allowance of attorneys' fees for services rendered, substituted as attorney, and as such thereafter appeared for the administratrix. On July 30, 1918, the administratrix filed her first and final account, accompanied by a petition for an order distributing the estate to herself as sole heir, the hearing of which, after due notice given, was had on August 13, 1918, at which time an order was made settling the account and the estate ordered distributed to petitioner. On August 29, 1918, Hubbard and Bachtell filed with the clerk of the court an application to have their fees as attorneys for the administratrix fixed and allowed by the court. Thereafter, and without any receipt having been filed showing the estate had been distributed, the court on August 31st made an order discharging the administratrix. No hearing of the application to fix and allow the fees of Hubbard and Bachtell was had. Thereafter, on October 21, 1918, the court, upon motion of Hubbard and Bachtell, entered an order vacating the order discharging the administratrix; and on February 3, 1919, Hubbard and Bachtell served upon the administratrix a notice of motion for orders vacating the orders approving the final account and decree of distribution. Said motion was made on February 10, 1919, and the hearing continued from said date to February 20, 1919, at which time. it was heard, and on May 6, 1919, the court made findings to the effect that said orders settling the final account and decreeing distribution of the estate were inadvertently made. and under a misapprehension of the court that all claims against the estate had been paid, for which reason it was ordered that said orders and each of them be vacated, annulled and set aside.

[1] It appears from the record presented that the orders settling the account, decreeing distribution of the estate, and discharging the administratrix were all duly and regularly made after due notice to all parties interested of the time fixed for the hearing of the application for the orders. The order vacating the order discharging the administratrix was in response to a motion therefor made by Hubbard and Bachtell; but the record is wholly silent as to the ground or reasons assigned in support of the motion, in the absence of which it appears that the court acted upon a mere request of these attorneys, who, appearing for respondents, now insist, upon the authority of Wiggin v. Superior Court, 68

Cal. 398, [9 Pac. 646], that the court in so doing acted within its jurisdiction. Conceding the language of this case as reported justifies the contention, we are not inclined to follow it as so interpreted, for the reason that it is inconsist ent with the decision of a like question decided by this court in Nason v. Superior Court, 39 Cal. App. 448, [179 Pac. 454], in which an application for a transfer was denied by the supreme court on March 24, 1919.

As to the orders made vacating the order settling the account and distributing the estate, they were in response to a motion, based upon the files and records of the case, made on February 10, 1919, pursuant to notice theretofore served, the ground therefor, as stated in the notice, being that said orders were improvidently made in that the action of the court in approving the final account was procured by false representations made by the administratrix to the effect that all obligations of the estate had been fully discharged and that at said time a motion was pending in said court to have it fix and determine the fees of said Hubbard and Bachtell. The application was made and heard within six months from the making of the orders, and, therefore, was within the time fixed therefor by section 473 of the Code of Civil Procedure. The record shows that the order settling the final account and distributing the estate was made on August 13th, and, likewise, shows that the application to have the court fix attorneys' fees was not filed with the clerk until the 29th of August. Hence, there is no foundation for the contention that at the time of the making of the order a motion was pending to have the court fix attorneys' fees. Nor is there any affidavit or showing that the orders were inadvertently made, so as to bring the case within the provisions of said section 473. That a court may in a proper case and upon a proper showing, acting under the provisions of this section, afford relief to a party, provided the application therefor be made within. six months from the action complained of, we have no doubt. But there must be some showing of mistake, inadvertence, surprise, or fraud. (De Pedrorena v. Superior Court, 80 Cal. 144, [22 Pac. 71].) In the Nason case this court said: "In the case at bar, the fact that the decree of discharge was inadvertently made was not presented as one of the grounds of the motion to set aside that decree. No fact

appeared in the record from which inadvertence of the court may be inferred. The order itself, now under review, while it states that the decree of discharge was made inadvertently and ex parte, does not indicate any particular in which the court had acted improvidently or inadvertently. Under such circumstances we cannot, from the mere assertion contained in the order, indulge in the presumption that the judge knew of some inadvertence which would justify the order.' Since the court makes a like finding, the language is applicable to the vacating orders made in this case. There is no showing whatsoever of any facts which would constitute inadvertence. [2] All that is made to appear is that, after regularly acting upon evidence adduced which the court at the time deemed sufficient, it afterward concluded the proof made was insufficient and thereupon vacated the orders. The law does not authorize such action. (Robson v. Superior Court, 171 Cal. 588, [154 Pac. 8].) [3] There were no extrinsic matters which affected the decision of the court in making the original orders, and the fact that they were based upon false representations or testimony of the administratrix, who furnished the evidence upon which the court acted, constituted no ground for vacating the orders so regularly made. (Pico v. Cohn, 91 Cal. 129, [25 Am. St. Rep. 159, 13 L. R. A. 336, 25 Pac. 970, 27 Pac. 537].)

[4] We may repeat that we adhere to what was said in the opinion in the Nason case, the language of which we deem determinative of this, viz., that the court had no power to set aside and vacate the orders, save and except under the provisions of section 473 of the Code of Civil Procedure, authorizing relief from orders made through a party's mistake, inadvertence, surprise, or excusable neglect, as to which there is no showing.

The orders made vacating and setting aside the orders settling the final account, decreeing distribution, and dis charging the administratrix are annulled.

Conrey, P. J., and James, J., concurred.

42 Cal. App.-19

[Civ. No. 2934. First Appellate District, Division One.-July 19,

1919.]

KIRKMAN NURSERIES (a Corporation), Respondent, v. J. J. SARGENT, Appellant.

[1] CONTRACTS-PLANTING AND CARING

FOR FIG CUTTINGS-DELIVERY OF DEVELOPED CUTTINGS-TITLE.-Under a contract between a nursery company and the owner of certain land which provides that the former will deliver to the latter certain fig cuttings of assorted varieties, free of charge, which the latter is to plant and raise upon his land, and during the two winters next succeeding deliver to the former such thereof as shall have developed into young fig trees, three feet in height, free from pest or injury of any kind, at a given price per thousand f. o. b. at designated point, the title to the cuttings, and to the nursery stock into which they develop, remains in the nursery company.

[2] ID. SALE OF LAND-LIABILITY OF SUCCESSOR-CLAIM AND DELIVERY. A person taking a conveyance of the land from such owner with notice of the rights of the nursery company stands in the same position as his predecessor; and where he refuses to make deliveries of the nursery stock to the nursery company as in the agreement provided, the latter may maintain an action in claim and delivery against him.

APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge. Affirmed.

The facts are stated in the opinion of the court.

Everts & Ewing, M. G. Gallaher and Savage & Lovejoy for Appellant.

Short & Sutherland and Carl E. Lindsay for Respondent.

KERRIGAN, J.,-This is an appeal by defendant from a judgment in favor of the plaintiff in an action of claim and delivery to recover the possession of a quantity of growing nursery stock.

The plaintiff and one B. F. Rose, on February 15, 1915, entered into a written contract, by the terms of which the plaintiff was to deliver to Rose one hundred thousand fig cuttings of assorted varieties free of charge, which Rose was to plant and raise upon his land, and during the winter of

1915-16, and again in the winter of 1916-17, deliver to plaintiff such of said cuttings as should have developed into young fig trees, three feet in height, and which were free from pests or injury of any kind, at the price of $30 per thousand f. o. b. a designated point. In the month of July following the execution of this contract Rose, having obtained the permission of the plaintiff, transferred to the defendant his interest in the land in which the fig cuttings were planted, who, as the evidence shows, was at that time fully advised of the nature of the transaction between plaintiff and Rose, recognized the contract, and proceeded to act under it for a time, when, for some reason not disclosed by the record, he repudiated it and refused to make further deliveries of the young trees.

The appellant contends that the transaction between the plaintiff and Rose amounted to no more than a contract by the plaintiff to purchase from Rose certain nursery stock at an agreed price; and that by his acquisition from Rose of the land upon which such stock was growing he became the owner thereof, and consequently that the plaintiff's action in claim and delivery cannot be sustained.

[1] The question as to whether the cuttings when planted became annexed to the real estate so as to pass with it turns upon the intention of the parties. (19 Cyc. 1048; Henry v. Dinkerhoff, 57 Cal. 3, [40 Am. Rep. 107]; Western Union Tel. Co. v. Modesto Irr. Co., 149 Cal. 662, [9 Ann. Cas. 1190, 87 Pac. 190].) From the terms of the contract under consideration, we think it must be held that title to the cuttings, and to the nursery stock into which they developed, remained in the plaintiff; and we also think that the evidence is clear that the defendant purchased the land in which they were planted with notice of the contract and of plaintiff's rights. The contract, as already mentioned, provided that the cuttings were to be delivered to Rose by the plaintiff free of expense of any kind, and were to be planted. in the land described in the complaint, cultivated and cared for, and for such of them as at specified times became merchantable nursery stock the plaintiff was to pay an agreed price per thousand. That Rose's compensation for the use of his land and for his work in caring for the cuttings and delivering them when in suitable condition at the place designated should have been fixed in this manner affords no