Opinion of the Court.

She did not pay the McCracken judgment. The statute concerning redemptions must be strictly followed. (Dickenson v. Gilliland, 1 Cowen, 498; People v. Covell, 18 Wend. 598; People v. Sheriff of Broome, 19 Wend. 87; Waller v. Harris 20 Wend. 555; Ex parte Raymond, 1 Denio, 272; Ex parte Peru Iron Company, 7 Cowen, 560.)

Birch & Griffith, for the Respondent.

Who are redemptioners is no longer an open question under the Code. This case is on all fours with and conclusively decided in Sharp v. Miller, 47 Cal. 84, 85.

By the COURT:

The appeal is taken from the judgment; the findings of the Court below are not attacked, and the general question is whether the findings support the judgment which the defendant obtained below. We are of opinion that they do. The ninth finding of fact is in the following words: "Ninth. That said defendant Helena Crowell, alias Golinski, has a good and perfect title to said property." If it be claimed that this finding, though among the findings of fact, is in its substance a conclusion of law, what is to be said of the fourth finding, by which the plaintiff's case is attempted to be supported? That finding is as follows: "Fourth. That at the time of said redemption, said McCracken judgment was in full force and unpaid, and a valid and subsisting lien upon the property described in the complaint." Might not the existence of the lien be also characterized as a question of law? The McCracken judgment was rendered in the Court of a Justice of the Peace, and in order to cperate a lien it was necessary that an abstract of the judgment should be filed in the office of the County Recorder. (Code Civil Procedure, sec. 900.) The finding in this respect (third) is, that" a certified copy of said McCracken judgment was duly recorded in the office of the Recorder," etc.

A "certified" copy is not an "abstract," and the statute (Ibid. 897) makes the distinction and prescribes the exact form in which the abstract is to be prepared. This is an innovation

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Opinion of the Court.

66

upon the former statute, (Practice Act, sec. 599) which required. a transcript of the judgment" to be filed in the Recorder's office.

By whatever rule these findings are to be tested, as being absolute findings of fact, or mere conclusions of law, the appellant is not entitled to have the judgment given below disturbed here. Judgment affirmed.

At the January Term, 1878, in passing upon an application for a rehearing in this case, the Court delivered the following opinion:

It is true, as claimed in the petition for a rehearing, that the redemption made under the McCracken judgment was made before the taking effect of the Code of Civil Procedure, and that, therefore, the recording of a certified copy of the judgment in the Recorder's office was sufficient to create a lien upon the premises in controversy, and to this extent the opinion heretofore filed must be modified.

But it is not claimed in the petition that the finding, ninth in number, as follows: "Ninth - That said defendant, Helena Crowell, alias Golinski, has a good and perfect title to said property," (adverted to in the former opinion) is not sufficient in itself to support the judgment for the defendant rendered below.

The action is ejectment, and the finding just recited is not attacked as being without support in the evidence. The appeal is taken directly from the judgment, and assumes that the findings are correct in point of fact. It is true that the record contains a number of findings, besides the ninth finding just adverted to, but there is no necessary conflict between the ninth finding and the others. The latter concern the various steps taken about the Sheriff's sale, the redemption, etc.; but if it is perfectly consistent with all the findings to assume that the title,

good and perfect," which the defendant is found to have had at the trial of the action, is the very title which was the subject of the redemption, and which the defendant may have purchased from the plaintiff subsequently to the delivery of the Sheriff's

Statement of Facts.

deed on November 20th, 1874, and before the commencement of the action, or possibly, the true title to the premises outstanding at the time of the redemption proceedings, and in the hands of a stranger to these proceedings, and from whom the defendant may have subsequently, and before the commencement of this action, purchased.

In short, under the established rules of practice prevailing here, the plaintiff cannot, in this condition of the findings, disturb the judgment, except through a proceeding by which the correctness of the findings in point of fact might be inquired into. (Smith v. Acker, ante.)

We are satisfied with the judgment heretofore rendered, and the petition for a rehearing is denied.

[No. 5,151.]

IN THE MATTER OF THE ESTATE OF WILLIAM STOTT.

ORDER OF PROBATE COURT.- An order of the Probate Court from which an appeal can be taken is to be treated as final, and is conclusive of the matter therein determined.

IDEM. If such order is one settling the account of an executor, it is conclusive of the amount with which he was then chargeable. SETTLING ACCOUNTS OF AN EXECUTOR.- If an executor mingles the funds of the estate with his own, or with the funds of a firm with which he is connected, the presumption is that such funds were used in his own business, or that of the firm, and the law makes him responsible for presumed profits upon the funds thus mingled, and he will be charged with legal interest, with annual rests, although there was no evidence of actual fraud.

APPEAL from the Probate Court, City and County of San Francisco.

Upon the death of William Stott, a special administrator was appointed, whose accounts were settled on the 12th day of May, 1868, and he had in his hands the sum of nine thousand six hundred and fifty-two dollars and seventy-eight cents. On the same day his letters were vacated, and J. C. Merrill became executor of the estate, and said sum was turned over to him. May 2nd, 1869, the executor rendered a final account, in which

Statement of Facts.

he stated that the balance in his hands was nine thousand four hundred and sixty-three dollars and three cents. In this account he did not charge himself with interest, nor did he mention the subject of interest. This account was settled by the Probate Court on the 13th day of May, 1869, and was approved and allowed. On the 7th of December, 1875, the executor rendered a supplementary account, in which he charged himself with a sum received for property not in the inventory, because it was not in the State of California. He also credited himself with sums paid out for taxes, attorneys' fees, etc. In this account he charged himself with a balance of eleven thousand two hundred and forty-six dollars and eighteen cents. Anna King, a legatee, contested the account. The second account did not contain any item for interest. The Court found that the executor had been, during all the time he had acted as such, a member of a mercantile house in San Francisco, which house had had accounts at various banks in the city, in which its money was deposited, and from which the money had been drawn by checks of the firm, and that the executor had mingled the money of the estate with the partnership funds in the bank accounts, and that, generally, the firm had had more money to its credit in its bank accounts than the amount of money belonging to the estate, but that on several occasions the balance was less than the estate funds, and on two occasions, in 1874, the accounts of the firm were overdrawn. It was also found that the firm was and at all times had been responsible. The contesting legatee claimed that the executor should be charged with interest from May 12th, 1868. The Court found, as a conclusion of law, that the settlement of the account of May 2nd, 1869, was not conclusive as to interest, because interest was not mentioned in it, and that the executor be charged with legal interest from the time he received the nine thousand six hundred and fifty-two dollars and seventy-eight cents, (May 12th, 1868) with annual rests as of said May 12th. The interest thus recovered amounted to nine thousand eight hundred and eighty-three dollars and sixty cents. The account was settled and approved on that basis, leaving the executor indebted to the estate in the sum of twenty thousand seven hundred and seventy-six dollars and thirteen cents. The executor appealed from the order.

Argument for Respondent.

George B. Merrill, and J. P. Hoge, for the Appellant.

The final account, settled May 13th, 1869, and unappealed from, was conclusive, and no testimony was admissible touching the moneys of the estate previous to said date. (Probate Act, sec. 237, Code C. P. sec. 1637; Rhoad's Appeal, 3 Wright, 186; Shind's Appeal, 7 P. F. Smith, 45; Jacot v. Emmet, 11 Paige, 142; Rix, Admr. v. Heirs of Smith, 8 Vt. 365; Jennison v. Hapgood, 7 Pick. 1; Blount v. Darrach, 4 Wash. C. C. 657.)

While in certain specified cases Courts of Equity have exercised their authority to decree the payment of interest by executors, these cases have been almost uniformly where the executors have used the funds and made profit therefrom.

That power does not exist in the Probate Court, and the facts of this case would not in any event justify the exercise of it.

Interest is not chargeable where, as is said in Jacot v. Emmett, 11 Paige, 145, "the money was kept in bank, or otherwise ready to be paid over, when called for." (Hasler v. Hasler, 1 Bradf. 252.)

"No trustee will in general be held responsible for interest upon the trust fund unless he has actually received it." (2 Redfield on Wills, 888; Stearns v. Brown, 1 Pick. 530; Lamb v. Lamb, 11 Ibid. 371; Wyman v. Hubbard, 13 Mass. 332; Stevens v. Baninger, 13 Wend. 641.)

Compound interest is not chargeable in this State, except when there is an express contract in writing. (Crosby v. McDermott, 7 Cal. 148; Montgomery v. Tutt, 11 Ibid. 316; Doe v. Vallejo, 29 Ibid. 392; Estate of Den, 35 Ibid. 694.)

It is expressly forbidden in all judgments by the Civil Code. (Civil Code, sec. 1920.)

Phelan & Le Breton, for the Respondent.

Placing the funds in bank in the name of his firm was an employment of them which renders the executor liable for interest. (2 Williams on Executors, p. 1569; 2 Redfield on Wills, 882, note 11, citing cases, et seq.; Treves v. Townschend, 1 Brown