(190 P.) and the engineer must both have realized the possibility of an impending danger, and must have been mentally prepared for the peril which immediately after developed within their observation when Bluhm came into view. So forewarned, their natural and almost inevitable mental reaction when Bluhm did come into view was to realize this peril. That there was, in fact, such realization appears from Conley's testimony, which is that when he first saw Bluhm he "hollered" and waved at him and gave the emergency stop signal to the engineer. From these actions of Conley's there is but one possible conclusion, and that is that he observed and realized that Bluhm was in peril. Second, as to the train crew not acting with the promptness which Bluhm's observed and realized peril reasonably demanded of them. It needs no argument to establish the proposition that it was the duty of the train crew upon observing and realizing Bluhm's peril promptly to stop the train. The testimony, however, leaves no doubt that they did not do so. The engineer Jones testified for the defendant that the train could be stopped in 40 feet. It is well-nigh incredible that a freight engine with only a light caboose attached, traveling a little faster than a fast walk, and moving on a slight up grade such as existed at the place of accident, could not be stopped in much less than 40 feet. But however this may be, there can be no disputing the fact that the train was stopped only after it had proceeded 75 or 80 feet from the point where it first struck Bluhm. This distance, of course, is less than the distance through which the train moved after Bluhm's peril was observed by the train crew, since by all the testimony this was observed before Bluhm was struck. The following facts are those which conclusively show the movement of the train through 75 or 80 feet after striking Bluhm. When Bluhm was struck he was 8 or 10 feet south of the tracks of an electric road which runs along the street on which he was riding and crosses the steam railroad tracks. The train was moving north, and, when it was finally stopped, the gangway between the engine and its tender was immediately over the electric tracks. The engine was moving forward so that the whole length of the engine as far as the gangway had crossed the electric tracks. It necessarily follows from these facts that after striking Bluhm the train moved through the distance from the point of contact to the electric tracks, some 8 or 10 feet, plus the length of the caboose, which it was testified by the defendants' witnesses was something over 30 feet, plus the length of the engine without the tender, which was testified by the defendants' witnesses to be about 40 feet. The sum of these distances is 78 or 80 feet, or almost twice that within which, according to the testimony of the engineer, the train could have been stopped. I can see but one reasonable conclusion from these facts, and that is that the train was not in fact stopped with the promptness which the situation of observed peril reasonably demanded. Third, as to the fact that if the train had been stopped with reasonable promptness the accident would have been avoided. This is shown conclusively by the fact that a very slight checking of the speed of the train woud have avoided the accident. Bluhm was struck by the far side of the platform; that is, he was almost across the track and out of danger. In fact, if he had remained on his motorcycle he probably would not have been struck at all, for the motorcycle was not hit, but went on completely across and was there picked up uninjured. Just as the caboose was almost upon Bluhm he was observed to throw up his hands and fall off his wheel, and it was due to his falling off, probably caused by fright at his observing the caboose so close upon him, that he was struck. The foregoing facts appear so plainly in the evidence and the conclusion to which they lead is so plain that, as I have said, it seems evident that it was because of these facts, and not because of any erroneous view as to the decedent's contributory negligence, that the jury returned the verdict which they did. That verdict cannot be said to be a miscarriage of justice, and the errors dwelt upon in the main opinion seem to me to come fairly within the remedial amendment mentioned of our Constitution. What I have said does not apply to the members of the train crew other than the brakeman, Conley, and the engineer. The other members of the crew were not shown to have had any connection with the failure to stop the train promptly on Bluhm's peril being observed, and the judgment as to them is properly reversed. I concur: LAWLOR, J. On Rehearing. PER CURIAM. [15, 16] In a petition for rehearing it is stated that the learned trial judge insists that no such instruction on contributory negligence as the one first discussed in the opinion was ever given; that instead of the words "nor is it to be inferred" the instruction actually given commenced with the words "unless it may be inferred." So changed, the instruction would be a correct statement of the law. The settled record on appeal is, in the light of this statement, incorrect, but even if the record in this behalf could now be corrected to show the truth, it would make no difference in the result. The gist of the opinion in this matter is that the question of contributory negligence should not have been submitted to the jury, the deceased being clearly guilty of contributory negligence as a matter of law. There were several instructions on the question of contributory negligence, and that question was submitted to the jury. ing the defendants from affixing the houses to two certain lots onto which they had just been moved when the action was brought, and giving the plaintiff possession of them. The ap The application for a rehearing is denied. peal is on the judgment roll alone. The real ANGELLOTTI, C. J.; SHAW, J.; WIL BUR, J.; KERRIGAN, Judge pro tem. concur. (182 Cal. 748) CITIZENS' SAVINGS BANK OF SAN DI- parties in interest are the plaintiff and the defendant Carrie E. Bennett. The findings show that Mrs. Bennett and her husband were formerly the owners of certain unimproved lots designated by number in a block in an outside subdivision of the city of San Diego. While such owner, Mrs. Bennett and her husband mortgaged the property to the plaintiff to secure a loan of $2,000 made by the plaintiff to the Bennetts upon the understanding that the money would be used in building dwellings upon the property. The subdivision had been platted and the lines of its lots and blocks staked on the Where decree in partition suit, brought to ground, and at the time of the giving of the determine boundaries of lots and blocks in sub-mortgage the president of the plaintiff and the division of city, decreed mortgagors to be own- Bennetts went to the subdivision and definiteers of the lots mortgaged but located such lotsly located the lots of the Bennetts as so platso that buildings constructed on such lots as ted and staked. Upon these lots the Bennetts originally platted by mortgagors with money then built four houses, two of which are those borrowed from mortgagee were not located thereon, the effect of the decree was to substi- whose ownership is now in question. tute the land within boundaries fixed by such decree as mortgage security, so that mortgage foreclosure purchaser acquired no right in the stated. houses. 2. Mortgages 309 (1) -Foreclosure and sale as to only part of property covered held to have released part omitted. Where holder of mortgage covering certain land and also certain houses not a part of such land obtains a decree foreclosing on the land alone and buys it in for the full amount due, the omission of the houses from foreclosure and sale releases them from the mortgage. 3. Mortgages 538 - Reopening foreclosure decree only remedy where part of property omitted from decree by mistake. Where mortgage covering certain realty and certain houses not a part of such realty is foreclosed by decree omitting by mistake foreclosure as to the houses, mortgagee purchaser at foreclosure sale. if entitled to relief, could secure such relief only by having the decree reopened or set aside in suitable proceedings. Department 1. Subsequent to the execution of the mortgage. What is termed a "partition" suit was brought to determine the boundaries of the lots and blocks in the subdivision., All the owners of lots in the subdivision were made parties, and the plaintiff here and the Bennetts were among the parties plaintiff. In the partition suit a survey was made of the subdivision with the consent of the parties whereby the boundary lines of the various lots were located differently from the boundaries previously platted and staked and according to which the Bennetts had purchased and then mortgaged to the plaintiff. On July 12, 1915, a decree, agreeable to all the parties, was entered in the partition suit, whereby the boundaries of the various lots were fixed in accordance with the survey made in the suit. By this decree the Bennetts were declared to be the owners of the lots mortgaged subject to the plaintiff's mortgage, but the lots so owned and mortgaged were defined and bounded according to the partition survey and not as originally platted and staked. The result was that two of the houses built by the Bennetts, the Appeal from Superior Court, San Diego two in question here, were not on the property County; W. R. Guy, Judge. Action by the Citizens' Savings Bank of San Diego against Carrie E. Bennett and others. Judgment for plaintiff, and defendants appeal. Reversed, with directions. of which they were declared by the decree to be the owner. It is this circumstance which gives rise to the present litigation. While the partition suit was pending, the plaintiff here brought suit to foreclose its mortgage, and in June, 1915, obtained a deHerbert N. Ellis and C. B. Ellis, both of cree of foreclosure, under which the mortSan Diego, for appellants. gaged property was sold and purchased by the Albert J. Lee and William G. Mirow, both of plaintiff three days before the entry of the San Diego, for respondent. decree in the partition suit. The foreclosure sale was simply of the lots mortgaged desigOLNEY, J. This is an appeal from a judg-nated by number. The lots were bid in by the ment for the plaintiff declaring it to be the plaintiff for the full amount found to be due owner of two certain dwelling houses, enjoin- by the foreclosure decree. (190 P.) Some time subsequently, Mrs. Bennett pro- the new survey for the lots as originally ceeded to move the two houses in question platted, staked, and located, and full effect from the lots on which they were built to two must be given to the decree. Giving it effect other lots owned by her and in which the means, as we have said, that the realty of plaintiff had no interest and was about to affix which the houses were a part, assuming that the houses to the latter lots when stayed by such realty was subject to the mortgage, has the commencement of the present action. been removed from under the mortgage and other property substituted for it, and the plaintiff has no right in the houses. [2] On the other hand, assuming that the second alternative stated is the correct view of the original rights of the parties, then the situation was that the plaintiff owned a mort It is at once apparent that, if the plaintiff be entitled to recover, it must be upon the theory that the houses in question were subject to the mortgage lien. It is also apparent that, if such lien existed, it was because of one or the other of two alternatives. One is that the property actually owned and mortgage, the lien of which covered certain realty gaged by the Bennetts was the lots as originally platted and staked and actually located by the parties to the mortgage upon the ground, in which case the houses were built upon the mortgaged land and became a part of the realty and as such were subject to the lien of the mortgage. This is probably the true view of the situation. The other alternative is that by mistake the houses were built on the wrong property, and that because of this mistake and because of the intention and understanding that the houses would be built on the mortgaged lots and thereby become subject to the mortgage lien, the lien of the mortgage would, as between the parties, be extended to include the houses although they were not actually a part of the mortgaged realty. Assuming that there was a lien in plaintiff's favor on one or the other of these theories, what is the effect of the partition and foreclosure decrees upon the rights of the parties? and also covered certain houses which were not a part of such realty; the lien of the mortgage extending to the houses nevertheless because of the mistake in their location. In this situation the plaintiff brought suit to foreclose, obtained a decree foreclosing on the mortgaged realty alone, and bought it in for the full amount due. It is at once apparent that by the omission of the houses from foreclosure and sale they were released from the mortgage. There is no difference whatever between such a case and one wherein different pieces of realty are subject to mortgage, and a foreclosure is had which omits one of the pieces. The rule is well established and hardly admits of question that in such a case the omitted parcel is released or, perhaps more accurately, is discharged of the mortgage. Mascarel v. Raffour, 51 Cal. 242; Mitchell v. Canal Co., 75 Cal. 464, 479, 17 Pac. 246; Hall v. Arnott, 80 Cal. 348, 22 Pac. 200; Stockton, etc., Co. v. Harrold, 127 Cal. 612, 60 Pac. 165. [1] Assuming that the property mortgaged was the lots as originally platted, staked, and located on the ground, it is apparent that the effect of the partition decree was to substitute other lots as the mortgage security. The effect of the decree was exactly the same as if the parties by proper releases and conveyances had made the substitution. There can be no question but that in such a case the mortgagee must look to the substituted property as his security, and of such substituted property the houses here were not a part. It may be that the parties did not realize the effect of the decree and that it was made under a mistake, so that it could have been reopened or set aside upon a proper showing and its effect in substituting other property for that actually mortgaged corrected. But such relief against the effect of the partition decree was not sought, there is no finding that the parties were not aware of and did not intend the very thing which the partition decree accomplished, that is, that substitution of lots according to We concur: LAWLOR, J.; SHAW, J. [3] Here again, if the omission of the houses from the foreclosure was by mistake and by mistake under such circumstances as to entitle the plaintiff to relief, such relief could be had only by reopening or setting aside the foreclosure decree by suitable proceedings. This has not been done, there is no showing here upon which it could be done, and the foreclosure decree must be given its full effect. That effect was to release or discharge the houses from the mortgaged lien, if the fact be that they were not a part of the mortgaged realty. It follows that, upon either alternative upon which the plaintiff could have a lien upon the houses, such lien, and with it every right of the plaintiff in the houses has been lost. Judgment reversed, with directions to enter judgment for the defendants upon the findings. PER CURIAM. The following opinion was prepared by Mr. Justice Kerrigan of the late District while acting as justice pro temDistrict Court of Appeal of the First Appelpore in this court in place of Mr. Justice Melvin. It is adopted as the opinion of this court: This appeal involves the question of the amount due as inheritance tax in the aboveentitled matter. Deceased died testate October 19, 1915, a resident of Los Angeles county, and his per Where testator reserving life estate in income from certain property had transferred the remainder to his wife and children subject to his right to dispose of the property by power of appointment to be exercised in his will, the remainders were "vested," though defeasible un-sonal estate was appraised at over a million der Civ. Code, §§ 694, 781, and were subject to inheritance tax under Laws 1911, p. 713, § 1, subd. 3, upon his death leaving will directing that the terms of such agreement be carried out, since the power was not exercised by such will, though will contained general devise, such general devise having reference to other property, under Civ. Code, § 1330, and since remaindermen's title dated from time of such agree-phy Family Trusts, and the question presentment. dollars, and an inheritance tax amounting to the sum of $24,462.67 was paid thereon. No attack is made upon the order impressing this property with a tax or upon the sum found to be due. The value of that estate was exclusive of an interest which the deceased owned in what is known as the Mur ed by this appeal is whether or not that interest is subject to the payment of a transfer tax. Deceased acquired this interest from the estate of his father, Simon Murphy, who died February 1, 1905, leaving a will by the terms of which the bulk of his estate was given to his children and other descendants, impressed, however, with certain trusts. The prescribed term of these various trusts was for the period of 10 years, i. e., until February 1, 1915, or upon the earlier decease of the survivor of the two sons named therein. The trustees were directed upon the termination of these trusts to divide the estate into five equal shares among certain of his children, of whom Albert, the deceased, was one. The interest which the deceased took in his father's estate was to go to his issue in the event that he predeceased them during the life of the trust, and upon fail Where beneficiary of trust fund payable to beneficiary's children in case of his death before certain date transferred the property reserving a life estate in the income and the right to otherwise dispose of the property by testamentary appointment in case he died after such date, there was no consideration for the trans-ure of issue this interest was to be divided fer, subjecting it to inheritance tax. 4. Taxation 867(1)—Transfer to be subject to inheritance tax must transfer property within state. among his brothers and sisters. On December 17, 1912, at which time decedent was not a resident of California, the various members of the Murphy family voluntarily agreed to In order that transfer of property of non- extend the term of the trust created by their resident be subject to inheritance tax, the prop-ancestor for a period of some 20 years from erty must be within the state. In Bank. its termination. In pursuance of this plan all the persons having any interests, including the deceased and his ten children, joined Appeal from Superior Court, Los Angeles in conveying all such interests upon trusts, County; James C. Rives, Judge. In the matter of the estate of Albert M. Murphy, deceased. From an order fixing amount of inheritance tax, the State Controller appeals. Reversed, with instructions. Rehearing denied; OLNEY, J., dissenting. SLOANE, J., not voting. Robert A. Waring, of Sacramento, and John W. Carrigan and Edwin H. Pennock, both of Los Angeles, for appellant. O'Melveny, Milliken & Tuller, of Los Angeles, and A. L. Rowland, of Pasadena, for respondent. which were described and declared as the (190 P.) The Murphy Family Trusts conveyance is | Co., 171 Cal. 637, 154 Pac. 306. Ordinarily, voluminous, and a full review of its recitals the transfer of a remainder subject to a life and provisions would extend this opinion to an undue length and answer no useful purpose. Respondents claim that the conveyance by the ten children constitutes a valuable and adequate consideration and one sufficient to prevent the succession tax from attaching. By his will made on February 16, 1915, which was within eight months of his death, decedent disposed of his entire estate; but respecting the agreement of December 17, 1912, which the respondents properly call a trust conveyance, he made the following special provision: "It is my will and I hereby direct that the terms, condition and purpose of the trust agreement entered into by me with other heirs and devisees of my late father Simon J. Murphy, on the 17th day of December, 1912, and known as the Murphy Family Trusts, as far as the same shall not be inconsistent with the provisions of this my will or render nugatory any of the provisions thereof, shall be carried out." estate reserved by the grantor is a taxable resident, or by a nonresident when such non- The remaindermen, consisting of the widow and children, who are respondents on this appeal, argue that the reserved power of appointment contained in the transfer of December 17, 1912, and the provisions of the will of Albert M. Murphy which became effective at his death October 19, 1915, do change the case. The respondents argue that they do not take the property as remaindermen under the transfer of December 17, 1912, but claim that their title comes from a power of appointment exercised under the will. They also claim that the exercise of a power of appointment was not taxable when Albert The trust of 1905 expired on February 1, 1915, and if the deceased had not made the trust conevyance of 1912 he would have been the owner at the time of his death of his original share in the properties of the trust of 1905. On December 17, 1912, however, he conveyed his share of the trust of 1905, upon trusts whereby he reserved a life M. Murphy died in 1915, and hence they take estate, transferred the remainders to his widow and his ten children, subject, however, to his power to dispose of this property by power of appointment to be exercised in his will. We have already quoted the provision in his will dealing with the matter, and therefore have before us the facts upon which the decision must turn. the property free from any transfer or inheritance tax. It appears that the exercise of powers of appointment was taxable from 1905 to 1913, and has been from 1917 to the present time, but was not taxable from 1913 to 1917. Respondents contend that decedent's will contains a general devise, and that this (1) Is the transfer of December 17, 1912, in amounted to an exercise of the power of apits nature a taxable transfer? (2) If so, was there an adequate and valuable consideration therefor which would avoid the tax? (3) As Albert Murphy was a nonresident of California on December 17, 1912, is the transfer taxable only in so far as it was limited to California assets? pointment reserved in the trust conveyance of December 17, 1912 (section 1330, Civ. Code), and argue that by the power of appointment thus exercised the shares in the property covered by the trust conveyance of December 17, 1912, were distributed differently than in said trust conveyance. We think not. The property conveyed DeWe take these questions up in the order cember 17, 1912, is controlled by the special stated. clause of the will, which we have already [1] Albert Murphy was alive on February quoted, and not by the general devise. As 2, 1915. On that day, therefore, he would already stated, the decedent owned at his have been the absolute and indefeasible own- death property worth $1,000,000 exclusive of er of his share of his father's estate if he the property covered by the trust conveyance had not made the transfer of December 17, of December 17, 1912. We think the true in1912. In that transfer he reserved the in- terpretation of his will is that the disposicome of the property for his life and trans- tions therein made deal with the $1,000,000, ferred the estate in remainder to his wife and and that item 3 of the will confirming the children subject to his right to dispose of trust conveyance of December 17, 1912, was the property by power of appointment to be intended to approve of all of the dispositions exercised in his will. The remainders thus therein provided for. The language employ. created were vested although defeasible. Civ. ed in terms confirmed the trust deed. It is Code, §§ 694, 781; Estate of Dunphy, 147 not necessary for us finally to determine Cal. 95, 81 Pac. 315; Gray v. Union Trust whether this confirmatory clause amounted |