Pac. 542; California Southern Hotel Co. v. Callender, 94 Cal. 127, 29 Pac. 859.)

P. A. Bergerot, for Respondent.

The amount of the subscribed capital stock sufficiently appears, there being no special demurrer for uncertainty, the judgment being by default. (Amestoy v. Electric etc. Co., 95 Cal. 314, 30 Pac. 550; Chamberlain v. Loewenthal, 138 Cal. 47, 70 Pac. 932; Harnish v. Bramer, 71 Cal. 158, 11 Pac. 888; Bliss v. Sneath, 103 Cal. 43, 36 Pac. 1029; Mullaly v. Townsend, 119 Cal. 47, 50 Pac. 1066; Larkin v. Mullen, 128 Cal. 453, 60 Pac. 1091.) “Subscribed" has the same meaning as "owned," else the amount of the proportionate liability could never in any case be ascertained, as the liability is only on those “owning” shares. The two elements of the proportion must be similar. (Civ. Code, sec. 322; Const., art. XII, sec. 3; American etc. Co. v. State Board, 56 N. J. L. 389, 29 Atl. 160.)

MCLAUGHLIN, J.-This is an action against certain stockholders of the Eureka Consolidated Oil Company to recover their proportionate share of the indebtedness of said corporation. The only question presented for decision involves the sufficiency of an allegation in the complaint which reads as follows:

“That the capital stock of said Eureka Consolidated Oil Company now is, and at all the times hereinafter mentioned was, the sum of Sixty Thousand Dollars, divided into 60,000 shares of the par value of One Dollar each; that at all said times there had been issued by said Company 37,735 shares of its capital stock, and no more, which shares were duly subscribed for, owned and held by the shareholders of said company, and that there are now owned and held, and at all the times hereinafter mentioned there were owned and held by the defendants above named the number of shares set after their respective names,” etc.

The appellants demurred to the complaint on the ground that no cause of action was stated; the demurrer was overruled, and the appeal is taken from the judgment thereupon entered in favor of plaintiff.

Section 3 of article 12 of the constitution provides that "Each stockholder of a corporation or joint-stock association shall be individually and personally liable for such proportion of all of its debts and liabilities contracted or incurred during the time he was a stockholder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corporation or association."

In the complaint before us, the number of shares issued and the number of shares subscribed for and owned by the defendants is stated, but we are left groping as to the number of shares constituting the whole of the subscribed capital stock.” It is contended that the averment that but 37,735 shares were issued is equivalent to a statement that only that number of shares were subscribed. With this contention we cannot agree. In the case at bar the averment in question might be absolutely true, and yet the remaining number of shares might have been subscribed by one or more persons not made defendants in this action. “To constitute the subscribers stockholders, it was not necessary that the certificates of stock should have issued to them.” (San Jose L. & W. Co. v. Beecher, 101 Cal. 79, [35 Pac. 349] ; California S. H. Co. v. Callender, 94 Cal. 127, [28 Am. St. Rep. 99, 29 Pac. 859); Mitchell v. Beckman, 64 Cal. 121, [28 Pac. 110].) The avernient that stock has been issued amounts to no more than a statement that the stock certificates have issued. (Tulare Sav. Bank v. Talbot, 131 Cal. 39, [63 Pac. 172]. And it is a matter of common knowledge that stock is invariably subscribed for before it is issued.

From this it follows that one element necessary to fix the proportion of the indebtedness for which appellants were liable is entirely wanting. We know the amount of stock issued and the number of shares owned by appellants, but we are not informed as to the total number of shares subscribed.

It has been held repeatedly that a complaint failing to state the whole number of shares subscribed is fatally defective and we have neither the inclination nor the right to depart from a rule so well settled and sound. (John A. Roebling's Sons Co. v. Butler, 112 Cal. 678, (45 Pac. 6); Bidwell v. Babcock, 87 Cal. 32, (25 Pac. 752); Const., art. XII, sec. 3; Civ. Code, sec. 322.)

The judgment is reversed.

Buckles, J., and Chipman, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on October 16, 1906, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November, 15, 1906.

(Civ. No. 246. Third Appellate District.--September 20, 1906.)

M. C. MEEKER, Respondent, v. SARAH E. SHUSTER,

JAMES E. SHUSTER, JACOB E. SHUSTER, and
JOHN BARNES et al., Appellants.

MORTGAGE BY DEED-FORECLOSURE-SUFFICIENCY OF EVIDENCE.-An ac

tion to foreclose a mortgage by deed as security for indebtedness is sufficiently sustained by evidence showing that defendants, while in possession of the land under a contract to purchase the same from a third party, applied to plaintiff for a loan of the residue of the purchase money, and agreed with plaintiff that he should take the title from the vendor, not as a purchaser, but as security for the amount loaned, under a bond to convey to defendants when such indebtedness should be paid to plaintiff, with in. terest at an agreed rate, on or before ten years from the date of

the transaction. ID.-EVIDENCE-FORMER JUDGMENT BETWEEN SAME PARTIES–ESTOPPEL

OF DEFENDANTS.—A former judgment in ejectment between the same parties in relation to the same property in which it was ad. judged, upon substantially the same evidence, that plaintiff held the title as security for a debt not yet due from defendants to plaintiff, and that the defendants were the owners of the land, subject to such security, was properly admitted in evidence against them in the foreclosure suit, and estops them from claiming therein that the deed was a conveyance to plaintiff of all their interest in

the land. LD.—AGREEMENT FOR CREDIT_STATUTE OF LIMITATIONS.-The cause of

action in foreclosure accrued at the expiration of the agreed period of credit, and was not barred by the statute of limitations when the foreclosure suit was commenced.

APPEAL from a judgment of the Superior Court of Sonoma County, and from an order denying a new trial. Em. mett Seawell, Judge.

The facts are stated in the opinion of the court.

J. A. & E. C. Barham, and T. J. Butts, for Appellants.

J. M. Thompson, for Respondent.

BUCKLES, J.-This is an action to have a certain deed declared to be a mortgage and to foreclose the same.

The defendants were in possession of the land mentioned in said deed while the legal title thereto was in one Aaron Barnes.

The complaint alleges that on December 3, 1883, the said Barnes entered into a contract and bond with the Shusters whereby he obligated himself to convey by bargain and sale deed said land to the Shusters on or before December 3, 1893, upon the Shusters paying to him the sum of $11,000 in sums not less than $100 and interest at the rate of nine per cent per annum. This contract and bond was duly recorded on the same day it was made. On October 5, 1892, the Shusters still owed $8,440 to said Barnes. To enable them to pay this debt the plaintiff loaned them $8,440. The money was paid over to Barnes, the Shusters released and satisfied the contract and bond on the records and requested the said Barnes to, and he did make, execute and deliver to the said plaintiff a deed to said land as security for the payment to him by said Shusters the said sum of $8,440, with interest thereon at the rate of eight per cent per annum, and the plaintiff gave the Shusters his bond for a deed for said land, in which he agreed to convey said land to the Shusters on or before ten years from October 5, 1892, upon the payment to him of the $8,440, with interest as aforesaid, by the said Shusters. That no part of the principal or interest of said debt was ever paid and that at the time the suit was commenced there was due and unpaid the sum of $18,513.26. That in a suit in ejectment in which the plaintiff and the defendants were the same as in this action, tried in the superior court of Sonoma county, a judgment was duly rendered and entered on December 14, 1894, by which it was adjudged that the payment of the said sum of $8,440 by plaintiff to the Shusters, and by them to said Barnes, was a loan by plaintiff to said defendants and that the deed executed and delivered by Barnes to plaintiff was a mortgage to secure the payment of said sum. Judgment was for defendants. An appeal was taken to the supreme court and the judgment affirmed. The answer contains a specific denial and a setting forth the transaction of plaintiff paying over the $8,440 and the circumstances of Barnes making the said deed and the plaintiff making the said contract and bond to the Shusters, claiming in effect that such transaction did not constitute a mortgage but a sale and conveyance of title of said land to the plaintiff, and also pleads bar under the statute of limitations.

The only oral testimony as to the transaction between plaintiff and the Shusters was that given by the plaintiff. A short time before the deed was made, one of the Shusters asked plaintiff to buy the land, and plaintiff replied: "I do not need the land. I really have more land now than I know what to do with," but then announced his willingness to furnish the money to pay the debt due to Barnes.

Again when plaintiff and the Shusters were all together at the time the arrangements were agreed upon which were afterward carried out he says: “I told them I had the money now to let them have ... and I asked them how they wanted to do the transaction and they said they would take a deed from Barnes . . . and give me a mortgage. I then objected to taking a mortgage from them. Then they didn't really know how to do it and I said it's like this, I will let you have the money to pay Barnes off and you will discharge the record and then I will give you a bond to purchase the property and will give you ten years' time, and will pay all taxes on the property during this ten years' time, and you pay me interest at the rate of eight per cent per annum.” The testimony shows that neither Meeker nor Barnes had ever been in possession of the said land. There is no evidence whatever to indicate the Shusters were intending to sell the land to Meeker. The court below found that the Shusters solicited from Meeker a loan of $8,440 for the sole purpose of paying said Barnes the sum due him, to wit, $8,440, and then agreed with Meeker to repay him the said sum in ten years. And that no agreement was ever made by plaintiff with said Barnes for the purchase of said land. The evidence abundantly supports these findings. Many errors are alleged in the court's rulings on the admission of evidence, but as all the testimony offered to which there was objection and ex