cree compelling the plaintiffs to execute a lease in purported conformity thereto.

It

will nevertheless be enforced by courts of, ble of specific enforcement or to justify a deequity, are not uncommon. But the facts in such cases must be so clear that there can be little or no question as to their effect or that they plainly and clearly call for the favorable interposition of equity. The case here, however, so far as the cross-complaint is concerned, proceeds entirely upon the theory that the instrument called the "memoranda of lease" clearly and unmistakably discloses the terms and conditions of the proposed lease, or sufficiently so to render the writing capable of being specifically enforced so that the result would be that the defendants, through a decree requiring the specific performance of its terms, would secure the lease which they conceive that its provisions call for. This in effect is the relief demanded by the cross-complaint. But the instrument is not clear and unmistakable as to its meaning and terms. Indeed, the difficulty standing in the way of its specific enforcement lies in the very fact of its manifest uncertainty and indefiniteness as to the terms upon which the land was to be leased to the defendants for the term of five years. fact, as is stated and was pointed out by the trial judge in his written opinion:

A court of equity obviously cannot prescribe or fix the terms and conditions to which the parties are to bind themselves by a contract or an agreement, and this is what the court in this case would be required to do in the several particulars above indicated if it were to attempt to compel the plaintiffs to execute to the defendants a lease to run for five years. It would have to ascertain, perhaps upon conflicting evidence, the matter of the "rates and terms of payments." would be required to ascertain, perhaps upon conflicting evidence, when the five-year lease was to commence, and it would have to determine, possibly upon conflicting proofs, what portion of the land demised was to be leveled by the defendants. In addition to the particulars above mentioned in which the instrument called the "memoranda of lease" is deficient because of uncertainty and indefiniteness, there are other particulars in which the provisions contained in said inInstrument are ambiguously phrased, and this language would require construction to get at or ascertain the real meaning thereof. That the parties themselves do not agree as to the full meaning of the “memoranda of lease" is shown by the fact that the plaintiffs submitted to the defendants a written lease, which the latter refused to accept because, as they claimed, it did not conform to the terms set out in said memoranda.

"An inspection of the memoranda shows that the minds of the parties never met on many of the terms to be contained in the proposed lease. These terms were left for future consideration, ascertainment, and agreement between the par

ties."

A few of the particulars in which the instrument referred to is wholly wanting in certainty and definiteness as to terms and conditions may be given: It is provided therein:

"It is contemplated that Jolly & Sons shall have a lease for five years. However, we must arrive at terms and rates of pmts. etc."-evidently meaning, "terms and rates of payments."

Again, it is provided that:

"Durst Bros. stand ready to advance Jolly & Sons money to buy their cattle or other stock, if proper terms according to their judgment can be obtained."

It is further provided that:

"Jolly & Sons to buy Durst Bros. farming implements-wagons, scales, etc., as mutually agreed on.'

Furthermore, the "memoranda of lease," while containing a provision that the proposed lease shall likewise contain a provision that a certain portion of the land shall be "leveled," in no way designates or describes the portion of the land to which that provision refers. Nor is there any provision or statement in the instrument indicating when the lease shall begin.

The foregoing is sufficient to show that there were vital features of the proposed lease upon which the minds of the parties had not met or come together. The writing upon which the defendants rely is therefore

"An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable," cannot be specifically enforced. Civ. Code, § 3390, subd. 6; Magee v. McManus, 70 Cal. 553, 12 Pac. 451; Smith v. Taylor, 82 Cal. 533, 23 Pac. 217; Berry v. Woodburn, 107 Cal. 504, 40 Pac. 802; Stanton v. Singleton, 126 Cal. 657, 59 Pac. 146, 47 L. R. A. 334; Reymond v. Laboudigue, 148 Cal. 691, 84 Pac.

189.

In Magee v. McManus, supra, it is said:

"Whether the true contract be that which the court finds or that which the plaintiff alleges, it is indefinite and uncertain not only as to the time of the payment of the note and for which the mortgage was to be given, and the mortgage to be executed, but as to the amount rate of interest upon the debt. It appears that these things were to be the subject of future ascertainment and agreement, so that the mortgage when executed would be sufficient security for the plaintiff. As therefore the agreement was not final, and it was indefinite and uncertain in its terms and in itself, specific performance of it could not be enforced in equity"citing Morrison v. Rossignol, 5 Cal. 65; Los Angeles, etc., Ass'n v. Phillips, 56 Cal. 539; Potts v. Whitehead, 20 N. J. Eq. 55.

In Pomeroy on Contracts, § 159, it is said: required in the terms of an agreement which is "A greater amount or degree of certainty is to be specifically executed in equity than is

action at law for damages. An action at law | ered to them for the term of five years from is founded upon a mere nonperformance by a the month of September, 1913, up to the 1st defendant, and this negative conclusion can often be established without determining all the day of October, 1918." Elsewhere the comterms of the agreement with exactness. The plaint sets forth in detail the work and imsuit in equity is wholly an affirmative proceed- provements put upon the land by the defending. The mere fact of nonperformance is not ants during the first year they occupied the enough; its object is to procure a performance by the defendant, and this demands a clear, defi- same under the agreement, and concludes by nite, and precise understanding of all the terms; alleging: they must be exactly ascertained before the performance can be enforced."

[2] It is not necessary to cite authorities to support the proposition that the court, when called upon specifically to enforce an agreement, must ascertain the terms of the instrument sought to be enforced from the instrument itself and not from the construction put upon it in the pleading demanding its enforcement. A complaint in specific performance cannot supply the deficiencies which may render the contract nonenforceable in equity.

[3] But there appears to be some claim that the cross-complaint shows that the defendants held over and remained in possession of the land after the expiration of their first year's possession thereof under the alleged lease a sufficient length of time, without any demand of possession or notice to quit by the plaintiffs, to raise the presumption, declared in subdivision 2 of section 1161 of the Code

of Civil Procedure, that they were then holding the possession by permission of the plaintiffs and so entitled to hold under the lease for an additional full year. The section mentioned provides that a holding over by the tenant for a period of 60 days under the circumstances above indicated will have the effect stated.

"And did other and all the work on said lands necessary to properly farm and occupy the same for the year ending October, 1914, and also for the full term of five years," etc.

Again, it is alleged that all that was required of the defendants by the alleged agreement in the way of working and farming the land was faithfully performed by the defendants "and at the end of the year in September, 1914, they had done so at a loss," etc. In paragraph 11 it is alleged that "these defendants during the months of September and October, 1914, continued to farm and work said

lands," etc. In the same paragraph it is alleg

ed that the defendants cleared the land in

certain particulars preparatory to "the cropping of said lands for the year 1915," etc. ants "laid out and expended in cash and In paragraph 12 it is alleged that the defendlabor between the 25th day of September and the 19th day of October, 1914, the sum of $2,139.65," etc.

of every allegation in the cross-complaint The above is a reproduction, in substance, respecting dates or the times when the several acts referred to by the said complaint were done; and from said allegations it cannot be told whether the first year expired in the month of September or the month of October; nor is it made to appear therefrom that the defendants were in possession after the excross-piration of the month of October, 1914. Assuming, though, that the cross-complaint shows that the first year expired on the 1st of October, 1914, and that the defendants were in possession down to the last day of October or to the 1st day of November, 1914 (and this does not clearly appear from said pleading to be true), and yet the showing thus made or assumed to be made is not sufficient as to the time of holding over to bring the case within the terms of section 1161, subd. 2, of the Code of Civil Procedure, so as to entitle the defendants to the possession of the land "for another full year."

There is no such issue set up in the complaint. Nor is there anything therein showing precisely when the defendants went into the possession of the land under the agreement whereby the plaintiffs are alleged to have agreed to execute the five-year lease of the land to the defendants; and there is no allegation showing when their first year of possession under said agreement expired. As we have shown, the cross-complaint alleged that "about the 1st day of September, 1913," the defendants were and had been residing on and cultivating, etc., the land; that "on or about the 1st day of September, 1913, the plaintiffs were desirous of leasing to these defendants the lands described in the complaint," etc.; and that after considerable negotiations the plaintiffs submitted to the defendants the "memoranda of lease," above referred to, and the latter accepted the same. In paragraph 4 of the cross-complaint, it is alleged that the defendants entered into the possession of said land with the knowledge and consent of the plaintiffs and began the farming and cultivation thereof according to the terms of said memoranda of lease, and believing that "said properly executed lease

We do not think the court erred in granting the motion of the plaintiffs for judgment on the pleadings.

In paragraph 1 of the answer, the defendants, while admitting that the ownership of the land is in the plaintiffs, deny that the "plaintiffs were at the time of the commencement of this action or are now entitled to the possession of the lands or any part thereof, as will more fully hereinafter appear." In paragraph 2 it is alleged that the defendants admit that they assert and claim an interest in and to said lands, and to the pos

after appear." In paragraph 3 the defend

ants "deny that their claim of interest in CLINE, Sheriff, v. SUPERIOR COURT IN or to said described lands, or that their or AND FOR LOS ANGELES COUNTY any of their estate or right or title or inter

et al. (Civ. 2478.)

ifornia. Oct. 26, 1917.)

1. CERTIORARI 5(1)-EXISTENCE OF OTHER REMEDY.

Under Code Civ. Proc. § 1068, as to writ of review, the writ does not lie when petitioner has a right of appeal from the order which he seeks to have reviewed. 2. APPEAL AND ERROR

PEAL.

115-RIGHT OF AP

Where a sheriff after levy of execution upon personal property, and service on him of written claim under Code Civ. Proc. § 689, refused to make sale without indemnity bond, which plaintiff declined to furnish and plaintiff in the action procured and served on him an order to show cause, upon which the court orbond, he had a right of appeal from such ordered him to make the sale without requiring der, it having the effect of a judgment against him as to his claims of rights under Code Civ. Proc. § 689, and he having, by the order to show cause and the subsequent proceedings thereunder, been made a party to a collateral proceeding arising in the action.

est or claim in or to said lands or premises (District Court of Appeal, Second District, Calis without right, but on the contrary they aver that their said estate and right and title and interest and claim is good and valid." [4, 5] Taken alone or without reference to the cross-complaint, the answer might perhaps properly be held to be sufficient to have submitted an issue upon the right of possession to the land in controversy. But it is evident that, in support of the denials of the answer or as showing the grounds upon which the defendants based their claim to the right of possession, the intention was to make the allegations of the cross-complaint a part of the answer, and that the answer does in fact do so by the words, used in two of its paragraphs, "as will more fully hereinafter appear." In fact, counsel for the appellants insist that, notwithstanding the order sustaining the demurrer to the cross-complaint, whereby the latter pleading as such was eliminated from the case, its allegations must, nevertheless, in so far as they may go in support of the denials of the answer, be regarded and considered as a part of the lastnamed pleading. We think that this position is sound. The effect of the language, "as will more fully hereinafter appear," followed by the allegations of the cross-complaint setting

forth in detail the nature of the claim of the defendants to the right of possession, is to make the latter allegations a part of the answer as effectually as though they were actually incorporated into and made a part of the answer. So far, therefore, as said allegations were intended as a cross-complaint calling for the affirmative relief appropriate thereto, they are no longer in the case; but, as a part of the answer or the defense set up thereby, they can still be considered; and, so considering them, the irresistible conclusion is that they do not support the general denials of the answer. To the contrary, they vitiate or set at naught or contradict said denials. The complaint, as we have seen, alleges ownership in the plaintiffs. The answer admits this allegation. The presumption following from ownership is that the right of possession is in the owner. This presumption of the right of possession was not negatived by the allegations of the answer considered as above indicated. There was, then, no issue of fact to try, and, consequently, there was nothing left for the court to do but to order judgment on the pleadings.

We have discovered no reason for disturbing the judgment, and it is, accordingly, affirmed.

Petition by John C. Cline, Sheriff, for writ of review against the Superior Court of the State of California in and for the County of Los Angeles and Charles Monroe, judge thereof. Writ discharged, and proceeding dis

missed.

Loewenthal, Loeb & Walker, of Los An-
A. W. Ashburn, of
Los Angeles, for respondents.
geles, for petitioner.

CONREY, P. J. In this proceeding a writ of review has been issued whereby the petitioner seeks to obtain judgment annulling an order made by the superior court of Los Angeles county. In an action wherein one E. O. Lenox was plaintiff, judgment was entered against several defendants, one of whom was Max Goldschmidt. A writ of execution upon that judgment was duly issued and placed in the hands of the petitioner as sheriff of Los Angeles county. Pursuant to instructions in writing by the attorney of Lenox, the sheriff levied upon all the right, title, and interest of Max Goldschmidt in and to certain personal property described as property of Goldschmidt Bros., it being claimed by Lenox that Max Goldschmidt was a partner in that firm. After the levy had been made, one Herman Goldschmidt served upon the sheriff a written claim, verified by his oath and made out in accordance with the provisions of section 689 of the Code of Civil Procedure, claiming as his property the said property levied upon by the sheriff and setting out the right of said Herman Goldschmidt to the possession thereof. Thereupon the sheriff informed the plaintiff's attorney that he would not make sale of the property, unless the plaintiff would deliver to the sheriff a bond in

We concur: CHIPMAN, P. J.; BUR- the sum of $300,000 to indemnify the sheriff NETT, J.

against such third party claim. The plaintiff

declined to furnish the indemnity bond, and I writ of review. After full consideration of the sheriff refused to proceed further in the the matter, that court determined that the matter without indemnity. Thereupon Lenox, writ was improperly issued because the petiby his attorney, filed in said action an affida- tioner had a right of appeal from the order. vit which stated the foregoing facts and the For that reason the proceeding was dismissed. circumstances in full detail, and asked that The court said: the court order the sheriff to advertise for sale and sell the interest of Max Goldschmidt in said property without requiring the delivery of any bond by the plaintiff. An order to show cause was issued and served upon the sheriff, and a hearing was had before the court upon the above-mentioned affidavit and counter affidavits. The court determined the matter against the sheriff, granted the motion of Lenox, and ordered the sheriff "to sell the interest in the partnership property without requiring bond." The principal facts are not only stated in the petition, but are admitted by the return filed herein. Together with its return, respondent court demurred to the petition, and has moved the court for an order dismissing this proceeding upon several grounds, of which one is that the petitioner has a right of appeal from said order of the superior court.

[1] The writ of review does not lie when the petitioner has a right of appeal from the order which he seeks to have reviewed. Code Civ. Proc. § 1068; Stoddard v. Superior Court, 108 Cal. 303, 41 Pac. 278.

[2] We are satisfied that the sheriff has a right of appeal from the order in question. It is admitted that he is not a party to the action in which the writ of execution was issued, and that he is not interested in the subject-matter of that writ; but he is interested in the order made against him, and in the protection of the rights which he claims to have under the provisions of section 689, Code of Civil Procedure. As to those claims the order in question has the effect of a judgment against him. By virtue of the order to show cause and the subsequent proceedings thereunder, the sheriff has been made a party to a collateral proceeding arising in the action, and he has a right to appeal from an order having the nature and effect of a judgment against him in such proceeding. The case is governed by the principles announced by the Supreme Court in Anglo-Californian Bank, Ltd., v. Superior Court, 153 Cal. 753, 96 Pac. 803. In that case it appeared that in an action to which the Anglo-Californian Bank was not a party, the superior court made an order requiring that the bank pay over to the receiver in the action money which the bank had in its possession as agent of the California Safe Deposit & Trust Company, an insolvent corporation. The bank did not claim any interest in the funds, but refused to pay to the receiver because claims were made to the bank by third parties who asserted ownership in said funds. Claiming that the order was one made in excess of the

jurisdiction of the superior court, the bank applied to the Supreme Court and obtained a

*

*

"That an order of the character of the one under consideration is generally appealable by one affected thereby who is a party to the sel for plaintiff, and it must be under the derecord is practically conceded by learned councisions of this court. The theory upon which the decisions sustain such right of appeal by such a party from such an order is that the order is in effect a final judgment against him in a collateral proceeding growing out of the action-is so far independent of the suit itself as to be substantially a final decree for the Superior Court, 106 Cal. 324 [39 Pac. 6041; purposes of an appeal. * See Grant v. Grant v. Los Angeles, etc., Ry. Co., 116 Cal. 71 [47 Pac. 872]; Los Angeles v. Los Angeles, etc., Co., 134 Cal. 121 [66 Pac. 198]. Plainof the claim made against it by the third partiff's position on the merits is that by reason ties as to this money, it cannot safely pay the same to the receiver except in pursuance of some judgment or order made in a proceeding is entitled either to retain the money until such to which such claimants are parties, and that it controversy is determined, or to pay the money into a court having jurisdiction thereof, to abide such determination. The order in question is a final adjudication against plaintiff upon these matters. Its effect, if valid, is to require plaintiff to forthwith pay such money to the receiver, and finally deprive it of possession thereof third parties. without securing it against the claims of such It is clearly within the class of orders referred to in the cases last cited. Plaintiff was, of course, a party to the record, cerned, having been brought in as such a party so far as such collateral proceeding was conby the order to show cause, and is fully within the rule of Elliott v. Superior Court, 144 Cal. 506 [77 Pac. 1109, 103 Am. St. Rep. 102], in regard to parties entitled to appeal.

In the case at bar the sheriff has been made "a party to the record, so far as such collateral proceeding was concerned, having been brought in as such party by the order to show cause." Being thus before the court and having been subjected to an adverse judgment affecting his substantial rights, he has the right of appeal from that judgment. It follows that the writ of review in this proseeding was improperly issued.

The writ is discharged, and the proceeding dismissed.

We concur: JAMES, J.; SHAW, J.

PEOPLE v. CASA CO. et al.
CHOWN v. ALEXANDRE et al.

(Civ. 2022, 2191.)

(District Court of Appeal, First District, Cali-
fornia. Nov. 1, 1917. Rehearing Denied
by Supreme Court Dec. 31, 1917.)

1. CONSTITUTIONAL LAW 306-NUISANCE
60-DUE PROCESS OF LAW-ABATEMENT

Аст.

The abatement act (St. 1913, pp. 20, 22), declaring all buildings and places used for purposes of assignation, or prostitution to be "nuisances," and providing for their abatement and

Every presumption is in favor of the constitutionality of such act, and the fact that the criminal aspect of the maintenance of houses of prostitution was fully covered by existing statutes fortifies the presumption that the Legislature intended thereby to provide a remedy for the prevention and abatement of a recognized evil which would be in the nature of a civil proceeding rather than a criminal prose cution. 77-INJUNCTION-JURISDIC

8. NUISANCE 82-ABATEMENT "PROSECU-ed

TION" IN NAME OF PEOPLE.