In

while arrested by a supposed mob. It was proved by the prosecution that Vinton sent for at least some of the alleged conspirators to come to the house of Hayden, where Vinton was; and it was proven that on the day of the homicide, and on the day previous thereto, all these persons, supposed to be conspirators, did assemble at the house of Hayden, and that all of them, except Vinton, who was unable to go, did leave the house of Hayden together, all armed, on the afternoon of the 27th, and did go in the direction of the trail upon which Littlefield was killed. The general objection is made here, as it is generally made in a defense against an alleged conspiracy, that declarations of the alleged conspirators were improperly allowed against the defendants before there was any sufficient proof of the conspiracy itself. But we do not see how any such objections are available here. the first place, the order in which evidence as to a conspiracy shall be received is very much in the discretion of the court; and, in the second place, we do not see in this case where any declarations of one alleged conspirator, charging or implicating other conspirators, were introduced. If there was any conspiracy proved in this case, it was proved by the combined acts of the conspirators. These persons assembled at the house of Hayden, where Vinton was stopping. It is apparent that they knew that Vinton had accused Littlefield of shooting him, and that Littlefield was to be arrested; and, an hour or two before Littlefield was killed, they all, except Vinton, went together in the direction of the place of the homicide. And these facts, with others not necessary to be here mentioned, were sufficient to go to the jury as evidence strongly tending to show a prima facie case of conspiracy. The contention that the declarations of one alleged conspirator against the others were improperly admitted can apply, as against these defendants, only, so far as we have observed, to the admission of statements by Vinton to the others that Littlefield had shot him; but how could this have prejudiced appellants, when they admit that they arrested Littlefield for his alleged attack on Vinton? There was no pretense of any other cause for the arrest. Moreover, the subsequent acts of the alleged conspirators made the said statements of Vinton clearly admissible; and, this being so, the order in which the evidence was introduced was immaterial. People v. Fehrenbach, 102 Cal. 396, 397, 36 Pac. 678; People v. Daniels, 105 Cal. 264, 38 Pac. 720. And in this connection we may here say that we see no error in allowing testimony to the effect that Vinton said, shortly after he was shot, that he did not know who shot him. Vinton appeared at the house of Hayden on September 25th, suffering from a severe gunshot wound. He said that he was shot at a certain place, about a mile from Hayden's house, by a

masked man, whom he claimed to identify as Littlefield. The prosecution seems to claim that he shot himself accidentally. Neither do we see any error in allowing testimony as to the whereabouts of Littlefield on the 25th. It tended to show that he did not shoot Vinton, and thus to support the prosecution's theory of a conspiracy.

On the cross-examination of a witness for the prosecution who had been at the inquest held over the dead body of Littlefield, he testified that he had found a letter on the person of the deceased; that he had read it, and had returned it; and that it had been buried with the body. The appellants then asked the witness, "Who was the letter from, and to whom?" An objection to the question by the prosecution was sustained. Appellants then offered to prove the contents of the letter, and their offer was denied; and the court declined, as we understand the record, to allow appellants' counsel to state what they proposed to prove as such contents. These rulings are contended by apepllants to be reversible errors. But we cannot imagine how any possible contents of the letter would have constituted evidence favorable to appellants as to any of the issues in the case, and counsel have not suggested any plausible reason why such contents-ascribing to them any character which counsel might choose to name-would have been material or pertinent evidence in the case. We do not think, therefore, that said rulings were erroneous or prejudicial to appellants. There are a number of other exceptions to rulings about the admissibility of evidence, and it would take a great deal of time and space to enumerate and specially notice each of them; and this we deem it unnecessary to do. It is sufficient to say that most of such rulings were clearly right, and that those about which there could be any question concern matters of too little importance to warrant a new trial, under any view that could be taken of their correctness. As hereinbefore stated, the pivotal question in the case was whether or not the deceased was actually and forcibly taken away from appellants, against their will, by a mob, who killed him; and we think that this question was fairly presented to the jury. Perhaps the prosecution undertook to prove more than it was called upon to prove, but we do not see that the rights of the appellants were in any way thereby prejudiced.

After the jury had been impaneled to try the case, and before the introduction of evi dence, one of the jurors became sick, and the court discharged him. To this discharge, appellants excepted. Another juror was then regularly drawn, examined, accepted, and sworn. It is now contended that this proceeding was unwarranted, and vitiates the judgment. The contention is not maintainable. Section 1123 of the Penal Code justifies the course pursued by the court. People v. Brady, 72 Cal. 490, 14 Pac. 202.

It is contended that the court erred in modifying instruction 30 asked by appellants. This instruction is somewhat lengthy, and refers to the general subject of the caution with which evidence of the verbal admissions of a party should be received. It contained matter which made it, under the opinion in Kauffman v. Maier, 94 Cal. 282, 29 Pac. 481, an encroachment upon the province of the jury, and might have been refused for that reason. It was given, however, at appellants' request, and they cannot complain. The modification complained of was this: In the instruction as proposed by appellants' counsel, it was stated that the verbal admissions of a party should be received with "great caution," and the court merely struck out the word "great." No other modification was made. This was certainly not error. The Code provision on the subject (Code Civ. Proc. § 2061) does not use the word "great" before "caution," and the instruction thus modified stated fully as much as appellants were entitled to have given. Counsel also say: "The court erred in refusing to give instructions asked by defendants. See pages 80 and 81 of the transcript." Upon referring to those pages, we find that they contain offered instructions upon the subject of reasonable doubt. They were properly refused because the court had already charged the jury fully upon that subject. We do not think that the court erred in refusing the offered instruction on page 82 of the transcript, to the effect that the jury should disregard statements of the prosecuting attorneys of facts not proven. It was not called for by anything appearing in the record. We do not observe in appellants' brief any other objection touching the matter of the giving or refusing instructions.

We see nothing in the point that a new trial should be granted because on one occasion some of the jurors took a drink of whisky. It appears that while the jurors were at an hotel, under the charge of the sheriff, and were washing and preparing to take supper, one of them stepped up to the bar which was in the hotel, and asked another juror to take a drink with him, whereupon the sheriff asked all the jurors to take a drink before going in to supper. The jurors all went to the bar. Some of them took whisky, in quantity about "two tablespoons," some of them took cigars, and one took mineral water. It abundantly appears that no one of them was intoxicated, "or affected in any way," by what they there drank. To set aside a verdict on account of these facts would be preposterous. People v. Leary, 105 Cal. 486, 39 Pac. 24; People v. Sansome, 98 Cal. 239, 33 Pac. 202. The invitation to drink, given by the sheriff, was evidently suggested at the moment by the invitation which one juror had given to another; and therefore there is little force in the intimation that it was a predetermined attempt by the sheriff, who is asserted to have been unfriendly to appel

Where part of mortgaged premises was conveyed to a private person, and by deed of the same date the same part and other parts were conveyed to a corporation, the presumption that, as to the part included in both deeds, the deed first recorded was first delivered, does not hold as to the additional portions conveyed to the corporation; and hence the mortgagee, who knew of the deed to the corporation, could not release the other grantee without crediting on the mortgage debt the full value of such additional portions. In bank. Appeal from superior court, Madera county; W. M. Conley, Judge. For opinion in department, see 51 Pac. 2. Robt. L. Hargrove, for appellants. Geo. E. Church, for respondent.

PER CURIAM. A petition for hearing in bank having been granted, upon further consideration it appears that on January 20, 1892, McDonald conveyed to John Brown Colony, a corporation, and to D. S. Dorn, blocks 51 and 60. On that day the title still remained in Brown. The Dorn deed was recorded January 23d, while the John Brown Colony deed was recorded January 26th. On January 25, 1892, Brown conveyed these same blocks to McDonald, the title thus inuring to Dorn, who first recorded his deed. The presumption of law relating to blocks 51 and 60 was correctly applied in holding, in the former opinion, that the Dorn deed was first delivered. But it does not apply to the John Brown Colony deed, as respects the other blocks and lots conveyed to that corporation. As to them, that deed must take date of January 20th, and therefore prior to the Dorn deed, and the Dorn block could not be released without crediting their full value upon the mortgage debt, as the mortgagee had actual knowledge of the John Brown Colony deed. The value of these blocks was found to be $8,000. The mortgagee did in fact credit the mortgage debt with $5,000 on account of the sale to Dorn, so that there remains to be credited the further sum of $3,000, which should be done as of the date of the release of the Dorn blocks, March 1, 1892. We see no way to apportion this amount so as to exonerate

the lots owned by the appealing defendants alone in the ratio that their lots bear to the whole number of lots sold by the John Brown Colony; nor do we see any way by which any principle of apportionment could be applied upon any basis of values. As the case stands, it is the fortune of the nonappealing defendants to share the benefits of this credit, as it would have been their misfortune had the dates of the conveyances to John Brown Colony and to Dorn been different. In the matter of the petition by plaintiff for a modification of the opinion directing that Cecil Ricketts be made a party defendant, the petition will be granted in so far that, should it appear that Ricketts had sold his lot prior to the commencement of the action to a person who was made a defendant, the direction heretofore given may be disregarded. Wherefore it is ordered and adjudged by this court in bank that the judgment heretofore rendered in department be modified in the foregoing particulars, and that the judgment as modified stand approved.

BEATTY, C. J. I concur in the judgment and in the opinion of Commissioner CHIPMAN, as modified, upon all points but one. I dissent from the order striking out the deficiency judgment against Brown, and from the reasoning upon which it is based. I agree to the general proposition that the mortgagee cannot release the mortgage in whole or in part without the consent of the mortgagor, and, upon a full release, hold the mortgagor to a personal liability, or upon a partial release claim a deficiency judgment greater than would have resulted if no part of the mortgaged property had been released. But when a mortgagor conveys the whole or a part of the mortgaged premises to a third party by a deed containing an express or implied warranty that the premises are free from incumbrances created or suffered by him, and the mortgagee releases to the grantee of the mortgagor, I think the consent of the mortgagor to the release should not only be presumed, but he should not be heard to allege that the release was without his consent.

The moment he makes such a conveyance, his covenant is broken, and he becomes bound to his grantee to have the mortgage released. If the mortgagee will consent to the release, he cannot refuse to do what he is under a legal and moral obligation to do. Suppose, in such a case, the mortgagee should offer to release upon condition that the mortgagor would give his written consent, and the mortgagor should refuse, would not a court of equity compel him to consent? And, if he would be compelled to consent where the mortgagee made that the condition of release, why should he be allowed to say he did not consent when the mortgagee has released without conditions? In the eyes of equity, what ought to be done

(Supreme Court of California. Dec. 17, 1897.) APPEAL-UNDERTAKING-MOTION TO DISMISS-FILING NEW UNDERTAKING.

1. Where an appeal was taken from three separate orders, a single undertaking, reciting the orders, and conditioned to pay costs and damages of "said appeal," is void.

2. On motion to dismiss an appeal for noncompliance with statute, the appealability of the order appealed from cannot be considered.

3. Code Civ. Proc. § 954, authorizing a new undertaking where the one filed is insufficient, does not authorize a new one where the old one was void for failing to specify which of three separate appeals, recited, it was intended to se

cure.

Beatty, C. J., dissenting.

In bank. Appeal from superior court, city and county of San Francisco; James V. Coffey, Judge.

In the matter of the estate of Solomon Heydenfeldt, deceased. From orders made on petition of Zeila O. Hellings for payment of a mortgage out of the assets, and for other relief, Henrietta Heydenfeldt appeals. Dismissed.

James L. Crittenden and Crittenden & Van Wyck, for appellant. T. M. Osmont, for respondent.

MCFARLAND, J. This cause is now before us on a motion to dismiss the appeal of Henrietta Heydenfeldt, upon the ground that said appeal was taken from three separate and distinct orders, and that only one undertaking on said appeal has been given and filed by said appellant. The motion of appeal states that the appellant appeals "from each of the orders given and made herein. granting the petitions of Zeila O. Hellings for payment of mortgage; and particularly from the order or decree heretofore, on or about June 1, 1896, filed herein, directing the redemption and exoneration of mortgaged premises upon the petition of Zeila O. Hellings; and also from the order made on or about February 17, 1896, denying to said Henrietta Heydenfeldt the right to participate in the proceedings upon the hearing of said petitions of Zeila O. Hellings for payment of mortgage; and from the order made on or about March 14, 1896, striking from the files the answers of Henrietta Heydenfeldt to said petitions of Zeila O. Hellings; Rehearing denied.

and from the whole and each and every part of each and every of the said orders and decree." The undertaking recites that Henrietta Heydenfeldt has appealed to the supreme court from the various orders mentioned in said notice of appeal, and the sureties undertake "that the said appellant will pay all damages and costs which may be awarded against her on said appeal, or on a dismissal thereof, not exceeding three hundren ($300) dollars." It has been established by a long line of decisions of this court that an undertaking on appeal, such as the one given in this case, is entirely invalid for any purpose. People v. Centre, 61 Cal. 191; Corcoran v. Desmond, 71 Cal. 100, 11 Pac. 815, and previous cases there cited; Associates v. Wilkins, 71 Cal. 626, 12 Pac. 799; McCormick v. Belvin, 96 Cal. 182, 31 Pac. 16; Ditch Co. v. Bachtold, 109 Cal. 111, 41 Pac. 813; Spreckels v. Spreckels, 114 Cal. 60, 45 Pac. 1022.

In the Spreckels Case, supra,

the facts differed materially from those in the case at bar.

*

*

Appellant contends that only one of the three orders appealed from is an appealable order, and that, therefore, the bond should be held as applicable to that order alone which is appealable. But where a motion to dismiss an appeal is not upon the ground that the thing appealed from is not appealable, but upon the ground that there has not been a compliance with the statutory provision prescribing the mode of taking an appeal, then we cannot consider whether either of the orders appealed from is appealable. This contention was disposed of adversely to appellant's views in Ditch Co. v. Bachtold, supra. In that case the court said: "A motion to dismiss the appeal upon the ground that the order is not appealable assumes that the appeal has been perfected, and that there is before this court a proper, authenticated record of the action of the superior court. On the other hand, whether an appeal has been perfected is a question of fact, depending upon the proceedings subsequent to the entry of the order of the court below. When a motion to dismiss an appeal is made upon this ground, the character or nature of the order appealed from is not involved, and the action of the court is limited to determining whether the steps taken for the appeal are in compliance with the statute prescribing the mode of taking an appeal." Appellant has filed a new undertaking on appeal, approved by one of the justices of this court, and contends that such new undertaking supplies the want of a proper undertaking at the time the appeal was taken, under section 954 of the Code of Civil Procedure. But that was the precise contention that was made in Associates v. Wilkins, supra, and in Ditch Co. v. Bachtold, supra. In the former case the court, having held that in a case where there were appeals from two orders, and only one undertaking flied, which did not distinctly refer to either

appeal, "the undertaking, when filed, is no undertaking at all," said: "An applicauon s made to this court by appellant to be allowed to file the proper undertaking, under section 954, Code Civ. Proc. The section referred to does not authorize it. It only authorizes a new undertaking when the one filed is insufficient. But in this case there has really been none filed. To allow new ones to be filed would be, in effect, to permit a new ap peal to be perfected after the time fixed by law. Hastings v. Halleck, 10 Cal. 31." The same ruling was made in Ditch Co. v. Bachtold. The motion to dismiss the appeal is granted, and the appeal is dismissed.

We concur: HARRISON, J.; VAN FLEET, J.; GAROUTTE, J.

BEATTY, C. J. I dissent. In my opinion. but one of the orders was appealable, and there was but one appeal. Besides, I am unable to distinguish this case from Spreckels v. Spreckels, 114 Cal. 60, 45 Pac. 1022, in which a bond similarly defective was held to be amendable, and this bond has been amended.

(119 Cal. 372.

IRVINE V. PERRY et al. (SMITH, Intervener). (S. F. 669.)1

(Supreme Court of California. Dec. 18, 1897.) MORTGAGES-SALE OF MORTGAGED LOTS-FORECLOSURE- SALE IN INVERSE ORDER OF ALIENATION-ATTORNEY'S FEES.

1. Where a grantee of mortgaged lots conveyed them all at different times to different purchasers, who gave to him second mortgages for the price. one of the purchasers is entitled, on foreclosure of the first mortgage, merely to have the lots sold in the inverse order of their alienation, and cannot invoke, as against the first mortgagee and an assignee of the second mortgages, the rule (Civ. Code, § 2899) that where one has a lien on several things, and others have subordinate liens on some, but not all, of the same things, the former must resort (1) to the things on which he has an exclusive lien; (2) to the things subject to the fewest subordinate liens; (3) in like manner. inversely, to the number of subordinate liens on the same thing; and (4) in case several things are within the foregoing classes, and subject to the same number of liens, to things which have been transferred in the inverse order of transfer, -since such rule is expressly made to apply as a whole only where it will not work "injustice to other persons."

2. Allowance of attorney's fees in a foreclosure decree is error where the mortgage, though providing for the fees, does not purport to secure them.

Commissioners' decision. Department 1. Appeal from superior court, Monterey county; N. A. Dorn, Judge.

Action by Samuel Irvine against John A. Perry, F. C. Martin, and others to foreclose a mortgage. From the decree rendered, defendant Martin appeals. Modified.

Isaac Frohman, for appellant. Parker & Sargent and Alexander & Dougherty, for respondent Irvine. R. H. Willey, for other re spondents.

1 For modification of judgment, see 51 Pac. 949.

SEARLS, C. This appeal is taken by F. C. Martin, one of the defendants in the above-entitled cause, from a decree of foreclosure of four mortgages. The cause comes up on the judgment roll, without any statement or bill of exceptions. On the 2d day of June, 1890, the defendant John A. Perry, being the owner of five lots or parcels of land situate in Monterey county, designated as lots No. 10, 11, 55, 56, and 92 of the Rancho Buena Vista, mortgaged all thereof to Samuel Irvine, the plaintiff herein, to secure the payment of a promissory note for $4,000 and interest. The mortgage was duly recorded June 9, 1890. November 10, 1890, Perry, the mortgagor, sold and conveyed all the lots to defendant D. G. McLean; deed recorded on day of its date. November 26, 1890, McLean conveyed lot 10, containing, say, 63 acres, to defendant Warren F. Meeker; deed recorded January 31, 1891. Meeker, as a part of the consideration for the conveyance to him, agreed with McLean to pay eight dollars per acre on said lot towards the payment of plaintiff's mortgage. April 17, 1891, McLean conveyed lot 11 to defendant and appellant herein, F. C. Martin; deed recorded April 28, 1891. The negotiations for the purchase by Martin were made by and through defendant John A. Perry, who represented to appellant, Martin, that he (Perry) was the owner of lot 11, and that it was free from incumbrance, which fact was believed by Martin, who had no actual notice of plaintiff's mortgage, which mortgage, however, was of record. Martin caused no search of the records to be made, and made no effort to ascertain the true condition of the title. Plaintiff was not a party to these negotiations, and was not cognizant thereof. Martin has paid Perry $2,400 on account of the purchase price of lot 11, and still owes him (Perry) $500 on account thereof. April 17, 1891, defendant McLean sold lot 55 to defendants Merritt J. Hall and I. E. Hall, and all of lot 56 to said Merritt J. Hall. November 14, 1891, defendant D. G. McLean and Susan McLean, his wife, conveyed to defendant John A. Perry lot 92; deed recorded November 17, 1891. January 5, 1892, John A. Perry conveyed a portion of said lot 92, containing, say, 15 acres, and duly described, to defendant Benoist; deed duly recorded. The several purchasers entered into possession, and have paid taxes, etc. The ownership by defendants of each of the above enumerated parcels of land is subsequent and subordinate to plaintiff's mortgage.

The findings are full and explicit, but too lengthy to be detailed in full. The following brief synopsis will suffice for the purposes of the case: The intervener, E. C. Smith, is the owner, as assignee, of three mortgages upon portions of the premises, as follows: (1) A mortgage given by M. J. Hall and I. E. Hall to D. G. McLean, to secure a promissory note for $2,000, dated April 17, 1891, upon lot 55. (2) A mortgage dated April 17, 1891, executed by Merritt J. Hall to D. G. McLean, upon 51 P.-35

lot 56, to secure promissory note for $1,200. (3) A mortgage dated April 17, 1891, executed by Frank C. Martin, the appellant herein, to D. G. McLean, upon lot 11, to secure a promissory note for $2,000. The court found that $814.02 was due as principal and interest by defendant Meeker on his agreement made upon the purchase of lot 10, to pay eight dollars per acre on said lot 10 towards satisfying plaintiff's mortgage. The court entered a decree of foreclosure of the four mortgages, holding that of the plaintiff, Samuel Irvine, prior in time, and its lien superior, to the three mortgages held by the intervener, E. C. Smith. The decree provided for the sale of the lots separately, and in the inverse order of their alienation, as provided by section 2899 of the Civil Code. The defendant F. C. Martin is the only appellant. Lot 11, owned by appellant, was ordered to be sold after all of the other lots, except lot 10, concerning which the decree is as follows: "Sixth. All of lot ten (10) shall be sold for, at least, the sum of $814.02, which sum shall be applied to the payment of the amount due the plaintiff, whether the amount realized on the lots sold theretofore be sufficient or not, leaving the amount received from the sales of the other property, in excess of the amount necessary to pay plaintiff, after applying the said sum of $814.02 received from the sale of lot ten (10) to the payment of plaintiff's claim, to be apportioned to the payment of the other mortgages herein foreclosed." The reason of this provision is to be found in the findings, where it appears that Warren F. Meeker, who purchased lot 10, as a part of the consideration for his purchase, agreed to pay off at maturity, or become responsible for, eight dollars per acre on the land by him purchased, towards the satisfaction of the mortgage of the plaintiff. This sum amounted, as found by the court, to $814.02, which the court treated as a charge on said lot 10, to go towards the satisfaction of plaintiff's first mortgage, before recourse upon appellant's lot No. 11.

We need not concern ourselves as to the rights of the plaintiff and intervener, as between themselves, or as to any of the defendants except appellant, Martin, for the reason that they are not here complaining. Appellant's position is briefly this: He purchased lot No. 11, one of five lots upon which plaintiff held a mortgage. He executed a mortgage upon his lot, which is held by intervener. The purchasers of two other of the lots gave mortgages upon their several lots. The mortgagor of all the lots under the first mortgage had sold them to sundry parties. Lot 10 was first sold. Appellant's lot 11 was next in order of sale, and the residue in regular order. As all the other parcels were ordered to be sold in satisfaction of the first mortgage, prior to that of appellant, with the single exception of No. 10, and, as to that, it was only the excess of its value over $814.02 that was postponed to