reformation of a contract for the sale by plaintiffs to defendant of a certain tract of land lying in said county. Defendant demurred to the complaint, and at the same time demanded a change of the place of trial to San Francisco, the place of his residence. The court made

an order changing the place of trial as demanded. From that order plaintiffs appealed, and contend here that under section 392 of the Code of Civil Procedure they are entitled to have the action tried in the county of Santa Barbara, where it was commenced. If it be an action for the determination, in any form, of a right or interest in real estate situated in Santa Barbara County, it must be tried in that county.

This action, as we construe it, is for the determination of a right or interest in real estate.

Order reversed.

WORKS, J., PATERSON, J., THORNTON, J., and BEATTY, C. J., concurred.

[No. 13028. In Bank.-July 4, 1889.]

S. A. WILLIAMS ET AL., APPELLANTS, v. W. S. HALL ET AL., RESPONDENTS.

PLEADING

CONSIDERATION-WRITTEN CONTRACT SET FORTH IN FULL. -In California every written contract imports a consideration. And if the contract is set forth in full in the pleading, it is not necessary to allege a consideration.

FINDINGS BY REFERENCE TO PLEADING.--A general finding that all the allegations of the complaint are true, and that all the averments of the answer are untrue, is sufficient, if the pleadings are sufficient.

APPEAL from a judgment of the Superior Court of Los Angeles County.

The facts are stated in the opinion.

Wells, Guthrie & Lee, for Appellants.

W. S. & I. Hall, in pro. sese, for Respondents.

HAYNE, C.-The transcript in this case is improperly entitled. The plaintiffs in the court below are put as the defendants on appeal, and the defendants in the court below are put as the plaintiffs on appeal.

Under our system this is improper and confusing. (Simpson v. Applegate, 75 Cal. 345.)

The action was upon a contract for the payment of money; judgment was given for the plaintiffs, and the defendants appeal. The first point is, that the complaint does not allege that there was a consideration for the contract. But in the first place, we think that a consideration is alleged. By their contract the defendants acknowledged themselves to be indebted to plaintiffs in a certain sum, and promised to pay the same. And it is alleged that "the said obligation and indebtedness was made and executed by the said defendants, Williams and Adams, as final settlement of accounts for transactions in real estate between them and the plaintiffs and defendant Frank Berton, and for good, valid, and substantial consideration." And in the second place, the contract was in writing and was set forth in hæc verba, and in such case it is not necessary to aver a consideration. Under the code every written contract imports a consideration as much as if it were a promissory note (Civ. Code, secs. 1614, 1615); and therefore it is not necessary that a consideration should be specifically averred. (Winters v. Rush, 34 Cal. 136.)

The next point is, that the general finding that all the allegations of the complaint are true, and all the averments of the answer are untrue, is not sufficient. But it is well settled that it is sufficient. (Gwinn v. Hamilton, 75 Cal. 266; Johnson v. Klein, 70 Cal. 186.) In addition to this, the findings dispose of all the material issues specifically.

The only other point is, that the judgment was for one dollar less than authorized by the findings. The appeal

is entirely destitute of merit, and was evidently taken

for delay.

We therefore advise that the judgment be affirmed, with twenty per cent damages.

VANCLIEF, C., and FooTE, C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment is affirmed, and it appearing to the court that the appeal herein was taken for delay, it is ordered that there be added to the costs twenty per cent of the amount of the judgment as damages, by virtue of the provisions of section 957 of the Code of Civil Procedure.

[No. 13100. In Bank.-July 4, 1889.]

R. R. BROWN, RESPONDENT, v. L. F. STARR ET AL., APPELLANTS.

HOMESTEAD APPRAISEMENT OF VALUE UNDER EXECUTION-LIFE ESTATE. The homestead consists of the dwelling-house in which the claimant resides and the land on which the same is situated, irrespective of the tenure, tenancy, or title by which he holds it. Upon proceedings to appraise its value under execution, the appraisers must consider only the value of the premises, and whether the land claimed can be divided without material injury, if its value exceeds five thousand dollars. One who holds only a life estate in the premises cannot have the appraisement limited to the value of such life estate; and if it appears that the land can be easily divided without material injury, the life tenant cannot demand that it be sold as an entirety, and that five thousand dollars of the proceeds be paid to him.

APPEAL from orders of the Superior Court of Los Angeles County relating to the homestead claim of appellant.

The facts are stated in the opinion of the court.

Wicks & Ward, for Appellant.

The value of the salable interest that the homesteading party has in the property homesteaded must be taken

as the value of his homestead. (Squire v. Medget, 63 N. H. 71; State v. Mason, 15 Mo. App. 141-146.) Any interest which the homesteader has in the homestead premises which entitles him to possession will support a homestead. (Spencer v. Geissman, 37 Cal. 99; Brooks v. Hyde, 37 Cal. 373.) The word "premises," in Civil Code, sections 1251, 1263, does not denote the corpus of the thing owned, but the property or right of the owner therein.

C. N. Wilson, for Respondent.

The court below followed the code, sections 1241-1259, the provisions of which must prevail, regardless of the decisions of the courts of New Hampshire and Missouri.

MCFARLAND, J.-Execution was issued upon a judgment in favor of plaintiff herein against L. C. Alexander et al., and levied on land upon which Alexander had declared a homestead. Under sections 1245 et seq. of the Civil Code, persons were appointed by the court to appraise the value of the homestead. They reported that the property covered by the homestead was of the value of fifteen thousand dollars; that it could be easily divided, and that they had set off as a homestead a certain part of the land, including the dwelling-house of Alexander, and most of his improvements, which was of the value of five thousand dollars. Alexander claimed that he owned only a life estate in the land, or a "mere right of personal occupancy during his lifetime"; and he moved that the appraisement be remanded for another report, in which his said life interest only should be appraised, and that he be allowed to prove that he had only such interest. He also moved that the premises be sold as an entirety, and five thousand dollars of the proceeds paid to him. The court overruled said motions, and Alexander appeals from the orders denying said motions,

LXXIX. CAL.-39

and also from an order approving the report of the commissioners.

Assuming that said orders are appealable, we are satisfied that no error was committed by the court below. A homestead consists of "the dwelling-house in which the claimant resides, and the land on which the same is situated" (Civ. Code, sec. 1237), irrespective of the tenure, tenancy, or title by which he holds it. When an execution is sought to be enforced against it, the appraisers must "view the premises" and "appraise the value thereof,”—that is, the value of the premises; and if the value of the premises exceeds five thousand dollars, they must determine whether the land claimed can be divided without material injury. (Sec. 1251.) If from the report it appears to the judge that the land claimed can be divided, etc., he must "direct the appraisers to set off to the claimant so much of the land, including the residence, as will amount in value to the homestead exemption, and the execution may be enforced against the remainder of the land." (Sec. 1253.) It is the land, including the residence, that "must amount in value," etc. There is no provision of the code on the subject of homesteads which makes any allusion to the title or kind of tenure by which the claimant holds the property, or requires any appraisement of the interest which he has therein. If he resides on the land, he may have a homestead on so much of it as does not exceed in value five thousand dollars against any person, except one who has a better title, no matter what his own title is; and when an execution creditor claims that he is holding as a homestead more than he is entitled to, that question must be determined by the value of the land. Any other rule would lead to infinite confusion. Can it be contended that a man can have, and keep, and enjoy as a homestead a large and valuable tract of land worth ten times the amount of exemption, and can prevent a creditor from having set off to him a part of the land, including his dwelling