the point of time to which the question of adequacy must relate is the time of the formation of the contract."

In Windsor v. Miner, 124 Cal. 492, [57 Pac. 386], the appeal was from an order denying the motion for nonsuit and, in reversing it, the court said: "Specific performance is an equitable remedy, and it is incumbent upon the plaintiff in any action of this character to show both in the averments of his pleading and in the evidence at the trial that he is entitled to the equitable relief which he seeks. In the absence of any averment or evidence as to the value of the land involved in the controversy, either as to the whole of it or as to any portion of it, with nothing stated upon which to base any estimate of the value or worth of the option and privilege to purchase, how is the court to determine whether defendants have received an adequate consideration or whether the contract is as to them just and reasonable? . . . It may be that the land is worth five hundred dollars an acre; if so, one hundred dollars per acre is not an adequate consideration for it. . . . The allegations and evidence as to improvements being placed upon the land by plaintiff do not tend to obviate or cure the defects in plaintiff's case already pointed out."

In White v. Sage, 149 Cal. 613, 616, [87 Pac. 193], after citing various prior decisions of the supreme court, it is said: "The effect of these decisions is that the mere statement of the price agreed to be paid, as in this case, will not suffice. There must be a showing of the value, at least, so that the court can determine whether or not it was in reasonable proportion to the price to be paid, or of other facts which are sufficient to satisfy the court that the contract is just and reasonable to the buyer in all its material elements."

So in Kaiser v. Barron, 153 Cal. 788, [96 Pac. 806], it was declared that "specific performance of a contract for the conveyance of land cannot be had by a vendee where it is neither alleged nor proved that the vendor had received an adequate consideration for the contract and that as to him it was just and reasonable, nor that facts exist which would justify the inference that such condition existed."

Finally, in Haddock v. Knapp, 171 Cal. 59, [151 Pac. 1140], it is said: "Whatever may be the rule in the absence of statute-and on this point the authorities in other jurisdictions are not in harmony-section 3391 of the Civil Code and the decisions of this court establish beyond the possibility

of question the proposition that inadequacy of consideration is, under the law of California, an independent and distinct ground for denying specific performance. . . . The burden of alleging and proving the adequacy of the consideration is upon the party seeking the relief."

Coming to the facts here, we find that plaintiff alleged in his complaint "that the sum of seven hundred dollars as set forth and mentioned in said instrument was and is a just, fair and adequate consideration and price for the land therein described." Defendants' answer to this was full and specific in denying that the sum of seven hundred dollars was or is adequate or fair or just, and no evidence whatever was even offered as to the value of the property at the time the contract was executed, nor do any circumstances appear tending to show that said consideration was adequate or fair or just. The contract was not denied, but in this class of cases the contract itself does not afford any evidence of the adequacy of the consideration. Being in writing, the presumption is that it was for a valuable consideration, but, as we have seen, the adequacy is a distinct and independent ground in an action for specific performance and it must be proved, or else equity will afford the plaintiff no relief.

If the proof was available, plaintiff can blame only himself for the condition of the record. The issue was made by the pleadings and he should have been placed on his guard. His attention was also called to it on the motion for nonsuit, and, no doubt, if requested, the court would have permitted him even then to supply the evidence. He chose, however, to ignore that feature, probably for a good reason. At any rate, it seems decisive of the controversy, and the judgment and order are affirmed.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 2212. Second Appellate District.-February 13, 1917.]

E. VAN CALBERGH, Respondent, v. ALICE A. EASTON et al., Appellants.

ADVERSE POSSESSION-POSSESSION AND PAYMENT OF TAXES TIME.Where a claim of title to real property is based upon adverse possession, it is necessary for the claimant to show that he has been in the continuous and uninterrupted possession of the property for a period of five years preceding the commencement of an action to quiet his title thereto, and that he has paid the taxes thereon for such period.

ID.-PAYMENT OF TAXES - DOUBLE PAYMENT UNAUTHORIZED.—Under section 325 of the Code of Civil Procedure, it is an indispensable prerequisite that the adverse claimant shall have paid all taxes levied and assessed within the period of his occupancy, and if they have been paid prior to the time he offers payment, the tax debt for that year has been satisfied, and the double payment amounts to naught.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frank G. Finlayson, Judge.

The facts are stated in the opinion of the court.

Charles Lantz, for Appellants.

Frank C. Prescott, for Respondent.

JAMES, J.-Plaintiff brought this action to quiet his title to a certain lot of land in the city of Los Angeles, alleging that he had for more than five years last past been the owner and in possession of and had paid the taxes upon the lot. It was asserted by the complaint that Alice A. Easton, a defendant, and certain other persons sued by fictitious names claimed an interest in the property adverse to the plaintiff. The complaint was filed on November 12, 1912. J. M. Moyer appeared and answered, claiming to be the successor in interest of the defendant Alice A. Easton and to be one of the persons mentioned by fictitious name in the complaint of plaintiff. He filed an answer and cross-complaint, alleging fee-simple ownership of the land in controversy, and asking for judgment accordingly. There was an answer to the

cross-complaint and the case went to trial; findings and judgment being made and entered in favor of the plaintiff, from which judgment and from an order denying a new trial to the defendant, this appeal was taken.

The record of the trial is presented by bill of exceptions. It is shown that by stipulation of the parties it was agreed that in April, 1889, Alice A. Easton was the owner of the property in fee title. The plaintiff testified that prior to the year 1907 he had owned and lived upon the lot immediately adjoining that in controversy here; that in November, 1907, he was informed by one Warden, connected with an abstract company, that said Warden had for sale the lot described in the complaint; that he was assured by Warden that he could give a clear certificate of title, which was given, and in consideration of a deed being made, the plaintiff paid to Warden the sum of $375. The deed from Warden to the plaintiff was introduced in evidence. It bore date of November 6, 1907, but the plaintiff testified he did not receive the deed until the latter part of November, 1907. By that testimony we take it to mean that the transaction was completed and the deed delivered in the latter part of November, 1907. Plaintiff testified that he immediately took possession of the lot after receiving the deed, built a fence around it, and had used it continuously from that time on up to the date of the trial, which occurred in March, 1914. He showed payment of taxes for the years 1908, 1909, 1910, and 1911; the tax receipts introduced showing that the second payment for the year 1911 was made to the tax collector on April 24, 1912. The defendant showed that he had made several payments of taxes on the property, and particularly that he had paid the second installment of the 1911 taxes on February 7, 1912, more than two months prior to the time that the plaintiff made a duplicate payment of the same tax. In proving his chain of title, taking the fact stipulated that Alice A. Easton was the owner in fee of the property in 1889, he showed by the judgment-roll that title had been quieted in his favor against Alice A. Easton and others in July, 1910.

The court in its findings did not determine that at the time of the commencement of the action the plaintiff had acquired title to the lot and was the owner thereof, but made its findings in this way: "That at the date of the filing of the complaint, to wit, the twelfth day of November, 1912, the plain

tiff was not, and for more than five years next preceding said date had not been, the owner of the tract of land described in the complaint. . . . That for more than five years prior to the filing of the complaint in this action, to wit, ever since the tenth day of November, 1907, to the present time, viz., the date of the filing of these findings, the plaintiff has been, by actual occupation, in the open, notorious, uninterrupted, adverse, continuous, exclusive, hostile possession, under a claim of title and color of title, of said lands herein before described, and the plaintiff has paid all taxes levied and assessed since the inception of said possession, but he did not pay the second half of the city or of the county taxes levied and assessed for the year of 1912 until after the filing of the complaint herein." Appellant argues, and we can see no escape from the legal logic, that in order to authorize a judgment in favor of the plaintiff it was necessary, because of the fact that adverse possession was relied upon, that plaintiff show continuous and uninterrupted possession and the payment of taxes for a period of five years preceding the commencement of the suit. The evidence did not establish such a condition of fact, and neither was it by the findings of the court so determined. By his own testimony it appeared that the plaintiff did not receive a deed or enter into possession of the lot until "the latter part of November, 1907." He commenced this action on the 12th of November, 1912, which was less than five years from the date of the delivery of the deed. If the conclusion of the court is the correct onethat is, that it mattered not whether the complaint was filed within five years, so long as at the time of the trial or the making of findings the full five years had run-then the complaint may as well have been filed during the third year of the prescriptive term, with the only condition that the full period of five years should have completely run before judgment. It would seem that a bare statement of the proposition is its own answer.

Appellant makes the further contention that, conceding that the plaintiff had been in possession adversely for the full period of five years prior to the commencement of the action, nevertheless it was not shown that he had paid all taxes levied and assessed against the property, because the second half of the 1911 tax was paid by the defendant in February; and that the further payment of the same tax by the plaintiff