the owner, a very large amount of vexatious and expensive litigation would be wholly avoided. In this case the owners were not liable to laborers and material men for more than the balance of the contract price after deducting all proper credits, and the cost of completing the work in the manner required by the contract. In ascertaining this balance the court rightly excluded the item of $150, the price of the stable sold to the contractors. It appears to have preceded the commencement of the work, and therefore within the express letter of the statute, though it does not appear that respondents were or could have been injured by the payment.

I am unable to ascertain from the findings whether the court considered the $1,000 paid by the lumber transaction as a payment. Respondents' counsel insist that it is not a payment, as against them. It is true Mr. Kennedy, in his testimony, spoke of it as an "offset." The name given to a transaction, especially by a nonprofessional witness, does not change its character. The contract required the contractor to furnish all materials, and neither the contract nor the law restricts him as to the person from whom he shall purchase them. The lumber was delivered to and used by the contractor in the erection of the building. No question is made as to the price paid for the lumber, nor that any injury or injustice did or could accrue therefrom to responuents. The Kennedy-Shaw Lumber Company had no interest in the erection of this building. They had the right, for their own protection, to require that the owner should become personally liable. Suppose that one of these respondents should have pursued that course, and had been paid by Kennedy with the consent of the contractor. Could the other have objected? The statute is not aimed at transactions such as this. The "prior or subsequent indebtedness, offset, or counterclaim in favor of the reputed owner and against the contractor," mentioned in the statute, applies to dealings of a different character, and was intended to prevent transactions between the owner and contractor by which the contractor's ability to pay for material might be diminished or destroyed. 'Material men are not privies to the contract, and can have no possible interest in it, further than above indicated.

I also think that appellants should be allowed the amount paid to the laborers and to the other material men. The bill of exceptions contains the following: "It was admitted by Mr. Eells, who represented the plaintiffs on the trial, that the various claims on account of which the defendants, Kennedy, paid a pro rata to the various mechanics and material men for materials and work performed previous to the abandonment of said contract were correct, and the parties were entitled to file a lien, except for the artificial stonework, and for the fences

and curbs set on and in front of the adjoining lot, and would have done so if the payments had not been made, but it was not admitted that they, or any of them, would have filed good liens." Respondents contend that until liens are filed there is no privity between the owner and subcontractors; that no money was due them from the owners, and none could be paid until after liens were filed, complying with all the essential requirements of the statute. As a general proposition, that is true, and fully supports the position hereinbefore taken touching the payments made by the owners to the conBut the admission above quoted

tractors.

is very broad. It concedes that the claims of these laborers and material men were correct; that they were entitled to file liens therefor, except as to work on the adjoining lot, and would have filed them, but for the payment. The qualification that it is not admitted that they would have filed "good liens" does not change the situation. Being entitled to file liens for the amount of their several claims, and it appearing that they would have filed them, we cannot assume, at the expense of the owner, that they would have so defectively prepared them as to render them invalid. The presumption is the other way. Actions to enforce liens under the mechanic's lien law, though statutory, are in their essential features equitable. If liens had been filed the laborers would have been entitled to the first lien, and payment in full, while the material men would have shared in the remainder of the fund pro rata with respondents, and the fund would have been diminished by additional costs and attorneys' fees if the settlement had not been made. Respondents were therefore benefited, instead of injured, by the settlement made, though not so largely benefited as they would be if they compel the owner to pay a like sum to them in addition to what they are equitably entitled to. The same offer was made to respondents, but, whether before or after their liens were filed, does not appear. As to the work done upon the adjoining lot, it was all included in the one contract for a lump sum, and it cannot be divided so as to apportion it between the two lots. The work upon the adjoining lot was all of a character for which a lien is given by the statute, (Code Civil Proc., § 1191,) and when materials have been furnished under a single contract for buildings or improvements on two or more contiguous lots owned by the same person a lien may be filed against all, (Lyon v. Logan, 68 Tex. 521, 5 S. W. Rep. 72.) The fund sought to be reached by respondents in part accrued from work and materials bestowed upon the adjoining lot, and, if they can file a valid lien upon one lot under such contract, (a point not argued or decided,) I fall to see why all laborers and material men may not file valid liens upon the lot upon which the building was erected, and upon which alone

clusive answer to the exception contained in the admission of respondents is that the record does not show that any of the claims · settled and paid by appellants were for work done upon the "adjoining lot." I think these payments should have been allowed to defendants in reduction of the fund.

It is also urged by respondents that the contract does not conform to the requirements of the statute, because it was signed only by Mrs. Kennedy, while the court found that her husband, John F. Kennedy, was the owner in fee. The statute does not require that the contract be signed by the owner. It is sufficient if signed by the reputed owner, and it was found that Mrs. Kennedy was the reputed owner. Besides, the owner, not having given notice as required by the statute that he would not be responsible for the improvements upon his property, is as conclusively bound, so far as laborers or subcontractors are concerned, as though he had made the contract.

The contract described the adjoining lot as running 42 feet "westerly," while in the memorandum "easterly" was inserted instead. The error did not destroy the sufficiency of the memorandum. It was described as "the lot adjoining" the lot first described; and, as a misdescription does not avoid a contract of this character, (Yancy v. Morton, 94 Cal. 558, 29 Pac. Rep. 1111,) the error was capable of correction by proper averment and proof.

The payments by the owners to the laborers and material men (other than the respondents) were alleged in the answer, but there was no finding as to the fact of payment. The findings, as made, however, do not support the judgment, inasmuch as the facts found show a balance in the hands of the owners much less than the amount of the liens adjudged to the respondents, the judgment being based upon an erroneous conclusion of law that the materials supplied by plaintiffs were furnished at the special instance and request of the owners. The judgment and order appealed from should be reversed.

March 24, 1870, (St. 1870, p. 352;) and Act March 27, 1872, limiting the effect of said curative act in the matter of school lands to the amount of 320 acres for any one purchas er did not apply, the application having been made before the passage of the curative act.

2. The act of 1872 was superseded by Pol. Code, 3573, which is substantially the same as Act March 24, 1870.

3. Act Cong. March 1, 1877, (19 Stat. 267,) known as the "Booth Act," "relating to indemnity school selections in the state of California," and confirming to the state the titles to these lands selected by the state, was equivalent to a grant of the lands to the state as of the date of listing, and the title thus ratified was within the effect of the curative act of March 24, 1870, and was thereby validated, as though the lands belonged to the state at the time of the passage of the act.

4. Under Code Civil Proc. § 338, subd. 4, which provides that an action for relief on the ground of fraud or mistake must be begun in three years after the cause accrues, and that the cause is not deemed accured until the discovery by the aggrieved party of the facts constituting the fraud or mistake, a relator suing in the name of the state to cancel a patent of lands for fraud of the purchaser is not an aggrieved party, within the meaning of the section, so that his ignorance of the fraud can exempt the action from its provisions.

5. In such action by the state to cancel the patent for fraud of the applicant to purchase, the averment in relator's complaint that the "false statement" of the applicant was not known to the officers of the state is not sufficient to exempt the action from the provision of the above section.

Department 1. Appeal from superior court, Sonoma county.

Action by the people, on the relation of William Eadie, to cancel a patent to land. From a judgment for defendant, plaintiff appeals. Affirmed.

Atty. Gen. Hart, John T. Carey, and B. F. Bergen, for appellant. J. A. Cooper and Chas. E. Wilson, for respondent.

HARRISON, J. Action to cancel a patent issued by the state of California, in 1876, to A. W. Macpherson for certain lands in Mendocino county. It is alleged in the complaint that the lands in question are agricultural lands, which were listed to the state February 15, 1870, in lieu of a section 36,-that section then supposed to be within the exterior limits of a reservation, but subsequently ascertained to be excluded therefrom; that said selection was confirmed to the state by the provisions of the act of congress approved March 1, 1877, entitled "An act relating to indemnity school selections in the state of California;" that Macpherson made application September 23, 1868, to the state surveyor general to purchase the lands in lieu of said school section, and that on March 20, 1870, his application was ap proved by the surveyor general, and that thereupon he paid to the county treasurer of Mendocino county 20 per cent. of the purchase money, with the first year's interest on the balance, and received from the register of the said land office a certificate of

IN INSOLVENCY-WHAT PASSES.

1. Code Civil Proc. § 473, limiting the setting aside of any judgment or proceeding to six months after the same was taken, has no application to an order granting the discharge of an assignee in insolvency on final settlement of his account; and where an assignee finds property belonging to the insolvent's estate after his discharge the court may set aside the discharge, though more than six months have expired.

2. Const. art. 4, § 26, declares that "all contracts for the sale of shares of the capital stock of any corporation or association on margins, or to be delivered at a future day, shall be void, and any money paid on such contract may be recovered by the party paying it by a suit in any court of competent jurisdiction." Held, that a right of action accruing under the section to an insolvent passes to the assignee, though it was not included in the schedule of assets.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco.

Action by J. C. Rued, assignee of C. A. Macomber, insolvent, against F. T. Cooper and Warner Stauf. From a judgment for defendants on demurrer to the complaint, plaintiff appeals. Reversed.

Henley, Swift & Rigby, for appellant. Newlands, Allen & Herrin, for respondents.

HAYNES, C. This is an appeal from a judgment rendered upon defendants' demurrer to the complaint. The principal questions arise upon the following facts appearing in the complaint: On August 19, 1887, C. A. Macomber was, on his own petition, adjudged an insolvent debtor, and on September 6, 1887, the plaintiff herein, J. C. Rued, was appointed assignee, and qualified as such. On May 8, 1888, the assignee filed in court his final account, which was settled and allowed; and on June 13, 1888, an order was made by the superior court ordering the final discharge of the assignee. After the discharge the assignee discovered that he had a good cause of action against the defendants for a large amount of money upon a liability existing in favor of the insolvent at the time he filed his petition. This liability was not included in the insolvent's schedule nor in the assignee's account, for the reason that it was unknown to him until after his discharge. That on January 18, 1889, after discovering said alleged cause of action against the defendants, he procured an ex parte order to be entered, setting aside his said discharge and the order settling his final account, and thereafter commenced this action. The causes of action stated in the complaint were to recover moneys paid by the insolvent to the defendants for the purchase and sale of stocks on a margin. Respondents contend that the order setting aside the order of final discharge of the as

signee is absolutely void, because made more than six months after the order of final discharge was entered; that the only authority given the court to set aside any judgment or order is found in section 473 of the Code of Civil Procedure, which expressly limits its exercise to a period "not exceeding six months after such judgment, order or proceeding was taken;" while appellant contends that this section has no application; that it applies only to judgments, orders, or proceedings taken "against" the party applying for relief therefrom; that the order of discharge vacated upon his application was one in his favor, procured upon his application, relieving him from responsibility to crcditors of the insolvent, and was not final; that even if it were a final order, the court having once had jurisdiction, its jurisdiction ay be restored by consent.

In People v. Greene, 74 Cal. 403, 404, 16 Pac. Rep. 197, it was said: "Under the former system of practice in this state the decisions were numerous, and quite uniform, to the effect that upon the expiration of the term of court all power to alter, change, modify, or annul judgments entered during the term, or prior thereto, was lost, unless saved by some motion or action of the court during the term, except as otherwise provided by statute. Under our present system of jurisprudence, terms of court are abolished; and, as the rule cannot ap ply literally, it is provided by section 473 of the Code of Civil Procedure that the relief which formerly could be had during the term may be sought within a reasonable time, which is defined to be six months." In that case it was further said: "In Hastings v. Cunningham, 35 Cal. 550, it was held that the rule indicated had no application, except as to final judgments, and did not apply while the proceedings remained in fieri." The meaning of the old rule was that the court lost jurisdiction at the expiration of the term at which final judgment was rendered. Until jurisdiction was lost the court had full power over its proceedings and the cause. In determining whether the court had lost jurisdiction to take further proceedings after the discharge of the assignee, and the lapse of the time limited by section 473, Code Civil Proc., the character of the case, the nature of the jurisdiction in insolvency cases, and of the order of discharge, must be considered. By the adjudication of insolvency, all the proper ty of the insolvent (not exempt from execution) is, by operation of law, placed in the hands of the court, and under its control, and subject to its disposition. The insolvent act requires no conveyance from the insolvent. Upon the appointment and qualification of the assignee "the clerk of the court shall, by an instrument under his hand and seal of the court, assign and convey to the assignee all the estate, real and personal, of the debtor, with all his deeds

books and papers relating thereto, and such assignment shall relate back to the commencement of the proceedings in insolvency, and by operation of law shall vest the title to all such property and estate, both real and personal, in the assignee." Insolvent Act of 1880, § 17. By the adjudication, therefore, the property of the insolvent debtor passed from him, and came under the control of the court, and the sheriff was required to take possession of it. It is a pro ceeding in rem, or, at the least, quasi in rem. The proceeding by creditors to establish their claims, though they name the insolvent as the debtor, is in reality a proceeding to establish their several claims against the property, to which they can alone look for payment. The assignee is but the hand of the court, and, though elected by the creditors, derives his powers from, and discharges his duties under the direction of, the court, and is, for the purposes of the proceeding, an officer of the court. The insolvent practically disappears as a party to the proceeding, and only the execution of the trust remains. The title to his property has passed from him, and by operation of law is vested in the assignee, who is an officer of the law, and a trustee for the creditors. Nor is the title of the assignee restricted to property or demands embraced in the schedule filed by the insolvent. The status of all the property owned by the debtor, of whatever character, is conclusively fixed by the statute, upon his insolvency being adjudged by the court. Section 18 of the insolvency act provides: "The assignee shall have the right to recover all the estate, debts and effects of said insolvent." The language of the bankrupt act of congress of 1841 was scarcely more comprehensive *han that above quoted, yet it was held that all but the excepted property of the bankrupt passed to the assignee, although not included in the schedule." Holbrook v. Coney, 25 Ill. 543. In a recent work on Jurisdiction, it is said: "There are two divisions that' should be made of proceedings in rem pertaining to 'things indebted.' The first pertains to a class of actions where the entire res comes under the control of the court, as the basis of jurisdiction. The second are actions personal in their nature, but in which the law permits the property to be seized in the progress of the action as a basis of jurisdiction. The latter class has been defined to be a 'proceeding quasi in rem.'" Brown, Jur. 64. In the same section the author places in the first class, among others, probate proceedings, proceedings in bankruptcy, and assignments for the benefit of creditors. In bankruptcy and insolvency proceedings, it is clear that the indebtedness of the bankrupt and insolvent is upon the adjudication transferred from the person to the res. The jurisdiction, being based upon the res, was not lost by the settlement of what was called the "final account," nor by

the so-called discharge of the assignee. The insolvent, when he received his final discharge, was no longer a necessary or proper party to the subsequent proceedings. That adjudication, so far as it is personal, is final; but the other jurisdiction must remain until the property, the subject of the trust, is finally disposed of. The title has passed out of the insolvent, and is vested in the assignee, and still remains under the control and subject to the disposition of the court. The accident that the assignee believes that he has disposed of all the property of the insolvent, and has settled his account, does not divest his title, nor so end the proceedings that they may not be revived, should other property be discovered. He is not authorized or empowered by the statute to reassign or convey to the insolvent such subsequently discovered property, and his duty to creditors will not permit him to conceal the property thus discovered, or refuse to recover it, and distribute the proceeds among them. If the court can be said to have lost jurisdiction at all, it could only be as to the assignee; but as to him, if the jurisdiction had lapsed by virtue of the order and the efflux of time, it may be restored by his consent, the court not having lost its jurisdiction of the subject-matter. In Brown v. Crow's Heirs, Hardin, 451, the court said: "It must be admitted, as a general principle, that consent cannot give jurisdiction; but this principle only applies to original jurisdiction, or, in other words, to those cases where the court never had, by law, jurisdiction in the case. But where the court once had jurisdiction, although the power may have been executed, so that without the consent of parties the court could not change their former judgment or decree, the jurisdiction may be, and in many cases has been, restored by consent. In such cases the maxim, 'consent takes away error,' applies. Bogle v. Fitzhugh, 2 Wash. (Va.) 213, recognizes this distinction." The only parties before the court after the discharge of the insolvent were the assignee and the creditors, who are represented by the assignee as their trustee. Nor do we think that the discharge was a final judgment or order, as affecting the jurisdiction of the court. Section 33 of the insolvent act authorizes the court, upon the grounds there stated, to “immediately discharge such assignee from his trust, and shall have power to appoint another in his place," while section 34 provides that upon filing his final account, and application for its settlement, "the court thereupon shall settle the account and order a dividend of any portion of the estate remaining undistributed, and shall. discharge the assignee, subject to compliance with the order of the court, from all liability as assignee to any creditor of the insolvent." It will be observed in the one case. that the assignee is discharged from his trust, while in the other he is simply discharged