Court found that at the commencement of the action, the plaintiffs were the owners in fee, and entitled to possession of the demanded premises; that the defendant was then in possession of a building standing upon part of the premises, claming title to the building and to the land which it covered; that he claimed title to the land under the Statute of Limitations, and to the building by purchase, in 1874, from a “tenant at sufferance" of the plaintiffs; that under this purchase the defendant entered, in 1874, into possession of the building, and occupied it until March, 1878, without making any claim to the land upon which it stood; but on March 1, 1878, he, for the first time, asserted title to the land covered by the building adversely to the plaintiff, and has since continuously held the same adversely to plaintiff and all the world; and, before the commencement of this suit, refused to deliver possession of the land to the plaintiffs on demand.

From these probative facts the ultimate fact that the cause of action was not barred by the Statute of Limitations, necessarily results. The finding, therefore, covered the issue, and, as a special verdict, it was sufficient to support the decision and judgment which were given in the case.

Judgment affirmed.

MCKINSTRY and Ross, JJ., concurred.

[No. 8,102.- Department Two.]

June 29, 1882.

BRIDGET REILLY v. LAWRENCE REILLY.

ALIMONY PENDING APPEAL

has no jurisdiction to make an order for alimony pending an appeal. ID. ID. ID. SUPERIOR COURT.- The power over this matter is vested in the Superior Court, even pending an appeal. The appeal does not take away its jurisdiction, as the matter is not affected by the judgment appealed from.

MOTION in the Supreme Court by the appellant, for temporary alimony and counsel fees pending an appeal from a judgment of divorce in the Superior Court of Alameda County. CRANE, J.

B. McFadden, for Appellant.

Besides the original writs which this Court may issue, it has power to issue all other writs necessary or proper to the complete exercise of its appellate jurisdiction. (Const. of 1879, Art. vi, § 4; C. C. P., § 51.)

In both Chancery Courts and Courts of Law, in the absence of a statute conferring jurisdiction in terms, or where the statute is silent upon the subject, temporary alimony has been allowed upon the ground that it was an incidental au thority to the power given to the Court to decree divorces. (Melizet v. Melizet, 1 Parson's Select Cases in Eq. 78; Petrie v. The People, 40 Ill. 339;McGee v. McGee, 10 Ga. 477; Mix v. Mix, 1 Johns. Ch. 110; Denton v. Denton, 1 id. 365; Story v. Story, Walk. Ch. (Mich.) 421; Yeo v. Yeo, 2 Dickens, 498; Wilson v. Wilson, 2 Const. Rep. 204; Wood v. Wood, 2 Paige, 115; Galland v. Galland, 38 Cal. 265.)

In the States of Michigan, Wisconsin, Tennessee, Nevada, and Vermont, motions such as this for alimony pendente lite and for counsel fees have been granted by the Supreme Court. (Goldsmith v. Goldsmith, 6 Mich. 285; Helden v. Helden, 9 Wis. 557; Krause v. Krause, 23 id. 354; 41 Vermont, 180; Lake v. Lake, 9 Pac. C. L. J. 199; King's Tenn. Digest, 2d ed., Vol. ii., p. 933, Sec. 6, under the caption "Divorce and Alimony.").

Courts will construe liberally constitutional provisions respecting their jurisdiction, and in favor of a right, unless imperatively required by the language of the Constitution to give them a different construction. (Perry v. Ames, 26 Cal. 372; Conant v. Conant, 10 id. 249; Courtwright v. Bear R. & A. W. Co., 30 id. 573; Cariaga v. Dryden, 30 id. 246; Appeal of S. O. Houghton, 42 id. 35; Hill v. Finnigan, 54 id. 493.)

R. A. Redman, for Respondent.

The cases cited by counsel, 6 Mich. 285; 9 Wis. Rep. 557, and 23 Wis. Rep. 354, though apparently in point, afford no assistance in the determination of the question in this Court. The Constitutions of those States as they stood at the dates of those decisions show that there is a marked difference be

CAL REPS. LX-40

tween their provisions and ours. In both of those States they may grant "original and remedial" writs, etc. Section 4 of Article vi. defines the jurisdiction of this Court, and the powers necessary to be exercised in granting appellant's motion, we claim to be exercising original jurisdiction (not in aid of its appellate jurisdiction, for it is in full possession of the case on appeal), and not only would it be exercising original jurisdiction, but usurping the identical powers conferred upon the Superior Courts by Section 5 of the same Article.

Construing these two sections together it would seem that the expression of the one in Section 5, and the failure to adopt such language as is used in the Constitutions of Wisconsin, Michigan, and many of the other new States, would warrant the construction that the exercise of original jurisdiction in matters of this kind was limited to the lower Court.

THORNTON, J.:

This is a motion made in this Court for alimony pending an appeal. We do not think any such jurisdiction is vested in this Court. Only appellate jurisdiction is conferred on this tribunal by the organic law defining its jurisdiction, and the jurisdiction invoked here is, in our view, original. It is true that power is also vested in this Court to issue all writs necessary or proper to the complete exercise of its appellate jurisdiction. But no writ is necessary or proper here. The appellate jurisdiction can be exercised without it. The power over this matter is vested in the Superior Court, even pending an appeal. The appeal does not take away its jurisdiction, as the matter is not affected by the judgment appealed from. (C. C. P., 946.) The cause is still pending in the Superior Court for the purpose sought to be attained by this motion. The motion is denied.

MYRICK and SHARPSTEIN, JJ., concurred.

[No. 8,286.- Department Two.]

June 29, 1882.

W. W. WHITNEY v. DENNIS MCCOY ET AL.

ATTACHMENT SUBSEQUENT MORTGAGE FOR OWELTY OF PARTITION.- The interest of M., an undivided half, in a tract of land owned by him as tenant in common with S., was attached by A. Subsequently by a judg ment of partition a specific portion of the tract was allotted to M.she, however, being required by the judgment—in order to equalize the partition, to execute a mortgage to 8. upon her allotment for one hundred and eighty-five dollars. Afterwards the interest of M. in the tract allotted to her was sold under execution in the attachment suit, and A. became the purchaser and received his deed, and having been made party to a sult to foreclose the mortgage of S. claimed that his title was paramount to the mortgage.

Held: The plaintiff was entitled to have foreclosure of his mortgage upon whatever interest M. held in the premises in excess of the undivided one half held by her at the time of the levy of A.'s attachment.

APPEAL by the plaintiff from a judgment for defendant Ancker in the Superior Court of San Bernardino County ROLFE, J.

H. M. Willis and H. Goodcell, Jr., for Appellant.

The extent of the interest that would be acquired by the purchaser at the foreclosure sale, was not a matter to be determined in this action, but might be the subject of a subse quent action between such purchaser and said Ancker. (San Francisco v. Lawton, 18 Cal. 475-478; Cook v. De la Guerra, 24 id. 240; Elias v. Verdugo, 27 id. 425.)

Waters & Gibson, for Respondent.

A purchaser acquires all the interest of a defendant on execution sale, that inured to the defendant between the time of seizure of property under an attachment and sale of same on execution. (Freeman on Ex., Sec. 335; Kenyon v. Quinn, 41 Cal. 325.) The law neither does nor requires idle acts, nor so exercises its powers as to encourage litigation, which would be the case if the Court had made a decree of foreclosure under the authorities cited in appellant's brief.

1. The plaintiff set forth the defendant Ancker's title in his complaint, seeking a determination of it in connection with his action to foreclose, and then stipulated that both ac

tions be tried, thereby estopping himself from insisting, for the first time in this Court, that defendant Ancker must ascertain his interest, or title, in a separate action. (Hibernia S. & L. S. v. Ordway, 38 Cal. 681.)

2. The defendant Ancker's title commenced from the time of the attachment levy, as against all persons not parties to the writ, and, therefore, was prior in time and superior to the mortgage lien, if the latter ever attached. (Blood v. Light, 38 Cal. 656-7; Johnson v. Gorham, 6 id. 196.)

The COURT:

The plaintiff was entitled to have foreclosure of his mortgage upon whatever interest the defendant, Annie S. McCoy, held in the premises in excess of the undivided one half held by her at the time of the levy of the attachment of the defendant, Ancker. The finding of the Court below is clear that there was such excess to the extent of one hundred and eighty-five dollars.

Judgment reversed.

[No. 7,952.- Department Two.]

June 29, 1882.

JOHN N. CROWLEY v. THE CITY RAILROAD COM

PANY.

DENIAL OF EXECUTION OF WRITTEN INSTRUMENT.-RELEASE

EVIDENCE

PLEADING ISSUES PRACTICE.-- In an action for damages for the death of the plaintiff's minor son alleged to have been killed by the negllgence of defendant the defendant pleaded in bar a release in writing by the plaintiff of all demand for the damages sued for, and in his answer inserted a copy of the release. The execution of the release was not denied by the plaintiff, in the mode required by Section 448, C. C. P. but the evidence was offered by the plaintiff, and admitted without objec tion, tending to show that at the time he signed the release he was incompetent to contract. The verdict was for the plaintiff. Held: Under such circumstances, the defendant can not be allowed to raise the point in this Court, that the verdict of the jury is against an admission made by the pleadings.

ACTION BY FATHER FOR DEATH OF SON- NEGLIGENCE RELEASE-COMPETENCY TO CONTRACT- SUFFICIENCY OF EVIDENCE INSTRUCTIONS.- The evidence held sufficient to justify the verdict, and the instructions of the Court below with regard to negligence and the mental competency of the plaintiff to execute the release, approved.