issue as to the possession of plaintiff at the commencement of the action was entirely immaterial. The question of title as between plaintiff and defendants was to be passed on, and the defendants might have been in possession without title, and the plaintiff might have had title, though out of possession. The title of the litigants here did not turn on their possession had at the time of or prior to the commencement of the action.

As far as was necessary to the determination of the issue joined as to the assessment for taxes of the land in suit set up by defendants, the facts were sufficiently found. It is averred in a cross-complaint filed by defendants, which was answered by plaintiff, that the land was assessed to C. E. Gaxiola by the assessor between the first Mondays of March and July, for the year 1880. This was denied in the answer of plaintiff.

The same matters were averred in a cross-complaint of defendants to intervenor's complaint, which was, on motion, stricken out, but allowed to stand as answer to intervenor's complaint. Under the statute all the averments of the answer in relation to the matter of assessment must be considered as denied by the intervenor. As said above, the facts were sufficiently found as to the issue joined as to the assessment.

The issues joined as to the levy of assessment and payment of taxes by defendants during the time they were in possession, and as to any adverse possession of defendants, were entirely immaterial.

The defendants set up no possession by them, adverse or otherwise, prior to March 1, 1881, and as the complaint herein was filed on the 21st of August, 1884, their possession, conceding it to have been adverse from the 1st of March, 1881, did not continue for the period. of five years before action brought, which was required to give them a title. The assessment and payment of taxes on the land while they were in possession were only necessary to make out their title by adverse posses

sion. If the adverse possession did not continue for five years before action brought, the payment of taxes by defendants invested them with no right to the land sued for.

As a deduction from the foregoing views, it was entirely immaterial whether the court found on the issues last mentioned or not.

The defendants claim under a tax deed in which it is recited that the land in suit was assessed "to C. E. Gaxiola and all owners and claimants." That such a deed is void on its face has been frequently held by this court. (Grimm v. O'Connell, 54 Cal. 525; Hearst v. Egglestone, 55 Cal. 367; Brady v. Dowden, 59 Cal. 51; Bosworth v. Webster, 64 Cal. 2.) Conceding that the assessment of this land was regular and valid, it cannot impart validity to the deed. "A void deed cannot be made valid by proof of a valid assessment." (Grimm v. O'Connell, Hearst v. Egglestone, supra.)

We are inclined to think that a proper showing was made to let in the deed from Pearson to Hearst. But if this deed were excluded, there should be no reversal. Pearson would then be entitled to recover the whole land

against defendants, who show no title. It is of no moment to the defendants that the court has adjudged one half the land to Hearst, and the other half to Pearson. They were not at all prejudiced by the judgment. The case might as well have been tried without the intervention of Hearst as with it.

We will add here, though it is hardly necessary or material, that Hearst must be held to have had notice of the title of defendants, who claimed under a deed regularly recorded, and of the pendency of the action, if a proper notice of its pendency was filed. As to any title to the land, the rule is that the purchaser must look out,caveat emptor.

The law fixed notice on Hearst of the title of defendants, and of the pendency of the action, whether they

appeared in the abstract of title which was presented him when he paid his money and received his deed or not. But this notice could not affect his rights, for, if he had notice, he had notice of a claim of title, which was naught.

We find no error in the record.

Judgment and order affirmed.

MCFARLAND, J., SHARPSTEIN, J., and PATERSON, J., concurred.

WORKS, J., dissenting.-I dissent. I cannot agree to the doctrine announced in Grimm v. O'Connell, 54 Cal. 524, and cases following it, that a recital in a tax deed showing that the property was wrongly assessed, when it was not, as a matter of fact, renders such deed void. The recital referred to is not a necessary part of the deed, and is not required to be set out. Pol. Code, secs. 3776, 3786.) The certificate of purchase is required to state, when known, the name of the person assessed. This is not a requirement that it shall state how or to whom it was assessed. If assessed to unknown owners, no recital is required. The deed is required to recite the matters recited in the certificate.

The decisions referred to are based upon the assumption that the deed must state to whom or how the property is assessed. The result of the decisions is, that, although the assessment and sale were properly made, the deed must be held void, and the title defeated, solely because of a false recital in the deed, which, if true, would show the assessment to have been invalid, and this, too, where the recital is one which, by a fair construction of the sections of the code relating to the subject, need not be set out in the deed at all, and should be treated as surplusage.

In my judgment, the cases cited in support of this doctrine were wrongly decided, and should be overruled.

[Nos. 12523, 12643. In Bank.-January 25, 1889.] JOSEPH H. HILL, RESPONDENT, v. S. H. MILLER, APPELLANT.

PARTNERSHIP PATENT OBTAINED BY ONE PARTNER-ASSETS OF FIRMPAROL AGREEMENT.— -When a copartnership is formed for the manufacture of hay-presses, for which a patent is afterward obtained by one partner, and the hay-press was put in as part of the capital stock, the patent so obtained is partnership property, and it is of no consequence that there was no written assignment of a half interest in the patent to the other copartner. Such copartner became in equity the owner of one half of the patent, though the agreement was by parol.

APPEAL from a judgment of the Superior Court of Sacramento County, and from an order denying a new trial. The facts are stated in the opinion of the court.

Joseph H. Budd, and Grove L. Johnson, for Appellant. McKune & George, for Respondent.

THORNTON, J.-Action to establish partnership in a hay-press, and to settle partnership accounts in which a judgment for plaintiff was entered and given. Defendant moved for a new trial, which was denied, and he prosecutes these appeals, one from the judgment and the other from the order denying a new trial.

The evidence is sufficient to justify the decision of the court below.

The court below found that the defendant put in the hay-press as a part of the capital stock, for which a patent was afterward issued to him. The patent was obtained for the hay-press while the copartnership was in existence, and while the plaintiff and defendant, as copartners, were manufacturing the hay-presses. We think the court properly held that the patent so issued under an agreement that the hay-press should go into the partnership as part of its stock belonged to the partnership.

It is a matter of no consequence that there was no written assignment of a half interest in the patent by defendant to plaintiff. The plaintiff as a partner, became in equity the owner of one half of the patent, though the agreement was by parol. On this point see Sumerby v. Buntin, 118 Mass. 279, which is adverse to defendant's contention, and which sustains the conclusion here reached.

We find no error in the record.

The judgment in cause No. 12523 and the order in cause No. 12643 are affirmed.

WORKS, J., MCFARLAND, J., PATERSON, J., and SHARPSTEIN, J., concurred.

[No. 12847. In Bank.-January 25, 1889.]

J. S. DOE, RESPONDENT, v. CASPER M. SANGER ET AL., APPELLANTS.

PLEADING DEMURRER FOR AMBIGUITY-STATUTE OF LIMITATIONS.-The fact that a cause of action as set out in the complaint does not show on its face whether it is or is not barred by the statute of limitations, cannot defeat a recovery, nor sustain a demurrer for ambiguity. Unless the complaint shows affirmatively that the cause of action is barred by the statute, that objection cannot be raised by demurrer.

ID. MATTER WITHIN DEFENDANT'S KNOWLEDGE.-When the matter in respect to which a complaint is objected to as ambiguous is peculiarly within the knowledge of the defendant, such ambiguity is not a ground of demurrer of which the defendant can avail himself. (Per BEATTY, C. J.)

APPEAL from a judgment of the Superior Court of San Bernardino County.

The facts are stated in the opinion.

Harris & Gregg, for Appellants.

R. S. Mesick, for Respondent.