PATERSON, J. This action was com-pervisors by the claimant, Morgan, himself." menced August 22, 1876, trial had January It may be said in passing that inasmuch as 6, 1886, and judgment of nonsuit thereafter the first contention was sustained by this entered, from which plaintiff has appealed. court, holding that the undertaking was abThe action is against the defendants, as sureties, in an undertaking given under section 1254, Code Civil Proc. The defendants herein became sureties for the plaintiffs in the case of Templeton et al. v. Coburn et al., a proceeding in eminent domain then pending in the Twelfth district court. The condition of the undertaking is that said sureties "do hereby undertake, promise, and agree that the plaintiffs in this case shall and will pay all such damages or compensation as may be awarded to the defendants, or either of them, * * * if, for any cause, such land shall not be finally taken for public use, or, in default thereof, we will pay the same," etc. Upon the trial the plaintiff introduced evidence tending to prove each and every allegation of the complaint herein, and rested his There is no allegation in the complaint of a demand upon the principals named in the undertaking for the damages claimed by plaintiff, nor did the plaintiff offer any evidence of such demand. The judgment of nonsuit was granted solely upon the ground that the plaintiff had neither pleaded nor proved a demand upon the principals named in the undertaking, and the only question before us is whether such a demand must be alleged or proved. case. solutely void, it was unnecessary to the decision of the case to consider the question of demand. It was argued by the appellant that "putting a party in default, as applied to the case, must mean putting him in such a position that his failure to pay becomes a default, and by not presenting the claim the city was not put in a position by which it was obligated to or could pay the demand; in other words, was not put in default. Parnell v. Hancock, 48 Cal. 452, was relied on in support of the proposition that the sureties, under such circumstances, could not be sued until the judgment against their principal was in a condition to be enforced by an execution; that, so long as anything remained to be done to put the principal in default, no action could be maintained against the sureties." The court evidently took the same view of the case as counsel for appellant. On the second appeal it was said: "On a former appeal in this case we held that no recovery could be had in the action out of which the case arises, because there was no averment and no proof that the claim of the plaintiff had been presented to the board of supervisors of the city and county of San Francisco, as required by the statute of 1863-64, pp. 152, 153, and payment demanded." It is true, the court said: "Where a demand is necessary to fix the liability of sureties to an undertaking, it is parcel of the contract, and it must be made before the commencement of an action for the breach of the undertaking, and in the action itself it must be averred and proved." But this statement must be considered in the light of the circumstances involved in the case before the court. The court had held that the city and county of San Francisco could not be put in de fault under the statute of 1863-64, supra, until a proper claim had been made and presented to the board of supervisors, as required by that statute. No such question is presented here. The principals referred to in the undertaking are the individuals who were plaintiffs in the suit of Templeton v. Coburn et al. The court below seems to have been embarrassed by the decisions of this court in Morgan v. Menzies, 60 Cal. 348, and 65 Cal. 243, 3 Pac. Rep. 807, and bound by the following statement of Chief Justice MORRISON on the first appeal: "It will be observed that the undertaking on the part of the defendants is that the plaintiff in the action will pay, and there is no averment in the complaint that it has not paid, or that even a demand has been made. There is not, therefore, any averment in the complaint of a breach which would give the plaintiff in this case a right of action against the defendants on the undertaking. The two decisions referred to are somewhat confusing, but, when read together, they fail to support the proposition, we think, that a demand upon the principal in cases like the one before us is necessary. In that case, the principal for whom the defendants had be- The weight of authority supports the propcome sureties, was the city and county of osition that a demand in cases like the one San Francisco. An examination of the full before us is not necessary. In Murdock v. record, including the briefs, discloses the fact Brooks the court said: "The point that the that the principal contentions on behalf of complaint is bad because it contains no averthe appellants therein were: First. That ment that an execution had been issued and "the attachment undertaking on which the returned unsatisfied, and because no demand action was based was taken without authori- for payment is alleged to have been made upty, and contrary to law, no undertaking be- on the principal, is also untenable. ing required of the city. Code Civil Proc. The undertaking is the independent and ab1058. Being unauthorized and taken by an solute contract of the sureties." 38 Cal. 604. officer without authority of law, it is void, In Heebner v. Townsend, 8 Abb. Pr. 237, and cannot be enforced." Second. That "the the court said: "The undertaking may be city and county were not in default for non-considered as additional and collateral securpayment, because no payment could be made ity for the payment of the judgment required under the statute then in force without a by the statute to be given as a condition of presentation of the claim to the board of su-staying the execution of the judgment dur * * * ing the pendency of the appeal. * (80 Cal. 323) SMITH D. SMITH. (No. 12,599.) The undertaking is an absolute undertaking (Supreme Court of California. March 16, 1889.) that the appellant will pay the judgment if it EJECTMENT-CONSOLIDATION OF ACTIONS-PLEAD ING MORTGAGE. 1. Where plaintiff brought two actions of ejectment against defendant, to recover separate tracts of land in the same county, the court properly ordered them to be consolidated, (Code Civil Proc. Cal. § 1048,) as they could both have been united, 2. Whatever may be the exact nature of the interest which a partner takes under a deed of land to the firm, he takes a sufficient interest to enable him to maintain ejectment against a mere intruder. the deed, absolute on its face, under which plaintiff claims, was in fact given to secure a debt, and is either title or right of possession. therefore merely a mortgage, he has failed to show 3. Where the evidence in ejectment shows that 4. Defendant set up in his answer that the deed under which plaintiff claimed was only a mortgage, and that the debt had been fully paid; but he did not ask for any affirmative relief from the mortgage. Held, that the answer was in effect only a denial of plaintiff's title; that whether the debt had been paid or not was immaterial; and that plaintiff was not entitled to proceed first with the trial of the question as to whether the deed was a mortgage, on the ground of an equitable defense. be affirmed. * * * Notice of the affirmance of the judgment by the general term, or of the appellant's default in not paying on such affirmance, and demand of payment of the defendants, are not alleged in the complaint, and were not necessary. * * *under section 427. The fact of the affirmance of the judgment was as open to the inquiry or knowledge of the defendants as of either of the parties to the judgment, and they were obliged to take notice of the default of the appellant, as it could have been ascertained by inquiry. As a general rule, no notice or demand is necessary where one guaranties the act of another, unless the contract requires it. The notice required between indorsees and the indorsers of bills of exchange and promissory notes is an exception founded on mercantile usage. To the same effect we cite Anderson v. Sloan, 1 Colo. 487; Baylies, Sur. § 82, pp. 110-112. In Pierce v. Whiting, 63 Cal. 538, the court cited Morgan' v. Menzies, supra, in support of its decision therein that in order to maintain an action against the sureties on an un-nently." Also, that the arrangement was that he dertaking given to release an attachment under section 555, Code Civil Proc., a demand upon the sureties and their principal for the payment of the value of the property was necessary. But the two cases are widely different. An undertaking under section 555, supra, provides that the sureties shall covenant and agree "that in case the plaintiff recover judgment in an action the defendant will, on demand, redeliver the attached property," etc., and the undertaking contained the covenant required by that section, but no demand on the defendant was alleged, and the complaint was properly held insufficient. No such demand is required by section 1254, Code Civil Proc. In some states it is held that the demand must be made upon the principal debtor in order to fix the guarantor's liability, as in the case of indorser, but, as stated before, the weight of authority is on the other side of the question; and, if there was any doubt as to the correct rule before the Code, it seems to us it has been removed by the provisions of sections 2806 and 2807, Civil Code, which, in the absence of anything in the contract calling for a demand, render the liability of the sureties absolute. See, also, sections 2831, 2837, 2840, and 2844, Civil Code. We think the judgment must be reversed, and it is so ordered. We concur: LAND, J. 5. Defendant testified in support of his claim of the place, and live on it, and make it my home, and adverse possession that plaintiff "told me to go on he would give it to me for to stay there perma was to take some of plaintiff's sheep on the place, and take care of them on shares. He admitted that he afterwards agreed to take a lease from plaintiff if one could be made to suit him. During a portion of the time of his possession he caused would not deny that he knew of an offer made by the land to be assessed to plaintiff. Defendant his wife during the time to purchase the land from plaintiff, or that he did not object thereto. Heid, that the evidence failed to show adverse pos session. Commissioners' decision. In bank. ApJ. F. ROONEY, Judge. peal from superior court, Tuolumne county; J. K. Law and E. Jackman, for appellant. E. A. Rogers, J. C. Cambell, Thos. Gardner and C. H. Clement, for respondent. HAYNE, C. The plaintiff brought two ac tions of ejectment against the defendant,one for a tract of 280 acres, and the other for a tract of 1,320 acres. The land was all in one county, and the actions were pending in the same court. Upon motion of the defendant the court ordered the cases to be consolidated. We think this was proper. The causes of action might have been united, (Code Civil Proc. § 427; Boles v. Cohen, 15 Cal. 151;) and, this being so, the court could order a consolidation, (Code Civil Proc. § 1048.) The trial of the consolidated action resulted in a judgment for the defendant, SHARPSTEIN, J; MCFAR- and the plaintiff appeals. COBURN V. JOSSELYN et al. (No. 11,577.) (Supreme Court of California. March 21, 1889.) Department 1. Appeal from superior court, city and county of San Francisco. PER CURIAM. On the authority of Coburn v. Brooks, No. 11,576, ante, 2, (this day filed,) the judgment is reversed. 1. Prior to 1874 the plaintiff and one D. G Smith, his brother, were partners in the business of raising sheep. The title to most of the property stood in the name of D. G. Smith, having been conveyed to him by United States patent. For part of it a patent had not been issued, but D. G. Smith held a certificate of purchase therefor. In 1874 he bought out the interest of the plaintiff in the concern, agreeing to pay him therefor the sum of $60,000. A portion of this sum was to be paid at or soon after the execution of the agreement; and promissory notes, each for the sum of $5,000, payable at intervals extending up to 1878, were given for the remainder. After the dissolution D. G. Smith carried on the business alone, but became involved in financial difficulties, and was unable to pay his debts, among which was the indebtedness represented by said promissory notes. In 1876 he made a deed to the plaintiff of the property in controversy, and at the same time made other deeds to plaintiff of lands in other counties, and bills of sale of certain sheep and other personal property. The business of sheep raising was thereafter conducted in the name of the plaintiff. This condition of affairs continued to the death of D. G. Smith, in 1883. During all this time and up to the commencement of the actions in 1885, the defendant, who was another brother, lived upon the property with his family, and his position is that he acquired a title by adverse possession. One of the main questions litigated at the trial was whether the deed of 1876 from D. G. Smith to the plaintiff was absolute in fact as well as in form, or was a mere mortgage. And as to the greater portion of the land we think that the decision upon appeal must turn upon this question. For reasons given below we do not think that the possession of the defendant was sufficient to give him a title under the statute of limitations. But the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of that of his adversary; and if the deed of 1876 was a mere mortgage it did not give him a title to, or right of possession of, the property. It is the settled rule in this state that if a deed, absolute in form, was made merely to secure an indebtedness, it is a mere mortgage, and does not pass the title. Taylor v. McLain, 64 Cal. 514, 2 Pac. Rep. 399; Healy v. O'Brien, 66 Cal. 519, 6 Pac. Rep. 386; Raynor v. Drew, 72 Cal. 309, 13 Pac. Rep. 866; Booth v. Hoskins, 17 Pac. Rep. 225. We understand this rule to mean that (except with reference to subsequent purchasers without notice) such a deed gives a mere lien upon the property, just as if the parties had put their agreement in the form of a mortgage; and consequently that it does not give a right of possession of the property. Civil Code, § 2927; Raynor v. Drew, 72 Cal. 309, 13 Pac. Rep. 866. In reference to this question the jury found that the deed was intended merely to secure an indebtedness, and the verdict was incorporated by the court in findings of its own.. The plaintiff contends that this finding is not supported by the evidence. But, after a careful examination of the evidence, we do not think that the finding can be set aside upon this ground. D. G. Smith, at the time of the execution of the instrument, was in San Francisco, trying to raise money upon the property to satisfy the claims of the plaintiff and other creditors who were pressing for payment. The final negotiation was conducted by one P. B. Smith, who was another brother. He swears positively that D. G. Smith refused to give an absolute deed, and that the transaction was merely to secure the indebtedness, and to enable plaintiff to raise money to satisfy the other creditors. The testimony of this witness was somewhat weakened on cross-examination, but was not destroyed, and the jury were entitled to give credence to it if they saw fit to do so. There was also evidence of certain declarations made by the plaintiff to third persons, which are inconsistent with the idea that he was the absolute owner of the property. In addition to this, the evidence of the plaintiff himself is in some respects unsatisfactory. He admits that he retained possession of some of the notes, and said they were to be paid as they became due, which seems inconsistent with the theory that the indebtedness was to be canceled by the deed itself. Taking everything together, we think that the case comes fairly within the rule as to conflicting evidence. Some question is made as to whether P. B. Smith had authority from the plaintiff to take a mortgage, instead of an absolute deed. But he swears that he informed the plaintiff of what had been done, and that plaintiff approved of it. And, even if this was not done, it is perfectly clear that if the arrangement which was in fact made was merely to secure an indebtedness, the plaintiff cannot repudiate a part of it, and claim under the remaining part. It results that the deed of 1876 does not give the plaintiff the right to maintain the actions. There was a subsequent deed from D. G. Smith to the plaintiff for a portion of the land described in the deed of 1876. The title to this portion had not been obtained from the government at the time of the arrangement in question. D. G. Smith held a certificate of purchase of it. When the title was obtained from the government he executed the second deed above referred to. This deed was without additional consideration, and was evidently to carry out whatever arrangement was made at the time of the first deed. Counsel do not base any claim upon this deed, and we therefore dismiss it from further consideration. So far as this part of the case is concerned it is immaterial whether the indebtedness secured by the deed of 1876 was ever paid or not. And it is also immaterial whether the defendant had acquired a title by adverse possession. We perceive no prejudicial error in relation to this branch of the case. 2. But as to some of the land, viz., the N. W. of section 13, township 2 S., range 13 E., the plaintiff occupies a different position. The title to this portion was derived from one Yates, and the deed was to the plaintiff and D. G. Smith, while they were partners. As to this portion, therefore, the plaintiff had a title independent of the instrument ex The other matters do not require special notice. We therefore advise that the judgment and order appealed from be reversed as to the N. W. of section 13, township 2 S., range 13 E., and the cause remanded for a new trial as to said property, and that said judgment and order be affirmed in all other respects, the appellant to recover one-half of the costs on appeal. ecuted by D. G. Smith. And whatever may have been granted for the reason that it was be the precise nature of the interest which an equitable defense, and that the whole one partner takes under a deed made to the judgment should be reversed upon this members of the firm, (see generally Duryea ground. The affirmative defense was, in v. Burt, 28 Cal. 580,) we think it clear that substance, that the deed of 1876 was a morthe has a sufficient interest to enable him to gage, and that the debt secured thereby had maintain ejectment for the whole tract against been fully paid. But the allegation that the a mere intruder. The question, therefore, deed was a mortgage was merely another arises whether the defendant acquired a title way of saying that the plaintiff had no title, by adverse possession. The finding is that which was fully covered by the denial of the he did. But we think that this finding is plaintiff's ownership. And so far as the not supported by the evidence. The defend- plaintiff's right of possession was concerned, ant's account of the matter is that D. G. it was immaterial whether the debt had been Smith "told me to go on the place, and live paid or not. And while it may be possible on it, and make it my home, and he would that if the defendant had a title he would give it to me for to stay there permanently." have been entitled to some affirmative relief This is somewhat ambiguous, but is not nec- in the nature of the removal of a cloud, yet essarily inconsistent with the idea of a hold- he did not ask for such relief in terms, and ing under the true owners. And we do not no affirmative relief of any kind was awardthink that the evidence shows that defendant ed to him by the judgment. If, therefore, it held adversely to them. According to his be assumed for the purposes of this opinion own statement, the arrangement was that he that there was an irregularity, it is not one was to take some of the firm's sheep on the of which the plaintiff can complain. place, and take care of them on shares; and it is to be inferred from other testimony that he was to do something in the way of improvements and to pay some of the taxes. He went upon the property, planted a few shade trees, put up some buildings and some fences, -although the latter were put up as late as 1882 or 1883,-cultivated bits of the land, and grazed some sheep on it,—at first those which he had on shares, and afterwards some of his own. Aside from some vague statements as to what he "always claimed," we see nothing to show that he held adversely to his brothers. On the contrary, during a portion of the time he caused the property to be assessed to the plaintiff. His wife, who, he says, conducted all the correspondence, wrote to the plaintiff a letter in which she said: "If we ever buy this place it must be done now." And defendant would not say that he did not know of an offer by his wife to purchase the property from the plaintiff, or that he made any objection thereto. And we do not think that this can be disposed of by saying that it was an offer to compromise. After the commencement of the actions he refused to take a lease from the plaintiff, but at one time he seems to have been willing to do so. For (referring to the time at which the fences were erected) he was asked: "Didn't you state at that time that you would sign a lease if one was made to suit you?" And his answer was: "I may have stated it. There was considerable cheap talk there that day." D. G. Smith seems to have considered the property as his own, as is manifest from his making a deed of it to the plaintiff. Defendant heard of this deed, but made no comments thereon to either of his brothers. Upon the whole evidence, we think that it appears, without substantial conflict, that the possession of the defendant was not adverse to the owners of the property. 3. The plaintiff contends that his motion to proceed first with the trial of the affirmative defense set up by the answer should We concur: BELCHER, C. C.; FOOTE, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are reversed as to the N. W. of section 13, township 2 S., range 13 E., and the cause re|manded for a new trial as to said property, and said judgment and order are in all other respects affirmed, the appellant to recover one-half of the costs on appeal. (78 Cal. 407) GLOSTER v. WADE. (No. 12,461.) (Supreme Court of California. March 16, 1889.) HIGHWAYS-PRESCRIPTION. used as such for a period of more than five years Pol. Code Cal. § 2619, providing that all roads are highways, was amended by act March 30, 1874, so as to provide that all roads laid out and recorded by the board of supervisors should be highways, and also all turnpikes, toll-roads, etc., where the companies are dissolved or have expired by limitation. Section 38 of the act provided that it should apply only to certain counties, among which Modoc county was not named. Held, that section 2619 remained as to Modoc county unaffected by the amendment, so that a road used continuously in that county for more than five years would become a public highway. Commissioners' decision. In bank. Appeal from superior court, Modoc county; Ĝ, F. HARRIS, Judge. Ewing & Claflin, for appellant. & Jenks, for respondent. Goodwin FOOTE, C. According to the allegations of the complaint in this action, Wade had torn down the fence on the land of Gloster, which tion, unaffected by the act, supra, so far as concerned Modoc county. In that county during the 12 years immediately prior to the trespass complained of a highway might have become such to all intents and purposes by user on the part of the public for more than five years continuously. This, among other questions, seems to have been involved in the case of Bolger v. Foss, 65 Cal. 251, 3 Pac. Rep. 871, where the dedication by user of a highway in Humboldt county was under con ing public for the "last past twelve years.' The matter was clearly within the issues raised by the pleadings, after the amendment had been made to the defendant's answer. For the error committed in not admitting the evidence as offered the judgment and order should be reversed. We concur: BELCHER, C. C.; HAYNE, C. the latter had replaced, and the former was | together, is, as we think, that section 2619, threatening again to tear it down at a certain supra, remained, for the purpose of this acpoint, and travel aross the plaintiff's land, in violation of his rights and to his damage. An injunction restraining the defendant from doing the injuries threatened, and for the recovery of damages for the alleged trespass already committed, were prayed for. The defendant denied all the material allegations of the complaint, and set up by way of justification and defense for his alleged acts that they were done in accordance with law, in pursuance of an order from the board of supervisors of the county, he being a road over-sideration, which county occupied the same seer, and that the land alleged to have been position with relation to section 38 of the act, intruded upon by him had become, and was supra, as did Modoc county, where the highby dedication, a public road and highway. way now in hand is located. Although the The cause came on to be tried before a jury, point was not directly adverted to, the apwhich was discharged during the progress of pellate court appears to have taken the view the trial by the court for sufficient reasons. of the matter which we do. The defendant That tribunal then proceeded to hear the ought, therefore, to have been permitted to cause, made its findings of fact, and rendered introduce his proffered evidence that the land judgment for the plaintiff as prayed for, ex- in dispute had been used continuously and cept for damages, which were expressly uninterruptedly as a highway by the travelwaived; from which, and an order denying a new trial, defendant appeals. The whole matter turns upon the point as to whether or not there had been, for some 12 years immediately prior to the trespass complained of, any law upon the statute book applicable to the county of Modoc, by which the public could by user acquire a right to a highway as such. The court below held no such law to exist or to have existed within that time. The appellant's contention is that such a law did exist and was operative in this cause, by means of which the public, by the use of the land in question continuously for more than five years, had acquired it as a public road and highway in Modoc county; that the dedication of it as a highway was complete. In section 2619 of the Political Code (as it existed up to the passage of the act of March 30, 1874, which latter act is found at page 116 of Amendments to the Codes 1873 and 1874) it is provided, among other things, that "all roads used as such for a period of more than five years are highways.' The section was amended by the act, supra, to read as follows: "Sec. 2619. Roads laid out and recorded as highways by order of the board of supervisors are highways. Whenever any corporation owning a toll-bridge or a turnpike, plank, or common wagon road is dissolved, or has expired by limitation or nonuser, the bridge or road becomes a highway." Section 38, (p. 129,) of the same act, provides: "This act shall apply only to the followingnamed counties: Calaveras, Santa Barbara, San Luis Obispo, Ventura, Fresno, Kern, Tehama, Contra Costa, Marin, Lake, Sierra, Plumas, Sacramento, Sutter, Mendocino, Mariposa, Alameda, and Larsen: provided, that this act shall not be in force and effect in Solano, Los Angeles, San Joaquin, and Yuba counties until the first Monday of March, eighteen hundred and seventy-six, (1876.)" The effect of these provisions of law, taken PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are reversed. (78 Cal. 427) In re LOWENTHAL. (No. 20,490.) (Supreme Court of California. March 21, 1889.) MISCONDUCT OF ATTORNEY-LIMITATION OF AC TIONS. 1. The petition for the disbarment of an attorney alleged, as grounds, failure to maintain the respect due the court, defending an unjust cause, employing means of defense inconsistent with truth, and misleading the court by artifice and falsehood. The facts were set out in narrative form, without allegations connecting them with one or the other general charges of misconduct. Held good on demurrer. 2. Such charges are not barred by the statute of limitations. In bank. Application for the disbarment of an attorney. John H. Boalt, Ralph C. Harrison, and Edward R. Taylor, for relator. W. W. Cope and P. F. Dunne, for respondent. WORKS, J. This is an accusation for the disbarment of the respondent, an attorney of this court. The accusation charges generally "that heretofore, to-wit, at the several times hereinafter mentioned, said Lowenthal violated the said oath taken by him as such attorney and counselor at law, by-First, not maintaining the respect due to the courts of justice and judicial officers of this state; second, by counseling and maintaining a defense to an action which did not appear to |