On the 12th day of May, 1888, plaintiff in a copy of the bill in the Colorado Court on error filed a motion to strike out and set aside which the cause was finally decided. In both the plea filed by the Maxwell Land Grant Com-suits the court was asked to decree the invalidpany, on the ground of insufficiency. On the same day this motion came on to be heard, and was overruled by the court; and thereupon the issue joined on the plea of former adjudication was heard and found to be sufficient in law and true in fact. The United States brought

the court sitting within the State in which the | the United States. It is quite clear that, had lands lie. Was this cause, therefore, to be con- the United States succeeded in that suit, the desidered as involving a naked question of title; cree would have affected the title to the lands was it, for example, a contest between Watts embraced in the patent lying in New Mexico. and Powell,-the jurisdiction of the Circuit Personal service was had upon the Maxwell Court of Kentucky would not be sustained. Land Grant Company in that suit, and an apBut where the question changes its character, pearance duly entered, and the suit, after long where the defendant in the original action is delays, finally decided, declaring the patent liable to the plaintiff, either in consequence of valid for the lands covered by it, wherever sitcontract or as trustee, or as the holder of a legal uated. The final judgment in that suit was intitle acquired by any species of mala fides tended to be, and we think was, conclusive practiced on the plaintiff, the principles of upon the United States and all persons claimequity give a court jurisdiction wherever the ing through or under it, whether the lands conperson may be found; and the circumstance veyed by the patent were located in Colorado that a question of title may be involved in the or New Mexico. The suit was instituted and inquiry, and may even constitute the essential contested through the courts to a final decision points on which the case depends, does not in the court of last resort, solely, or mainly, at seem sufficient to arrest that jurisdiction. least, upon the ground that such frauds had In the celebrated case of Penn v. Lord Balti- been committed by the original grantees and more, 1 Ves. Sr. 444, the Chancellor of En- those claiming under them, in locating the gland decreed a specific performance of a con- lands and extending the true boundaries theretract respecting lands lying in North America. of in such manner as to deceive the officers of The objection to the jurisdiction of the court the United States, and thereby cause them to in that case, as reported by Vesey, was not that issue the patent, that a court of equity would the lands lay without the jurisdiction of the annul the patent. The court found that there court, but that, in cases relating to boundaries was no fraud proven in the case, and that the between provinces, the jurisdiction was exclu- patent was legal and valid, and free from the sively in the King and council." Still quoting taint of fraud. The issue directly involved in from the opinion of the Lord Chancellor, he the controversy was that of fraud practiced says: "The strict primary decree of a court of upon the United States through its officers. equity is, he says, in personam, and may be The determination was against the truth of the enforced in all cases where the person is with- facts alleged, and the United States, like any in its jurisdiction. In confirmation of this po- other suitor in a court of justice, is bound by sition he cites the practice of the courts to de- the final judgment of courts of competent juriscree respecting lands lying in Ireland and in diction when it elects to litigate any question of the Colonies, if the person against whom the fact in the courts. There is no doubt that a decree was prayed be found in England." judgment or decree necessarily affirming the Reference is made to the cases of Earl of Kil-existence of any fact is conclusive upon the dare v. Eustace, 1 Vern. 419, and Toller v. Carteret, 2 Vern. 494.

Subsequently to these decisions was the case of Penn v. Lord Baltimore, 1 Ves. Sr. 444, in which the performance of a contract for lands lying in North America was decreed in England. Continuing, the Chief Justice said: Upon the authority of these cases, and of others which are to be found in the books, as well as upon general principles, this court is of opinion that in a case of fraud, of trust or of contract the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of the court may be affected by the decree." Massie v. Watts, 10 U. S. 6 Cranch, 148 [3 L. ed. 181].

The United States brought suit in the Circuit Court of the United States for the District of Colorado, to set aside, vacate and cancel the patent assailed here. The bill in that case is grounded upon allegations of fraud committed by the patentees and others holding through or under them, by means of which the officers of the plaintiff were deceived into issuing and delivering the patent. Fraud in various ways was charged against the grantees under the patent, and the patent, as an entirety, was involved in the issue raised, heard and finally determined in the Circuit and Supreme Courts of 3 L. R. A.

48

parties or their privies whenever the existence of that fact is again in issue between them. Duchess of Kingston's Case, 20 How. State Tr. 355; Croudson v. Leonard, 8 U. S. 4 Cranch, 436 [2 L. ed. 670]; Peay v. Duncan, 20 Ark. 85; Lore v. Truman, 10 Ohio St. 45; Freeman, Judgments, § 249; Wales v. Lyon, 2 Mich. 276.

The Supreme Court of the United States affirmed in distinct terms that there was no fraud committed in procuring the patent to be issued by the patentees, or those claiming under them; that the patent was legal and is the evidence of the legal ownership of all the lands embraced in it or covered by it. It directly affirmed the nonexistence of fraud, and, having done so, in a proper case, the courts of the country will not permit the plaintiff in another suit to controvert this judicially established fact, where the issue is between the same parties or their privies. The United States having exhausted its power in a fruitless effort to cancel this patent, it becomes the duty of the courts and the people to abide the final judgment of the highest tribunals to which a controversy can be appealed, and to seek redress for meritorious grievances, if any exist, at the hands of a just and generous Government.

The judgment of the Court below is affirmed.
Long, Ch. J., and Brinker, J., concur.

CALIFORNIA SUPREME COURT.

A. W. RANDALL, Respt.,

v.

Julia K. DUFF et al. Appts.

( 79.Cal. 11.5

1. The giving of notice of intention to move for a new trial is sufficiently shown by a recital in the order denying a motion for a new trial, that the motion was made "upon the grounds set forth in defendant's notice of motion."

2. A power of attorney to sell and convey does not confer authority to give the property away; and a conveyance by the attorney without consideration, is a mere nullity.

3. A bona fide mortgagee without notice from one who holds the apparent legal title to the land mortgaged, but whose title is invalid, the title being in fact in another, acquires by estoppel a valid lien upon the property as against the true owner, and becomes entitled to

the same protection as if the land had been in

fact the property of the apparent owner.

4. Where land has been conveyed without consideration, though by conveyance purporting to be for a valuable consideration, under a power of attorney to sell and convey, and the grantee gives a mortgage upon it, parties who have succeeded to the rights of the original owner upon his death are entitled to redeem from the mortgage, and, after the mortgagee has notice of their rights, they will not be cut off by a foreclosure unless made parties thereto.

5. Purchasers at a sheriff's sale on foreclosure of a mortgage given by the grantee to

whom land has been deeded without consideration, under a power of attorney to sell and con

vey, will, if they have no notice of the invalidity of the deed, be protected as bona fide purchasers. 6. The pendency of a suit to declare the invalidity of the title of the mortgagor is notice to purchasers at a sale on foreclosure of the mortgage, of the rights of the plaintiff in such suit. 7. In an action to quiet title, where the validity of the plaintiff's claim depends upon the question of notice of the rights of the defendants, being,perfect title if he had no notice, but not valid if he had notice, the question whether or not fendants are barred by statute from setting up their claim to the property is immaterial.

(October 23, 1888.)

NOTE.-Power to sell does not authorize gift.

PPEAL by defendants, from a judgment of the Superior Court for Humboldt County (Hamilton, J.,) in favor of the plaintiff, and from an order denying a motion for a new trial, in a suit to quiet title. Reversed. (Commissioners' decision.)

The facts and questions presented are stated in the opinion.

Messrs. Wilson & Wilson (S. M.Wilson, of counsel) and J. D. H. Chamberlain for appellants.

Messrs. Horace L. Smith, E. W. McKinstry and S. M. Buck for respondent.

Hayne, C., delivered the following opinion: Suit to quiet title to three tracts of land. The defendants set up title in themselves, and filed a cross complaint for affirmative relief.

A preliminary objection is taken to the proceedings on motion for new trial, upon the ground that the record does not show that a notice of intention was given, and the case of Dominguez v. Mascotti (Cal.) 15 Pac. Rep. 773, is relied upon. We think, however, that it sufficiently appears from the record that a notice of intention was given.

The order denying the motion, which is a part of the record (Code Civil Proc. § 952) recites that the motion was made "upon the grounds set forth in defendants' notice of motion." This sufficiently shows that a notice was given. It is not necessary that the notice should be formally set out. The fact that it was given may be inferred from a recital in the statement or bill of exceptions (Frost v. Meetz, 52 Cal. 670), or from a stipulation (Godchaux v. Mulford, B Cal. 320), or, as in this case, from the order disposing of the motion. Girdner v. Beswick, 69 Cal. 115, 116.

In the case of Bank of Healdsburg v. Hitchcock (Cal.) 18 Pac. Rep. 648, the fact that a notice had been given was inferred from a statement, in the order denying the motion, that "A motion for a new trial is not the proper remde-edy."

A deed purporting to be executed under a power of attorney must be executed in pursuance of the power, and be within its terms; hence, a power to sell does not authorize a gift of the property or the transfer of it for any purpose, other than in completion of a sale. Dupont v. Wertheman, 10 Cal.

354; Mott v. Smith, 16 Cal. 533.

Purchaser at execution sale.

A purchaser at an execution sale is to all intents a purchaser in good faith for a valuable consideration and without notice. See Orth v. Jennings, 3 Blackf. 420; Rodgers v.Gibson, 4 Yeates, 111; Heister v. Fortner, 2 Binn. 40; Siemon v. Schurck, 29 N. Y. 598; Merrick v. Post, 15 Wend. 588; Lansing v. Chamberlain, 8

Wend. 620, 626; Stuart v. Town, 4 Cow. 599; Den v. Richman, 13 N. J. L. 43; Morrison v. Funk, 23 Pa. 421; Stewart v. Freeman, 22 Pa. 120, 123; Kellam v. Janson, 17 Pa.467; Mann's App. 1 Pa. 24; Wilson v. Schoenberger,34 Pa. 121; Scribner v. Lockwood 9 Ohio,184; Paine v. Mooreland, 15 Ohio, 435; Runyan v. McClellan, 24 Ind. 165: Gouverneur v. Titus, 6 Paige, 347.

It is true that the recital here only goes to the fact that a notice was given, without showing its contents, or that it was given in time. But it will be presumed that the grounds stated in the bill of exceptions correspond (as they should) with the grounds stated in the notice. And it has been several times held that where it ap pears that a notice was given, it will be presumed to have been in time, unless the record shows the contrary. Roussin v. Stewart, 33 Cal. 210; Burnett v. Stearns, 33 Cal. 472; Girdner v. Beswick, 69 Cal. 115, 116.

The case of Dominguez v. Mascotti, therefore, has no application, and the preliminary objec tion is not well taken.

Upon the merits the facts shown by the record are as follows:

In 1863, one William R. Duff, who was then the owner of the property in controversy, departed from the State, leaving a power of st

*Section 659, Cal. Code Civ.Proc.provides that "*The party intending to move for a new trial... must after notice of the decision of the court serve upon the adverse party a notice of his intention," etc. [Rep.]

torney to his father, Richard Duff. William R. Duff remained away until his death, which occurred in April, 1875. During his lifetime his father, assuming to act as his agent, executed conveyances of the property to one Robert P. Duff, the brother of William R. These conveyances purported to be for valuable consideration; but "were in fact made without any consideration given, or agreed to be given.' The grantee mortgaged one of the pieces of property to one William Ritchie for $500, and the others to one Charles Fiebig for $1,500. Neither of these mortgagees had, at the time they took their mortgages, any notice of the rights of William R. Duff, or of his successors in interest. Each of the mortgages was foreclosed after the death of William R. Duff, but his successors in interest were not parties to either of the suits. The piece covered by the Ritchie mortgage was sold directly to the plaint iff, who in due course received the sheriff's deed. The other pieces were bought in by the mortgagee Fiebig, who, after receiving the sheriff's deed, conveyed to the plaintiff.

on that theory. We do not see how it can be held that the title passed under the agent's deed without overruling Dupont v. Wertheman, which we think was rightly decided.

2. But, although the legal title remained in William R. Duff, the apparent title was in Robert P. Duff; and Ritchie and Fiebig having lent their money to him, and taken their mortgages without notice of the facts, were, so far as their securities were concerned, purchasers without notice for a valuable consideration. But purchasers of what? Not of the legal title, for under our system a mortgage does not convey the legal title. They simply took liens upon the property to secure the sums lent by them. Their mortgages conferred upon them the right, by proper proceedings, to have the legal title sold to satisfy their claims. But to that end it was necessary to bring suits of foreclosure against the parties who had the legal title. The person who executed the mortgages had no title, either legal or equitable. No title, therefore, could be got through a suit against him alone. The mortgagees had to rely upon a species of estoppel, and they could not have this estoppel judicially declared against persons who were not before the court.

William R. Duff never knew of the conveyance to his brother Robert; and his wife and child (defendants here) first learned of it, and of the fact that it was without consideration, It is too plain for discussion that, at any time in December, 1880. In February, 1881, they before the foreclosure suits, the real owners brought a suit against Robert P. Duff and one had the right to redeem their property from Frank S. Duff, but not against the plaintiff the incumbrances to which it was subjected by here, to have the title acquired by Robert P. the fraud of the agent of their predecessor in Duff... declared to be void, and that de- interest; and they could not be deprived of this fendants in that action held the property in right by suits to which they were not parties. trust;" and at the same time filed a notice of lis The rule that adverse titles cannot properly be pendens. This notice was filed before the mort-litigated in foreclosure has no application." gages were foreclosed. Judgment in said action was rendered for plaintiffs, but this judgment was reversed on appeal, and the case was remanded for a new trial. See Duff v. Duff, 71 Cal. 513.

Said action was pending at the time of the trial herein. Judgment in the case before us was given for the plaintiff, and the defendants appeal.

We think the judgment appealed from was

erroneous.

The fallacy which we think runs all through the argument of the learned counsel for the respondent is in assuming that Robert P. Duff ever had any title. But as we have stated, the conveyance to him was in excess of the powers of the agent, and was therefore a mere nullity. If Robert P. Duff had conveyed the property to a purchaser for value, without notice, and such purchaser had mortgaged it, the result would probably have been different. It might then have been claimed that the whole title 1 The power of attorney was to sell and con- passed to such purchaser, and that he was the vey the property. It did not authorize the only party necessary to be made a defendant in agent to give the property away, or to commit the foreclosure suits. But inasmuch as the a fraud upon the principal by executing a con- mortgagees took their mortgages directly from veyance which purported to be for valuable Robert P. Duff, who never had any title consideration, but which was in fact without either at the date of the mortgages or otherany consideration "given, or agreed to be giv-wise, it was necessary to bring the persons who en. The grantee must necessarily have known that he did not give or agree to give any consideration for the deed, and consequently that the agent had no authority to make it. The conveyance, being one which the agent had no power to make, was a nullity (Dupont v. Wertheman, 10 Cal. 368); and, such being the case, the legal title remained in the principal, William R. Duff.

The case of Duff v. Duff, 71 Cal. 513, is not inconsistent with the foregoing. In that case it seems to have been argued that a court of equity had no jurisdiction because no title passed under the agent's deed. The court, however, said that there was fraud, and that that was sufficient to give the jurisdiction. See page 533. But we see nothing in the opinion to the effect that the title passed to Robert P. Duff, although the suit seems to have been framed

had the title before the court, which was not done. Hence the foreclosure proceedings did not ex proprio vigore cut off the rights of the successors in interest of William R. Duff.

3. But the apparent title being in Robert P. Duff, a defendant in the foreclosure suits, we think that a purchaser at the sheriff's sales for value, and without notice, would take as good a title as if he had purchased directly from Robert P. Duff, and taken a deed from him. See 2 Pom. Eq. Jur. § 774. And inasmuch as there is no dispute that the purchasers at such sales gave value for their deeds, the question is reduced to this: Did they have notice of the rights of the defendants at the time they purchased? In this regard the findings show the power of attorney in full, the fact that the deed from the agent to Robert P. Duff was without consideration, and that the foreclosure