concluded by failing to make full disclosure of his relations with the defendant. The statute makes him liable to the plaintiff from the time he is served with the statutory notice, whether he makes a statement to the sheriff or fails to do so. If he admits a certain indebtedness, the liability is not fixed upon him any more firmly than where he refuses to make any statement. The garnishee could have been required to attend before the court for examination, and the court thereafter could have ordered any property in the garnishee's hands, capable of delivery, turned over to the sheriff (section 545). But this course was not pursued. An action could have been brought against the garnishee (section 544), but this was not done. Section 546 gives the plaintiff in the original action no right to a judgment whether the garnishee gives or refuses the sheriff a memorandum of debts or credits. It merely provides that in case of refusal he may be required to pay the costs of any proceedings taken to obtain information respecting the amounts and description of such debt or credit. There is nothing in this section warranting judgment against the garnishee upon the return of the sheriff and without any appearance of the garnishee in the action. A judgment is the final determination of the rights of the parties to an action or proceeding. Section 577, Code Civ. Proc. We are unable to perecive how a judgment could be entered against the garnishee in this case, where the court never obtained jurisdiction over it by process of any kind, and never made it a party to the action in any form whatever. Service of a writ of attachment on it as garnishee was not the commencement of an action against it (Wooding v. Bank [Wash.] 40 Pac. 223); and, until the garnishee was brought before the court by some appropriate proceeding, no valid judgment could be entered against it. The invalidity of the judgment appears on the face of the proceedings, for the docket of the justice and the judgment fail to show that the garnishee was brought into court by any process. No presumptions attend the judg- | ment in a justice's court that would give jurisdiction. The judgment was void on its face. We find nothing in the cases relied upon by appellants to support their contention. They are Johnson v. Carry, 2 Cal. 34; Smith v. Brown, 5 Cal. 118; Brummagim v. Boucher, 6 Cal. 17; and Roberts v. Landecker, 9 Cal. 262, --which was an action by the plaintiffs in the attachment suit against the debtor of their debtor or garnishee. In an instructive opinion it was pointed out that while the attachment law gave a new right without furnishing a practical remedy, it was held that the direct actior was proper. In the case it appeared that the garnishee had disposed of the property after service of the writ on him, and the court held that the plaintiff could waive his lien and bring suit for its value against the garnishee. The opinion also pointed out the distinction between the remedy furnished by the law governing attachments and the aw in proceedings supplementary to execution. On this point, also, see the more recent case of Carter v. Bank, 116 Cal. 370, 48 Pac. 332. In all these cases the garnishee had his day in court after citation under the statute, or by direct action, as in Roberts v. LandeckBronzan v. Drobaz, 93 Cal. 647, 29 Pac. 254, is also relied upon by appellants, but that was a proceeding supplementary to execution, under section 717, Code Civ. Proc., followed by a direct action to recover from Drobaz (garnishee) the amount found due upon the hearing. er. We have been unable to discover any case, and none is cited, where a judgment against the garnishee was given, in a case like the one here, unless it was in pursuance of some proceeding by which he was required to appear for examination or to show cause, or by an ordinary action. We can see no difference where the garnishee in an attachment suit admits to the sheriff that he has property of the debtor in his possession, or admits that he is indebted to him in an amount certain. In either case the court acquires no jurisdiction to enter judgment against him except by the proceedings pointed out in the statute or by direct action, and opportunity is thus given him to be heard. 2. The remaining question involves the right of plaintiff to the equitable relief sought. There was no demurrer to the complaint, and its sufficiency is not controverted, nor does plaintiff suggest that the findings are insufficient to support the judgment, except that they do not warrant this equitable form of relief. There is an averment in the complaint that the return was false, and that respondent had no knowledge of such return until May 10, 1894, which was 40 days after the judgment was rendered. In Wood v. Currey, 49 Cal. 359, the action was to enjoin the judg ment, which the complaint alleged had been paid. There was no demurrer, and defendant answered to the merits. The facts were found by a referee, and judgment entered thereon. After the plaintiff had rested, the defendant moved for a nonsuit because the complaint did not state a cause of action in equity, in this: that it showed that the plaintiff could have obtained relief at law by a motion in the action to have the execution recalled. The referee denied the motion, and defendant appealed. The court said: "The objection that the remedy of the plaintiff was by motion in the original cause, and not by bill in equity, even if well founded in praetice (a question upon which we express no opinion), will not be considered. The defendant made no motion in the court below to dismiss the bill, on that or any other ground, but answered to the merits. The cause was then referred, by consent of parties, to a referee, who was authorized to hear the evidence and report a judgment to the court. Under these circumstances the objection upon the point of procedure, made for the first time before the referee, came too late." See, also, Bibend v. Kreutz, 20 Cal. 110, and Thompson v. Laughlin, 91 Cal. 313, 27 Pac. 752. The complaint in the present action gave the equity court jurisdiction, and, the cause having been tried without objection to the method of procedure, we think it is too late to raise the question here for the first time. We advise that the judgment and order be affirmed. We concur: GRAY, C.; HAYNES, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are affirmed. (128 Cal. 293) WOODARD v. HENNEGAN. (Sac. 703.)1 (Supreme Court of California. April 4, 1900.) VENDOR AND PURCHASER-TITLE-ADVERSE POSSESSION-MORTGAGE-TRUST. 1. Plaintiff's decedent paid the purchase price for lands, and took the title in his own name, and put the defendant in possession under an agreement of sale, whereby the defendant was to have a certain time in which to pay the original price to plaintiff, and was meanwhile to pay interest on such sum, but no taxes; and a bond for title was given. Held, that defendant, being in possession under a contract to purchase of plaintiff, could not assert title against him by adverse possession. 2. The transaction was not a mortgage, as defendant had no title to convey, and made no attempt to convey, as required by Civ. Code, §§ 2920, 2924, to constitute a mortgage. 3. Where plaintiff's decedent paid the purchase price for land, and put defendant in possession under an agreement of sale, whereby defendant was to have a certain time for payment, and was given a bond for title, though plaintiff held the land in trust for defendant, on default in payment plaintiff could maintain an action for possession, where defendant by his answer repudiated the agreement, and claimed to hold adversely. Department 1. Appeal from superior court, Yolo county. Action by Mary Woodard, as executrix of G. W. Woodard, deceased, against George T. Hennegan. From a judgment for defendant, and from an order denying a motion for new trial, plaintiff appeals. Reversed. E. B. Merring and Hart & Cleary, for appellant. C. W. Thomas, for respondent. PER CURIAM. The complaint in this case alleges that G. W. Woodard, deceased, was during his lifetime, and that plaintiff, as executrix, was at the commencement of this action, the owner in fee and entitled to the possession of section 12 in township 10 N., range 2 E., M. D. B. and M.; that the defendant was at the time of the commencement of the action in possession thereof, claiming an interest or estate therein adverse to the plaintiff, which claim is alleged to be without right. Judgment is prayed for the recovery of the possession of the land, and that plaintiff's title be quieted as against defendant. The answer denies that Wood 1 Rehearing denied May 4, 1900. 60 P.-49 ard, deceased, ever was, or that plaintiff, as executrix, ever was, the owner or seised in fee of the said lands, or any part thereof; denies that Woodard, deceased, ever had, or that plaintff ever had, any interest in said land, or that they, or either of them, were ever entitled to the possession thereof; admits that defendant is in possession of the lands, but alleges that he is in possession as owner thereof. Defendant further alleges that the plaintiff has not, nor have her ancestors or predecessors in interest, been seised or possessed of the property within five years before the commencement of the action. By way of cross complaint he alleges that he has been in the adverse possession of said land for more than five years before the commencement of the action, that he is the owner in fee simple, and that plaintiff claims an interest or estate in said land adverse to him, which claim is without right. He asks that it may be adjudged that he is the owner in fee simple, and that his title may be quieted against plaintiff. A jury was called for the trial of the case, and 58 special issues submitted to it for determination. After the jury returned its verdict answering the 58 interrogatories, the court, by consent of the parties, filed findings. It found that G. W. Woodard, deceased, was not during his lifetime, or at all, the owner or seised in fee of the said lands, and that the plaintiff, as executrix, is not the owner nor entitled to the possession thereof. The court further found: "(4) Finds that it is true that the defendant, Hennegan, is in possession of the lands herein described, and claims an estate and interest therein adverse to plaintiff, and that defendant was at the commencement of said action, and now is, the owner in fee simple of said lands, and entitled to, and was at the commencement of said action, and now is, in, the possession thereof." "(6) The court further finds that the defendant, Hennegan, on or about the 8th day of August, 1882, purchased the south half of said section twelve of one E. R. Lowe, and at once entered into the possession thereof, and then and there became the owner in fee simple thereof; that on or about the 24th day of February, 1889, the defendant pur chased of one R. J. Merkeley the north half of said section twelve, and at once entered into the possession thereof, and then and there became the owner in fee simple of said lands; that ever since said respective dates the defendant has been in the open, continuous, notorious, and adverse possession of said land; that he has occupied, cultivated, and inclosed said land with a substantial fence, and used the same as aforesaid for farming and agricultural purposes; that said G. W. Woodard, deceased, has never been the owner of said land, or any part thereof, and was never entitled to the possession thereof; that the heirs of said G. W. Woodard have never been, and are not now, the owners of said lands, nor entitled to the possession of the same, or any part thereof; that the plaintiff herein has never been the owner of said lands, and is not now the owner thereof, and is not entitled to the possession of the same." As conclusions of law, the court found that defendant is, and was at the time of the commencement of the action, the owner, seised in fee, in the possession, and entitled to the possession, of the said land; that plaintiff take nothing by her action; and that the defendant recover his costs. Judgment was accordingly entered. A motion was made for a new trial, and denied, and this appeal is from the judgment and order. It is claimed that the findings of the court in favor of defendant are not supported by the evidence, and that the conclusions of the court and the judgment are against law. The substantial facts, concerning which there is little conflict, are as follows: G. W. Woodard, deceased, and defendant lived in the same neighborhood, and became acquainted about 1879. They had some business transactions of a friendly nature in 1880. Defendant borrowed money from Woodard in the spring of 1881 for the purpose of buying seed and carrying on his farming business. This money was repaid. In the spring of 1882 the defendant told Woodard that he wanted to buy the S. 1⁄2 of section 12 from one Lowe. After some negotiations, Woodard furnished the money, $6,000, with which Lowe was paid, and the deed to the land was made to Woodard on August 8, 1882. Defendant at once entered into possession of the land, and has ever since remained in possession. Defendant did not give Woodard a note, but paid interest on the $6,000 thereafter at the rate of 8 per cent. per annum; that being the rate agreed upon by the parties. After the purchase of the land from Lowe, the defendant became the owner of an interest in some 320 acres of land which was purchased of one Gallup, the other interest being owned by Woodard. Early in 1889 defendant sold to Woodard his interest in the Gallup land for $3,000, which amount was credited to defendant on the Lowe purchase. On May 31, 1889, the defendant bargained for the N. 1⁄2 of said section from one Merkeley. Woodard furnished the purchase price, $8,000, and took this deed in his name. No note was given, and the agreement was that defendant should pay Woodard interest on this sum at the rate of 8 per cent. per annum. Defendant went into possession, and has ever since remained in possession, of the said land. On June 1, 1889, the entire section stood in the name of Woodard, and the purchase price remaining unpaid was $11,000. Woodard on said date made and delivered to defendant a bond for a deed, or agreement to convey the said section to defendant on or before June 1, 1894, provided defendant should have paid the said sum of $11,000, with interest from June 1, 1889, at the rate of 8 per cent. per annum. This agreenient recited that the $11,000 was the pur chase price agreed to be paid for said land by defendant. Defendant, being in possession of the said land at the time of the making of the bond for a deed, remained in possession and used the said land, although the bond or agreement said nothing about possession. After the bond was made, defendant paid Woodard, during his lifetime, interest on the $11,000 as he agreed in the bond, but never paid any taxes on the land. Woodard paid all the taxes; the property standing in his name, and being assessed to him. On December 21, 1894, the said Woodard died, and the plaintiff was afterwards appointed executrix, and letters testamentary issued to her. In February, 1895, the defendant paid the interest on the $11,000 to plaintiff. Defendant's own language is: "I paid interest on that money since Woodard's death. I had a settlement with Albert Bemmerly, and paid interest on eleven thousand dollars in February, two years ago." The defendant was testifying in July, 1897. In another portion of defendant's evidence, he said: "I paid interest on eleven thousand dollars for six years, commencing June 1, 1889, at eight per cent." Since February, 1895, the defendant has refused to pay interest, and does not claim to have paid any part of the interest or principal since that date, and neither does he claim to have made any tender of the money. In view of the evidence, and of the repudiation of the contract to purchase by defendant, and his assertion and claim of title, it is evident that the court below erred in finding in favor of defendant on the issue of title and adverse possession. The purchase price for the property was paid by plaintiff's testate, and the title conveyed to him. The legal title never was in defendant. His possession was under the bond for a deed, at least by implication; and while occupying under Woodard, and paying interest on the purchase price, and without any payment of taxes, defendant could not acquire title by adverse possession. Defendant, being in possession of the land under a contract to purchase, is estopped from denying the title of Woodard. By the very fact of taking, under a contract for a deed to be thereafter executed by Woodard, he rec ognized the title of Woodard, and acknowledged himself as holding in subordination, and not in antagonism, to it. As defendant entered into possession under the agreement with Woodard, and held possession by paying as rent the interest on the purchase money, the law will presume a continuance of the relation until the contrary clearly appears. 1 Warv. Vend. pp. 200, 201. There is not a word in the record to show that defendant ever repudiated the contract or assumed an adverse position until after February, 1895. Therefore it is apparent that the finding of the court that defendant had been in the adverse possession of the land for five years continuously immediately preceding the commencement of the action is not supported by the evidence. The contention of defendant in the court * * below, and the one evidently adopted by the court, was that the deeds made to Woodard were in fact made as security, and that the transactions amounted to, and were in effect, a mortgage. The title was held by Woodard as security, and in some features the transactions partook of the nature of a mortgage; but we do not think that the effect was simply a mortgage, and nothing more. If defendant had been the owner of the property, and had borrowed the $14,000 from Woodard, giving deeds to the property as security for the amount, the transaction would, in law, have been a mortgage. But in this case the legal title never was in defendant. He had no legal title to convey, and did not attempt to convey any title as security. The legal title was transferred to Woodard, and he held it, not only as security but in trust for defendant. It is provided in the Civil Code (section 2320) that a "mortgage is a contract by which specific property is hypothecated for the performance of an act, without the necessity of change of possession"; and section 2924: "Every transfer of an interest in property, other than in trust, made only as security for the performance of another act, is to be deemed a mortgage. The transfer in this case was not made solely as security for the purchase money. It was made for the purpose of finally having the title go to defendant, but in the meantime such title was held in trust for defendant, and for the security of Woodard. The transactions did not simply constitute a mortgage, and nothing more. Low v. Henry, 9 Cal. 550; Fowler v. Rice, 17 Pick. 100; Hill v. Grant, 46 N. Y. 496; Stephenson v. Thompson, 13 Ill. 186; Wilson v. McDowell, 78 Ill. 517; Jones, Mortg. § 323; Campbell v. Freeman, 99 Cal. 547, 34 Pac. 114. In the latter it is said: "The rule is familiar that when, upon a purchase of real property, the purchase money is paid by one person, and the conveyance is made to another, a resulting trust immediately arises against the person to whom the land is conveyed, in favor of the one by whom the purchase money is paid. The real purchaser of the property is considered as the owner, with the right to control the title in the hands of the grantee, and to demand a conveyance from him at any time. The same rule prevails if the money paid by the party taking the title is advanced by him as a loan to the other, and the conveyance is made to the lender for the purpose of securing the loan. But in the latter case the purchaser cannot demand the conveyance until he has paid the money advanced, and for which the land is held as security. In such case the grantee holds a double relation to the real purchaser. He is his trustee of the legal title to the land, and his mortgagee for the money advanced for its purchase." When defendant desired to purchase the land, the owners, Lowe and Merkeley, might have given him a bond for a deed, each for the amount of the purchase price. If this had been done, it does not seem that it could be contended that Lowe and Merkeley would hold the title as mere security. Their position is well defined in 3 Pom. Eq. Jur. § 1260. The author says, in speaking of a bond or agreement to convey from vendor to vendee: "In the latter, although possession may have been delivered to the vendee, and although, under the doctrine of conversion, the vendee may have acquired an equitable estate, yet the vendor retains the legal title, and the vendee cannot prejudice that legal title, or do anything by which it shall be devested, except by performing the very obligation on his part which the retention of such title was intended to secure, namely, by paying the price according to the terms of the contract. To call this complete legal title a lien is certainly a misnomer. In case of a conveyance, the grantor has a lien, but no title. In case of a contract for sale before conveyance, the vendor has the legal title, and has no need of any lien. His title is more efficient security, since the vendee cannot defeat it by any act or transfer, even to or with a bona fide purchaser." We think Woodard possessed the same rights as would have been possessed by Lowe and Merkeley if they had made the agreement to convey to defendant. To allow him all the rights that Lowe and Merkeley would have had, cannot do him any injustice. After Woodard had, at defendant's request, furnished the money, and given defendant every opportunity to repay him, to deprive him or his representative of the same protection that would have been given to Lowe and Merkeley would be a gross injustice. It would be to allow the defendant, like the viper in the fable, to turn and sting the one who had been his friend. Therefore it will be assumed that plaintiff, as the legal representative of Woodard, possesses the same rights as if Woodard had been the owner of the land at the time the contract of sale was made with defendant. The legal title remained in Woodard. The defendant, being in possession under the agreement, had a right, by complying with his contract, to procure the title. If he should come into court, setting up his rights under the contract, and offering to pay the balance due on the purchase price, and, while asking for equity, showing his willingness to do equity, the court would enforce the contract and compel a conveyance. But he will not be allowed to retain the possession of and title to the property without paying the balance due on the purchase price. He cannot take the land, which was paid for by Woodard, and claim all the benefits of the contract, without assuming the burdens. A court of equity will not allow him to affirm the contract, so far as he deems it beneficial to himself, and to repudiate it when it imposes a burden. The defendant having by his answer repudiated the contract, and having refused to pay the balance due, the plaintiff can maintain the present action to recover possession. 2 Warv. Vend, p. 892; 1 Sugd. Vend. p. 312; Love v. Watkins, 40 Cal. 567; Thorne v. Hammond, 46 Cal. 531; Whittier v. Stege, 61 Cal. 241. In the latter case it is said: "When, therefore, the defendants, after they had obtained possession lawfully, substituted repudiation of the contract, and refusal to comply with its terms, for performance or willingness to perform, they devested themselves by their wrongful act of the equitable estate which they acquired under the contract, and became trespassers or tenants at will, against whom their repudiated vendors could maintain ejectment. The vendors were remitted to their legal title, and in an action upon it the defendants could not invoke as a defense to it a contract of sale which they repudiated and refused to perform." The defendant could have set up in his answer the agreement to convey, his willingness to perform, and offer to perform on his part by paying the balance found to be due; and the court by its decree could have, while giving the plaintiff the amount due, also fully protected the rights and equities of defendant. In view of the importance of this case, and the hardships that it might impose upon defendant if he should be compelled to again try the case on his present answer, we will direct that he be permitted, within a reasonable time, to file an amended answer and cross complaint, if he be so advised. The judgment and order are reversed, and the court below directed to allow defendant to file an amended answer and cross complaint within a reasonable time in accordance with the views herein expressed. 128 Cal. 236 PERINE v. LEWIS et al. (S. F. 1.384.) (Supreme Court of California. March 28, 1900.) APPEAL-MODIFICATION OF JUDGMENT AFFIRMANCE. Where a judgment rendered in an action on a street assessment was reversed for error in a certain assessment; a motion by the respondent in the appellate court to modify the judgment appealed from by striking out the amount rendered on the erroneous assessment should be granted, and the judgment as modified affirmed, since it amounts to a waiver and relinquishment of that part of the judgment. Motion to modify the judgment appealed from. Granted. For former opinion, see 60 Pac. 422. PER CURIAM. Since the filing of the opinion in this cause the respondent has requested the court to modify the judgment appealed from by striking out of it the amount thereof which was given upon the assessment for that portion of the work done on the intersection of Mission street and China avenue, considered in the fifth subdivision of the opinion. This is, in effect, a waiver and relinquishment by the respondent of the amount claimed in his complaint for that portion of the assessment; and under the authority of Fox v. Mining Co., 122 Cal. 219, 54 Pac. 731, his motion is granted. The judgment hereto fore rendered herein is therefore set aside, and instead thereof the following judgment is given: The superior court is directed to modify the judgment appealed from by striking out the amount thereof which was given upon the assessment for that portion of the work done on the intersection of Mission street and China avenue, and as so modified the judgment and order denying a new trial will stand affirmed. 128 Cal. 242 In re NELSON'S ESTATE. (S. F. 2,202.) (Supreme Court of California. March 28, 1900.) APPEAL NOTICE OF APPEAL-SERVICE DEFECTS. 1. Code Civ. Proc. § 940, provides that an appeal is taken by filing with the clerk of the court in which the judgment is entered a notice of appeal, and serving a similar notice on the adverse party or his attorney; and section 1015 declares that, where a party has an attorney in the action, service of papers must be on the attorney, instead of the party. Held, that a notice of an appeal by certain heirs from a judgment denying their petition for the revocation of the probate of a will, and from an order denying a new trial, addressed to and served on the attorney for the executor and heirs, was sufficient. 2. Code Civ. Proc. § 473, authorizes a court, in pursuance of justice, to amend any proceeding by correcting any mistake therein; and section 475 declares that the court must disregard any error in the proceedings not affecting the rights of the parties. Held, that a mistake in directing a notice of appeal by certain heirs from a judgment denying their petition for the revocation of the probate of a will, etc., to the attorney for "executor," instead of "executors," was not misleading, and did not affect its validity. Department 1. Appeal from superior court, Colusa county. Petition by certain heirs of the estate of Henry C. Nelson, deceased, to revoke the probate of his will. From a judgment denying such relief, and overruling petitioners' motion for a new trial, they appeal. Motion to dismiss appeal denied. Platt & Bayne, for appellants. HARRISON, J. Motion to dismiss the appeal. After the will of the above-named decedent had been admitted to probate, certain of his heirs filed a petition for the revocation of its probate. This petition was answered on behalf of three executors by their attorneys, Platt & Bayne and H. A. Powell,-one executor not appearing to the citation therein, -and by the devisees and legatees under the will by their attorney, Edwin Swinford. Upon a trial of the issues made by these answers, judgment was rendered against the petitioners, and their motion for a new trial was afterwards denied. From this order the present appeal has been taken. The notice of appeal is directed, "To Messrs. Platt & Bayne, Attorneys for Executor, Edwin Swinford, Attorney for Legatees and Devisees, and the Clerk of Said Court." It was |