibernia Savings & Loan Society, as security for the payment of $57,500, money borrowed by the defendant Charles. Part of the mortgage premises is a parcel of land in the city and county of San Francisco which belonged to the defendant Mary as her sole and separate estate. In her answer to the complaint she avers that the note and mortgage were given by her son to secure payment of money borrowed by him from the plaintiff to pay his own existing, antecedent, private, personal, and separate indebtedness, and not for her use or benefit, or for or on her account; and she denies that she signed either of said documents, or that she was personally present, or in any way a party to the transaction between the plaintiff and her son in which they were given, or tuat she authorized him to sign her name to the note or mortgage. On the contrary, she avers he had no authority to sign her name to the note, or in her name to execute the mortgage upon her separate property for the money borrowed for his individual purposes, and this was well known to the plaintiff when it loaned him the money and received from him his note and mortgage as security for its repayment. On the trial of the issues framed by the complaint and answer, the court decided that the plaintiff was entitled to recover against the defendant Charles upon the promissory note, and against the defendants, Charles and Mary, to a decree for the sale of the mortgaged property, including the separate property of tlie defendant Mary, to satisfy the judgment; and from the decree and an order denying her motion for a new trial the defendant Mary appeals.

The grounds of the motion for a new trial were, that the evidence was insufficient to justify the decision; that the decision was against law; and that errors of law had occurred at the trial to which exceptions were taken. The motion itself was made upon a statement of the case.

The contention is made that this statement must be disregarded, because the notice of motion designated as grounds of the motion: (1) Surprise; (2) newly-discovered evidence; (3) insufficiency of the evidence to justify the decision; (4) the decision was against law; and (5) errors of law, and that the motion would be made upon affidavits as to the first, second, and third grounds, and upon a statement of the case as to the fourth and fifth grounds. But there were no affidavits made or filed. The motion was made upon a prepared statement, to which amendments were proposed, and the same was settled and certified according to law without any objection taken, or right reserved to object thereafter, to any irregularity in the proceedings leading up to or in connection with the settled statement; and the motion was heard and decided upon the statement without any objections of irregularities. Any irregularity in the proceeding upon the motion was therefore waived, (Hobbs v. Duff, 43 Cal. 486; Gray v. Nunun, 63 Cal. 220;) and cannot be availed of for the first time in this court. In connection with the judgment roll in the case, the statement constitutes the record on appeal from the order denying the motion for a new trial, upon which the case in this court is to be reviewed.

The first ground of the motion is that the evidence does not justify the decision. The “decision” includes not only the conclusions of law, but the facts found, (section 633, Code Civil Proc.;) and a notice of intention to move for a new trial, which designates as ground of the motion that the evidence does not warrant the decision, is the equivalent of the expression that the evidence is insufficient to support the findings. Donohoe v. Mariposa Co., 5 Pac. Rep. 495. The question, therefore, arises, does the evidence support the findings of fact and conclusions of law against the appellant Mary? It is admitted that she was not, in person, a party to the transaction in which the note and mortgage were given by the son. At the time of the transaction she resided in the state of New York, and had not

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been “for many years in California.” Personally, therefore, she did not sign the note or execute or deliver the mortgage. But the court finds: (1) That the note and mortgage purport to be executed by said Mary Adams Moore by Charles Carroll Moore, her attorney in fact; that said Charles Carroll Moore in so executing said note and mortgage as her attorney in fact assumed and claimed to be authorized to do so under and by virtue of a power of attorney, made to him by the said Mary on the twenty-second of October, 1864, which by its terms constituted and appointed him her attorney in fact for her and in her name to take charge and possession and control of all real estate belonging to her in the said city and county, and to mortgage and convey the same as he might see fit. (2) That this power of attorney authorized him to execute and deliver the mortgage in the name of Mary A. Moore, and as her açt and deed; and that under it he did sign her name to the note and mortgage “in pursuance of said authority.” (3) That the moneys for which the note and mortgage were given, were borrowed by the defendant Charles for the use and benefit of the defendant Mary, and for and on her account, and was not borrowed by him for the purpose of paying, and was not used to pay, the existing or antecedent or private or personal or separate indebtedness, or any indebtedness, of said defendant Charles; “that plaintiff had no notice at the time said loan was made, or at the time of the execution or of the delivery of said note and mortgage, or at any time, or at all, that said sum of money was borrowed for the purpose of paying, or was used to pay, the antecedent or private or personal or separate indebtedness, or any indebtedness, of said Charles Carroll Moore, and that at the time of the execution of said note and mortgage

the piece of land eighthly described in said amended complaint was, and had been long prior thereto, and still is, the sole and separate estate of said Mary Adams Moore.'

The conclusion drawn by the court from its finding is that the plaintiff is entitled to judgment against the defendant Charles only, for the amount of the principal and interest due upon the note, and judgment against him only was given and entered. This conclusion is not legally drawn from the fact, as found by this court, that the money for which the note and mortgage were given was borrowed solely for and on account of the defendant Mary. The fact and the conclusion are contradictory of each other. Besides, the finding that the note and mortgage purport to be executed in the name of Mary by Charles, as her attorney in fact, who, in executing them, assumed to be authorized to execute them under the power of attorney, is not a finding of fact in a judicial sense. It is merely the expression of what appears on the face of the note and of the mortgage as described in the pleadings. What appears needed no finding. The issue joined was whether the signature of Mary to the note and the execution of the note and mortgage were acts authorized to be done for her and in her name by her son as her authorized agent and attorney in fact.

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