sale and a chattel mortgage, said bill of sale the warehouse receipts was grown upon and mortgage heretofore made and delivered plaintiff's land or that plaintiff had any inby said Erskine and Curtis to the defendant terest in or to the 94 bales of cotton. AfCalifornia Food Products Company." firmative allegations were made in the answer, to which we will presently refer, which, being quoted in the findings, bave given rise to a misunderstanding as to the meaning and intent of the findings leading to a reversal of the judgment in favor of the bank by the District Court of Appeal, which court directed a judgment against the First National Bank of Los Angeles for the full amount claimed. Respondent claimed that this reversal was due to a misunderstanding of the record and, upon its petition, the case was transferred to this court for decision. It has since been argued and briefs filed, by the parties in addition to the petition for transfer and the answer thereto. The District Court of Appeal reversed the judgment in favor of the First National Bank and ordered judgment against it upon the ground that the findings showed that the bank's claim had been fully paid and there remained in its hand sufficient of the proceeds of the cotton crop grown upon the land to pay the indebtedness due to the plaintiff. We will therefore first address ourselves to a consideration of that question. This parenthetical recital cannot take the place of a direct allegation of ownership, nor can it be so construed'on appeal to reverse the judgment where the recital is directly contrary to the direct and specific allegations of the complaint. In that regard it is expressly alleged that, under the lease, Erskine and Curtis, the tenants, were to yield and pay as rental one-fourth of the cotton grown on the premises, and that the defendants have, notwithstanding demand therefor, failed, neglected and refused to deliver said one-fourth of said cotton or any part thereof to the plaintiff, and that 378 bales of cotton were grown upon said premises, "of which under the terms of the aforesaid lease the plaintiff is entitled to and should receive free of all charges to the plaintiff at the compress yard in the city of Calexico 94 bales; that the defendants herein unlawfully and in violation of the rights of the plaintiff converted to their own use the said 94 bales of cotton and sold the same, realizing therefrom the sum of $8,470.37," and further alleged that, though often requested, "the defendants, and each of them, have failed, neglect- The defendants' answer, after a denial of ed, and refused to pay the plaintiff the value of the share of the plaintiff of the cotton grown on said premises amounting to the sum of $8,470.37" (Italics ours.) The complaint is framed upon the theory that the tenants failed to deliver the cotton to the plaintiff as they had agreed to do and that the subsequent sale and appropriation of the proceeds was a conversion of the property. Under these allegations no cause of action is stated against the First National Bank of Los Angeles, because it is affirmatively alleged that it was holding warehouse receipts issued to one of the tenants entitled to its possession and delivered to the First National Bank as security for an indebtedness owing to the bank, and this the bank had a right to do. The only cause of action stated is against Erskine and Curtis for unpaid rent. We will not dispose of the appeal wholly upon the ground that the complaint does not state a cause of action against the First National Bank of Los Angeles, because this point was not raised by respondent until its final brief, and no reply was filed thereto. However, the sufficiency of the complaint is involved in the points presented which we will now consider. For that purpose we will state additional facts. The defendants answered the complaint, after a general demurrer interposed by the Globe Grain & Milling Company was overruled. The answer contained a denial of the allegations of the plaintiff relating to the lease and cotton crop. Among other things, it was denied that the cotton evidenced by the allegations of the complaint, affirmatively alleges the facts concerning the pledging of the cotton by Erskine and Curtis to the First National Bank of Los Angeles. It alleges the loaning of money by the California Food Products Company to defendant Curtis upon the security of certain cotton, and that this company also advanced money to R. G. Erskine & Co. upon a chattel mortgage and bill of sale of cotton grown on other lands farmed by them, with a guaranty of such indebtedness by C. Curtis. That these obligations and securities were all transferred to the bank, and were all paid, and thereafter the First National Bank of Los Angeles advanced $21,000 to Erskine and Curtis, for which Curtis executed and delivered the collateral notes of Erskine and Curtis and did pledge to and deposit with the First National Bank of Los Angeles cotton represented by negotiable compress receipts as collateral security for the payment of the new liability created by said note, and that at the same time and under the same conditions and with the same understanding the defendant bank advanced $9,000 to R. G. Erskine & Co., and further alleges that "all of which said sums have since been paid by said C. Curtis." The findings of the court follow word for word the affirmative allegations of the answer with reference to the $21,000 and the $9,000 loans, and recites, in the language of the answer, "all of which said sums have since been paid by said C. Curtis." this answer it appeared that the defendants were contending, not only that the cotton had From (202 P.) tiff's claim. Viewed in the light of this admission, a critical analysis of finding 6, above quoted, reveals that the finding is not inconsistent with the facts as now admitted. That finding was evidently for the purpose of fixing the liability of the defendants Erskine and Curtis and not of the bank. been hypothecated to the bank by C. Curtis (which has already been applied to the plainfor an indebtedness, but also admitting that said indebtedness had been fully paid. The answer does not state what became of the cotton, but it does deny any conversion of any interest of the plaintiff therein and denies that plaintiff had any interest therein. The findings in addition to covering and conforming to the affirmative allegations of the answer, contain the following statement concerning the disposition of the cotton not made an issue by either the complaint or the answer. Before considering the other contentions of the parties, it is proper to say that the District Court of Appeal was no doubt misled as to the facts by the statements and admissions in the briefs of the parties, and proper to call attention to some of the statements in those briefs. In appellant's opening brief, after reciting the advancement of the $21,000 and the $9,000, it is said: "These loans were made on the additional "6. The crop of cotton raised by the defend-in view of the situation now developed, it is ants Erskine and Curtis on the land of plaintiff under the aforesaid lease between said defendants and plaintiff was sold as aforesaid and the proceeds thereof paid on the indebtedness of Erskine and Curtis to the First National Bank of Los Angeles, leaving an excess, the amount of which was the sum of $10,434.58; that the rent due plaintiff under its lease with the defendants Erskine and Curtis was the sum of $8,470.37, of which amount $1,499 was paid by the defendants Erskine and Curtis, after all indebtedness to said First National Bank of Los Angeles was satisfied, leaving unpaid and due from the defendants Erskine and Curtis to plaintiff the sum of $6,971.37." From this condition of the record and findings the Court of Appeal deduced the following conclusion: "Neither the findings nor the evidence give any justification for the retention of plaintiff's money by the First National Bank of Los Angeles, and, in view of the findings of the trial court that the indebtedness of Erskine and Curtis and of R. G. Erskine & Co. was all paid to the bank and that the bank received from the proceeds of the sale of this property an excess over such indebtedness amounting to over $10,000, it is fair to assume that the bank still held that sum at the time of the trial, or that, in the absence of any reason for its failure to pay to plaintiff the amount due, any disposition which the bank made of the excess was illegal." Thus the District Court of Appeal reached the conclusion that the bank had in its hands $10,000 belonging to Erskine and Curtis after the payment of all indebtedness due to it by them. We mention this because it now seems to be conceded by both parties that the real situation with reference to the $10,000 is this: That while it is true there was a surplus of $10,000 received from the cotton crop raised upon plaintiff's land, over and above the indebtedness of Erskine and Curtis to the First National Bank, that this balance, with the exception of $1,499 paid to the plaintiff, was applied by the bank to the indebtedness owing by R. G. Erskine & Co. and guaranteed by C. Curtis, and that it was the application of this amount that paid the $9,000 indebtedness of R. G. Erskine & Co., guaranteed by Curtis. In other words, the bank, instead of having $10,000 over and above all indebtedness due it had only $1,499, security of a personal guaranty by C. Curtis, and subsequently C. Curtis paid all of said one of the tenants to whom appellant leased, notes and advances. Appellant's position at the trial was and now is that after Erskine & Curtis' debts had been paid there was a surplus of $10,434.58 out of which appellant was entitled to its rental or crop share, the value of which was $8,470.37; that of this amount $1,499 was paid and the respondent First National Bank of Los Angeles became and was indebted to appellant in the sum of $6,971.37." (Italics ours.) there was no dispute on the facts, most of It was further stated by appellant that the evidence having been by way of stipulation and there having been no rebuttal by the defendants at the trial. Upon this statement the court was hardly to be expected to note that $9,000 of the $10,434.58 was applied to Curtis' pledge and that it was in this manner only that he paid "all of said notes and advances." The impression gained from this statement is that C. Curtis, from his own resources, had paid the amount of the loan made to him and to his principal, and that there still remained the amount of $10,434.58 in the bank's possession. Respondent did not clear up this uncertainty in his reply brief, but, on the contrary, stated: "Respondents have only one issue with appellant in the statement of facts: There is no evidence nor finding of any partnership of Curtis and Erskine, nor of R. G. Erskine & Co." Thus, the respondent apparently conceded that the defendant had in its possession $10,000, belonging to Erskine and Curtis which the plaintiff was justly entitled to apply to the indebtedness due it from Curtis and Erskine. [3] The contentions of the parties in this court are therefore directed mainly to the question as to whether or not it was proper for the bank to apply the balance of the money received from the cotton grown on plaintiff's land to the indebtedness of R. G. Erskine & Co. guaranteed by C. Curtis, when It authorized so to do by C. Curtis. In short, the | the R. G. Erskine & Co.'s indebtedness. question raised here is as to the authority of cannot therefore be said that the right of Curtis to pledge the interest of Erskine, as Curtis to pledge the assets of his copartner copartner or cotenant, in the cotton grown or cotenant Erskine was either raised in the upon plaintiff's land. This question, which pleadings or by consent tried as an issue in the appellant now seeks to have us deter- the case. That the findings, so far as they mine, was not raised in the lower court tend to support a judgment in favor of the and cannot be determined upon this appeal. plaintiff against the defendant First NationThe allegation of the plaintiff with reference al Bank of Los Angeles, are outside of the to the lease was merely by way of deraign-issues raised by the pleadings and those acing title to the cotton it claimed had been tually submitted to and tried by the court, converted and showing that its claim for and therefore should be disregarded. rent was unpaid. As already stated, it did not state a cause of action either for conversion or for rent against the defendant bank. A denial of these allegations by the defendant bank raised no material issue. The affirmative allegations of the answer were entirely unnecessary and offered no material issue. The apparent purpose of the respondent bank in the answer was to show good faith in that it had derived nothing from the sale of the cotton over the amount of its indebtedness. Later, a small excess of $1,499 was turned over to plaintiff. It is evident from the record in the trial court that the respondent bank never had its attention directed to the contention now made by the appellant. Its admission in its answer and by a stipulation and the finding based thereon prepared by the defendant clearly indicates that its attention was never directed in that court to the contention made here by appellant. [5] On appeal, presumptions are indulged in favor of judgments, and not against them; but, if we assume that the issue of title to the 94 bales of cotton was in fact submitted to and decided by the trial court, its decision was against plaintiff on that issue. The respondent bank has contended throughout the progress of the case in the trial court and on appeal that plaintiff had failed to show any title to the cotton and hence could not recover damages for its conversion. In view of our conclusions, it is unnecessary to consider the effect of the negotiability of the warehouse receipts. Judgment affirmed. We concur: SLOANE, J.; LENNON, J.: SHURTLEFF, J.; LAWLOR, J. (187 Cal. 419) OBENCHAIN v. SUPERIOR COURT OF [4] Not only was there no issue upon the question as to the application of the balance due Erskine and Curtis to the guaranty of Curtis on the R. G. Erskine & Co. indebted ness, but the plaintiff objected to testimony along that line. The objection is as follows: "Here plaintiff objected to any testimony regarding any negotiations between Clifton Curtis and the First National Bank of Los Angeles and R. G. Erskine & Co., upon the ground that plaintiff is not concerned with any negotiations had between those parties and upon the ground that said negotiations are incompetent, irrelevant, and immaterial and not within the issues made by the complaint, and upon the further ground that the only subject in controversy is whether or not the Imperial Valley Land Company is entitled to one-fourth of defendants' share of the cotton crop grown upon their land, which objection was overruled by the Application by Madalynne C. Obenchain for court and to which ruling plaintiff now ex-writ of mandamus to the Superior Court of cepts." (Italics ours.) Although the objection was overruled, no evidence was offered with reference thereto other than the stipulation of facts literally conforming to the affirmative allegations of the answer subsequently quoted in the findings of fact by the court referred to above, and so far as the record shows, apart from the admissions of the parties in their briefs in this court, it is a matter of doubt as to whether the balance of $9,000 was paid upon The remedy after denial in the District Court of Appeal of a petition for mandate to compel the superior court to dismiss and quash an indictment against the petitioner or to grant immediate trial is by way of petition to the Supreme Court within the 60 days allowed by the Constitution for an order vacating the judgment and directing a rehearing, so that a direct application for a writ of mandate will be denied. In Bank. California in and for Los Angeles County, and Sydney N. Reeve, Judge, requiring the dismissal and quashing of an indictment Writ denied. Cooper, Collings & Shreve, of Los Angeles. Charles E. Erbstein, of Chicago, Ill. (Ralph Obenchain, of Los Angeles, of counsel), for petitioner. SHAW, C. J. The petition for a writ of mandate herein, directed to the superior For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (202 P.) As such we deem It was for this reason that the motion to dismiss the appeal was denied from the bench. court, Los Angeles county, to compel said | formance of a contract. court to dismiss and quash the indictment the order made therein a final judgment, appending therein against petitioner or to grant pealable under subdivision 1 of section 963, her an immediate trial of said cause, is de- Code of Civil Procedure. nied upon the ground that the remedy of the petitioner in this court, after denial of her petition for such mandate in the District Court of Appeal, is by way of petition to this court, within the 60 days allowed by the Constitution, for an order vacating the judgment of the District Court of Appeal and directing a rehearing of the case in this court. ANGELLOTTI, C. J., and WILBUR, SHAW, SLOANE, SHURTLEFF, LAWLOR, and LENNON, JJ., concur. (187 Cal. 322) In re CHEDA'S ESTATE. (S. F. 9998.) (Supreme Court of California. Nov. 8, 1921.) Appeal and error 77(1)—Order directing executors to transfer stock appealable. An order made by the superior court, under Code Civ. Proc. § 1597 et seq., directing executors to transfer and deliver to a third party certain shares of bank stock, based on a contract for the sale thereof, was a final judgment, and appealable under section 963, subd. 1, the proceeding being practically one in equity, not controlled by subdivision 3. In Bank. In the matter of the estate of S. H. Cheda, deceased. From an order directing delivery of certain stock, the executors appeal. On motion to dismiss appeal. Motion denied. Henry E Greer and Thos. P. Boyd, both of San Rafael, for appellant. Jos. K. Hawkins, of San Rafael, for spondent. (187 Cal. 343) STATE, by CHAMBERS, Controller, v. ROY- (Supreme Court of California. Nov. 12, 1921.) In view of the lien of taxes, not discharged till payment or a valid sale therefor (Pol. Code, §§ 3716, 3717, 3719), judgment against the state because of invalidity of tax sale under which it claims land is erroneous to the extent that it decrees that because of such invalidity the state has no interest in or lien on the property. 2. States 191 (1)-Consent necessary for cross-action for independent affirmative relief against state. Without consent of the state there cannot be maintained against it a cross-action for inre-dependent affirmative relief, so defendant cannot have title quieted in him in action on behalf of the state for possession under tax deed; the general provisions of the law authorizing cross PER CURIAM. Motion to dismiss appeal from order on ground that the same is not an appealable order. The order was one made by the superior court under section 1597 et seq., Code of Civil Procedure, directing the executors to transfer and deliver to a third party certain assets of the estate, being certain shares of bank stock. The application for the order and the order were based on a contract for the sale thereof alleged to have been made by the deceased. complaints not giving such consent. 3. Constitutional law 56-States ~200Provision of Constitution as to jurisdiction of courts binding on state. Const. art. 6, § 5, giving the superior court of the county in which land is located exclusive jurisdiction of action to quiet title to or for possession of it, is binding on the state, because dealing with its sovereign powers; so Pol. Code, § 3773, in terms, conferring on the superior court of a certain county, irrespective of location of land, jurisdiction of action on behalf of the state for possession of land sold to it for taxes, is invalid. tle location of land determines venue, though action is for rents as well as land. The claim that the order is nonappealable is based on the fact that such an order is not specified as an appealable order in the stat-4. Venue 5(3)-Where real question is tiute specifying the probate judgments and orders from which an appeal may be taken. Subdivision 3, § 963, Code Civ. Proc. If the order here were exclusively a probate order, there would be much force in the claim. We are of opinion, however, that the proceeding authorized by section 1597 et seq. is in substance more than this, being practically a proceeding in equity terminating in a final judgment, having the full force and effect of a final judgment in an action for specific per Where the real question is title, location of land determines venue of action, though it is not only for land, but for the rents and profits thereof. 5. Venue 162-Location of land governs where action is for possession thereof, though essentially one involving legality of tax. Though action be essentially one involving legality of a tax, yet it being also one for po For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes session of land, jurisdiction is in the superior court of the county where the land is located. In Bank. Appeal from Superior Court, Sacramento County; Peter J. Shields, Judge. has no right, title or interest in said real property. "That defendant Royal Calaveras Mining Company is the owner and seized in fee of said real property described in the complaint, and is in possession and is entitled to the possession of the same and the whole thereof." Then follows the judgment for costs. The adjudication is, in effect, a judgment quieting the title of the defendant to the property in question against all claims of the state of California of every nature and Action by the State of California, by John S. Chambers, controller, against the Royal Consolidated Mining Company and others. Judgment for defendants, and plaintiff ap peals. Reversed, with directions to dismiss. U. S. Webb, Atty. Gen., Charles A. Snyder, W. A. Gett, of Sacramento (Downey & Dow-description. ney, of Sacramento, of counsel), for appellant. Alfred J. Harwood, of San Francisco, for our system of taxation the liens for taxes respondents. [1] The judgment here is particularly objectionable by reason of the fact that under imposed for the five years immediately succeeding the sale and prior to the execution of the deed do not result in a sale and remain liens on the property until payment or a valid sale from the state of California. For the years subsequent to the deed to the state the property is not assesed at all on the theory that the property then belongs to the state, but if the deed to the state is void the inchoate lien of the state for the taxes of succeeding years remains as a burden upon the property until discharged, and therefore a judgment against the state decreeing that the state has not interest in or lien upon the property in question because of defects in or the invalidity of the original tax sale to the WILBUR, J. This action is brought by the controller of the state of California, acting under and by virtue of authority conferred upon him by section 3773 of the Political Code to secure the possession of, and the rents, issues, and profits derived from, certain mining properties described in the complaint. Plaintiff alleges that the state of California ever since July 12, 1910, has been the owner of the real property described in the complaint, "being the same land conveyed by Louis Cadematori, tax collector of Calaveras county, state of California, to the state of California, on the 12th day of July, 1910." The defendants deny that the state of Cali-state in 1905 is erroneous. fornia was the owner of said properties on It is well settled that such relief will be the 12th day of July, 1910, or of any part denied to a property owner notwithstanding thereof, and deny that the state of Califor- errors in the sale or in the assessment, if it nia is the owner of said real property, or can be ascertained from the assessment that any part thereof. They deny that the land the property owner is liable in justice and or any part thereof was conveyed by Louis good morals to pay a tax thereon which has Cadematori, tax collector, to the state of not been paid. Savings & Loan Society v. California on July 12, 1910, or at any other Burke, 151 Cal. 616, 91 Pac. 504. Under our time. Defendants further aver that the system of taxation the lien therefor attaches Royal Calaveras Mining Company is the own- on the first Monday in March of each year. er in fee simple absolute of the property in question. Defendants pray judgment that plaintiff take nothing by the action, and that defendants have judgment for their costs of suit. The court found that the state of California was not the owner of the property and stated its conclusions of law, as follows: "I. That the plaintiff is not the owner of the real property described in the complaint, or any part or portion thereof, and that plaintiff has no right, title, or interest in said real property. "II. That the defendant Royal Calaveras Mining Company, a corporation, is the owner and seized in fee thereof, and is in possession and is entitled to the possession of the same and the whole thereof. "III. That defendants are entitled to judg "Every tax has the effect of a judgment against the person, and every lien created by this title has the force and effect of an execution duly levied against all property of the delinquent; the judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof." Section 3716, Pol. Code. Taxes upon personal property and upon the improvements upon real property are also liens upon the real property. Sections 3717 and 3719, Pol. Code. The lien attaches and remains upon the real estate until payment or sale, notwithstanding defects in the assessment, and if the sale is for any reason void, it, of course, does not discharge the lien. If the judgment in this case had been In the judgment it is ordered, adjudged, confined to the right of possession of the and decreed: plaintiff, which depends upon the validity "That the plaintiff is not the owner of the of the tax sale relied upon, the court could real property described in the complaint or have entered such a judgment without reany part or portion thereof, and that plaintiff | quiring the defendant to pay the taxes upon ment and to their costs of suit." |