George W. Tyler, for appellant.

John W. Carter, for respondents.

BY THE COURT. The administrator of the estate of Mary Ann Greenwood, deceased, had authority to lease the real property of her estate during the period of administration; any lease for a term definite being subject to be terminated by final distribution of the estate and the discharge of the administrator. The testimony of the witness Brumagim, administrator,-the truth of which is assumed by the finding against the defendant upon the plea of the statutes of limitations, was to the effect that it was agreed between him and McCauley that the latter should occupy the premises for 10 years at the rate of $10 a month, each month's rent to be credited upon the sum of $1,200, the estimate value of certain improvements placed upon the property by McCauley, and which, by the conditions of the prior lease, he would have the right to remove. The contract between the administrator and McCauley would not have been enforceable as a lease for a longer period than one year. But the latter continued to occupy for the full period of 10 years undisturbed by the representative of the estate, or by any other person. The estate was still in course of administration when the present action was brought by the administrator.

Can McCauley or his representative, after the contract between the administrator and McCauley has been fully executed, and the latter has been paid for his improvements, according to the terms of the contract, now say that during any portion of the 10 years he was holding adversely? If, instead of having agreed to apply the rent upon the $1,200 until that sum was exhausted, he had agreed to pay $10 a month, and had, in fact, continued to pay $10 a month for 10 years, could he, at the expiration of the 10 years, claim that he had been holding adversely? The existence of the contract being conceded, the presumption is that he occupied in accordance with its terms. This is not presuming that his possession was the landlord's possession more than five years after the expiration of the lease, in disregard of the statute. Code Civil Proc. 326. It is a presumption that one who has had the benefit of a contract has complied with his part of it. Thus presuming, McCauley paid the last month's rent in May, 1876. The present action was brought in November, 1877. The court was, therefore, justified in finding as it did on the issue as to the statute of limitations.

Judgment and order affirmed.

(66 Cal. 480)

CHESTER V. HILL and others. (No. 8,891.)

Filed March 5, 1885.

PLEDGE OF NOTE AND MORTGAGE-POWER OF PLEDGEE TO RELEASE-EQUITABLE RELIEF.

Where a note and mortgage are assigned by the mortgagee as collateral security for a debt due by him to the assignee, the latter has no power to accept from the mortgagor a deed to the mortgaged premises, and, in consideration thereof, to release the mortgage and surrender the note to the mortgagor. In a proceeding in equity to obtain relief, the aunulling of the release, and the foreclosure of the mortgage, constitute but one cause of action, and are disposed of by one decree.

Department 1. Appeal from the superior court of the city and county of San Francisco.

Stetson & Houghton, for appellant.

Napthaly, Freidenrich & Ackerman, and John A. Barham, for respondent.

Ross, J. The question here is whether or not the court below erred in sustaining a demurrer to the third amended complaint, to which only Xarissa Hill and H. W. Woodward were made parties defendant. This complaint charges that on the eighteenth of December, 1875, one George W. Chester executed to the firm of Toklas, Hahn & Brown, or order, five promissory notes for the aggregate sum of $2,341.38, bearing interest at the rate of 1 per cent. per month; that at that time George W. Chester was the owner and holder of two promissory notes, each for the sum of $3,333.33, with interest at 1 per cent. per month, which two notes were executed by defendant Woodward to George W. Chester, or order, on the sixth of December, 1875, one of which matured one year and the other two years after date, and both of which were secured by a mortgage, executed by Woodward, on a tract of land situated in Kern county; that to secure the payment of his notes to Toklas, Hahn & Brown, George W. Chester assigned to that firm the Woodward note first maturing, as also the mortgage securing its payment; that subsequently, to-wit, on or about June 12, 1376, Toklas, Hahn & Brown assigned to the defendant Xarissa Hill the notes executed to them by George W. Chester, and also the Woodward note and mortgage, which they held as security for the payment of said five notes of George W. Chester, and that the assignment was taken by defendant Hill, with notice of the facts; that afterwards, to-wit, on or about the fifteenth day of November, 1876, defendant Woodward executed and delivered to the defendant Hill a conveyance of one-half of the land embraced in the Woodward mortgage for the "nominal consideration of five thousand dollars," which conveyance was recorded in the office of the recorder of Kern county, and at the same time and for no other consideration than the said conveyance, defendant Hill surrendered to defendant Woodward the Woodward note first maturing, and also executed to Woodward an instrument in writing, purporting to release the Woodward mort

gage, in so far as it stood as security for the payment of the Woodward note first maturing, which instrument was thereupon duly recorded in Kern county; that the Woodward note maturing December 6, 1877, was paid at its maturity; that the Woodward note first maturing was never paid, in whole or in part, but that defendants Hill and Woodward, "fraudulently colluding with each other, and with the intent and design to cheat and defraud the said George B. Chester out of the surplus value of the collateral security aforesaid, over the amount due on the five George B. Chester notes aforesaid, and to convert the said surplus to their own use, contrived, first, to bring about the transfer of the George B. Chester notes and collateral, as aforesaid, to defendant Hill, and then, still in pursuance of the same fraudulent intent and design, contrived that the mortgage should appear satisfied of record as aforesaid, all of which facts were unknown to said George B. Chester and to the plaintiff at the time, and were not discovered either by said George B. Chester or by plaintiff until some time after the said fifteenth day of November, 1876; that, as plaintiff is informed and believes, defendants Hill and Woodward claim to own the aforesaid Woodward land as tenants in common, discharged of the lien of the mortgage aforesaid.

The complaint further charges that before the commencement of this suit, George B. Chester assigned all his right, interest, and claim in the premises to the plaintiff, and that on the tenth of November, 1879, the plaintiff offered in writing to pay to defendant Hill the amount due on the five George B. Chester notes, and demanded that she deliver to him the Woodward note first maturing, and assign to him the mortgage securing the same, and in default thereof that she, the defendant Hill, pay over to the plaintiff the difference between the amount of the Woodward note first maturing and the amount of the five George B. Chester notes, each of which demands was refused. The prayer of the plaintiff is broad enough to include any and all relief that the nature of the case may admit of.

As the case is presented, the facts alleged must be taken as true. Those facts show that the defendant Hill came rightfully into possession, by assignment, of the five Chester notes, and, as security for their payment, into possession, by assignment, of the Woodward note first maturing and the mortgage securing the same. These collaterals the defendant Hill rightly held as security for the payment of the five Chester notes. But it is very clear that she had no power to accept from Woodward a deed for an undivided half of the mortgaged premises, and in consideration thereof to surrender to Woodward the Woodward note first maturing. The complaint charges that this was a collusive arrangement between defendants Hill and Woodward, by which they fraudulently sought to cheat the plaintiff's assignor out of the excess of the collateral over the amount due on the five Chester notes. Of course such an arrangement cannot be permitted to stand. If, after trial, the facts shall be found to be as alleged, the deed from

Woodward to Hill, and the release of the mortgage executed by Hill, must be canceled and annulled, the mortgage foreclosed, and the proceeds of the mortgaged premises applied, first, to the costs of the foreclosure; next, to the amount due upon the five Chester notes; and the surplus, if any, paid over to the assignee of George B. Chester.

For the respondent it is said that the demurrer was properly sustained, because the complaint contains two distinct causes of action, which are not separately stated; that is to say, "one to set aside the release of the mortgage, the other to foreclose the mortgage." The point is not well taken. The annulling of the release of the mortgage is a necessary preliminary to the foreclosure of the mortgage, but it is not a distinct cause of action which must be separately pleaded. It is one of the elements that go to make up the cause of action. A court of equity does not deal with matters by piecemeal. In the present case all of the parties in interest are before the court, and the rights. of each may be enforced and protected by one decree.

Judgment reversed and cause remanded, with directions to the court below to overrule the demurrer to the third amended complaint.

MOSELEY . HENEY, Adm'r, etc. (No. 8,878.)
Filed March 5, 1885.

1. PROBATE PRACTICE-ACTION AGAINST PERSONAL REPRESENTATIVES-PLEADING.

It is sufficient, in an action against personal representatives of a decedent, where several causes of action are separately stated in the complaint, to make one allegation of the facts showing the defendant's capacity; and it is not necessary that each court should separately allege the decedent's death and the proceedings in probate thereon.

2. COMMUNITY PROPERTY-HUSBAND AS PARTY TO ACTION ON-COMPETENCY OF WIFE AS WITNESS.

In an action concerning community property, a husband is a proper party plaintiff, and his wife is competent as a witness.

Department 2. Appeal from the superior court of the county of Humboldt.

J. J. De Haven, for appellant.

Weaver & Melendy and James Hanna, for respondent.

MYRICK, J. Action to recover an alleged indebtedness due from defendant's testator. Causes of action are separately stated in the complaint. Following these allegations is an allegation of the death of the testator and of the proceedings in probate. Objection is made that the allegations as to the death and the proceedings in probate are not separately stated in each count. The point is not well taken. The allegations may be considered as referring to either and both of the counts. The subject of the action was community property. No such agreement existed between plaintiff and his wife as made the

proceeds of her labor her separate property; therefore the husband was the proper plaintiff. Such being the case, the wife was not incompetent as a witness under the Code.

We think the findings were sustained by the evidence; we see no error. On the contrary, there is no merit in the appeal. Judgment affirmed.

We concur:

(66 Cal. 484)

SHARPSTEIN, J.; THORNTON, J.

DORLAND, Adm'x, etc., v. CUNNINGHAM and others. (No. 8,936.) Filed March 6, 1885.

NEW TRIAL-CONCLUSIVENESS OF ORDER GRANTING OR REFUSING.

An order of the superior court, granting or refusing a motion for a new trial, if regularly made, is conclusive so far as such court is concerned, and it has no power to afterwards set aside such order.

Department 1. Appeal from the superior court of the city and county of San Francisco.

Jos. M. Wood and Jas. C. Bates, for appellant.

Tobin & Tobin, for respondents.

MCKINSTRY, J. The notice of appeal points to two orders, alleged to be special orders after final judgment. The first is said in the notice to be an order made and entered December 27, 1882, vacating and setting aside an order made and entered August 21, 1882, denying defendant's motion for a new trial; the second, an order made and entered on the ninth of January, 1883, denying plaintiff's motion to have the order of December 27, 1882, vacated and set aside. The transcript contains no order of August 21, 1882, or of any other date, which purports to be an order denying the defendant's motion for a new trial. There is in it a copy of an order made and entered August 21, 1882, vacating and setting aside "the motion for a new trial granted August 16, 1882." August 16, 1882, the court had made an order in words following: "On motion of Messrs. Tobin & Tobin, and upon filing a stipulation therefor, it is ordered that a new trial be and the same is hereby granted." On the twenty-seventh of December, 1882, the court below ordered that the order theretofore, and on the twentyfirst of August, 1882, given and made, vacating the order granting defendants a new trial, be set aside. If it be assumed that the order last mentioned (which is not in terms an order vacating an order denying defendant's motion for a new trial) is the order referred to in the notice of appeal, as made on the twenty-seventh December, 1882, should that order be reversed?

If the validity of the order of August 21, 1882, be conceded, the defendants' motion for a new trial has not yet, so far as appears, been determined. The proceeding for new trial is in fieri. If appellant should succeed in getting the order of December 27th, setting aside the order of August 21st, reversed, the defendants' motion for