MINING LAW (Continued).

1426d of the Civil Code, he acquires not only a right of possession which he does not forfeit merely because of his neglect to make a time record, but a location that, if imperfect, will, nevertheless, be superior to any location on the same ground that persons having actual notice that he is in possession of such claim, asserting a right thereto as a locator thereof under the United States mining laws, might subsequently attempt to make. (Id.)

See Contracts, 2, 4, 5.

MINORS. See Divorce, 4-6; Juvenile Court Act, 1-3; Negligence, 16-18.

MISREPRESENTATIONS.

1. FALSE REPRESENTATIONS-MATERIALITY-RELIANCE UPON.-In order to recover for false representations, the misrepresentation need not be the sole cause of the contract, but it must be of such a nature, weight, and force that the court can say without it the contract would not have been made. (Craig v. Shea, 351.)

2. REPRESENTATIONS AS TO AGES OF TREES-RELIANCE UPON-EVIDENCE-FINDING. In this action for damages for false representations as to the ages of certain walnut trees made by defendant's agent upon the sale to plaintiff of defendant's walnut grove, the evidence as to the investigations and inquiries made by plaintiff at the time he was shown the grove and the statements made by the agent at other times prior to plaintiff's offer to purchase would not warrant the finding of the trial court "that he was induced to purchase the property because he relied upon the statements as to the ages of the trees." (Id.)

See Accident Insurance, 1-3; Contracts, 1; Criminal Law, 13;
Sureties, 1.

MISTAKE. See Appeal, 4; Judgments, 7.

MONEY HAD AND RECEIVED. See Findings, 4; Pleading, 1.

MORTGAGES.

1. ACTION TO FORECLOSE-LEGAL TITLE TO PROPERTY-PLEADING.— In an action to foreclose a mortgage, an allegation that the legal title to the mortgaged property is vested in and held by a given company may be either a conclusion of fact or of law. (Norton v. Newerf, 10.)

2. WANT OF NECESSARY PARTY-REMEDY OF MORTGAGEE AS PURCHASER. If the owner of the equity has, through mistake, not been made a party to the action to foreclose the mortgage, the

MORTGAGES (Continued).

mortgagee who has purchased at a sale may maintain a second action to foreclose the equity of such owner, and for a new sale, but he cannot recover the costs of the previous sale. (Id.) 3. REINSTATEMENT OF ORIGINAL SUIT.-Although a new action is the proper remedy for a foreclosure improper through failure to make all persons interested in the equity of redemption parties to the suit, the courts have allowed the original suit to be reinstated upon an amended petition, even after an interval of several years. (Id.)

4. APPEAL ON JUDGMENT-ROLL FINDINGS - JUDGMENT-PRESUMPTIONS.- -Where an appeal is taken on the judgment-roll alone, it will be presumed in support of the findings and of the judgment that facts found which might have been presented in the particular case by formal pleadings were supported by evidence introduced by the parties under stipulation or at least without objection. (Id.) 5. RIGHT TO CROP FINDINGS-EVIDENCE-PRESUMPTIONS.-Where an appeal is taken on the judgment-roll alone, it must be presumed that the trial court, in finding in an action to foreclose a mortgage that a crop of oranges produced by the plaintiff on the mortgaged premises was the property of plaintiff as mortgagee in possession of said premises, properly considered the defendants' claim that plaintiff was bound to account to them for said crop and received sufficient evidence to amount to an accounting and to support the findings, the trial court having found further that the crop produced cost the plaintiff more than the amount for which the crop was sold. (Id.)

6. TRANSFER OF PREMISES-ASSUMPTION OF MORTGAGE PRINCIPAL DEBTOR AND SURETY-AGREEMENTS EXPRESS AND IMPLIED.-The person who, in taking over mortgaged premises, agrees to assume and pay the mortgage becomes by virtue of said agreement the principal debtor, while the person with whom he makes such agreement becomes as to such agreement and as to such mortgage his surety that he will perform the same. This agreement as to his immediate grantor is express; but there arises out of it also an implied agreement to the same effect as to the several predecessors of his immediate grantor back to the original mortgagor. (Robson v. O'Toole, 63.)

OF

7. FORECLOSURE PROCEEDINGS-DEFICIENCY JUDGMENT · - REMEDY MORTGAGOR-PLEADING.-Where the mortgagee commences foreclosure proceedings against the mortgagor and also against the successive grantees who, in taking over the mortgaged premises, agreed to assume and pay the mortgage, the mortgagor may present a cross-complaint against such subsequent grantees to recover the amount of the deficiency judgment, if any, that may be rendered in favor of the mortgagee, and he compelled to pay, or he

MORTGAGES (Continued).

may wait until he has been compelled to pay such deficiency judg ment and then prosecute an independent action against such grantees for reimbursement. (Id.)

8. PRIORITY OVER DEED OF TRUST-DILIGENCE OF PARTIES—FRAUD.— Where a money lender, before making a loan to be secured by the assignment to him of a mortgage on certain real property, examines the property covered by the mortgage, has the title thereof brought down to date showing the mortgage to be a first lien upon the property, causes the affidavit of the mortgagor to be taken showing that no concealed equities exists between her and the mortgagee, and causes the whole transaction to be handled by a corporation whose business it is to negotiate and consummate such dealings, it cannot be said that his failure to make inquiries concerning the deed to the mortgagor and the trust deed from her in favor of her grantor, which recites that it is subject to such mortgage, constitutes gross negligence amounting to constructive fraud as against the grantor of the mortgagor, though such inquiry would have revealed to him the fraud perpetrated by others on such grantor. (Burrows v. Durflinger, 366.) 9. ESCROW INSTRUCTIONS - RECITALS IN DEED OF TRUST ESTOPPEL TO DENY PRIORITY.-Where the owner of property sells it to another, accepting a part payment down and a deed of trust for the balance, and agrees with the purchaser that a first mortgage for a given amount might be placed upon the property, there being a general understanding that the purchaser is to construct a residence upon the lot, and the escrow instructions to the title company signed by such vendor, in effect, plainly directs that the trust deed should be made subject to the mortgage in question, and such vendor accepts the trust deed containing such recital, he will be estopped to defeat or impair the mortgage by denying its priority, in the absence of fraud on the part of the holder thereof. (Id.) 10. ACTION TO FORECLOSE-ORALLY EXPRESSED INTENTION NOT TO RE

QUIRE PAYMENT INSUFFICIENT DEFENSE.-In an action to foreclose a mortgage executed to secure the payment of a promissory note, a plea that it was the mortgagor's orally expressed intention that she would never require the defendants to pay any part of the principal of said note cannot be availed of as a defense to the action. Under section 1625 of the Civil Code, everything that occurred prior to the execution of the note and mortgage in the way of oral negotiations and understandings between the parties must be held to have been merged in their written agreements in the form and effect of said note and mortgage. (Thomson v. Langton, 415.)

11. RELIANCE UPON MORTGAGEE'S ORALLY EXPRESSED INTENTIONS MAKING OF IMPROVEMENTS-ESTOPPEL.-In such action, an estoppel cannot be predicated upon the fact that the defendants, relying

MORTGAGES (Continued).

upon the plaintiff's orally expressed intention never to call upon them to pay any part of the principal of said note, made certain substantial improvements upon the mortgaged premises and otherwise placed themselves in a position which, it is alleged, would render it inequitable for the plaintiff to be permitted to enforce her said note and mortgage. (Id.)

12. DENIAL OF LEAVE TO AMEND ANSWER-INSUFFICIENCY OF APPLICATION-ABUSE OF DISCRETION-APPEAL.-Where in such action the trial court sustained the plaintiff's demurrer to the defendants' answer without leave to amend, and denied the defendants' application thereupon made for leave to amend their said answer, and the record on appeal discloses nothing more than a bare application to the court for leave to amend the answer without the offer of any proposed amendment or even of any statement as to what the amended answer, if permitted, would contain, or whether it would in any respect eke out the infirmities of the original answer, the appellate court cannot determine whether or not the trial court abused its discretion in refusing to grant the defendants' general request for leave to amend their answer. (Id.) 13. CONSTRUCTION OF SECTION 726, CODE OF CIVIL PROCEDURE APPLICATION TO SURETIES AND OTHER THAN PRIVIES.-Section 726 of the Code of Civil Procedure applies to the primary debtor, and was enacted for his benefit, and does not apply to an individual guarantor or surety, or to a subsequent indorser upon a promissory note, nor, in fact, to any case where there is no privity of contract existing between the two obligations-that is, where the promissory debt and the obligations under the mortgage are separate and distinct obligations. (Craiglow v. Williams, 514.) 14. GUARANTY OF PAYMENT BY ASSIGNOR-ACTION TO FORECLOSEPARTIES JUDGMENT.-Where a mortgagee assigns a note and mortgage and, for a valuable consideration, guarantees the payment of the note, in a subsequent action by the assignee to foreclose the mortgage such mortgagee may properly be joined with the makers of the note as a party defendant and a deficiency judgment to be docketed against it therein. (Titus v. Woods, 541.) 15. DEEDS OF TRUST PRIORITY - FRAUD-ESTOPPEL-Judgment versed on the authority of Burrows v. Durflinger et al., ante, p. 366. (Kibbee v. Durflinger, 794.)

re

See Broker's Commissions, 3; Estates of Deceased Persons, 1;
Fire Insurance, 2, 3; Pleading, 4, 6, 7; Promissory Notes, 2;
Statute of Limitations, 1, 4.

MOTIVE. See Employer and Employee, 2-7; Sales, 10.

MOTOR VEHICLES.

1. MUNICIPAL ORDINANCE PRESCRIBING ROUTE-AUTHORIZED DEVIATION BY an action against a jitney-bus driver and his insurance carrier to recover damages suffered by collision with a motor-bus being operated pursuant to a permit issued in accordance with the provisions of a municipal ordinance, the accident having happened at a point beyond the prescribed terminus of the route over which the motor-bus operated, it may properly be assumed, in the absence of evidence to the contrary, that such deviation was authorized where the ordinance under which the bus was operated in several of its clauses authorizes a deviation, under circumstances therein specified, from the prescribed route. (Bond v. Holloway, 634.)

DRIVER-EVIDENCE-PRESUMPTION.-In

2. CHANGE OF STATE SERIAL NUMBER-NECESSITY FOR NEW PERMIT.-The jitney-bus driver having secured the permit to operate his motor-bus, in accordance with the provisions of the ordinance, it was not necessary for him to secure a new permit for that purpose at the time the state serial number of the machine was changed, the ordinance not having so provided. (Id.)

3. FAILURE TO FILE AGREEMENT OF RENEWAL OF POLICY RELEASE OF INSURANCE COMPANY FROM LIABILITY.-The ordinance having provided that it should be unlawful to conduct any such motor-bus business unless there should be executed and remain in full force and effect at all times, and on file in the office of the city clerk, a certain indemnity insurance policy, but not having provided that the agreements of renewal should thus be on file, the insurance company was not released from liability by reason of the fact that the agreement of renewal covering the period in which the accident occurred was not on file in the office of the city clerk at the time of the accident where the policy was in effect at that time and such agreement of renewal was thereafter filed with the city clerk. (Id.)

4. EXECUTION OF INDEMNITY

POLICIES AS COMMERCIAL ADVENTURE-STRICT RULES OF CONSTRUCTION NOT APPLICABLE.-An insurance company executing such an indemnity bond as a commercial venture cannot invoke the strict rules which the courts and statutes have devised for the protection of gratuitous sureties. (Id.)

MUNICIPAL CORPORATIONS.

1. PURCHASE OF SUPPLIES AND MATERIALS-NONCOMPLIANCE WITH CHARTER PROVISIONS.-Where a municipal charter provides that there can be no contract or order for supplies, for an amount in excess of a given sum, unless two-thirds of the city council shall vote in favor thereof, and further, that such vote shall be entered on the minutes, notice inviting proposals published, the contract 45 Cal. App.-55