APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

E. W. McGraw, for Appellant.

R. B. Saffold, and T. Z. Blakeman, for Respondent.

MCFARLAND, J.-This action is for the value of certain personal property. Judgment went for plaintiff, and defendant appeals. The material facts are substantially these: The plaintiff, a mining corporation, contracted in 1881, with Pendergast, Smith & Co., who owned and conducted the Etna Iron Works in San Francisco, for the construction by the latter for the former of a five-stamp battery complete. When the work was done plaintiff was not ready to use the battery, and it was agreed that plaintiff should pay for the property, and that Pendergast, Smith & Co. should keep it on storage for plaintiff until the latter should call for it. Thereupon plaintiff paid the full price which had been agreed upon for the battery, and left it in possession of Pendergast, Smith & Co. Plaintiff also furnished some lumber which was used in covering some part of the property. Afterwards, in 1882, Pendergast, Smith & Co. incorporated under the corporate name of the Etna Iron Works Company, and continued the business, the battery remaining on storage as before. In 1883 this company became financially embarrassed. Its principal creditor was the defendant L. M. Starr; and in consideration that he would cancel the indebtedness to him, and would settle with the other creditors, the said Etna Iron Works Company, on June 12, 1883, by a written instrument, sold, assigned, and transferred all its property to said defendant Starr, who immediately went into possession. The instrument or bill of sale described the prop

erty as follows: "All assets, credits, book-accounts, books, papers, property, and leasehold interest of said corporation." There was also a schedule of the property sold which did not mention the said five-stamp battery, or any part of it. The battery remained on the premises, and went into the possession of defendant, Starr. In the early part of 1884, the plaintiff, desiring to use the battery, demanded it of the defendant, Starr, who refused to deliver it, saying that he had bought and claimed everything about the Etna Iron Works. The court found the value of the property to be $1,050. The points made by appellant that various findings of fact are not justified by the evidence cannot be maintained. There was considerable evidence to justify each finding.

The main point made by appellant is, that, as against him, the sale by Pendergast, Smith & Co. to plaintiff was void under section 3440, Civil Code, because it was not accompanied by an immediate delivery of the property, or followed by actual and continued change of possession. It is clear, however, that appellant cannot invoke this rule as a creditor. He can do so only as a purchaser under his bill of sale. But he was not a purchaser of the property in litigation. The sale of the battery in 1881, was, as between Pendergast, Smith & Co. and plaintiff, complete; and the title passed absolutely to the latter. When, therefore, they (or their successor, the Ætna Iron Works Company) afterwards sold and assigned to appellant their "assets" and "property," they did not sell, nor by any proper construction can they be held to have undertaken to sell, this battery, which was no part of their assets or property. And this is made still more clear by the fact that it was not included in the schedule. If their creditors had attached the property in their possession, or they had sold it to an innocent purchaser, then the rule of section 3440 might have been applicable. But appellant is here claiming as a purchaser property which he never pur

chased, and under a written transfer by which it was not transferred. There are no other points necessary to be

particularly noticed.

Judgment and order denying a new trial affirmed.

THORNTON, J., and SHARPSTEIN, J., concurred.

Hearing in Bank denied.

[No. 11388. Department One.-May 19, 1888.] FREDERICK TAPPENDORF, APPELLANT, v. WIL LIAM DOWNING,, RESPONDENT.

ACCRETION-DEED.-Land formed by accretion on a fractional quartersection is part thereof, and passes by a deed conveying the fractional quarter by its number.

ID.-STATEMENT OF QUANTITY OF LAND CONVEYED.-The statement in a deed of the quantity of the land conveyed is not controlling.

APPEAL from a judgment of the Superior Court of Humboldt County, and from an order refusing a new

trial.

The action was brought to recover the possession of certain land lying along the bank of Eel River, in Humboldt County, which had been formed by accretion to the fractional southeast quarter of the northwest quarter of section 25, in township 3 north, range 2 west, Humboldt meridian. Prior to 1859, the United States government, by its patent, conveyed the said fractional quarter of the quarter-section to one G. G. Dudley. The patent described the land as containing 19.62 acres, which was its exact quantity. On the 5th of August, 1859, Dudley, by the same description, conveyed the land to R. N. Dungan, who, in the year 1872, conveyed it to the plaintiff. On the 31st of August, 1874, the plaintiff conveyed land described as the southeast fractional quarter of the northwest quarter of section 25, township 3 north, range 2 west, Humboldt

meridian, containing 19.62 acres, to Caleb Merritt, under whom the defendant claims by deeds containing the same description. The accretion in question commenced to form shortly before the conveyance by Dungan to the plaintiff, and thereafter gradually and imperceptibly increased. The present action as commenced on September 12, 1883, to recover possession of this accretion, the plaintiff claiming that it had not passed by the deeds to the defendant. Judgment was rendered in favor of the defendant, from which and from an order refusing a new trial, the plaintiff appealed. The further facts are stated in the opinion.

J. D. H. Chamberlin, for Appellant.

8. M. Buck, for Respondent.

HAYNE, C.-In this case, we think that the land formed by accretion was part of the adjoining fractional quartersection, and that, therefore, the accretion passed by the deeds conveying the fractional quarter by its number. The statement of the quantity of land conveyed by a deed is not controlling.

With reference to the statute of limitations, if we assume that the appellant's specification is sufficient to raise the question (which is doubtful: See Barstow v. Newman, 34 Cal. 91; Goodrich v. Van Landigham, 46 Cal. 603), we do not think the evidence shows a case of adverse possession by the plaintiff for the requisite period. It may be that there was such possession; but the fact does not appear from the record.

Since the appellant has no title to the fractional quarter-section as it originally stood, or to the accretion, there can be no question as to a boundary line between the two.

We therefore advise that the judgment and order appealed from be affirmed.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

[No. 11041. Department One.-May 19, 1888.]

GEORGE G. SMITH, APPELLANT, v. J. H. MOTT, RESPONDENT.

PLEDGE, WHAT AMOUNTS TO AGREEMENT OF.-Where the property of one is pledged without his knowledge or consent to secure the debt of another, and upon being informed of the transaction the owner agrees that if the pledgee will forbear the debt for a time the property may remain in pledge to secure the debt, there is a valid pledge.

ID. CONSIDERATION-FORBEARANCE-REDELIVERY.-The forbearance is a sufficient consideration for such an agreement, and a redelivery of possession is not necessary.

STATUTE OF FRAUDS.-Such an agreement is not within the statute of frauds.

APPEAL from an order of the Superior Court of the city and County of San Francisco refusing a new trial.

The facts are stated in the opinion.

Royce & Cummins, for Appellant.

The parol promise of the plaintiff to pay the debt of his wife is void. (Luce v. Zeile, 53 Cal. 54; Code Civ. Proc., sec. 1973.) The wife was not the agent of the husband in making the pledge, therefore there could be no such thing as a ratification by him. (Ellison v. Jackson Water Co., 12 Cal. 542.)

Van Schaick & Jacobs, A. D. Splivalo, and F. A. Berlin, for Respondent.

HAYNE, C.-Replevin for a piano. The plaintiff was the owner of the piano. His wife pledged it without his knowledge or consent to secure a loan to her from the