No. 9,637.

BOYD v. SLAYBACK ET AL.

Department Two. Filed December 17. 1884.

FINDINGS, WHEN SUFFICIENTLY DEFINITE DESIGNATION OF DEEDS.-In an action to determine the title to land, where the pleadings and evidence make mention of but two deeds, one of which is much longer than the other, findings which refer to such deeds as the short deed" and the "long deed" respectively, are sufficiently definite.

66

APPEAL from a judgment of the superior court for San Diego county, and from an order denying the plaintiff a new trial. The opinion states the facts.

Brunson & Wells, M. A. Luce, Will. M. Smith and Works & Titus, for the appellant.

Chase, Arnold & Hunsaker, and Graves & Chapman, for the respond

ents.

SHARPSTEIN, J. The plaintiff alleges in his complaint that on the twenty-third day of April, 1881, Mary B. Taggart duly made, executed and delivered to him, two several deeds of conveyance, by one of which she conveyed to him certain described parcels of land, and by the other certain other parcels. According to the complaint, the number of parcels specified and described in one is much greater than the number specified and described in the other. Consequently, much more space is devoted to the description of the several parcels alleged to have been conveyed by one of the deeds, than is devoted to the description of the several parcels alleged to have been conveyed by the other. Neither of the deeds was produced at the trial. The first witness examined was the plaintiff in his own behalf. He referred to one of the deeds as "the short deed," and to the other as "the second, or larger deed." In the statement on motion for a new trial we find the following:

"Plaintiff here introduced in evidence the notarial record of the witness, H. H. Dougherty, as far as the same relates to the acknowledgment of Mary B. Taggart, on the twenty-third day of April, 1881, of the two certain deeds wherein Mary B. Taggart was the grantor, and John B. Boyd was the grantee, description being the same as appears in the decree of the court herein."

66

Referring to said decree, we find that the court adjudged the plaintiff to be the owner of the land described in the deed referred to in the findings as the short deed," viz: the one which conveyed the least number of parcels of land, and that he had no title, right or interest in the land described in the other deed. In the firs finding of the court, the deed referred to as "the short deed" cor responds with the one so denominated in the decree. Another deed is referred to "as the other of said deeds, referred to as the long deed." There are but two deeds in the case, and the evidence findings and decree clearly show what property was described in th one denominated "the short deed" and that the other deed, denom inated the "long deed," contained a description of the residue o the property in controversy. This we think sufficiently certain.

The evidence as to the execution and delivery of the deed referred to as "the long deed," is not of such a character as would warrant any interference here with the finding of the court below on that question. The findings as we read them are not conflicting, and we think there is no error in the instructions given; and none in refusing to give any other.

Judgment and order affirmed.

THORNTON, J., and MYRICK, J., concurred.

No. 6,797.

WILSON V. HASTINGS, ET AL.

Department Two. Filed December 17, 1884.

ESTATES OF DECEASED PERSONS-PETITION FOR SALE OF REAL ESTATE-DESCRIPTION OF LAND-REFERENCE TO INVENTORY.-Under the statute regulating the settlement of the estates of deceased persons, in force between the years 1855-57, the petition for the sale of real estate mast contain a description of all the real estate of which the testator or intestate died seized, and the condition and value of the respective portions and lots. For such particulars the petition may refer to the inventory, and both may be considered together. But, unless the petition, or inventory if referred to, substantially complies with the requirements of the statute, the court acquires no jurisdiction to order a sale: and an insufficient description as to one of several parcels of land referred to in the petition will deprive the court of jurisdiction, although the remaining parcels are sufficiently described.

THE SAME-HOW REFERENCE TO INVENTORY SHOULD BE MADE. The petition, in referring to the inventory for the particulars required by the state, must statuse that the reference is made for description, or value, or condition. A statement that reference is made "for greater certainty" is not sufficient.

THE SAME-INSUFFICIENT DESCRIPTIONS IN PETITION.--Descriptions of such land as "the undivided one-half part of one league of land on Clear Lake;" or "the undivided one-half part of a farm and vineyard at Sonoma, containing eight hundred and thirty-three acres, more or less," are insufficient.

GCARDIAN AND WARD-FOREIGN GUARDIAN-POWER OF, OVER LAND IN THIS STATE. —A foreign guardian has no authority as such, to bind the real estate of his ward situate in this state; nor can he, by consenting to a sale of such land by the probate court, confer jurisdiction on the court to order the sale thereof.

APPEAL from a judgment of the third district court, and county of San Francisco, entered in favor of and from an order denying the defendants a new trial. states the facts.

Ryland B. Wallace, for the appellants.

G. F. & W. H. Sharp, for the respondent.

for the city the plaintiff, The opinion

MYRICK, J. Ejectment to recover possession of an undivided onetenth part of a tract of land in the city and county of San Francisco, being part of the "Market-street Gore," situated at the junction of Market and Sacramento streets.

Plaintiff's chain of title depends upon the validity of a probate sale had in 1855-57. The will of the testator, James D. Galbrath, then a tenant in common in the premises, was admitted to probate, and letters testamentary ordered to issue.

The executor filed a petition for the sale of real estate to pay debts and expenses. The petition contained no description of real estate, or statement of value, except that the total value of all the

property was stated at thirteen thousand eight hundred and fortytwo dollars and fifty cents; the petition, however, referred to the inventory in the following language: "Which said inventory and appraisement is now on file in the office of the clerk of this court, and your petitioner begs leave to refer to the same for greater certainty." It has been held: In Stuart v. Allen, 16 Cal., 472, and other cases following that case, that the petition may refer to the inventory, and both may be considered together. In the case of Stuart v. Allen, the reference in the petition to the inventory was, in terms, for a description of the real estate and the condition and value thereof, and for those purposes the inventory was made a part of the petition.

Section 155 of the Act to regulate the settlement of the estates of deceased persons: Wood's Digest, p. 406, in force when these proceedings were had, required that the petition contain "a description of all the real estate of which the testator or intestate died seized, and the condition and value of the respective portions and lots," etc. Taking the petition and inventory together, for the purpose of ascertaining if the statute was complied with, we find that the inventory, under the head of "real estate," contained the following: "The undivided one-half part of the fifty vara, known on the official map of the city of San Francisco, as number seven hundred and eighty-six..

"The undivided one-third part of a tract of land situate at the junction of Market and Sacramento streets, commonly called the Gore'.

"The undivided one-half part of, situate at the southeast corner Jackson and Front streets, the title to which is in dispute....

NAPA COUNTY.

$500

500

.Nothing

"The undivided one-half part of one league of land on Clear Lake....

SONOMA AND MARIN COUNTIES.

"The undivided one-half part of a farm and vineyard at Sonoma, containing eight hundred and thirty-three acres, more or less...

"The undivided one-sixth part of ranch in Sonoma and Marin counties, Balzas de Tomales,' containing six leagues more or less

500

6,000

.. 3,500"

Of the foregoing, the first, second and sixth are doubtless sufficient; the third may be, but it is doubtful; the fourth and fifth are no descriptions; there are many leagues of land on Clear Lakewhich one was meant? there may have been many farms and vineyards at Sonoma containing eight hundred and thirty-three acres more or less-which one was intended to be designated? An object of the statute requiring the petition (or inventory, if referred to) to give a description of the real estate was, that the real estate of the deceased might be presented to the judge for his consideration in

determining as to the necessity for a sale. If there be no description presented, he cannot determine, for there is nothing for him to act upon. The land in controversy in this action is the second described parcel; but the fact that one parcel is well described does not cure defects as to others; for, the statute required that all the real estate of the deceased should be described. Of course, we are not referring to an entire omission from the inventory and petition of some parcel of real estate to which the deceased had title; we are referring to a case where the executor had inventoried parcels and referred to the inventory.

In the case before us, the reference in the petition to the inventory was, in the language of the petition, "for greater certainty," without stating for what the reference was made-whether for description, or value, or condition. We think this reference was insufficient to incorporate the inventory as a part of the petition as to description, or value, or condition. As above stated, in Stuart v. Allen, the reference was, in terms, for description and for condition and value; therefore, that case is not authority in this case.

The wisdom of the legislature in making the requirements contained in section 155, supra, is apparent from the facts of this case; for, it appears, that the outstanding debts and charges were four thousand seven hundred and thirty-three dollars and forty-one cents, and personal property undisposed of, of the value of two thousand four hundred dollars, leaving two thousand three hundred and thirtythree dollars and forty-one cents to be provided for; and to pay this sum, real property in six parcels of the aggregate value of eleven thousand dollars was asked and ordered to be sold, when it appeared on the face of the papers that a sale of either one of two of the parcels, at the stated value, would have been more than sufficient.

It has been repeatedly held by this court that the petition must be substantially as required by the statute in order to give the court jurisdiction to order a sale; and in the light of these decisions, and according to our own view of the intent of the legislature, we are of opinion that the petition in this case was insufficient to give the probate court jurisdiction to order a sale of the property.

In regard to the statement of the defendant Hastings, while being examined as a witness, regarding the claim of title of plaintiff, we think it too indefinite to be the basis of a judgment as to title; in no sense can it be considered as an estoppel.

The paper admitted in evidence, by which Samuel Woods, as guardian of the minor devisees, appointed and resident in Mississippi, assumed to consent to the probate sale on behalf of his wife and the minor children, devisees, was of no value in this case, at least so far as the minors were concerned. If he was their guardian, he was such in Mississippi, his and their place of residence-not here; and such guardianship would give him no authority to bind

No. 53-3.

their real estate here. Such consent was insufficient to give the
court jurisdiction to make the order of sale.

Judgment and order reversed and cause remanded for a new trial.
SHARPSTEIN, J., and THORNTON, J., concurred.

No. 9,553.

TELL AND WIFE v. GIBSON.

Department One. Filed December 17, 1884.

INJURY TO WIFE-CAUSES OF ACTION ARISING FROM-PARTIES TO ACTIONS-MISJOINDER OF CAUSES OF ACTION.--For a personal injury to the wife, both at common law and under the code, the action must be brought in the name of the husband and wife. The wrongful act causing the injury to her may involve two distinct wrongs, for which the law gives two distinct causes of action; one to the wife to recover damages for the injury to her; another to the husband to recover damages for the consequential injury to him, caused by the loss of the services of his wife and the expenses incurred by her injuries. For the consequential injuries to himself the husband may sue alone. For the direct injury to the wife, husband and wife must sue, and the two causes of action cannot be joined in one suit. Overruling a demurrer to a complaint which joins such causes of action will warrant a reversal, notwithstanding counsel for the plaintiffs disclaims, on the trial, all damages for the consequential injuries to the husband, if evidence of such consequential injuries is given to the jury.

APPEAL from a judgment of the superior court for Los Angeles county, entered in favor of the plaintiffs, and from an order denying the defendant a new trial. The opinion states the facts.

Horace Bell and H. K. S. O'Melvaney, for the appellant.
Smith, Brown & Hutton, for the respondents.

MCKEE, J. This was an action by husband and wife to recover damages for personal injuries to the wife, caused by her falling through an open hatchway, into the cellar of a store occupied by the defendant. It is alleged in the complaint that the wife was thereby permanently injured, and, in consequence of the injury, "was confined to her bed for thirty days, and was compelled to expend two hundred dollars for medical attendance, and for care and nursing, during said time, and is now, in great part, deprived of her own services in and about her work, and permanently disabled to perform the same." For those elements of damage, and "the great mental and physical pain she has suffered in consequence of the injuries," the husband and wife demanded judgment in the sum of five thousand dollars.

There was a demurrer to the complaint upon several grounds, the chief of which was, that several causes of action, viz.: A cause of action for the personal injuries to the wife, a cause of action for the loss of the services of the wife resulting from the injuries, and a cause of action for moneys expended for medical attention and nursing, were improperly joined without being separately stated. The demurrer was overruled and the defendant filed an answer containing specific denials of the allegation of the complaint, and setting up contributory negligence of the wife.

the