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board of trustees of the city of Napa do hereby ordain as follows.’” In the first place, we think that this provision is merely directory. There is nothing in the case of Creighton v. Manson, 27 Cal. 629, which is contrary to this view. In the second place, the provision applies only to ordinances, and not to mere resolutions or orders. The charter provides that the board may pass “by-laws, resolutions, and ordinances.” (Laws 1877-78, p. 1013, sec. 11.) There is evidently a difference between these modes of action. (See 1 Dillon on Municipal Corporations, 3d ed., sec. 307, and notes.) It is unecessary to consider what is the precise difference. It is sufficient to say that in our opinion the order was not an “ordinance,” and that the provision does not apply. It is further objected that this order was not published. But being a mere resolution, it does not come under the general provision requiring “ordinances” to be published, and there is no specific requirement that it be published. (See Laws 1874-75, p. 149, sec. 22, and Laws 1877-78, p. 1017, sec. 30.) Therefore no publication was necessary. 3. It is contended that there was a protest of twothirds of the property owners, under section 30 of the charter. But the court finds that there was no such protest; and we think the evidence is sufficient to justify the finding. (See testimony of Lyman, fol. 283.) 4. Finally, it is said that “the proceedings was an unmitigated fraud.” The finding is, that there was no fraud; and we think the evidence sustains the finding. We therefore advise that the judgment and order appealed from be affirmed.
FootB, C., and BELCHER, C. C., concurred.
The CourT.—For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Hearing in Bank denied.
[No. 11131. Department Two.—May 19, 1888.] A. MONTGOMERY, REspond ENT, v. J. A. ROBINSON ET AL., APPELLANTs. HomesTEAD–MoRTGAGE–IN solve NCY.—Where husband and wife join in mortgaging their homestead, and the husband is adjudged an insolv
ent, the holder of the mortgage may foreclose without presenting a claim against the insolvent's estate.
APPEAL from a judgment of the Superior Court of Alameda County, and from an order refusing a new trial.
The facts are stated in the opinion.
W. F. Goad, for Respondent.
HAYNE, C.—Action to foreclose a mortgage. The defendants, who were husband and wife, declared a homestead upon the property, and afterwards mortgaged it to the plaintiff. Subsequently the husband was adjudged to be an insolvent, his estate being sufficient to pay something towards his debts. The only point made upon the appeal is, that the plaintiff should have proved his claim in the insolvency proceedings. The idea of counsel, so far as we understand him, is, that the plaintiff should have got what he could from the estate, and then proceeded to foreclose for the balance. This idea is based upon the analogy to probate proceedings, and upon section 60 of the insolvent act, which provides that the insolvency court shall set apart a homestead “in the same manner as provided in section 1465 of the Code of Civil Procedure.”
Whatever may be the law with regard to mortgages upon probate homesteads, we can see no ground for the position of the appellants. The provision above quoted from section 60 does not refer to all the provisions of the probate law as to homesteads and claims. It refers
only to a specified section, which relates merely to the manner of setting apart homesteads. In addition to this, section 44 of the insolvent act seems to negative the theory of the appellants. We think that the appeal is without merit, and we therefore advise that the judgment and order denying a new trial be affirmed, with five per cent damages.
Foote, C., and BELCHER, C. C., concurred.
The Court.—For the reasons given in the foregoing opinion, the judgment and order denying a new trial are affirmed, with five per cent damages.
[No. 12236. In Bank.-May 19, 1888.) J. E. HUGHES, APPELLANT, v. C. C. WHEELER, RE
EJECTMENT—JUDGMENT For DEFENDANT when Not ConCLUSIVE ON TITLE.-In an action of ejectment, a judgment in favor of the defendant for costs, rendered upon a special verdict that the plaintiff was the owner and entitled to the possession of the land, and that the defendant had not, prior to the commencement of the action, withheld the same from him, is not conclusive against the plaintiff as to his title. PLEADING—Estoppel–APPEAL.-The sufficiency of the manner in which an estoppel is pleaded will not be reviewed on appeal, when the plea was treated at the trial as properly made and sufficient. INSTRUCTIONs—IMMATERIAL ERRoR.—An error of law in an instruction is immaterial, if it appears that the verdict is nevertheless necessarily correct upon the evidence, or that a new trial must have been granted had the jury not returned the verdict it did. ID.—REPEAt 1NG TESTIMONY To JURY.—In the absence of any showing to the contrary, it will be presumed that the action of the court, in permitting a portion of the testimony to be read to the jury when they had returned for further instructions, was without prejudice. Evidence—OBJECTION How MADE.-An objection to the admission of evidence will not be considered on appeal, unless the ground of the objection was made known to the court on the trial. Estoppel—INSTRUCTIONs.-Certain instructions on the subject of estoppel, held, correct.
APPEAL from a judgment of the Superior Court of Fresno County, and from an order refusing a new trial.
The action was brought to recover the possession of a quarter-section of land. On the trial the court, inter alia, instructed the jury as follows: “If you believe from the evidence that plaintiff, before this action was brought, by unequivocal acts and declarations, showed an intention to act upon the line claimed by defendant as the dividing line between the lands, and silently stood by and saw defendant expend money in improving his land, such acts upon the part of plaintiff estop him from claiming that defendant does not own the land upon which he has expended money and made his improvements. Where a proprietor points out to a neighbor, on land adjoining his own, a line as the true boundary, acquiescing and assisting in a settlement and improvements thereon, he is thereby estopped from afterwards asserting claim to the lands covered by the improvements, though a subsequent survey prove it to be his own land. In a dispute between adjoining proprietors of land, it may be settled between them by a location made by both, or made by one and acquiesced in by the other for so long a time as to be evidence of an agreement as to the line.” The further facts are stated in the opinion.
W. D. Grady, for Appellant.
Foote, C.—Action in ejectment. The jury found, upon particular questions of fact submitted to them,-1. That the plaintiff was the owner and entitled to the possession of the quarter-section of land described in the complaint; 2. That the defendant at no time prior to the commencement of the action withheld any portion of that quarter-section of land from the plaintiff;-and returned a general verdict for the defendant.
Thereupon a judgment for costs was rendered in favor of the defendant. From that and an order refusing a new trial the plaintiff appeals. The plaintiff contends that the judgment for costs is conclusive against him, as to his title to the land described in the complaint, and being opposed to the admissions of the defendant on the trial, cannot stand. In this he is mistaken. The judgment itself is one for costs, and by reference to the record and special verdicts of the jury it is made evident that the only matter which is made conclusive by the judgment against the plaintiff is, that the defendant is not in possession of, and does not withhold possession of, any of the land for which the plaintiff brought his action. Some of the evidence to sustain the special verdict of the non-withholding by the defendant of the plaintiff's land is to the effect that some years prior to the institution of this suit, the parties thereto, owning adjoining parcels of land, established by agreement or acquiescence the division or boundary line between them, and that the strip of land which the plaintiff sought to recover was upon the defendant's side of that line, and therefore not within the description of the land for which the action was begun. The plaintiff contends that no such evidence was admissible under the pleadings, because, as he alleges, no proper plea of estoppel was filed by the defendant. But we think that a plea was set up by the papers filed on suggestion of diminution. of record. The amendment by which this plea was set up was treated at the trial as properly made and as sufficient; and it is now too late to question its sufficiency. (Davis v. Davis, 26 Cal. 23; 85 Am. Dec. 157.) If the evidence was admissible under the issues, it was proper for the jury to render a verdict thereon, and for the court to give them proper instructions for their guidance. All the evidence in this case upon the point tended to