negligently allows the statute of limitations to run against him. "Negligentia semper habet infortuniam comitem" may well be applied to him. But it by no means follows that the owner is negligent because he does acts of kindness. Because he allows others to use and travel over a vacant lot without objection, the law does not presume that he intended to give it to them. The fact that defendant procured a deed to the right of way from John W. Clarke, Sr., in September, 1898, cannot aid him. John W. Clarke, Sr., had already conveyed the property on the 1st day of August, 1896, to plaintiff, and hence had nothing to convey in September, 1898. It is said that the prior deed to plaintiff had not been recorded, and that defendant was an innocent purchaser, without notice. If the evidence of plaintiff and Mrs. J. W. Clarke is true, defendant knew of the prior deed to plaintiff. The court below has found it to be true, and we have not the power nor the inclination to set aside the finding. If we were passing upon a question of fact, as the trial court, we might think the fact that defendant procured a deed in September, 1898, was a very strong circumstance tending to show that he knew he had no title to the right of way at that time.

The defendant called as a witness one Ball. He was permitted to testify, under defendant's objection, in answer to questions by plaintiff, in cross-examination, that J. W. Clarke, Sr., told him that he intended at some time to build a store on the vacant lot which included the premises claimed as a right of way. It is urged that it was prejudicial error to allow this evidence. We think it was fairly within the scope of the direct examination. The witness was called by defendant. He testified in direct examination that he rented the store building on the lot adjoining the alleyway or place claimed as a right of way from J. W. Clarke, Sr., who was then the owner of the lot and store, in September, 1893; that there was an inclosure at that time across the front end of the strip in controversy, with a gate in it; that he was there some six years, and used the gate and alleyway frequently; that other parties also used it driving in and out through the gate; that he built a fence running in the rear of the building, and built a second fence in 1894 or 1895; that while he was building the second fence J. W. Clarke, Sr., frequently drove down and stopped at the store, and did not oppose the building of the fences,-made no objection. The witness further said: "Mr. Clarke, Sr., told me several times that it was understood that the two properties should use the driveway." As the defendant had elicited from the witness in direct examination a conversation or statement made by the owner of the property as to its use, it was proper for plaintiff to ask In cross-examination fully as to such statement, and the fact that the owner intended the property for his own use. The direct

It

examination of the witness was directed to the object of showing that the owner made statements as to the intended use of the alleyway for other parties. The cross-examination tended to show that the owner in the conversation declared that he intended at some future time to use the property himself. would be a very narrow rule that would not allow such cross-examination. As cross-examination affords the most effective mode of testing the accuracy and credibility of a witness, great liberality should be allowed as to all facts and circumstances connected with the matters stated in direct examination. People v. Westlake, 124 Cal. 459, 57 Pac. 465.

We have examined the other alleged errors, but find none of them of sufficient importance to merit discussion. The judgment and order should be affirmed.

1. Where, in an action by an employé to recover gold found by him while working on public land, and taken from him by his employers, there is no finding as to plaintiff's intention to appropriate the gold when he took possession of it, on appeal from a judgment for defendants it must be assumed that plaintiff, on discovery, reduced the gold to possession, with intent to appropriate it to himself; otherwise, a new trial would have to be ordered for lack of findings.

2. Under Rev. St. U. S. § 2319, providing that all valuable mineral deposits in lands belonging to the United States are free, and Civ. Code, § 1006, that occupancy for any period confers a title sufficient as against all except the state and those having title, one finding and taking possession of gold on public land may recover it from any one taking it away from him.

3. Where defendants were grading on public land for a mill site, but had not complied with any of the provisions of Rev. St. U. S. § 2337, for acquiring title thereto, they were not occupants of any land beyond the level space graded for the mill site, and had no right to gold found by others beyond the limits of such space

4. Under Rev. St. U. S. § 2319, title to miner al lands cannot be acquired by occupancy unless the occupancy is for the purpose of mining or extracting the minerals.

De

5. Plaintiff, while working for defendants in grading a site for a mill on government land, found and took possession of some gold. fendants took the gold from him, claiming to own it under Civ. Code, § 1985, providing that everything which an employé acquires by virtue of his employment, except his compensation, belongs to the employer. Held, that the gold was not found by virtue of the employment, and did not belong to defendants, since the employment was not to search for gold, but to excavate and throw away the earth removed.

Commissioners' decision. Department 2 Appeal from superior court, Tuolumne county; G. W. Nicol, Judge.

Rehearing denied September 12, 1901.

Action by I. M. Burns, an infant, by Michael Burns, his guardian ad litem, against Truman Clark and others. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. Reversed.

J. C. Webster and E. W. Holland, for appellant. F. W. Street and Reinstein & Eisner, for respondents.

SMITH, C. Appeal from a judgment for the defendants, and from an order denying the plaintiff's motion for a new trial. The suit was brought for the conversion of certain gold and gold-bearing rock, of which it is alleged in the complaint the plaintiff was on the day named, the "owner * and

串

*

lawfully possessed," and which it is alleged the defendants "wrongfully and unlawfully and against the will of [plaintiff] took and carried away" and "converted to their own use." The facts of the case, as found by the court, are that the defendants Schoenfeld, Adler, and James, who were the owners of certain mines, employed the plaintiff as a laborer to assist in the grading of a mill site on the public lands for the use of their mines, and that "plaintiff, while working for said defendants in digging and leveling off a grade for a quartz mill, discovered and dug out of said grade a pocket of quartz gold of the value of about six hundred dollars; that the plaintiff and his colaborers gathered up said gold and gold-bearing quartz in a gold pan, and took the same to the office and delivered it to the defendant Bleck [the superintendent], who took possession of said gold for his employers." But there was no evidence to justify the finding that the plaintiff took the gold to Bleck or that he delivered it to him. The evidence, without contradiction, was to the effect that Clark, the overseer, took it from the plaintiff and delivered it to Bleck. There is no finding as to the plaintiff's alleged possession of the gold at the date named in the complaint. All that is found is that he "was not lawfully possessed of" it. Nor is there any finding as to the plaintiff's intention to appropriate the gold when he took possession of it, though the plaintiff testified explicity that such was his intention. It must be assumed, therefore, for the purposes of this decision, that the plaintiff, on discovery, reduced the gold to possession, with intent to appropriate it to himself, and that it was taken from his possession by Clark, the agent of the defendants Schoenfeld & Co. Otherwise, assuming these points to be material, it would be necessary to order a new trial for lack of findings, or for insufficiency of the evidence to justify the finding as to the delivery of the gold to Bleck by the plaintiff. Prima facie, these facts being assumed, the plaintiff was entitled to recover. Mere occupancy of a thing, as against all except the state and the owner, is a sufficient title. Civ. Code, § 1006. And, where things are

found that have no owner, "they belong, as in a state of nature, to the first occupant or fortunate finder." 2 Bl. Comm. 402; 1 Bl. Comm. 295; 2 Kent, Comm. 356. And in the case of valuable mineral deposits the title of the first taker is confirmed by express statutory grant. Rev. St. U. S. § 2319; Forbes v. Gracey, 94 U. S. 762, 24 L. Ed. 313. The title of the plaintiff must therefore prevail, unless, on the facts found, a better right is disclosed in the defendants; and whether or not this is the case is the question to be considered. Such a right is claimed by the respondents on two grounds, namely: (1) On the alleged ownership of the land out of which the gold was taken; and (2) that the gold was acquired by the plaintiff "by virtue of his employment."

1. With regard to the former ground, the contention is that the land on which the gold was found was in the actual occupancy of the defendants, and consequently, as against all the world except the government, their title good by occupancy. Civ. Code, § 1006. This contention involves two propositions, one of fact, and one of law, neither of which, we think, can be sustained. With regard to the fact, it does not appear from the findings that the gold was discovered on land occupied by the defendants. The ground was public land of the United States, and the defendants had entered upon it for the purpose of grading a site for a quartz mill. But there was no location of the land with a view of acquiring title under the laws of the United States (Rev. St. § 2337; 1 Lindl. Mines, § 519), or, it was stipulated, "location of any kind, and no monuments or marks to show its boundaries." The occupancy of the defendants, therefore, assuming it to be coextensive with the intention with which they entered, cannot be regarded as extending beyond the level space graded for the site of the mill, and for use in connection therewith. But the gold was not found within the limits of this space, and, if the finding of the court that it was "discovered and dug out of said grade" is to be thus construed, it has no support in the evidence. The gold was discovered at the northwest corner of the excavation made in the hill, and according to the evidence of all the witnesses at or close to the upper edge of the sloping rock left by the excavation, and according to some of the witnesses one or two feet beyond. There is no finding whether it was within or without the outer line of the actual excavation, or of the excavation intended, unless the finding that it was "discovered and dug out of the grade." Nor, unless the term "grade" be limited to the level space graded for the site of the mill, can any very definite sense be assigned to this finding. Bouv. Law Dict. word "Grade"; Little Rock v. Citizens' St. Ry. Co., 56 Ark. 32, 33, 19 S. W. 17. But, whether the gold was found within or without the outer line of the excavation, there is nothing in the findings or the evidence to show that the de

fendants intended to occupy any land beyond the foot of the excavation in the rock, or to appropriate any land beyond it for any purpose; and with reference to the ground actually graded or leveled, or to be graded or leveled, the appropriation was not with a view of acquiring title to the land, but for a particular purpose, which, in the absence of evidence or finding to the contrary, must be presumed to have been temporary. Such an occupation is entitled to protection against unlawful intrusion, but is insufficient to give title, real or presumptive, to the land. To constitute foundation of title, the occupancy must be with the intent or design to acquire the ownership of the thing occupied. Bouv. Law Dict. word "Occupancy," and authorities cited. Nor, were the contention of the defendants otherwise good, could any title to mineral lands be acquired by occupancy, unless for the purpose of mining or extracting the minerals. Rev. St. U. S. § 2319; McClintock v. Bryden, 5 Cal. 97, 63 Am. Dec. 87, 91, et seq.; Lindl. Mines, §§ 216 et seq., 219. The entry of the defendants in this case was not for this purpose, but for the purpose of establishing a mill site; which was permissible only on nonmineral land. Rev. St. U. S. § 2337; Lindl. Mines, § 519 et seq.

2. The remaining contention of the respondents is that the gold was acquired by the plaintiff "by virtue of his employment," and hence, under the provisions of section 1985 of the Civil Code, became the property of his employers, the defendants. But, whatever be the meaning of the provision cited, there is no finding that the gold was so acquired. All that is found is that "plaintiff, while working for said defendants, in digging and leveling off a grade," etc., discovered the gold, etc. This is not a finding that the plaintiff discovered the gold in digging out and leveling off the grade, but that he found it while working for the defendants in that way. The expression is not unambiguous, but this seems to be the natural construction, and is more in accord with the facts as shown by the evidence, which were that, though the gold may have been discovered by the plaintiff while working for the defendants, it was dug out by him not in the course of his work, but independently of it, and for the sole purpose of extracting the metal. But were the finding more explicit, and did it appear that the gold was discovered and dug out in digging and leveling the grade, the result would not be different. The defendants were engaged in excavation, not for the minerals, but for the purpose of removing and throwing away the matter excavated, or, it may be said, the taking of the matter excavated was with the purpose of abandoning it. Had the object or one of the objects of the excavation been to obtain the gold, any gold found by an employé would doubtless belong to his employers. But the gold found by the plaintiff was property without owner or intending owner, and therefore

subject to his right of appropriation by occupancy. The case is therefore the same in principle as that in Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 172, where the property was found by the employé in the course of her employment, and in the similar cases of Hamaker v. Blanchard, 90 Pa. 377, 35 Am. Rep. 664, and Durfee v. Jones, 11 R. I. 588, 23 Am. Rep. 529. It is not to be supposed that the intent of the provision in section 1985 of the Civil Code was to alter the established law in this respect. Rather it is to be construed as but an expression of the familiar principle that forbids an agent or trustee from using the trust property or pow ers conferred upon him for his own benefit, and which, in case of his doing so, requires him to account for the profits. Whart. Ag. §§ 231, 236, et seq.; Civ. Code, §§ 2229, 2237; 1 Story, Trustees, §§ 321 et seq., 323. The term, "virtue," as in the cognate expression "virtute officii," is here used to denote merely the power or authority proceeding from the employment, and the expression "by virtue of his employment" has no application to acquisitions not coming within its scope or purpose. Winf. Adj. Words and Phrases; 2 Esp. 541, note; People v. Schuyler, 4 N. Y. 187; Seeley v. Birdsall, 15 Johns. 267. the object of the grading been the acquisition of the ores to be extracted, the provision would no doubt apply; but the casual finding of gold by an employé in the course of an employment in no way related to such an object, though doubtless an acquisition made by reason or cause of the employment cannot with propriety be said to have been by virtue of it. I advise that the judgment and order appealed from be reversed.

We concur:

Had

CHIPMAN, C.; GRAY, C.

1. Under the provisions of Code Civ. Proc. § 1765, that the guardian of an incompetent shall give bond conditioned as that of other guardians; section 1754, subd. 3, that the bond shall be to account to the ward or his legal. representatives; section 1789, that accounts must be settled as provided concerning estates of decedents; and section 1635, that any person interested in the estate may appear and file exceptions to an account, and contest the same, -the administrator of the estate of a deceased incompetent may contest the final account of the guardian of such incompetent.

2. The matter of allowance to be made to a guardian for the board and eare of his ward is in the discretion of the court, and its award should not be set aside, when apparently sufficient, though there is uncontradicted testimony favoring a larger amount.

3. Where a guardian loans the money of his ward on the sole credit of the borrower, it devolves on him to show that he acted in good faith and with due prudence, since, in the absence of such evidence, the presumption is otherwise.

4. In proceedings to settle a guardian's account express findings are not necessary, since all facts necessary to sustain the judgment of the trial court will be presumed.

Commissioners' decision. Department 1. Appeal from superior court, Santa Clara county; M. H. Hyland, Judge.

Appeal by Silas Shirley from an order settling his final account as guardian of Clark Averill, an inconpetent. Affirmed.

Wm. H. Johnson and O. O. Felkner, for appellant. Chas. H. Hogg and H. F. Dusing, for respondent.

SMITH, C. The appellant, Silas Shirley, was guardian of the person and estate of Clark Averill, an incompetent, now deceased, and appeals from an order of the court settling his final account. The account was contested by the respondent, H. F. Dusing, who was executor of the will of the deceased incompetent, and the point is made that he had no right to contest. But this is manifestly untenable. Code Civ. Proc. §§ 1765, 1754, subd. 3, 1789, 1635.

Two items of the guardian's account partially disaйowed by the court were for board and lodging furnished and personal services rendered by him to the incompetent from June 10 to October 31, 1897 (136 days), at the rate of $5 per day, aggregating $680, and for like services rendered the incompetent by the wife of the guardian for the same period at the rate of $2 per day, aggregating $272. For these items the court allowed for the former for services $250 and for board $95, aggregating $345, and for the latter $125, and disallowed the balance. The amounts allowed by the court were, we think, sufficient, and even liberal. In these matters much must be left to the discretion of the court; nor is its discretion limited by the fact that there was uncontradicted testimony of witnesses as to their opinions that a larger amount should have been allowed.

In re

Lux's Estate, 100 Cal. 593, 35 Pac. 341; Freese v. Pennie, 110 Cal. 469, 42 Pac. 978; In re Beisel's Estate, 110 Cal. 276, 40 Pac. 961, 42 Pac. 819.

Another item of credit claimed by the appellant, and disallowed by the court, was the loan of $800 to 0. Q. Felkner and E. L. Felkner, on their promissory note of date September 15, 1899, payable one year after date. There was no evidence bearing on the question of the adequacy of this security, or upon the prudence of making the investment. But loans by guardians or other trustees upon personal security, and especially loans upon the sole credit of the borrower, have always been discountenanced by courts of equity, and are certainly irregular and out of the usual course of business. In such transactions,

therefore, it must be held that it devolves upon the guardian to show that he acted in good faith, and with due circumspection and prudence. In the absence of such evidence, the presumption is otherwise. In re Cardwell, 55 Cal. 137; In re Carver's Estate, 118 Cal. 73, 50 Pac. 22; Woerner, Guardianship, § 64; 2 Pom. Eq. Jur. 1074; 15 Am. & Eng. Enc. Law (2d Ed.) 107, and authorities cited. In the California cases cited there were express findings that the loans there in question were made on inadequate security, and our attention is called by the appellant to the fact that in this case there is no such finding. But in proceedings of this nature express findings are unnecessary. In re Adams' Estate (Cal.) 63 Pac. 838. And all facts necessary to sustain the judgment or order of the lower court will be presumed. I advise that the order appealed from be affirmed.

We concur: HAYNES, C.; COOPER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is affirmed.

(133 Cal. 655)

ALCORN et al. v. BUSCHKE et al. (Sac. 945.) (Supreme Court of California. Aug. 13, 1901.) POWER OF ATTORNEY-DEED IN EXCESS OF POWER-BONA FIDE PURCHASER-BURDEN OF PROOF-ESTATES-PARTIAL DISTRIBUTION.

1. Where an agent, acting under a power of attorney to sell and convey land subject to the approval of his principals, executes a deed thereof without consideration and without approval, the deed is void and conveys no title.

2. Where a deed executed by an attorney in fact is void as between the parties because in excess of the power, though in terms in accordance with the power, the burden is on a subsequent grantee claiming through such deed to show that he is a bona fide purchaser.

3. Where a power of attorney authorizes the agent to sell and convey land "for such price and upon such terms and conditions as he may deem best," "subject to our approval," the last clause is not to be rejected as repugnant to the powers granted, but is a limitation of the power, and a deed executed without such approval is void.

4. Under Code Civ. Proc. § 1658, providing that any heir, devisee, or legatee may petition for the legacy or share of the estate to which he is entitled, to be given to him on his giving bond, an administrator has no authority to petition for partial distribution of the estate, and such a decree entered on an administrator's petition is void.

Commissioners' decision. Department 1. Appeal from superior court, San Joaquin county; Edward I. Jones, Judge.

Action by James Ben Alcorn and another against Adolph Buschke and another. From a judgment for defendants, plaintiffs appeal. Reversed.

J. B. Hall (J. F. Ramage, of counsel), for appellants. Buck, Miller & Clark, for respondents.

SMITH, C. The appeal is from a judgment for the defendants on demurrer to the

complaint, the plaintiffs declining to amend. The suit was to quiet plaintiffs' title to the W. 1⁄2 of the N. W. 4 of section 34, township 2 S., range 5 E., Mt. Diablo base and meridian, situate in the county of San Joaquin, and to recover possession of the same. The plaintiffs deraign title, as to two-thirds of the land in question, as heirs of one McKinney, who died seised of this and other lands April 8, 1893, and as to the other third under a deed from one Sebree, the remaining heir, of date June 6, 1890. The defendants' deraignment of title is as follows: (1) Power of attorney executed by the plaintiffs and Sebree to one Kyle June 5, 1893, recorded June 30, 1896; (2) deed, purporting to convey the land in question, executed by Kyle, in the name of his principals, to Olive A. Jennings, June 26, 1896, recorded July 1, 1896; (3) deed from Jennings to the defendants, of date October 17, 1896, purporting to convey the same land; (4) decree of the superior court of the county of San Joaquin in the matter of the estate of McKinney, of date August 20, 1897, on petition of administrator for partial distribution, distributing the land in controversy to the defendants' grantor, Jennings. The questions involved in this appeal relate (1) to the construction of the power of attorney above referred to, and the validity of the deed executed by Kyle to Jennings; and (2) to the validity and effect of the decree of distribution.

1. The power of attorney (omitting immaterial matter) is as follows: "Know all men by these presents, that we, Dudley Sebree, Timothy Masterson, and Jas. Ben Alcorn (colored), of Louisville, Kentucky, half-broth-' ers of the late Joseph McKinney (colored), deceased, of San Joaquin county, California,

have made, constituted, and appointed, and do by these presents make, constitute, and appoint, J. H. Kyle our true and lawful attorney, for us and in our name, place, and stead to sell, convey, and make, execute, acknowledge, and deliver a good and sufficient warranty deed, in our name or behalf, or any other such deed or conveyance as in his judgment he may deem fit or proper, for such price or prices and upon such terms and conditions as he may deem best, to any and all interest that we may have, as half-brothers and heirs at law of Joseph McKinney, deceased, of, in, and to the following described land, subject to our approval, to wit: [Here follows description including, besides lands specifically described, all lands and personal property belonging to the estate.] Giving him full power and authority [to institute and defend suits, etc.] to submit any matter in dispute respecting the premises to arbitration; and otherwise and generally to say, do, act, transact, and determine, accomplish, and finish all matters and things whatsoever concerning the complete recovery or alienation of any interest we may have, legal or equitable, in said premises, or any other land as aforesaid. Giving

er

and granting unto our said attorney full power and authority [etc.], ** ** hereby ratifying and confirming all that our said attorney may or shall lawfully do or cause to be done by virtue hereof." It is alleged in the complaint that the deed of October 17, 1896, to the defendants' grantor, Jennings, was made without the knowledge or consent of the plaintiffs, and that neither of them has ever approved the same, and also that the deed was not made in pursuance of a sale to Jennings, nor was any money or othvaluable consideration given therefor. And it is now claimed by the appellants that the transaction was void, both because of the want of plaintiffs' approval, and for want of consideration. Either ground, we think, is sufficient to sustain the contention. With regard to the latter, it must be regarded in this state as settled that a power to sell and convey does not authorize a conveyance without sale, or, in other words, without consideration. Hence such a conveyance is void, because in excess of the power. Billings v. Morrow, 7 Cal. 171, 68 Am. Dec. 235; 1 Notes on Cal. Rep. 482; Randall v. Duff, 79 Cal. 125, 126, 19 Pac. 532, 21 Pac. 610, 3 L. R. A. 754. The decision in Frink v. Roe, 70 Cal. 326, 11 Pac. 820, is not in conflict with this conclusion, but rather supports it. In that case the deed in question was a deed executed by the attorney in trust for the benefit of the creditors of a firm of which he was a member (page 306, 70 Cal., and page 824, 11 Pac.), and was held to be void (pages 312, 313, 70 Cal., and pages 826, 827, 11 Pac.). There is indeed an intimation that, where "it appears upon the face of the deed when compared with the power that he [the attorney] has complied with the requirements of the power, the legal title will pass to the grantee." Page 312, 70 Cal., and page 826, 11 Pac. But this was a mere dictum, and is in conflict with the previous decision in Billings v. Morrow, and the subsequent decision in Randall v. Duff, supra, in each of which the deed in question, as expressed, was for valuable consideration. It is indeed said in the latter case, and implied in the former, that the apparent title is in the grantee, and that subsequent purchasers for value, without notice of the facts, will be protected. But here, as in Dupont v. Wertherman, it may be said "the question of protection to a bona fide purchaser, without notice, relying on the form of the deed, cannot arise." For it does not appear that the defendants are such purchasers. To entitle them to protection as such, it will therefore devolve upon them to aver and prove the fact. Wilhoit v. Lyons, 98 Cal. 409, 413, 33 Pac. 325; Eversdon v. Mayhew, 65 Cal. 163, 3 Pac. 641; Isenhoot v. Chamberlain, 59 Cal. (30. With regard to the construction of the power, it was held by the court below that the clause "subject to our approval" is repugnant to the powers granted, and is therefore to be rejected. Civ. Code, §§ 1650, 1653.