question whether defendant had a right to interpose the cross-complaint, or whether the plaintiff has waived the right to object at this stage of the proceedings that an equitable defense is inadmissible in this class of actions. Conceding that in unlawful detainer there is the same right to set up equitable defenses by cross-complaint as in ejectment, the fact remains that when the court has found against the defendant on the matters alleged in his cross-complaint, and in favor of the plaintiff on the issues tendered by his complaint, a judgment of restitution of the demised premises necessarily follows and execution of that judgment cannot be stayed without the consent of the trial judge. If it be said that there is also a judgment in the cross-action, and that as to that judgment a stay of proceedings pending appeal is matter of right, the answer is that so far as that judgment or that part of the judgment is concerned there is nothing to stay. By it the defendant has simply been denied the affirmative relief which, he sought. The judgment may be erroneous, it may be reversed, and he may ultimately secure the relief which he prays, but until there is a judgment in his favor upon his cross-complaint there can be no process for its enforcement, and, when that time comes, it will be the plaintiff, and not he, that will be in need of a stay of proceedings.

In the meantime, the plaintiff having prevailed in her action in unlawful detainer, and the trial court having refused a stay of execution, this court cannot interfere.

Petition for supersedeas denied.

We concur: SLOSS, J.; ANGELLOTTI, J.; SHAW, J.; HENSHAW, J.; LORIGAN, J.

(151 Cal. 102)

MARSTON v. KUHLAND. (Sac. 1,459.) (Supreme Court of California. May 1, 1907.) LIMITATION OF ACTIONS LIMITATIONS APPLICABLE-EQUITABLE REMEDIES.

A life policy was made payable to insured's son, with the understanding, shown by writing signed by insured and son, that the son on collecting the insurance should pay a certain part of it to insured's daughter. Afterwards the insured and the son modified this by provision that $500 of the insurance directed to be paid the daughter should be paid the son, on condition of his erecting a monument. The son made payment to the daughter as directed by the modified instrument, and erected the monument. At the time of the payment, the daughter, knowing all the facts, acknowledged in writing receipt from the son in full of all demands all money due her on account of her father's life policy, and he stated to her: "Now, you and I are released in this and our business is ended." Held, that an action, commenced by her seven years thereafter, to recover the $500, on the ground that the original direction as to payment could not be modified without her written consent, was barred; the trust relation being ended by the writing given by the daughter and the statement made by the son at the time of payment, and any ordinary action founded on the former relation being barred, under Code Civ. Proc. §§ 337, 338, subds. 1, 4, and section 343, in at most four years thereafter.

Department 2. Appeal from Superior Court, Solano County; A. J. Buckles, Judge.

Action by Mary A. Marston against Louis W. Kuhland. Judgment for defendant. Plaintiff appeals. Affirmed.

Chas. J. Hasman and Alexander & Church, for appellant. Frank R. Devlin and Mr. Goodwin, for respondent.

MCFARLAND, J. This is an appeal by plaintiff from a judgment in favor of defendant.

Plaintiff is the sister of the defendant, and the two are children of William Kuhland, now deceased. In his lifetime, and on or about February 18, 1892, the said William Kuhland procured several life insurance policies on his life to be issued and made payable to the son, Louis W., defendant herein. They were made payable to defendant, however, with the understanding that, upon the death of the father, defendant was to collect the amounts due on the policies and pay a certain named part thereof to the plaintiff herein, a certain part to a couple of grandchildren of the insured, and to retain the balance for himself; and on February 18, 1892, said father, William, and the son, defendant herein, executed a written instrument, in which the duties of defendant with respect to the policies, as above stated, were fully declared. Afterwards, on November 1, 1895, the father and son executed in writing a modification of said written instrument of February 18, 1892, in which the father recited that he had "made certain advances in money to my daughter, Mary Marston," and directed that $500 of the insurance money directed to be paid her by the first instrument should be paid to the defendant herein on condition that he should place a suitable monument on the grave of two deceased daughters. William Kuhland died on or about December 5, 1895. Thereafter the defendant collected the amounts due on said policies, and paid to plaintiff the part thereof given to her under the instrument of February, 1892, less the said $500 directed by said modification, and he erected the monuments mentioned therein, which cost about $500. Upon the payment of said money to plaintiff, she, on June 3, 1897, executed to defendant the following instrument in writing: "Received from L. W. Kuhland, in full of all demands, all moneys due me on ac-. count of life insurance policies of my father, William Kuhland." And plaintiff testified that at the time she executed that instrument her brother said: "Now, you and I are released in this, and our business is ended." Nothing more was done by either party touching the matter of the insurance money until seven years afterwards, when plaintiff brought this action to recover the $500 and interest, upon the theory that the original instrument of 1892 could not be legally modified without the written consent of plaintiff as beneficiary therein. She avers

In her complaint that she did not discover the facts of the execution of said instrument of 1892 and its modifications until within a short time, less than three years, before the commencement of this action. The court found, however-and upon sufficient evidence to sustain the finding-that plaintiff "was present when said direction was given for said modification being made in writing, 'and consented to such modification and alteration relating to the amount of money to be paid her from said funds." The court also found that "it is not true that plaintiff never discovered the true facts in this case until on or about the 1st day of September, 1903; but immediately after the death of said William Kuhland, to wit, on or about the 5th day of December, 1895, defendant informed plaintiff, and plaintiff has ever since had full knowledge of all the facts and circumstances in connection with this trust."

Defendant pleaded, among other things, various sections of the statute of limitations, and particularly section 337, subdivisions 1 and 4 of section 338, and section 343 of the Code of Civil Procedure; and this plea of the statute of limitations constituted a perfect defense to this action. The giving of the written instrument by plaintiff to defendant on June 3, 1897, and the statement then made by defendant, as above set forth, clearly ended the trust relation, and any ordinary action by plaintiff founded on the former relation was barred unless brought within at least four years thereafter. Of course, when there is a good cause of action founded upon a recent discovery of fraud or mistake, it may be brought within three years after such discovery; but in the case at bar the court found, upon sufficient evidence, that there was no such recent discovery of mistake, and that plaintiff knew all the facts of the case more than seven years before the commencement of this action.

The foregoing facts make it unnecessary to consider other points made by appellant; and certain exceptions taken by her to rulings of the court touching the admissibility of evidence are of no importance.

The judgment appealed from is affirmed. We concur: LORIGAN, J.; HENSHAW, J.

(151 Cal. 65)

GATES v. GREEN et ux. (L. A. 1,739.) (Supreme Court of California. April 5, 1907.) 1. VENDOR AND PURCHASER-ENFORCEMENT OF LIEN.

Where the vendee in a contract for the sale of land secured payment of his note for the price by a chattel mortgage, in an action to compel performance of the contract, by requir ing the vendee to pay the balance of the price, the vendee was entitled to have the security afforded by the mortgage exhausted before resort was had to his interest in the land.

2. PAYMENT-PART PAYMENT PENDING SUIT -WAIVER OF CAUSE OF ACTION.

The fact that, pending the action, the vendor accepted certain payments on account from

the vendee, did not amount to a waiver of the cause of action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Payment, § 142.]

3. VENDOR AND PURCHASER-VENDOR'S LIENENFORCEMENT-JUDGMENT.

Where, in an action by a vendor to compel performance by requiring the vendee to pay the balance of the price, a judgment was entered for a sale of the property and application of the proceeds to the debt, the judgment was not erroneous, in that it did not allow a reasonable time before sale within which the vendee might perform.

4. JUDGMENT-CONFORMITY TO PREVIOUS PRO

CEEDINGS.

Where, at the conclusion of the trial, the court announced orally that it would make certain provisions in the decision and judgment, the fact that the court failed to insert such provisions did not affect the correctness of the decision and judgment rendered.

Department 1. Appeal from Superior Court, Los Angeles County; Waldo M. York, Judge.

Action by W. W. Gates against G. R. Green and wife. Appeal by defendants from a judgment in favor of plaintiff, and from an order denying a motion for a new trial. Affirmed.

See 84 Pac. 37.

Will D. Gould and E. C. Oggel, for appellants. Flint & Barker, for respondent.

ANGELLOTTI, J. The defendants appeal from a judgment in favor of plaintiff, and from an order denying their motion for a new trial. The action is one brought by the vendor in an executory agreement for the sale of real estate, under which the vendee went into and continues in possession, to compel the performance of his contract by the vendee, by requiring him to pay the balance of the agreed purchase price. As a means to this end, foreclosure of a chattel mortgage given as a part of the transaction to secure the payment of a promissory note evidencing the indebtedness, and the application of the proceeds of the sale to the payment thereof, was sought, as was also a sale of the vendee's interest in the land under the contract, if necessary, and personal judgment was asked for any deficiency remaining after the application of the proceeds of sale. The trial court granted substantially this relief, finding the amount due under the contract on September 21, 1904, to be $3,310, and directing, for the payment of this amount with interest from that date at 7 per cent. per annum, costs, expenses, and attorney's fees: (1) The sale by the sheriff of the personal property covered by the chattel mortgage and the proper application of the proceeds; and (2) if any deficiency then remained, the sale by the sheriff of the interest of the vendee in the land, and the application of the proceeds so far as necessary; and (3) personal judgment for any deficiency remaining after such sales. It was further provided that any surplus of proceeds remaining after satisfy

ing the claim, costs, etc., should be delivered to the vendee.

1. It is claimed by defendants that the action is one for specific performance, and, for the purposes of the decision, this may be conceded. See White v. Sage (Cal. Sup.) 87 Pac. 193. It is not contended that the complaint fails to state a cause of action in this behalf, or that the facts found by the court do not entitle plaintiff to have what is practically a decree of specific performance, unless the existence of the chattel mortgage given as security for the balance of the purchase price precludes any such action until separate and independent proceedings shall have first been had upon the chattel mortgage, and the security thereby afforded exhausted. This appears to be the main contention of plaintiff on this appeal. It may be conceded that the vendee was entitled to have the security afforded by the mortgage exhausted, before resort was had to his interest in the land, and this is fully accomplished by the judgment, which directs the sale of the land only in the event that the sale of the personal property does not bring enough to satisfy the claim. We can see no other merit in defendants' claim. The existence of the mortgage in no degree affected the right of the vendee to specific performance. It was purely ancillary to the contract of sale, standing simply as security for the performance of his contract by the vendee. In an action to compel such performance, it was entirely proper, and probably incumbent on the vendor, to have a foreclosure of this mortgage before resorting to the vendee's interest in the land, or other property owned by him. This, as we have seen, was had, and we are unable to understand the contention of defendants' counsel to the contrary.

2. It is claimed that, in ascertaining the amount due, the trial court failed to credit certain amounts paid by the vendee. A careful examination of the record in this regard shows that the evidence was entirely sufficient to sustain the conclusion as to the amount remaining due from the vendee.

3. It is urged that specific performance will not be decreed where it would produce hardship or injustice, but we see no place herein for the application of this rule. It was both alleged and found upon sufficient evidence that the defendants received an adequate consideration for the contract; that, as to them, it was just and reasonable; that their assent was not obtained by misrepresentation, concealment, or unfair practice of any party thereto, or by any promise of such party which has not been substantially fulfilled, nor given under the influence of mistake, misapprehension, or surprise; and that plaintiff has fully and fairly performed all of the conditions of said contract upon his part.

4. After the commencement of this action,

the vendee made certain payments on account of the amount due, all of which were duly credited and taken into consideration in determining the balance due at the time of judgment. It is claimed that the acceptance of these payments operated as a waiver of the cause of action. It was alleged in the amended answer that these payments were made in part satisfaction, and the trial court found, upon sufficient evidence, that they were accepted by plaintiff without any agreement to waive his cause of action. In the absence of some agreement to that effect, the acceptance of these partial payments by plaintiff cannot be held to have constituted a waiver of any of his rights as to the balance still due.

5. Citing Keller v. Lewis, 53 Cal. 113, and Odd Fellows Sav. Bank v. Brander, 124 Cal. 255, 56 Pac. 1109, defendants claim that the judgment is erroneous, in that it did not allow a reasonable time before sale, within which they might perform their agreement and avoid a sale. Those, and other cases of like character to be found in our reports, were cases where it was sought simply to obtain a decree barring and foreclosing the right of the vendee to obtain a conveyance under his contract; no sale of the premises being sought or directed. In such cases, it is settled by our decisions that the judgment should fix a reasonable time within which the vendee may pay the balance due on the contract, before he is forever foreclosed of all right or interest in the hands, or to a conveyance thereof. Keller v. Lewis, supra. No reason for the application of any such rule is apparent in a case where the vendor is simply seeking to recover the money due under the contract, and in aid thereof obtains a judgment for a sale of the property upon which he has a lien for the unpaid purchase money. No case has been cited which holds this rule applicable under such circumstances, and we know of no principle that would justify its application.

6. At the conclusion of the trial, the trial court orally announced that it would make certain provisions in its decision and judgment thereafter to be given, and complaint is made that the court failed to insert such provisions in the written decision and judgment subsequently given. Obviously, the correctness of such decision and judgment can, in no degree, be made to depend upon such oral statements by the court as to its intention.

7. The allowance of attorney's fees was fully authorized by the express provisions relative thereto contained in the contract and in the chattel mortgage.

The judgment and order are affirmed.

We concur: SHAW, J.; SLOSS, J.

(151 Cal. 98)

ZOBEL ▼. ZOBEL. (L. A. 1,737.) (Supreme Court of California. May 1, 1907.) 1. JUDGMENT OPENING STATUTORY PROVI

SIONS.

Where a defendant who was personally served with summons outside of the state appears by attorney prior to the rendition of judgment, he is not afterwards entitled to have the judgment set aside under Code Civ. Proc. 473, which provides that, where summons has not been personally served on a defendant, the court may within one year after judgment set it aside and allow him to answer on the merits, since the purpose of the provision is to afford one who has only constructive notice an opportunity to defend upon the merits of the case. [Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 253.]

2. APPEARANCE-PROCEEDINGS CONSTITUTING

APPEARANCE.

Where defendant appeared by attorney and asked for a continuance of a motion by plaintiff to strike from the files pleadings of the defendant which had not been served on plaintiff's attorney, such appearance was equivalent personal service, since the relief could only be asked on the theory that defendant was submitting to the general jurisdiction of the court. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appearance, §§ 32, 48, 87.]

3. SAME-GENERAL APPEARANCE.

An appearance for any other purpose than to question the jurisdiction of the court is general.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appearance, § 42.]

4. SAME-ORAL MOTION.

The fact that a motion for a continuance is made orally does not affect the question of its constituting an appearance.

5. SAME-MOTION FOR CONTINUANCE.

An appearance to apply for a continuance of a matter pending before a court is just as general as though for the purpose of invoking the action of the court in any other matter.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appearance, §§ 32, 48, 87.]

Department 2. Appeal from Superior Court, San Diego County; N. H. Conklin, Judge.

Action by Leanna Zobel against Fred Zobel. From an order setting aside a judgment at default and permitting defendant to file an answer, plaintiff appeals. Reversed.

W. J. Mossholmes, for appellant. Mills & Hizar, M. B. Anderson, and Reese M. Ling, for respondent.

LORIGAN, J. This is an appeal from an order vacating a judgment entered upon default and granting defendant leave to an

swer.

The record shows that on May 28, 1904, plaintiff commenced an action in the superior court of San Diego county to quiet title to a lot of land in the city of San Diego. An affidavit and order for publication of summons were thereafter made and service of summons had on defendant by giving him a copy of the summons and complaint in Prescott, Ariz., on June 13, 1904. On June 24, 1904, defendant filed a general demurrer and answer to the complaint, but omitted to serve copies thereof upon counsel for plain

tiff. Thereafter, on November 4, 1904, and upon 18 days' notice thereof served on defendant in Prescott, plaintiff moved the court to strike said demurrer and answer from the files, on the ground that no service of the same was made on plaintiff. When said motion came up for hearing, J. C. Hizar, Esq., one of the attorneys for defendant herein, appeared in court, and on behalf of defendant asked the trial court to postpone the hearing of said motion, which the court refused to do, but proceeded to hear the same and made an order striking such pleadings from the files. On the same day the default of defendant was entered, and on the 10th of November, 1904, the cause was brought on before the court for hearing and a decree rendered in favor of plaintiff. After the entry of the decree and on December 23, 1904, the defendant moved the court to set aside said decree on the ground that the summons in the action had not been personally served on him, and that he had a good and meritorious defense to the action. The answer, profert of which accompanied the motion, set up as such defense that he had a valid and subsisting lien upon the premises described in the complaint, consisting of the mortgage claim for $3,000. The court granted the motion and made an order setting aside and vacating the judgment and default, and allowing defendant to file the answer he presented on the motion. The validity of this order is the only question presented on this appeal.

It is provided by section 473 of the Code of Civil Procedure that, when for any cause the summons in an action has not been personally served on a defendant, the court may, at any time within one year after the rendition of judgment, upon such terms as are just, set it aside and allow him to answer upon the merits of the original action. The obvious and sole purpose of this particular provision of section 473 is to afford one who has only constructive notice of a suit brought against him an opportunity within the time designated to invoke the benefit of the section and defend upon the merits. Where, however, at any time prior to the judgment, the defendant personally appears in the action, this, of course, establishes his personal knowledge of its pendency, and so removes him from the class to which the section affords relief. Now, the motion made by defendant was based solely upon the ground that present service of the summons had not been made upon him; that he had only constructive notice of the action brought against him. The discretion of the court was not invoked upon any other ground; no showing or suggestion that the judgment was taken against defendant through mistake, surprise, inadvertence, or excusable neglect. He based his application solely on want of personal service, and the validity of the order is to be determined by considering whether the evidence sustained that claim. We are

satisfied that it did not, because it appears from the record that the defendant, notwithstanding he was originally served outside of the state, personally appeared in the action prior to the rendition of judgment, and hence was not entitled to have the judgment set aside under the provision of the section upon which his application was based.

Without at all considering whether the filing of the demurrer and answer by defendant constituted personal appearance in the action by him which was unaffected by the order of court striking them from the files, still we think that when defendant appeared at the hearing of the motion to strike these pleadings out, and asked for a continuance of the hearing, it was a general personal appearance in the action under which the court acquired jurisdiction of the person of defendant as effectually as if he had been actually served within the state with a copy of the summons and complaint. Such appearance was equivalent to personal service. The general rule is that an appearance for any other purpose than to question the jurisdiction of the court is general. 2 Ency. of Pl. & Pr. 632. It is difficult to perceive how the application of the defendant for a continuance of the hearing could operate other than as a personal appearance in the case. He was invoking the action of the court in his behalf, and that his application was unsuccessful was immaterial as far as his voluntary appearance therein was concerned. He could not consistently apply for the relief asked on any other theory than that he was submitting himself to the general jurisdiction of the court in the action. While the application made by him for a continuance was oral, this could not affect the question of its constituting an appearance. Had a written motion in that behalf been made based on affidavits, no question could possibly arise, but that it constituted a personal appearance in the action, and the fact that it was made orally only rendered the method of appearance different. It did not affect the fact that it was an appearance. We hardly think it necessary to cite authorities on this proposition. The general rule is laid down in Security, etc., Co. v. Boston, etc., 126 Cal. 422, 58 Pac. 942, 59 Pac. 296, where authorities are collated and discussed that "the principle to be extracted from the decisions on the subject is that, where the defendant appears and asks some relief which can only be granted on the hypothesis that the court has jurisdiction, it is a submission to the jurisdiction of the court as completely as if he had been regularly served with proIf a party wishes to insist upon the objection that he is not in court, he must keep out for all purposes except to make that objection. If he appears and asks for any relief which could only be given to a party in a pending case, it is a general appearance." The rule that the appearance is general applies in all cases where

cess.

*

some action or relief is applied for, and it is just as effectually made when the appearance is to make application for a continuance or postponement of some matter pending before the court as when invoking the action of the court in other matters concededly constituting an appearance. In Honeycutt v. Nyquist, 74 Pac. 90, 12 Wyo. 183, 109 Am. St. Rep. 975, it is said: "It has frequently been held, and we think it is the recognized rule, that a request for a continuance of a cause or an agreement to that effect either orally in open court or by a writing filed in the cause operates as a voluntary appearance."

We think, therefore, that when the defendant appeared and applied for a continuance of the hearing on the motion to strike out his pleadings it was a general voluntary personal appearance in the cause, and hence he was not entitled to apply to have the judgment entered against him set aside upon the ground that he had not been personally served with summons in the action. By personally appearing he lost any right which he might otherwise have had under the section had he not so appeared.

Under the circumstances the order setting aside the judgment was not warranted, and is reversed.

We concur: HENSHAW, J.; McFARLAND, J.

(151 Cal. 77) In re PLUMEL'S ESTATE (S. F. 4,616.) (Supreme Court of California. April 10, 1907.) 1. WILLS-NOT ATTESTED-VALIDITY.

An unattested will is not admissible to pro

bate. [Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 277-279.]

2. SAME HOLOGRAPHIC WILL.

Under the express provisions of Civ. Code, § 1277, a will not entirely written, dated, and signed by the testator is not admissible to probate as a holographic will.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, §§ 341, 343.]

3. SAME-INCORPORATION BY REFERENCE.

Where a will leaving property to the wife was unattested and invalid as a holographic will because not entirely written, dated, and signed by testator, but upon the back of the same sheet of paper there was a properly executed codicil providing that, in the event of his death and his wife's at the same time, the property should go to his sisters, the codicil incorporated the terms of the will by reference, and both documents were properly admitted to probate as testamentary acts.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 234.] 4. SAME EVIDENCE.

That a codicil is written upon the same piece of paper as a purported will, and that no other will is produced, may be considered as tending to identify the purported will as the one referred to by the codicil.