are the duly elected, qualified and acting trustees in and for said District;" and this allegation having been denied in the answer, it became the duty of the court below, sitting without a jury, to find the fact in that respect. This was not done, but instead a finding, so called, was made in the following words: "That C. Grupe, N. E. Alling, and R. P. Nason were acting as trustees for said school district, but there was no sufficient evidence of the election of C. Grupe, R. P. Nason, and N. E. Alling, or either of them, as trustees of the Delphi School District, of the County of San Joaquin, State of California; therefore the court finds that they were not de jure trustees, and neither of them was a trustee de jure of said school district at the time of the commencement of this action."

To find that these persons were acting as trustees" was merely to embody the evidence, or a portion of it, adduced at the trial upon the issues just referred to, and to add that "there was no sufficient evidence of the election of Grupe,” etc., was merely to remark upon the condition of the case as presented. If it was proven at the trial that Grupe and others were "acting as trustees," a presumption thereby arose that these persons were officers de jure, but this presumption was, of course, disputable in its character, and might have been met and overcome by other evidence. (Code Civ. Pro. ? 1,963, Subdv. 14.) If not so met and overcome the presumption would stand for proof and would support a finding that these persons were de jure trustees.

This was the rule at common law, and the statute has wrought no material change in that respect. That direct and primary proof of title to the office is dispensed with in such cases is mentioned by Mr. Greenleaf, as constituting an exception to the general rule excluding secondary evidence, and as proceeding upon "the strong presumption arising from the undisturbed exercise of a public office, that the appointment of it is valid," etc. (Vol. 1, 22 91-2.) Judgment reversed and cause remanded.

[No. 5,837.]

[Filed April 15, 1878.]

WEILL vs. JONES.

FORFEITURE-CONTRACT TO CONVEY.-A stipulation for re-entry by vendor in an agreement to convey, if default be made in any of the installments for the space of ninety days, constitutes an agreement that time should not be considered of the essence of the contract during the ninety days, and postpones any action founded upon vendee's default, until the expiration of that period.

WORDS-CONSTRUCTION OF.-The usual and proper sense of words will not apply in contracts where it is apparent that another sense was intended: e. g. to rescind construed in sense of to cancel.

The facts sufficiently appear in the opinion.

PER CURIAM.

The decision of this case depends upon the construction of a portion of one of the agreements annexed to the complaint, which reads as follows:

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"If default shall be made in any of the above payments * for the space of ninety days after the same shall become due, then it shall be lawful for the party of the first part * * at his option and discretion, at once to rescind this agreement to convey, and to reenter upon and repossess said premises and in such case all payments theretofore made shall be retained by the party of the first part as compensation and liquidated damages for the previous use, enjoyment. and occupation of the premises by the party of the second part."

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The effect of a rescission would have been to restore the status quo; the party of the first part would have been entitled to the possession of the premises, the party of the second part to a restoration of the moneys he had paid.

It is apparent that the words "to rescind" are not employed in their usual or proper sense, because they are followed by a statement that the party of the first part shall retain the moneys paid. In its legal effect the stipulation is for the benefit of the party of the second part. If the stipulation were not in the agreement, the plaintiff would succeed

to the right to re-enter immediately on the failure of the second party to make a payment-subject, of course, to the right of the party of the second part to a specific performance, no inexcusable delay occurring. This right to specific performance might continue after the expiration of the period named, the only effect of the stipulation in respect to that matter being that it constituted an agreement that time should not be considered of the essence of the contract during the ninety days.

A provision that a party may at the end of ninety days after an event employ powers, which, except for the provision he could employ immediately on the happening of the event, means nothing, unless it means that he shall not employ them during the ninety days.

The present action was commenced less than ninety days after the default of defendant Jones. The plaintiff has obtained a decree restoring him to the possession of the land, and forfeiting to him the payments already made by the said defendant. Both these are consequences which the agreement provides shall only follow a failure to pay for ninety days after a payment shall become due. Judgment reversed.

[No. 5,932.]

[Filed April 15, 1878.]

CROGHAN vs. MINOR & SPENCE.

FORECLOSURE-PARTIES.-Persons claiming title adversely to the mortgagor are not proper parties to a foreclosure suit, as they have no interest in the subject matter of the action.

All persons beneficially interested, either in the estate mortgaged or the demand secured, are proper parties.

Defendant Spence was impleaded as a subsequent incumbrancer. The court found in effect that Spence was claiming an adverse title not derived from or connected with the estate mortgaged.

PER CURIAM.

There is in the record no finding of the fact alleged in the complaint, but denied in the answer, that defendant Spence "has, or claims to have, some interest in, or claim upon said premises, or some part thereof, as purchaser, mortgagee, judgment creditor, pre-emption or homestead claimant, or otherwise, which interests or claims are subsequent to and subject to the lien of the plaintiff's mortgage."

On the contrary, the court finds facts showing that the asserted claim of defendant Spence is not subject to the lien of plaintiff's mortgage, and that the alleged interest of said defendant is not derived from nor connected with the estate mortgaged, but is hostile to the claim of the mortgagor.

The object of a suit to foreclose a mortgage is to obtain the sale of the estate which the mortgagor held at the time he executed the mortgage, and the application of the proceeds of the sale to the payment of the demand for the security of which the mortgage was given.

All persons who are beneficially interested, either in the estate mortgaged or the demand secured, are proper parties to the suit. (Burton vs. Lies, 21 Cal. 87; San Francisco vs. Lawton, 18 Cal. 465.)

This rule will ordinarily embrace a mortgagor and mortgagee, and those who have acquired rights or interests under them, although prior incumbrancers, may be made parties for the purpose of liquidating their demands.

It is manifest that those claiming either legal or equitable estates adversely to that of the mortgagor are not proper parties to such a proceeding, as they have no interest in the subject matter of the action.

On the finding in respect to the claim or interest of defendant Spence, the court below should have dismissed the bill as to him.

Judgment reversed and cause remanded, with direction to the District Court to enter a decree against defendant Minor, in accordance with the prayer of the complaint, and to dismiss the action as to the other defendant.

[No. 10,342.]

[Filed April 11, 1878.]

PEOPLE vs. MCKELLER.

EVIDENCE-CROSS-EXAMINATION.-Witness stated upon cross-examination that he had lived in Marin County two years, such residence not having been brought out upon direct examination-Held: Evidence to contradict the witness in rebuttal, that he had testified on a former trial to a residence of four years in Marin County, was inadmissible.

The facts necessary to understand the decision appear in the opinion.

PER CURIAM.

The prisoner, in order to prove that he was not present in San Joaquin County at the commission of the burglary for which the indictment proceeds, produced a witness, Richard Carolan, who testified in substance that he had seen the prisoner at the corner of Third and Mission streets, in the city of San Francisco, on Sunday, April 22, 1877, between three o'clock and four o'clock P.M. It was conceded at the trial, that if the prisoner was present in San Francisco at the time mentioned by the witness Carolan, it was impossible for him to have been present at the scene of the burglary. The witness Carolan, upon his cross-examination by the counsel for the People, stated that he had lived in the city of San Francisco ever since 1855, except that he had been out of the city for the space of two years, working on a ranch in Marin County. He also stated that he had testified in this cause as a witness for the prisoner at a former trial. He was then asked by the counsel for the People if he did not testify at the former trial that he had lived in Marin County four years, or that he had been in that county six or seven years since the year 1855, and answered that he had not so testified. In their case in rebuttal the People, in order to contradict the witness upon this point, were permitted by the court, against the objections of the prisoner, to read to the jury a portion of the evidence given by the witness at a former trial, and