The record-union., 1891-02-23

thority for publishing. Now, inasmuch
as the paper was weekly paper, and the
first publication was on July oath, there
must have been two publications before
the order was made, viz: One on
July 24th and one on July 31st;
these two publications were of no effect.
Notwithstanding this, however. if the
affidavit were the only evidence on the
subject, sufficient publication would be
shown; for it states that notice was pub
lished "once every week from the 9th
day of July, 1880, to and until the 2Sth of
August, 1880, both days iaacIuSiUe," which
would give four publications after the
order was made, viz: August 7th, 14th,
2lst and 2Sth. But the affidavit is not the
only evidence on the subject. The files
of the newspaper itself were introduced,
and they showed that the notice was not
published on August 2Sth. This contra
dicted the affidavit. Now, while the
affidavit was made evidence ofthe statute,
it is 3orfnoa f1cie evidence only. &C. c. P,
Sec. 2011). And the newspaper itself is
certainly more satisfactory evidence of
its contents than any affidavit would be,
and we do not regard the decree, estab-
llShlngs due notice to creditors, as con-
elusive. 1t results that there were only
three publications after the order for pub
hcation was made, and this is below the
and allowance of the claim were therefore
in time.
2. The court found that all that was due
upon the claim had been paid except 1851;
and the appellants contend that this find
ing is not sustained by the evidence, and
that the allowed claim could not be inn
peached by evidence that it had been paid
previous to it's allowance
There is evidence sufficient to sustain
this finding of the court, and it was COM
petent in this case for the son and heir of
the deceased mortgagor to show either
that the debt to secure which the
mortgage was given had been paid, or
that payments thereon had been made,
and not credited. The allowance of the
claim by the administratrix, and its APP
prOVal as allowed by the Judge of the
court in which the estate of he'deceased
mortgagor is being administered, are not
conclusive upon the heir.
Such action would not Of itself be con-
elusive, if the administrators or plaintiffs
were proceeding in the Superior Court to
obtain decree in the probate proceeding
directing that such allowed claim be
paid, and no greater effect can be given
to it in this action. The plant
ifs cannot by resorting to this action de-
prive the heir of the right given him by
Section 1886 of the Code of Civil Proceed
ure to show that their claim was inn
properly allowed in the administration
proceedings.
8. The cause of action is not barred by
the statute of limitations. As we have
stated, it does not appear what, If any, in
terest the wife had in the property at the
time the mortgage was made, and as no
claim was presented against her estate, if
she had any separate interest, it could
not be reached by the case as it is pre-
sented. And so tar as her rights as sue
cessor in interest of her husband are con-
cerned, it was held upon the former APP
peal that the allowance of the" claim
stopped the running of the statute of linn
itationS.
4. Appellants ask that final judgment
in their favor be directed. But it is the
settled rule here that the appellate court
cannot direct final Judgment upon evil
dence. The case must go back to the
trial court to have the facts established.
Judgment and order reversed.
Filed Februry Il, 1871
Appeal from Superior Court, Los An
geles County-A. w. Hutton, Judge.
For appellant, Houghton, Silent and
Campbell.
For respondent, Bicknell dS White.
Chapman 81 Hendricks, Cross Il benson,
of counsel.
IN BANK.
ALHAMBRA ADDITION WAL
TER Co., Respondent, No 10 zoe
VS.. ~ O'A-o'
e. L. MABERRY, Appellant
There is in the County of Los Angeles
a natural stream issuing out of the Canada
del Molino, and called Mill Creek, which
flows southwark from the mouth of the
canada towards the town of Alham-
bra. In the year 1850, the land embrac-
ing the source of Mill Creek, and extend
TO iy,1I md tINn . l,I
canada, belonged TO b. d. Wilson. South
of and adjoining the land of Wilson, and
including the lower course of Mill Creek,
was tract of Government land, embrace
ing 154 acres, occupied by E.J. c. kewen.
Mill Creek flowed across this tract and
upon other vacant land of the United
States. In its ordinary stages, and in its
natural condition, the stream flowed but
short distance below the land occupied
by Kewen. In order to irrigate higher
portions of his land and get a head for
conducting water to his house under
pressure, it was necessary for Kewen to di-
vert water from the stream on the lands OF
Wilson, and it was also convenient for
Wilson to conduct portion, at least, OF
the water used by him in irrigation across
the lands occupied by kewen. Under
these circumstances, Wilson and wife on
the one side. and Kewcn and wife on the
other, entered into the following contract:
''Irhis indenture, made this seventh day
of May, A. d. 1850, between Benjamin ID.
Wilson and Margaret, his wife, of the
first part, and Edward j. C. Kewen and
Fannie, his wife, of the second part.
Whereas the said Benjamin d. Wilson is
the owner of certain tract of land called
the 'Rincon de San Pasqual,' situate in
the County of Los Angeles, the boundar-
les of which are set out and described and
are known to the parties hereto; and
whereas there is a certain stream of water.
which takes its rise upon said tract of land
and flows through glen or canada, called
Canada del Molino, or Mill Stream. which
glen is the glen which is in front of the Old
Mill formerly possessed by the Mission OF
San Gabriel, and being upon the banks
ola certain fresh-water lake called Lake
Vineyard, which stream after passing
through the said glen flows over the
boundary line of the said tract of land
called Rincon de San Pasqual, and on
and upon the lands outside thereof; and
whereas the said parties of the second
part possess certain lands outside of and
bounding on said boundary lines, upon
which they are desirous of bringing the
said water flowing in said Mill Stream
to which the said Benjamin ID. Wilson is
willing to consent in the manner and
mode and for the considerations herein
after expressed.
Now, therefore, this indenture wit
nesseth that the parties of the first part
for and in consideration of the grants and
privileges to said Wilson hereinafter
| made, and of the free, effective and undis-
| turbed enjoyment thereof have granted
released, remised and conveyed, and by
these presents do grant, release, remise
and convey to the parties of the second
part the right of entry for themselves and
| servants in, over and upon those certain
| lands, being in the county OF Los An
geles and in the tract of land called Rim
| con de San Pasqual, which said tract OF
] land has been finally surveyed by the
/ United States Surveyor-General, which
SAID certain lands are those lying within
and on the western side of the glen OF
canada, called the Canada del Molino. OF