1865, which were accepted by Sigourney and have been ever since held by him, and upon which Zellerbach has up to and including February 1, 1877, paid the interest as provided for in said contract of August 23, 1865; that in further compliance with the said last mentioned contract, Zellerbach deposited with Parrott one-sixteenth of all the capital stock of the Eureka Lake and Yuba Canal Company Consolidated, unincumbered and unassessable, as collateral security for the payment of the forty thousand dollar note, and one sixtyfourth of all said capital stock, likewise unincumbered and unassessable, as collateral security for the payment of the ten thousand dollar note, as in the said contract provided; that Zellerbach, in brief, kept and performed all the agreements, covenants, and conditions on his part provided to be kept and performed in and by the contract of August 23, 1865; that Parrott, before receiving the stock as security, became and was satisfied, and so reported to the intervenor and to the plaintiff, that the property in the agreement mentioned was free and clear of incumbrances and liens, except such "as were held by the intervenor, or by parties in trust for it, or in escrow for its benefit." The complaint in intervention further charges that Zellerbach represented to the intervenor that the incumbrances in the agreement of August 23, 1865, provided for, were deposited for him, to be delivered up and canceled upon the conveyance to intervenor of the property of the Eureka Lake Company, the Eureka Lake Water Company, the Middle Yuba Canal Company, and certain other property, and upon the issuing and deposit with Parrott of the stock as aforesaid for Sigourney; that relying upon such statements, and believing them to be true, the intervenor was induced thereby to purchase, and did on December 20, 1865, purchase from Zellerbach, and take from him a deed conveying to it in fee simple, all and singular the property in the contract of August 23, 1865, mentioned, including all of the property embraced in the mortgage described in the complaint; that by said deed of conveyance Zellerbach warranted and bound himself to defend the title to the property conveyed as against all liens, incumbrances, and adverse claims, and covenanted to and with the intervenor that all of the said property was free and clear from liens and incumbrances of every kind; that the conveyance to intervenor was duly recorded, of all of which Parrott and Sigourney had notice, and that thereupon the stock was issued and deposited with Parrott for plaintiff, as before stated; that Zellerbach has become insolvent, and is unable to respond to intervenor in damages if the mortgage

referred to in the complaint is foreclosed, and the property therein described sold. The prayer of the complaint in intervention is-first, that the note and mortgage described in the complaint be decreed to be delivered up to the intervenor and canceled; second, that if the Court find that the said note and mortgage were not duly assigned to Zellerbach, and that he is in equity bound to satisfy the same, that it will adjudge the interest on the note to have been paid to January, 1877, and as against the intervenor decree the two thousand shares of the capital stock of the Eureka Lake and Yuba Canal Company Consolidated, deposited as collateral security with Parrott, to be first sold to satisfy the amount due plaintiff, if any; and third, for general relief.

Zellerbach admitted the averments of the complaint in intervention by failing to respond to them. The plaintiff answered, denying, among other things, the performance on the part of Žellerbach of the covenants and conditions of the contract of August 23, 1865. There were also other pleadings in the case-not, however, material to be mentioned. At the trial evidence was given, to which no objection seems to have been made, upon which the Court below found that, at the time of the making of the agreement between the plantiff and Zellerbach in August, 1865, "an accounting and settlement were had between them, and upon such accounting it was ascertained and agreed (after deducting all credits, cash then paid, the interest from 2d July, 1865, to 19th August, 1865, the difference in value between gold coin and legal tender notes of the United States) that the $12,000 note given by the Eureka Lake Water Company was fully paid, and there remained a balance due to the plaintiff on the promissory note in suit the sum of fifty thousand dollars gold coin. The difference between the value of gold coin and said legal tender notes, together with said interest, deducted as above stated, was about $15,500, which sum the said defendant Zellerbach then and there verbally agreed to pay to the plaintiff."

The Court also found, among other things, that about the month of February, 1866, Zellerbach deposited with Parrott 1250 shares (being one-sixteenth) of the capital stock of the corporation provided for in the contract of August 23, 1865-to-wit, the Eureka Lake and Yuba Canal Company Consolidated-in partial compliance with the said agreement; and further, that he never deposited with Parrott any other or greater number of shares of said stock in performance of the said agreement, or on account thereof, but that he did place in the hands of the said Parrott, for the said plaintiff,

about September, 1867, 750 other shares of said stock as collateral security for the payment of the said sum of $15,500; that "the said Parrott has never delivered to the plaintiff the said 1250 shares of stock, nor any part thereof; nor has he delivered to the said defendant the two notes and mortgages described in the said agreement, and deposited with him in escrow, nor either of them, nor the said assignments thereof placed with him likewise in escrow, nor either of them, but he still has each and every of said papers in his possession; and the contingency upon which the assignment of the note and mortgage in suit, executed by plaintiff, and deposited with Parrott, was to be delivered to the said defendant and take effect as a transfer, has never happened. The said plaintiff never accepted the 1250 shares, nor the 750 shares, nor both together, as security nor as a compliance with the agreement aforesaid."

The Court below gave judgment for the plaintiff for the sum of $63,077.71, being the amount by it found to be due on the note mentioned in the complaint, including costs; and further adjudged and decreed that the 1250 shares of the stock of the Eureka Lake and Yuba Company Consolidated, in the hands of Parrott, be delivered to the Sheriff of Nevada County, and by that officer sold, and the proceeds of such sale applied to the payment of the costs of this action and the amount of the plaintiff's judgment, and that the excess, if any, be paid to Zellerbach; and further, that in the event the proceeds of the sale of the said 1250 shares be insufficient to pay the costs of this action and the amount of the plaintiff's judgment, then the whole of the property described in the mortgage mentioned in the complaint, or so much thereof as may be necessary, be sold by the Sheriff, and the proceeds applied to the payment of the residue of said judgment and costs.

We are unable to discover any ground upon which the decree can be sustained. It is a cardinal rule that the pleadings of the party to whom relief is awarded must be sufficient to warrant the relief. (Story Eq. Plead., Section 878; Mondran vs. Goux, 51 Cal. 151; Mercier vs. Lewis, 39 Cal. 535; Collins vs. Bartlett, 44 Cal. 372; Johnson vs. Moss, 45 Cal. 517; Christian College vs. Hendley, 49 Cal. 350; Hayward vs. National Bank, 6 Otto, 615; Bradley vs. Aldrich, 40 N. Y. 504.) In this case the plaintiff's complaint makes no reference whatever to the shares, of stock of the Eureka Lake and Yuba Canal Company Consolidated. Nor was there any reason why it should. The plaintiff certainly had no lien upon the 1250 shares of the stock as security for the pay

ment of the note in suit. If he had any lien on the stock at all, it was as security for the payment of the forty thousand dollar note; but, according to the findings of the Court below, he had no lien on it for any purpose, for reasons presently to be stated.

In the absence of a lien to secure the payment of the note sued on, it is obvious that the plaintiff was not entitled to a decree directing the sale of the stock and the application of the proceeds to its payment.

It is said, however, that the decree, in so far as it directs the sale of the stock, was not made for the benefit of the plaintiff, but that it was "so decreed because the admitted facts showed that Zellerbach had bound himself to satisfy the mortgage, had in part kept his agreement, and had become insolvent."

We cannot see how the fact that Zellerbach had bound himself with the intervenor to satisfy the plaintiff's mortgage, and had in part kept his agreement, and become insolvent, could operate to create a lien in favor of the plaintiff or of the intervenor, on the 1250 shares of stock, to secure the payment of the note described in the complaint.

This is not a case where one party has a lien on, or interest in, two funds or two pieces of property, for a debt, and another party has a lien on, or an interest in, one only of the funds or pieces of property, and seeks in equity to compel the former to resort to the other fund or piece of property, in the first instance, for satisfaction; but here, on the contrary, and as already observed, the plaintiff never had any lien on the stock to secure the debt sought to be recovered by this action. Under such circumstances, we know of no principle which would authorize a decree directing the sale of the stock for the payment of the debt, whether it be made for the benefit of the plaintiff, or the subsequent purchaser of the property which was mortgaged to secure its payment.

There is another reason for the same conclusion, even if it be conceded that resort can be had in support of the decree, to the complaint in intervention. That pleading, as we have seen, alleges, among other things, full compliance on the part of Zellerbach with all the agreements, covenants, and conditions of his contract with Sigourney, of date August 23, 1865. If its averments are true, it would follow, of course, that Zellerbach was entitled to the surrender of the note and mortgage mentioned in the complaint, as also the notes and mortgage made to him and Marcellus by the Eureka Lake Water Company for cancellation; and the plaintiff

would not be entitled to any relief in this action. It would seem plain, therefore, that if the complaint in intervention be looked to in support of the decree, so far from supporting it, the allegations there found would show, if established, that the plaintiff was not entitled to recover anything.

The Court below, however, contrary to the allegations of the intervenor, found as a fact that none of the stock was ever accepted by plaintiff as security or as a compliance with the contract of August 23, 1865; that it was deposited only in escrow, and that the contingency upon which the transfer was to take effect has never happened. According to these findings, no lien could have arisen in plaintiff's favor upon such deposit first, because none of the stock was ever accepted by the plaintiff as security; and secondly, because it was deposited in escrow, and the conditions upon which it was to be delivered never happened. The delivery, therefore, never became absolute, and the stock continued as unaffected by any lien as though it had remained in Zellerbach's pocket.

Judgment and order reversed, and cause remanded to the Court below for a new trial, as of date May 20, 1880. We concur: McKinstry, J., McKee, J.

DEPARTMENT No. 2.

[Filed September 1, 1880.]
No. 6825.

JANE M. WINANS, APPELLANT,

VS.

R. J. CHENEY ET AL., RESPONDENTS.

AMBIGUITY OF DESCRIPTION IN DEED QUANTITY. The quantity of land mentioned in a deed is no description; but when boundaries are doubtful in themselves, quantity often becomes the controlling fact, and makes the metes and bounds certain.

Appeal from the District Court of the Twenty-second Judicial District, Sonoma County.

Winans, Belknap & Godoy, for appellant.

Wm. D. Bliss and E. S. Lippitt, for respondents.

THORNTON, J., delivered the opinion of the Court:

The action was ejectment, brought to recover a parcel of land in Sonoma County. The cause was tried by the Court, and judgment passed for defendants. Plaintiff moved for a