due execution of the note and mortgage, copies of which were set out in the complaint, by which it appeared that the plea was false, the action having been commenced within four years after the maturity of the note.

3. It is claimed that the answer raised a material issue as to the ownership of the note, which appears to have been made to plaintiff, not assigned to it. The allegation that the plaintiff was the owner of a note thus made was unnecessary, and therefore surplusage. It tendered no material issue, and the denial of it was therefore irrelevant. Corcoran v. Doll, 32 Cal. 83; Wedderspoon v. Rogers, Id. 570; Poorman v. Mills, 35 Cal. 119; Frost v. Harford, 40 Cal. 165; Monroe v. Fohl, 72 Cal. 568, 14 Pac. Rep. 514.

4. It is claimed that, since the complaint alleges that neither the interest nor the principal of the note had been paid, the answer raised a material issue on that allegation. It is well settled in this state that the allegation of nonpayment, in a complaint on a promissory note, is material to the cause of action, as without such an allegation no breach of the promise would appear; and that, when the complaint is not verified, a general denial puts in issue every material allegation of the complaint. I think the answer in this case raised a material issue as to payment, and therefore should not have been stricken out. Frisch v. Caler, 21 Cal. 71; Davanay v. Eggenhoff, 43 Cal. 395; Wetmore v. San Francisco, 44 Cal. 300; Bank v. Christensen, 51 Cal. 572. For this error I think the judgment should be reversed, and the cause remanded.

We concur: SEARLS, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded.

(4 Cal. Unrep. 261)

ADAIR v. WHITE et al. (No. 19,117.) (Supreme Court of California. Oct. 5, 1893.)

BOUNDARIES-EVIDENCE-APPEAL.

1. On the question of the location of a point called for in a patent and survey, the court may consider the field notes and description in the patent of an adjoining tract, the boundaries of the two tracts being coincident for a distance of several miles, and both having been surveyed by the same surveyor at about the same time.

2. On the question of the proper location of a point called for in a survey and patent, a finding by the court on conflicting evidence will not be disturbed on appeal.

Department 1. Appeal from superior court, Ventura county; W. B. Cope, Judge.

Action of ejectment by George M. Adair against Frank W. White and others. From a judgment for defendants, plaintiff appeals. Affirmed.

W. H. Wilde, for appellant. Blackstock & Shepherd, for respondents.

HARRISON, J. Ejectment for certain lands claimed to be a part of the Rancho Santa Paula y Saticoy, in Ventura county. The controlling question in the case is the location of the southerly line of the rancho. This line is set forth in the patent as follows: After leaving station S. P. 13, "thence S. 42, 14 E., at 30 links enters bed of Santa Clara river, course S. W.; at 4 chains, intersects offset of township line in township 3 N., range 21 W., 39.50 chains east of corner to sections 10, 11, 14, and 15; at four chains and fifty links crosses river, and ascends; thence, along westerly slope of abrupt hills called 'Lomas de Santa Paula,' 492 chains, to stake marked 'S. P. 14' station, at the most southern point of above-named hills, known as the 'Punta de la Loma.'" When the case was here upon the former appeal (85 Cal. 316, 24 Pac. Rep. 663) it was said:" "It will be observed that this line terminates at the most southern point of the hills called the 'Lomas de Santa Paula,' which point is known as the 'Punta de la Loma.' This is the natural object or monument, and the station S. P. 14 was there fixed and established by the calls of the patent. If this point can be found, it is only necessary to run a line from S. P. 13 to S. P. 14 to fix the southern boundary;" and the case was remanded for a new trial in accordance with this principle. When the cause came on again for trial in the court below, the greater portion of the testimony was directed to establishing the location of the point upon the Punta de la Loma at which S. P. 14 had been placed, and from the evidence before it the court found that this point was so located that a line drawn from it to S. P. 13 lay to the north of the lands occupied by the defendants, and thereupon rendered judgment in their favor. The position of station S. P. 14, as well as the significance of "Punta de la Loma," were questions of fact to be determined by the court from the evidence before it. There was a sharp conflict of evidence upon both of these questions, and, under the well-established rule, the finding of the trial court thereon must be held conclusive. It is only where there is no substantial evidence in support of a finding that this court can disregard the finding of the trial court; and after a careful examination of the record herein we are unable to say that the evidence before that court did not authorize it to make the findings which it has made upon both of these questions of fact. The stake that had been placed at the station had disappeared, and one of the objects at the trial was to re-establish this monument. Several surveyors were called as witnesses for the respective parties for the purpose of establishing the location of S. P. 14, and the conflict between their testimony arises chiefly from the construction given to the field notes and calls of the patent; the plaintiff contending

action," but before notice of appeal from such second order changed it by striking out the provision that it was in lieu of the $50. Held, that the second order was a new order for further attorney's fees, and not a change of the first order after appeal therefrom.

3. In an action by a wife for permanent maintenance, an order that defendant pay plaintiff $50 per month alimony and $50 "to her attorney," while erroneous in directing such payment to her attorney, is no ground for reversal where it appears that the notice to show cause why the order should not be made was "to pay the clerk a certain sum of money, to be applied by plaintiff as counsel fees," since the direction to pay the attorney is a clerical error, and may be modified.

Department 2. Appeal from superior court, Santa Barbara county; W. B. Cope, Judge.

Action by Yda Addis Storke against C. A. Storke for permanent support and maintenance. From two orders directing the payment of alimony and attorney's fees pendente lite, defendant appeals. Modified.

W. P. Butcher and C. A. Storke, for appellant. Wright & Day, for respondent.

MCFARLAND, J. The plaintiff brought this action against her husband, the defendant, for permanent support and maintenance, under section 137 of the Civil Code; and on August 12, 1891, the trial court made an order that during the pendency of the action defendant pay plaintiff $50 per month alimony and $50 to her attorney. From this order, on the day on which it was made, defendant appealed. Appellant had filed an answer averring the insanity of plaintiff, and praying for the appointment of a guardian ad litem for her; and the point made by appellant is that the court had no right to allow alimony until it had heard and determined the issue of insanity. But with respect to the allowance of alimony, the averment of insanity was not different from any other averment which, if proven at the trial, would have defeated respondent's action; and the very purpose of alimony in such a case is to give support to the wife, and enable her to conduct her side of the litigation pending the trial of the issues made by the pleadings. If the court were compelled to try and determine the issues in the case before it could allow alimony, the entire purpose of allowing alimony "during the pendency of such action" would be defeated. That part of the order which directs appellant to pay $50 "to the attorney for plaintiff” is irregular; but as the notice to appellant to show cause why the order should not be made was "to pay the said clerk a certain sum of money, to be applied by plaintiff as counsel fees in prosecuting the action," it is probable that the direction to pay the money to the attorney was a mere clerical mistake, and we think it a proper case for a modification of that part of the order, rather than a reversal.

There is in the printed record what purports to be another appeal by appellant from

another order of the court made August 14, 1891. On that day the court made an order reciting the fact that defendant had appealed from the order of August 12th, and directing that appellant pay respondent $350, "to enable her to prosecute said action." This order, as first entered, declared that the $350 was "in lieu" of the $50 attorney's fee given by the order of August 12th; but four days afterwards the court modified the said order of August 14th by striking out the provision that the $350 was in lieu of the $50. Nearly two months afterwardson October 12, 1891-the defendant gave notice of appeal from the order of August 14th, and the point made on this appeal is that the court had no jurisdiction to change the order of August 12, after an appeal had been taken therefrom, by substituting $350 for $50. But we see nothing in the point, because, before the notice of appeal, the "lieu" clause had been stricken out of the order, and it stood as a new order for further counsel fees. We have noticed this point on its merits, but it is doubtful if there is any record here which presents it.

The court below is directed to modify the order of August 12, 1891, by requiring the $50 attorney's fee to be paid to plaintiff, and, as thus modified, the order is affirmed, with costs of appeal to respondent. The order of August 14th is affirmed.

There can be no recovery for the malicious suing out of a writ of attachment against real estate without probable cause, when it does not appear that it was fully executed, as required by Code Civil Proc. § 542, and that a copy of the writ, description of the property, and notice were left with the occupant of the property, or posted thereon, as well as filed with the recorder of the county.

Department 2. Appeal from superior court, Los Angeles county; W. P. Wade, Judge. Action by John Maskell against Charles H. Barker. From a judgment for defendant, plaintiff appeals. Affirmed.

Hugh J. & Wm. Crawford, for appellant. A. M. Stephens, for respondent.

FITZGERALD, J. This is an appeal upon the judgment roll from a judgment on demurrer to the complaint. The action is for damages, and the complaint, in substance, alleges that the defendant maliciously and without probable cause sued out a writ of attachment against plaintiff's property, and extorted from him the money sued for, upon a threat made by defendant that if the same was not paid he would cause the writ to be levied on certain real property of the

plaintiff which he was about to sell, and thereby defeat the consummation of such sale; that the writ was delivered for levy to a constable, who, in obedience to its command, filed with the county recorder a copy thereof, with a description of said property, and a notice that it was attached. It is further alleged that, in consequence of these acts of the defendant and the constable, a notice was published in a certain newspaper that said property was attached, and a similar notice was transmitted to the various commercial agencies of this state, to the injury of the plaintiff's good name and business reputation, thereby causing great anxiety and distress of mind and mental suffering, to his damage in the sum of $5,500. The complaint was demurred to on the ground, among others, that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court, and its ruling in this respect is brought in question by this appeal. In order to entitle a plaintiff to recover in an action of this character, he must allege and prove that the writ of attachment was executed by attaching his property. The alleged acts of the constable in this case do not constitute a levy, within the meaning of section 542, Code Civil Proc. What he did was but a step in that direction. "Leaving a similar copy of the writ, description, and notice with the occupant of the property, if there is one; if not, then by posting the same in a conspicuous place on the property attached," was necessary to complete the levy, therefore indispensable to the execution of the writ. The malicious suing out of a writ of attachment without probable cause, without levying it upon the property of the party against whom it was issued, will not authorize a recovery by such party. In addition to this, it does not appear that the defendant caused or was connected in any way with the notices published and transmitted, as alleged in the complaint. We are of the opinion that the demurrer was properly sustained. Let the judgment be affirmed.

We concur: MCFARLAND, J.; DE HAVEN, J.

(4 Cal. Unrep. 267)

NELMES v. WILSON. (No. 19,094.) (Supreme Court of California. Oct. 7, 1893.) APPEAL-TIME OF TAKING-REVIEW OF EVIDENCE -NONSUIT-EXCEPTIONS.

1. Under Code Civil Proc. § 939, permitting an appeal within a year of entry of judgment, but inhibiting consideration of an exception to the decision, as being unsupported by evidence, unless the appeal is within 60 days after rendition of judgment, the evidence cannot be considered on an appeal taken after the 60 days.

2. Error in granting nonsuits is an error in law which must be excepted to that it may be considered on appeal.

Commissioners' decision. Department 2. Appeal from superior court, Los Angeles county; William P. Wade, Judge.

Action by Thomas Nelmes against James G. Wilson. Judgment for defendant. Plaintiff appeals. Affirmed.

Gould & Stanford, for appellant. Johnson & Rodman, for respondent.

SEARLS, C. This action is brought to annul a contract for the purchase of a lot of land in the city of Pasadena, county of Los Angeles, entered into between the assignor of plaintiff and grantor of defendant on the 31st day of August, 1887, and to recover back so much of the purchase money as has been paid on account of such contract. Defendant answered, admitting the execution of the contract, and denying most of the other allegations of the complaint. He also filed a cross complaint, asking for the specific performance of such contract, and judgment for the amount remaining due thereon. At the trial a nonsuit was ordered against plaintiff, and defendant had final judgment in his favor as prayed for in his cross complaint. The appeal is from the final judgment, supported by a bill of exceptions. Said judgment was rendered February 13, 1892, but not entered until March 8, 1892. The appeal was taken May 6, 1892, more than 60 days after the rendition of the judg ment, and within 60 days of its entry. Section 939 of the Code of Civil Procedure provides that an appeal may be taken from a final judgment commenced in the court in which the same is rendered within one year after the entry of judgment. "But an exception to the decision or verdict on the ground that it is not supported by the evidence cannot be reviewed on an appeal from the judgment, unless the appeal is tak en within sixty days after the rendition of the judgment." Under the rule enunciated in Schurtz v. Romer, 81 Cal. 244, 22 Pac. Rep. 657, we are precluded from reviewing the evidence contained in the bill of excep tions for the reason that the appeal was not taken within 60 days after the rendition of the judgment. The record fails to show that any exception was taken to the action of the court in granting the nonsuit. An error in granting a nonsuit is an error in law, and must be excepted to, or it will not be reviewed on appeal. Malone v. Beardsley, 92 Cal. 150, 28 Pac. Rep. 218; Flashner v. Waldron, 86 Cal. 211, 24 Pac. Rep. 1063; Warner v. Darrow, 91 Cal. 310, 27 Pac. Rep. 737. The findings are within the issues made by the pleadings, and support the judgment. The judgment appealed from should be af firmed.

We concur: BELCHER, C.; TEMPLE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is af firmed.

(39 Cal. 607) HARRALSON v. BARRETT et al. (No. 19,137.)

(Supreme Court of California.

MORTGAGES

Oct. 6, 1893.) PROVISION FOR PAYMENT OF TAXES ON MORTGAGE OR DEBT THEREBY SECURED-VALIDITY-REVIEW ON APPEAL-CONFLICTING EVIDENCE-NEW TRIAL - MONEY PAID UNDER MISTAKE OF LAW.

1. Under Const. art. 13, § 5, declaring that contracts obligating a debtor to pay a tax on money loaned, or on any mortgage, shall be void as to any interest specified therein and as to such tax, a provision in a mortgage that, in case of foreclosure, the mortgagee may include therein all payments made by the mortgagee for "taxes of this mortgage, or the money hereby secured," is void.

2. Where the evidence is conflicting, the verdict will not be disturbed on appeal.

3. In an action to foreclose a mortgage, defendants claimed that alterations had been made after execution, and plaintiff testified that he went, immediately after the acknowledgment, from the notary's office to the recorder's office. Defendants, after judgment for plaintiff, moved for a new trial on the ground of newly-discovered evidence that the mortgage was acknowledged at least an hour before it was recorded, and that one P., who occupied a part of the office of defendant, saw plaintiff make alterations after acknowledgment. Held, that where, from the issue, defendants had reason to believe that plaintiff would deny that the alterations were made after execution, they failed to use due diligence in getting such evidence, and the motion for new trial was properly overruled.

4. Though payment of the interest on the note secured by such mortgage could not be recovered because of the void provision therein, yet, where defendants voluntarily paid such interest under a mistaken belief that they were bound to do so, they cannot recover it back, or demand that it be credited on the principal of the loan.

Department 1. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge.

Action by Harralson against A. W. Barrett and another to foreclose a mortgage. From a judgment for plaintiff, and an order denying a motion for a new trial, defendants appeal. Modified.

Henry Bleeker and George Denis, for appellants. A. M. Stephens, for respondent.

PATERSON, J. The mortgage upon which this action was brought provides that in case of foreclosure the mortgagee may include therein all payments made by the mortgagee "for taxes on said premises, and the taxes of this mortgage, or the money hereby secured." It is claimed by appellants that this provision of the mortgage is void, and that the court below erred in allowing interest on the note for the payment of which the mortgage was given as security, and this proposition, we think, must be sustained. Section 5, art. 13, of our constitution provides that "every contract hereafter made, by which a debtor is obligated to pay any tax or assessment on money loaned, or on any mortgage, deed of trust, or other lien, shall, as to any interest specified therein, and as to such tax or assessment, be null and void." To hold that

the clause of the mortgage quoted above is valid would defeat the purposes of this provision. In Hewitt v. Dean, 91 Cal. 11, 27 Pac. Rep. 423, Mr. Justice Harrison has clearly set forth the purposes of this provision of the constitution and the circumstances which led to its adoption. The end it attempts to accomplish is "that a portion of the taxes might be collected from the mortgagee, and that the burden upon the mortgagor might not at the same time be increased. A construction such as the respondent seeks to put upon the provision would afford the borrower no relief whatever, for under it the mortgagee could in any case make an agreement that, on his payment of the mortgage tax, it might be added to the indebtedness due him, and collected as a part of the same." Marye v. Hart, 76 Cal. 291, 18 Pac. Rep. 325, cited and relied upon by respondent, is not in point. The contract there was entirely different from the one before us. It simply provided that the mortgagee might discharge "at maturity all taxes or assessments, liens, or other incumbrances now subsisting, or hereafter to be laid or imposed, upon said lot of land or premises, and which may be in effect a charge thereupon;" and that such payments should be considered as secured by the mortgage. This provision was held to be entirely consistent with the provisions of section 4, art. 13, of the constitution, which allows the owner of the security to pay the taxes on the property, in which case they become a part of the debt, but does not allow the owner of the security to add the taxes paid by him on his own security to the mortgage debt. It says: "The tax so levied upon the property affected thereby shall become a part of the debt." The section provides for two assessments,-one upon the property, which must be against the owner of the land, and one upon the mortgage, which must be against the owner of the mortgage. It permits the mortgagee, if he pay the tax on the land, and this is frequently done to protect himself,-to add the amount thereof to the mortgage debt. Section 5 clearly intends that the tax on the security shall be the debt of the mortgagee, and provides a severe penalty in case of any attempt to put the burden upon the borrower.

It was set up in the answer, and claimed at the trial, that, after the execution and delivery of the mortgage, "the plaintiff, without the consent of the defendants, or either of them, intentionally altered said mortgage by striking out the words 'other than,' and inserting in place thereof the word 'and.'" The respondent claims that the change was made by him with the full knowledge and consent of the appellants. The clause is the one hereinbefore referred to, and as originally written or printed in the mortgage read as follows: "And for taxes on said premises other than the taxes of this mortgage, or the money hereby secured." The