that we could levy upon, no attachment proceedings could be brought. I advised Mr. Krug against bringing the Thacker suits. I told him he could not recover anything on any judgment he might obtain. But, as he insisted on bringing the suit, I did the best I could. The object of the suit was not to recover any property, but was for a bluff,-to bulldoze, embarrass, and confound those defendants,-and the publication of summons in that case was not for the purpose of getting service on the parties." And again: "I made as much fun of it at the time as I could; tried to persuade him from it, saying that I didn't believe that it would have any effect whatever." Now, disregarding the motives stated by the witness, what was there in this that could "bulldoze" or confound the defendants? The action was believed to have been upon a just demand,—a fact contrary to the first assumption in the instruction asked. There was a possibility that the defendants would appear, and perhaps other suppositions might be made which would justify the proceeding. But, even if it were thought possible that, upon sending such a judgment to Seattle, defendants might pay it, it being a just demand, and no deceit being practiced, I see nothing unprofessional about it.

Defendant also asked another instruction which the court refused to give, and such ruling is also assigned as error. It was as follows: "The court instructs you that the attempted service of summons on the defendants by publication, where defendants reside out of the state, and when no property is brought within the jurisdiction of the court by attachment or otherwise, or when the action is not brought to determine the status of a person, is ineffectual, and judgment thereunder is void; and if you find from the evidence that the plaintiff attempted to serve said defendants in said Thacker suit by publication, and brought no property under the jurisdiction of the court thereby, and if you believe from the evidence that plaintiff advised defendant that such service was good, you must find against the plaintiff on his demand in said Thacker suit." I think this instruction should have been given. It is true an attorney is not always liable for mistakes, but here the plaintiff admits that he knew a judgment, under the circumstances assumed, would be invalid. The witnesses differ as to the facts, but the defendant had a right to have an instruction based upon the supposition that the jury would adopt his testimony. Plaintiff's counsel says they are not seeking to recover compensation for this service. But I think they are. It is clearly included in the complaint, and is found in the bill of particulars furnished by plaintiff. It is there marked "Paid."

It seems defendant made a payment of $125 generally "on account of fees for legal services." Plaintiff, in his bill of particulars, appears to have credited this upon certain

items. He could not do this, and thus r tain the money, and place those items beyond controversy. Besides, defendant claims to recover this money on a counterclaim. It would be a matter in controversy, even if in no other way. I think the judgment and order should be reversed, and a new trial had.

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

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and a new trial ordered.

(No. 14,

ROBINSON ▼. THORNTON et al. 819.) (Supreme Court of California. Aug. 31, 1893.) EJECTMENT-DEFENSES-Outstanding Title.

1. After foreclosure sale, but before exe cution of sheriff's deed, the mortgagor's interest in the land was attached. Judgment was not rendered till nine years later, and the land was sold a year after that. Four months after attachment, the judgment debtor, being still in possession, deeded the land to defendant, who thereupon took and kept possession, and paid taxes regularly thereafter. Held, that defendant could plead adverse possession running from the time he took possession, against plaintiff claiming under the sale in the attachment suit. This defense was not in effect a plea of outstanding title under the foreclosure sale, within the rule that in ejectment for lands purchased on execution against a debtor in possession when the lien attached defendant and his vendees cannot show that he had no title, or that the true title is outstanding.

2. Plaintiff could not introduce a deed from the assignee of the purchaser on the foreclosure sale, executed after this suit was begun, on the ground that defendant had put the foreclosure in evidence as an outstanding title. There was no issue of outstanding title, and the foreclosure was only introduced to show that the lien on which plaintiff's title was based had been extinguished.

McFarland and Garoutte, JJ., dissenting.

In bank. Appeal from superior court, San Mateo county; John Reynolds, Judge. Ejectment by C. P. Robinson against R. S. Thornton and Hannah Green. Judgment for plaintiff. Defendants appeal. Reversed. Edward F. Fitzpatrick, (Fox, Kellogg & Gray, of counsel,) for appellants. T. M. Osmont and D. M. Delmas, for respondent.

HARRISON, J. Ejectment for land in San Mateo county. A certificate of purchase for the lands involved herein was issued to Benjamin S. Green by the register and receiver of the land office of the United States March 5, 1863, and a patent therefor was issued to him August 1, 1871. April 21, 1869, Green and wife mortgaged the land to C. C. Wilson and J. P. Jourdon, and in an action for the foreclosure of this mortgage, commenced September 6, 1870, a judgment was rendered under which the land was sold January 2, 1872, and on the same day the sheriff's certificate therefor filed in

the sale. The sheriff's deed does not, however, transfer any after-acquired interest in the land, and the judgment debtor is not estopped from showing in an ejectment suit against him that, subsequent to the execu tion of the sale, he has acquired a different title from that which was sold under the judgment, (Emerson v. Sansome, 41 Cal. 552;) and in an ejectment suit against the vendee of the judgment deotor he may also show, not only that he has acquired a different interest or right of possession, but also that the judgment debtor himself had no interest in the lands at the time of the sale. In one sense the grantee of land may be said to come into possession under his grantor, but his entry under his grantor is not in subordination to the title which he receives from him, or of that character which estops him from disputing the validity of the title under which he entered, as a tenant is estopped from disputing his landlord's title, or the vendee in possession under a contract of sale the title of his vendor. Even a tenant is not estopped from showing that his landlord's title under which he entered has terminated. Tayl. Landl. & Ten. § 629. The grantee does not by his entry assume any obligation towards his grantor, nor is there any relation of trust or confidence between them which is forfeited by his repudiation of the title under which he entered, or by his acquisition of another outstanding title. By entering under the title he assumes it to be prima facie good, but he is not estopped thereby from showing otherwise, or from showing in any controversy another and independent title in himself. Hill v. Robertson, 1 Strob. 1. "The vendee claims the property for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title unless he should be called upon in consequence of some cove nant or warranty in his deed. The property having become by the sale the property of the vendee, he has the right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this, nor is the letter or spirit of the contract violated by it." Blight's Lessee v. Rochester, 7 Wheat. 548. Delivering of possession under a deed of the fee does not, in the absence of any other recitals, raise an estoppel, since the possession then becomes wholly the possession of the grantee, and there is no obligation on his part to return it to the grantor. He may therefore dispute his title. 3 Washb. Real Prop. (5th Ed.) 99; Gardner v. Greene, 5 R. I. 110; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. Rep. 407; Sparrow v. Kingman, 1 N. Y. 242; Osterhout v. Shoemaker, 3 Hill, 513. In the case last cited, Bronson, J., giving the opinion of the court,

said: "Although a tenant cannot question the right of his landlord, a grantee in fee may hold adversely to the grantor, and there can be no good reason why he should not be at liberty to deny that the grantor had any title. There is no estoppel when the occupant is under no obligation, express or implied, that he will at some time, or in some event, surrender the possession. The grantee in fee is under no such obligation. He does not receive the possession under any contract, express or implied, that he will ever give it up. He takes the land to hold for himself, and to dispose of it at pleasure. He owes no faith or allegiance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title." The rights of the grantor are extinguished by the sale, and, as the property has thereby become the property of the grantee, he holds it with all the attributes of ownership, and is under no more accountability to his grantor for his estimate of the title taken from him than he is for the use to which he shall apply the land; and he may fortify his possession by the acquisition of any other title which may protect him in its enjoyment. "He holds adversely to all the world, and has the same right to deny the title of his vendor as the title of any other party." Merryman v. Bourne, 9 Wall. 600; Winlock v. Hardy, 4 Litt. 272; Voorhies v. White, 2 A. K. Marsh, 26. His possession becomes adverse to his grantor immediately upon his entry under the grant, and by this adverse possession he may acquire a title by prescription which will be as available for the protection of his possession as one acquired by grant. Croxall v. Shererd, 5 Wall. 268. Whether the possession which Thornton took of the land in August, 1872, is to be regarded as having been taken by virtue of the grant from Green, or without any color of title, it immediately became adverse to the whole world. Green himself would be estopped by his deed from claiming any title in the land, and as whatever title Green had at the date of the attachment had been extinguished prior to the time when Thornton took possession of the land, the lien of the attachment against his interest was terminated, and could no longer form a basis for the support of any sale that might be made under the judgment afterwards obtained in the action. At the date of the sale in 1881, Thornton had acquired a title by prescription which gave him the right to the possession of the land (Civil Code, § 1007) superior to any claim of the plaintiff resting upon the prior possession of the Greens.

The rule that the statute of limitations does not begin to run against the judgment debtor, or one claiming under him, until the execution of the sheriff's deed, has no application to the present case. That rule rests upon the proposition that the sher

iff's deed is the deed of the defendant under the execution, and that the defendant's possession after the sale cannot be adverse to the purchaser until the execution of his own deed by the sheriff. The rule has no application to a stranger to the judgment, or one whose title is not derived from the judgment debtor. In Jefferson v. Wendt, 51 Cal 573, the defendants were only the tenants of the judgment debtor, whose interest had been sold by the sheriff; and in Leonard v. Flynn, 89 Cal. 535, 26 Pac. Rep. 1097, the defendant had no title other than that which he had received from the judgment debtor, and had acquired this title within five years prior to the commencement of the action.

The court erred in permitting the plaintiff to offer in evidence the deed of the land executed to him by the assignee in bankruptcy of Ford, subsequent to the commencement of the action. The respondent seeks to sustain this ruling upon the theory that the defendant had shown that this title was outstanding, and that it was competent for the plaintiff to show that it was not an available title against the plaintiff for the reason that he had acquired it. The defendant, however, did not offer evidence of the sale under the foreclosure for the purpose of showing an outstanding title, for there was no such issue before the court, but for the purpose of showing that the lien which the plaintiff claimed as the basis of his own title had been extinguished thereby. That the introduction of the deed was injurious to the defendant is evident without any discussion.

The appellant Hannah Green, by her answer, admitted all the allegations of the complaint, and consequently is not entitled to a reversal.

The judgment and order denying a new trial are reversed as to the appellant Thornton, and affirmed as to the appellant Hannah Green.

We concur: BEATTY, C. J.; FITZGERALD, J.; DE HAVEN, J.

MCFARLAND, J. I dissent.

GAROUTTE, J., (dissenting.) Green was the owner of certain land. It was sold under foreclosure proceedings by his mortgagee. Pending the issuance of the sheriff's deed, and during Green's possession, it was attached as Green's property. Subsequent to the attachment, Green deeded it to the defendant Thornton, who entered into the possession thereof. The attachment proceedings ripened into a judgment, sale under execution, and deed by the sheriff. Plaintiff, as the holder of such deed, brings an action of ejectment against Thornton, who entered under his deed from Green. Thornton pleads the statute of limitations, claiming to have held possession adversely to the world for the statutory period.

I premise a short statement of my views by suggesting that the rule so often declared in the decisions of courts that the plaintiff must recover in ejectment upon the strength of his own title is not without exception. The principle of estoppel is often invoked in such cases, and the defendant debarred from attacking plaintiff's title by showing a better title in a stranger. This is always true where the claims of both parties arise from a common source. If the leading opinion in this case holds that the grantee of the attachment debtor may enter under his grant, and then successfully plead the statute of limitations as against the holder of the sheriff's deed, which is in due course procured by virtue of the attachment suit, (and such appears to be the reasoning,) I dissent. This identical principle was before the supreme court of the United States in Pratt v. Pratt, 96 U. S. 710, and was there carefully considered and declared unsound. In that opinion the court used the following illustration, which is both simple and conclusive: "If this be established to be the law, the owner of real estate may borrow money on ten years' time to the value of that estate, and give a mortgage on it to secure payment, and by a sale and conveyance of the land to a third person, with delivery of possession a week afterwards, the lien is utterly defeated; for, according to this doctrine, the statute of limitation begins to run against the mortgagee the moment the title and possession are vested in the purchaser, and the bar of the statute becomes perfect against all the world by seven years' possession; whereas the mortgagee can take no steps to foreclose his mortgage until his money comes due three years later." In the present case the defendant can hardly be said to plead the statute of limitations. His plea is little more than a denial of plaintiff's title. The plea of the statute of limitations presupposes a right of action in the plaintiff at some time in the past, but that, owing to his laches, it has lapsed. In the present case it is not contended that plaintiff's right of action has lapsed, but it is insisted that he never at any time had a right of action. We have held in Jefferson v. Wendt, 51 Cal. 573, and Leonard v. Flynn, 89 Cal. 536, 26 Pac. Rep. 1097, that a plaintiff's right of action accrues upon the delivery of the sheriff's deed. Eliminating for the moment the foreclosure proceedings from the case, it seems to me very plain that defendant Thornton could not create in himself a title by adverse possession, for no one had a right of entry as against him. Green had no right of entry, for he was his grantor; plaintiff none, for he had not as yet obtained his sheriff's deed. As is said in Pratt v. Pratt, supra: "In the just sense of the term his possession is not adverse to this lien. There can be no adversary rights in regard to the possession under the lien and under the defendant's purchase from the judgment debt

or until the lien is converted into a title conferring the right of possession. The defendant's possession after this is adverse to the title of plaintiff; and then, with the right of entry in plaintiff, the bar of the statute begins to run."

Let us assume that plaintiff, Robinson, secured his sheriff's deed within five years from the date of Thornton's entry under his deed from Green, and that he then brought his action. I know of no way that Thornton could have defeated plaintiff's claim. The statute of limitations could not have availed him, as his posession had not extended for sufficient length of time, and, as we have seen, this is his only defense. Now, it seems strange that plaintiff should be defeated because, without fault of his, he was unable to secure his deed within five years from Thornton's entry. If he had secured his deed at the end of four years from the entry of Thornton, his cause of action would then have accrued, and, as we have seen, he could have recovered possession of the land. If he had a cause of action at that time, and not till that time, the statute did not begin to run against him until then, and he could not have lost his right to bring suit until five years thereafter. If such were not the fact, plaintiff had a cause of action for the recovery of real estate which became barred within one year after it accrued. That re Isult would be novel in the extreme.

Again, instead of foreclosure proceedings against Green, let us assume that he deeded outright to a stranger, then deeded to plaintiff, and then, while in possession, deeded to defendant, who took possession under the deed. If plaintiff had brought this action under these circumstances within five years from the date of his deed, there would have been no defense to the action on the part of this defendant. Let us assume the deed to a stranger in lieu of the foreclosure proceedings, and then the levy of the attachment, followed by the deed to the defendant and the sheriff's deed to plaintiff. Plaintiff's sheriff's deed related to the date of the levy, and when he received it he occupied the same position as if it had been a deed from Green of the date of the levy; and we have seen that if it had been Green's deed of that date plaintiff could recover. As already suggested, defendant's plea of the statute of limitations in this case is almost a misnomer, as it is practically a plea of no title in plaintiff. Let us see if such is not the fact. We will assume that the foreclosure proceedings were fatally defective, and the deed thereunder void, what is plaintiff's status in the case then? Why, the title was in Green at the date of the levy, and the sheriff's deed vested it in plaintiff, Robinson, under which he would have a cause of action that defendant could not contest for a moment. It follows that, if the foreclosure proceedings are void, then plaintiff's cause of action accrued when he received his deed

from the sheriff, and defendant's plea of the statute would be in vain. Upon the contrary, if those proceedings are valid, plaintiff has no cause of action, and the plea of the statute can be successfully invoked. In other words, if the legal title is in the plaintiff, the statute cannot be pleaded; but if the legal title is in a stranger, it can be pleaded. I fail to see the distinction, and do not think the successful plea of the statute is dependent upon any such test.

For the foregoing reasons it is apparent to me that the so-called "plea of the statute of limitations," as far as practical results are concerned, is nothing more than a plea of outstanding title in a stranger under the deed in foreclosure, and it must be conceded, if such be the fact, the plaintiff is entitled to recover. Defendant offered the foreclosure proceedings in evidence. The prevailing opinion says for the purpose of showing that at the date of the levy of the attachment Green had no interest in the land, and that consequently plaintiff got nothing by his deed. I would suggest those proceedings fail to show it, for Green had the lawful "possession" at the date of the levy, and if he had still been in possession when plaintiff received his deed there could be no question as to plaintiff's right of recovery. But, aside from that, these proceedings simply show an equitable title in a stranger at the date of the levy, and the result was simply an outstanding title when this litigation began. It cannot be possible that plaintiff's cause of action would be stronger if the sheriff's deed under foreclosure had issued prior to the levy of the attachment; yet such would seem to follow from the reasoning of the prevailing opinion. The foreclosure proceeding, as an element in this case, in no way aids the defendant as to his plea of the statute of limitations; and, omitting that element of the case, we then have an exact photograph of Pratt v. Pratt, and the reasoning there found leaves the defendant with no prop to support him. The title under the foreclosure being an outstanding title, it availed defendant nothing. Perhaps he was estopped from setting it up, having entered under a deed fom a common grantor with the plaintiff. But, aside from that, at the trial plaintiff showed that such title was then vested in him, and for that reason its efficacy as a defense was entirely gone. See Sedg. & W. Tr. Title Land, § 831; Sharp v. Johnson, 22 Ark. 79; Perryman's Lessee v. Cal lison, 1 Overt. 516.

TOBIN T. OMNIBUS CABLE CO. (No. 15,162.)

(Supreme Court of California. Aug. 81, 1893.) STREET-CAR COMPANIES-INJURY TO PASSENGERALIGHTING FROM CAR IN MOTION-CONTRIBUTORY NEGLIGENCE-INSTRUCTIONS.

1. In an action against a cable-car company for injuries received in alighting from