policy as "a further security for said indebtedness." Respondent cites National Bank v. Union Ins. Co., 88 Cal. 497, 22 Am. St. Rep. 324, 26 Pac. 509. The facts in that case differ to some extent from those in the case at bar, although there are some things in the opinion which support respondent's contention; but, so far as the opinion there could be invoked to sustain the judgment in the case at bar, it is founded upon notions of the effect of a judicial sale which are inconsistent with those declared in the later cases of Robinson v. Thornton, 102 Cal. 680, 34 Pac. 120, Duff v. Randall, 116 Cal. 226, 58 Am. St. Rep. 158, 48 Pac. 66, and Breedlove v. Norwich etc. Ins. Soc., 124 Cal. 166, 56 Pac. 770, above cited. Of course, a foreclosure, in the sense of a perfect extinguishment of the mortgagor's equity of redemption, may be said not to be complete until after the expiration of the statutory period for redemption; but that consideration has no bearing upon the proposition that the sale extinguishes the debt. As before stated, redemption is effected, not by the payment of the former debt, which no longer exists, but by payment of the purchase price at the judicial sale, which may be much less or much more than the former debt. We are not concerned with the question whether or not, under the circumstances, Porter could have recovered anything of defendant on the policy; although, if Porter suffered no loss, then certainly plaintiff could not have recovered, because Porter was the party insured and only through his losses could plaintiff's security have been efficacious. Neither 22 are we concerned with the class of cases where the mortgagee himself procures a policy on buildings situated on the mortgaged premises, where he is the party insured, and where it has been held that he may take the policy on his interest in the property itself. In the case at bar, under our law, the plaintiff was not the party insured, and his interest in the buildings mortgaged was not insured; the interest in the property which was insured was that of Porter the mortgagor, and it was only the indebtedness of Porter to plaintiff which gave the latter any interest in the policy. After he changed his position from creditor to purchaser he could, in the latter capacity, have procured a policy on the buildings and thus insured his interest in the property itself; but whatever interest he had in the old policy ceased with the extinguishment of the indebtedness.

The judgment appealed from is reversed.

Temple, J., Henshaw, J., Harrison, J., Garoutte, J., and Van Dyke, J., concurred.

Rehearing denied.

INSURANCE ON MORTGAGED PREMISES.-If a mortgagor procures a policy of insurance on the property to be issued to himself, loss payable to the mortgagee, the former is the assured: See the monographic note to King v. State etc. Ins. Co., 54 Am. Dec. 700. See this note, pages 693-700, for a general discussion of the rights of the mortgagee under an insurance policy. A mortgagee is still protected by a policy made payable to him, though he has foreclosed the mortgage and purchased the property at the sale, if the mortgagor retains the right to redeem: National Bank v. Union Ins. Co., 88 Cal. 497, 22 Am. St. Rep. 324, 26 Pac. 509.

HINES v. GOOD.

[128 Cal. 38, 60 Pac. 527.]

REPLEVIN.-THE TITLE TO REAL ESTATE cannot be litigated in an action of replevin.

REPLEVIN-TITLE TO LAND-SALE OF HOUSE BY ONE IN ADVERSE POSSESSION.-Where a defendant, who is in the actual possession of land in good faith, claiming title thereto, sells a house thereon which is severed from the land and removed by the vendee, one out of possession cannot, in an action of replevin, secure possession of such house upon the claim that he is the true owner of the land.

REPLEVIN-TITLE TO LAND-JUDGMENT-ROLLS AS EVIDENCE.--In an action of replevin for the recovery of a house, judgment-rolls are admissible in evidence where they are not offered for the purpose of establishing title, but solely to show that the defendant claimed title to the land upon which the house was situated, and which are pertinent for that purpose.

L. L. Cory and Stanton L. Carter, for the appellant.

George B. Graham, for the respondents.

89 GAROUTTE, J. Plaintiff claimed to be the owner of a certain piece of land upon which was situated a house. Defendant Mrs. Sarah Foulke was in the possession of the property, also claiming title thereto. She sold a portion of the house to defendant Good, it being at that time a part of the real estate. The house was severed from the land and removed to other premises. Whereupon plaintiff brings this action in replevin to recover possession of the house, claiming title thereto by virtue of his title to the land.

....

The trial court made findings of fact, to the effect that defendant Sarah Foulke "was in the actual possession and occupancy 40 of all of the premises and property described in plaintiff's complaint, and residing thereon together with her husband and family. That at all times herein mentioned said defendant Sarah I. Foulke claimed title in good faith to the whole of said premises. . . . . That on, to wit, August 1, 1896, and at all times from thence hitherto, said Sarah I. Foulke was and has been in the actual possession of the whole of the premises and property described in plaintiff's complaint, claiming title thereto in good faith. . . . . That at the time of the sale and delivery of the portion of said dwelling-house as aforesaid, said Sarah I. Foulke was in the actual possession thereof, but not after such delivery. That on, to wit, the date last aforesaid, in good faith and for a valuable consideration, she sold and delivered said portion of said dwelling-house described in plaintiff's complaint to defendant Robert E. L. Good, and on, to wit, August 9, 1896, said Good took and removed the same from and off the premises described in said complaint." The court also found that defendant Foulke had filed a homestead upon the property. But, as we view the case, this homestead finding becomes immaterial.

The court, upon the aforesaid findings of fact and others not necessary to detail, rendered judgment for defendants, having made no finding as to the status of the legal title to the land. The evidence is sufficient to support the finding as to the actual possession of defendant Sarah Foulke and her claim of title in good faith, and upon this state of facts the question is at once presented, Do these findings support the judgment? We are satisfied that they do. The title to this real estate cannot be litigated in an action of claim and delivery. Where a defendant is in the actual possession of real estate in good faith, claiming title thereto, a party, upon the claim that he is the true owner of the real estate, may not by claim and delivery secure the possession of property severed by defendant from the land. And this principle of law is based upon the ground that the title to the land cannot be litigated in that kind of an action. The cases all look in this direction, and the citation of a single one is all that is necessary: Martin v. Thompson, 62 Cal. 618, 45 Am. Rep. 663. In that case it is said: "The cases go to the point that, where the property sued for has 41 been severed from plaintiff's land, he can show his ownership of the chattel by showing his ownership of the land, unless the

defendant has, and had when the property was severed from the freehold, adverse possession of the land, claiming title thereto. Of course, to exclude plaintiff's right to sue for the personal property, defendant must have the adverse possession, claiming title." The evidence all shows that the claim of title upon the part of defendant Sarah was adverse to plaintiff, and a fair construction of the aforesaid findings so indicates. Under these circumstances, plaintiff's cause of action must fail, and it becomes unnecessary to test the character of plaintiff's title, or even the validity and effect of defendant Sarah's homestead.

Appellant discusses various assignments of error bearing upon the admission of evidence. Many of these assignments refer to matters pertaining to plaintiff's title, and others relate to defendant Foulke's homestead. As we have seen, those matters are immaterial; especially so, in view of the findings of fact as to plaintiff Foulke's actual possession and bona fide claim of title. The judgment-rolls introduced in evidence were not offered for the purpose of establishing title in either plaintiff or defendant, but were offered alone to show that defendant Foulke during all these times claimed title to the land upon which this house was situated; and for that purpose the evidence was pertinent. Many of the assignments bear upon evidence which appears to be wholly immaterial to the case from any standpoint.

For the foregoing reasons the judgment and order are affirmed.

Van Dyke, J., and Harrison, J., concurred.

REPLEVIN.-TITLE TO LAND cannot be tried in replevin, except incidentally: See the monographic note to King v. Mason, 89 Am. Dec. 429, 430; Snyder v. Vaux, 2 Rawle, 423, 21 Am. Dec. 466; Anderson v. Hapler, 34 Ill. 436, 85 Am. Dec. 318. No action lies to recover grain sown and harvested by one on lands to which he claimed title, and of which he was in actual and adverse possession: Martin v. Thompson, 62 Cal. 618, 45 Am. Rep. 663.

DONOVAN v. FERRIS.

[128 Cal. 48, 60 Pac. 519.]

MASTER AND SERVANT-FELLOW-SERVANT OR VICEPRINCIPAL.-A foreman of a stone quarry, whose duty it is to warn servants working in one tunnel to leave their work before a blast in an adjoining tunnel is fired, is a fellow-servant and not a vice-principal of one who is injured by reason of his failure to give such warning, since both are employed by the same employer in the same general business.

MASTER AND SERVANT-LIABILITY OF MASTER FOR FOREMAN'S NEGLIGENCE.-A master is not liable for an injury to a servant due to the negligence of his foreman, where both servants are employed in the same general business, unless he has failed to use ordinary care in the selection of such foreman.

MASTER AND SERVANT-BLASTING-DUTY TO GIVE WARNING.-It is not a duty personal to a master to give warning of danger to those employed in the business of blasting, and his liability ceases when he has employed a competent person to give such warning.

MASTER AND SERVANT-DUTY TO FURNISH SAFE PLACE TO WORK AND SUITABLE MACHINERY.-It is the duty of an employer to furnish his employé suitable machinery and appliances by which the service is to be performed, and to keep them in repair and order: to exercise ordinary care in the selection and retention of sufficient and competent servants to properly conduct the business in which the servant is employed, and to make such provision for the safety of the employés as will reasonably protect them from the dangers incident to their employment.

MASTER AND SERVANT-EVIDENCE-CROSS-EXAMINATION.-Where a foreman upon his direct examination testifies that he was employed by and was under the direction of a superintendent, it is not error as calling for the conclusion of the witness to ask him on cross-examination whether the superintendent had authority to direct him, since if he was employed by the superintendent it followed, as a matter of law, that the superintendent had authority to direct him.

Reddy, Campbell & Metson, for the appellant.

Van Ness & Redman, for the respondent.

50 COOPER, C. Action to recover damages for personal injuries. After the plaintiff introduced his evidence, a nonsuit was granted and judgment accordingly entered. This appeal is from the judgment and from an order denying the defendant's motion for a new trial. The evidence shows the facts to be substantially as follows: The defendant was the owner of a stone quarry in the city and county of San Francisco, in which he had been for several months carrying on the business of blasting. In this business he employed a large number of laborers and a