was not customary for banks to give up notes until they became due." Under those circumstances the note remained in the bankthe bank inserting at the foot of it in red ink: "To bear interest at one per cent per month from February 15, 1878." When the note became due Stover did not demand its surrender; the bank did not cancel or surrender it, nor were any steps taken to enforce it against the makers, until after the Stover note became due, when the bank foreclosed the Stover mortgage, sold the mortgaged premises under the decree of foreclosure, applied the proceeds of the sale towards the satisfaction of the decree, and, also, as a credit upon the note in suit; had judgment entered against Stover for the deficiency, and then brought this action upon the note in controversy. To this evidence plaintiff's counsel objected that it was inadmissible under the pleadings. When the objection was made, defendants' counsel moved the Court for leave to amend their answer by inserting the following: "For another and separate defense herein, said defendants aver and allege: That on the fourteenth day of February, A. D., 1878, their co-defendant, Henry Stover, who was also their co-maker in the note sued on herein, at the request of the plaintiff, executed and delivered to one W. D. Tinsdale, the agent and cashier of plaintiff, his, said Stover's promissory note, secured by a mortgage upon certain real estate in the city of San Jose, county of Santa Clara, State of California, belonging to said Stover, which said note was for two thousand dollars, gold coin of the United States, payable one year after date thereof, with interest at the rate of one per cent. per month from date until paid. "That it was expressly agreed by said plaintiff and said Stover that said note and the mortgage security were taken by plaintiff as a substitution for, and in full payment and satisfaction of, the note sued on herein. "That these defendants, so far as they were concerned, fully ratified and confirmed the aforesaid acts of Stover in regard to the payment of the said note sued on herein, long before the commencement of this action.” The Court reserved the motion, permitted the evidence to be given, but, at the close of defendants' case, excluded the evidence and denied the motion to amend, upon the ground that the defense was one which did not commend itself to the justice of the Court;" and, upon motion of the plaintiff, the evidence was stricken out, and the jury directed to return a verdict for the plaintiff, which was done. This was error. The evidence which was admitted and afterwards excluded, tended to prove that the bank had accepted the individual note and mortgage of Stover as a substitute for the note in suit, for the purpose, of extinguishing the obligation arising from it, or of releasing the parties to it who had become insolvent. If the note and mortgage were, in fact, taken as a substitute for the note in dispute, with the intent of extinguishing the obligation of it, or releasing the parties to it, the transaction constituted a defense by way of novation, under Sections 1530, 1531, 1532 of the Civil Code; and the defendants were entitled to have it presented to the consideration of the jury upon the evidence adduced to sustain it. It may be conceded that the issue was not properly framed so as to admit of the evidence, yet, as it had been offered and was admitted, the Court should have allowed the pleadings to be amended so as to conform to the facts proved by it. In Kirstein v. Madden, 38 Cal. 158, where the denials of the answer on file were insufficient to raise an issue, and the plaintiff moved for judgment on the pleadings, which was met by a counter motion to file an amended answer, the trial Court refused leave to amend, and entered judgment for the plaintiff. That judgment the Supreme Court reversed, saying: "We think the defendant ought to have been permitted to amend his answer. From oversights of counsel committe.1 under pressure of business, pleadings are often defective. In such cases, when an offer to amend is made, at such a stage in the proceedings that the other party will not lose an opportunity to fairly present his own case, amendments should be allowed with great liberality." "When in In Stringer v. Davis, 30 id. 318, it is said: the course of a trial it is discovered that pleadings are so defective that the real subject of dispute cannot be finally determined, the Court, if an application is made therefor, should allow amendments on such terms as may be just." The fact that the new matter set up by way of amendment was known to the defendant at the time of filing his original answer, is no good reason why the amendment should not be permitted. (Pierson v. McCahill, 22 Cal. 127.) An amendment of pleadings should be allowed at any stage of the trial when it is necessary for the purposes of justice. (Peters v. Foss, 16 Cal. 357; Lestrade v. Barth, 19 id. 660;) and whenever it is not done, it is error. (Connalley v. Peck, 3 Cal. 82; Tyron v. Sutton, 13 Id. 494; Hooper v. Wells, Fargo & Co., 27 Id. 35.) Judgment reversed and cause remanded. MORRISON, C. J., and Ross, MCKINSTRY, MYRICK, and SHARPSTEIN, JJ., concurred. [No. 6,741.- In Bank.] NICHOLAS HAYES v. C. H. WETHERBEE ET AL. CONSTRUCTION OF DEED - DESCRIPTION OF LAND.-P. the owner of an undivided tenth part of a tract of land executed to S. a deed containing the following description of the property conveyed: "All the grant or's right, title and interest in the following described property, viz: One half interest in that right, title and interest of the party of the first part in and to an undivided one tenth part of that certain tract or parcel of land," etc. S. executed a deed to T. containing the following description: "All his right, title, interest, etc., in the following property, to wit: One half interest in that right, title and interest of the party of the first part in and to an undivided one tenth part of that certain tract or parcel of land," etc. Held: The latter deed conveyed an undivided one half only of the interest of S.- that is to say an undivided one fortieth of the land. ID. ID. It is a principle in the construction of releases, and the reason of the rule extends to grants and conveyances of land, that a release in general words shall be restrained to the particular occasion; and that where there are general words alone in a deed of release, they shall be taken most strongly against the releasor; but when there is a particular recital in a deed, and then general words follow, the general words shall be qualified by the particular recital. FINDINGS ADDITIONAL FINDINGS JURISDICTION.- The Court fled its findings July 12, 1877, and on the thirty-first of July, 1877 (prior to the entry of judgment) filed additional findings reciting that having through inadvertence failed to find upon all the issues herein It now of its own motion made and filed the additional findings. Held: The additional findings were not improperly filed. ID.— ID.— ID.- CASE DISTINGUISHED.— Baggs ▼. Smith, 58 Cal. 88, distingulshed. APPEAL from an order denying defendant's motion for a new trial in the Third District Court of the City and County of San Francisco. MCKEE, J. Wallace & Hastings and W. W. Cope, for Appellants. This construction violates the rule of interpretation that in effect should, if possible, be given to every part of an instrument. (C. C. §§ 1638-1641; 2 Parsons on Cont. marginal page 505; Brooms' Legal Maxims, 414; Jackson v. Stevens, 16 Johnson, 110). The Court erred in filing additional findings after the filing of the original finding, and after the entry of judgment thereon. (Prince v. Lynch, 38 Cal. 528; Baggs v. Smith, 53 id. 90; Ogburn v. Connor, 46 id. 354.) * William N. Pierson, for Respondent. The plaintiff is clearly the owner of one twentieth. The deed from Siebeck to Ten Broeck conveys 66 one half interest * in and to an undivided one tenth part of" the lot in question. By no verbal torture can this mean one fortieth. The description of the interest conveyed is a literal copy of the description in the deed from Precht to Siebeck. It was not error for the Court to make additional finding. (Hathaway v. Ryan, 35 Cal. 190; Bosquett v. Crane, 51 id. 506; Ogburn v. Connor, 46 id. 346.) SHARPSTEIN, J.: Plaintiff brought an action of ejectment in one of the late District Courts to recover an undivided interest in certain lots situate in the city and county of San Francisco. On the trial of the case, a deed from James A. McDougall to Charles Precht was introduced in evidence, which deed conveyed an undivided interest of one tenth in the land, and plaintiff also introduced a deed from Charles Precht to one Gustave Seibeck, containing the following description of the property conveyed: "All of the grantor's right, title and interest in the following described property, viz: One half interest in that right, title and interest of the party of the first part in and to an undivided one tenth part of that certain tract or parcel of ground," etc. Plaintiff further introduced in evi dence a deed from Gustavus Seibeck to one G. W. Ten Broeck, which contained the following description of the property conveyed all his right, title, interest, etc., in and to the following premises, to wit: One half interest in that right, title and interest of the party of the first part, in and to an undivided one tenth part of that certain tract or parcel of ground, etc. The judgment of the Court below was in favor of the plaintiff, for an undivided one twentieth of the land in controversy, and it is claimed, on behalf of the appellant, that the foregoing description vested in Ten Broeck an undivided interest to the extent of one fortieth only. The deed from McDougall to Precht passed the title to one tenth of the property, and the deed from Precht to Seibeck conveyed an undivided half of that tenth interest, thus vesting in him an interest of one twentieth. And the deed from Seibeck to Ten Broeck was for a one half interest in the right, title and interest of the party of the first part "in and to an undivided one tenth part of that certain tract or parcel of land." In the case of Jackson v. Stevens, 16 Johns. 109, a deed somewhat similar in its language was construed by the Supreme Court of New York. The syllabus of the case is that "where a person seised of three undivided fourth parts of a farm, conveys an equal moiety of the farm, describing it by metes and bounds, together with all the estate, right, title, etc., which he, the grantor, hath to the above described premises; these general words are not to be construed as extending the grant beyond the moiety of the premises;" and the learned Judge (Spencer), in delivering the opinion of the Court, says: "Upon a fair construction of this deed, it conveys only a moiety of the farm. The deed at first grants one equal undivided half part of the farm, and also all the estate, right, title, etc., which he, the said Ebenezer Stevens, hath to the above-described premises, either in law or equity, from the last will and testament of Samuel Stevens, of, etc., deceased.' Now, the described premises were one half of the farm. is true, the boundaries of the whole farm are mentioned; but the entire farm is not the premises described in the granting part. The one equal undivided half of the farm is there described. It is a principle in the construction of releases, and It |