text:
    [L. A. No. 16188.
    In Bank.
    February 14, 1940.]
    RICARDO A. MACHADO et al., Appellants, v. TITLE GUARANTEE AND TRUST CO. (a Corporation) et al., Respondents.

      Willedd Andrews, Charles D. Munro and Victor E. Wilson for Appellants.
    Arch H. Vernon, Earl E. Johnson, Gilbert E. Harris, Keogh, Cate & Colver and Alfred E. Cate for Respondents.
   SHENK, J.

This is a suit to quiet title to a strip of land which was set apart for a public way in a partition proceeding in 1876 but which was never accepted, used or improved for such purpose and was formally vacated and abandoned as a way by the board of supervisors in 1905. From a judgment for the defendants the plaintiffs have prosecuted this appeal.

The facts stand undisputed and the parties differ only as to the legal conclusion to be deduced therefrom. It appears that the strip of land in litigation, containing about 2.6 acres, was originally a part of the Rancho La Ballona in Los Angeles County which was granted by the Mexican government. Augustin Machado at the time of his death in 1865, owned an undivided one-fourth interest therein which he devised one-half to his wife, Ramona Machado, and one-half to his thirteen children in equal shares. In 1868 the entire rancho was partitioned and a certain portion was allotted to the Machado heirs (widow and children) in common. Thereafter and in 1875-1876, at the suit of the widow, the portion of the rancho theretofore allotted to the Machado heirs in the earlier proceeding was partitioned and a certain tract of what was designated “fourth class land” was thereupon allotted by both metes and bounds and acreage to each of Ramona Machado, the widow, and to Jose de la Luz Machado, a son, and the strip of land here in dispute lying between the two tracts so ‘allotted to the wife and son, respectively, was laid out and set apart as a road or street by the referee by metes and bounds corresponding with the boundaries of the two mentioned and adjacent tracts.

Jose Machado, the son, conveyed his allotment or parcel of land in 1890 to Bernardino Machado by the saíne metes and bounds and acreage description as was employed when the same was allotted to him in the partition proceeding. Prior thereto and in 1879, Ramona Machado, the widow, had conveyed her allotment or parcel to one Briswalter in the same manner but, in addition, her deed contained an omnibus clause conveying all of her right, title and interest in and to Rancho La Ballona, of which her parcel and the strip here in controversy were at one time a part, excepting therefrom three specific tracts not material to the present inquiry. Both of these grantors are dead and the defendant title company and the defendant Del Rev Company by mesne conveyances have succeeded to the allotments or parcels partitioned to and thereafter conveyed by them. The defendant oil company claims a leasehold interest through its codefendants. As the successor in interest of the parcel allotted and partitioned to Jose Machado, the defendant Del Key Company claims title to the north half of the abandoned street upon which said parcel fronts and the defendant title company, as successor in interest of the parcel allotted to Ramona Machado which is contiguous to the abandoned street on the south, claims title to the south half thereof. In respectively asserting title to one-half of the abandoned street, each of said two defendants relies on the presumption of law, declared in our code, that ‘1 An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown.” (Sec. 831, Civ. Code.) Section 1112 of the same code states that “A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant.” To the same effect is subdivision 4 of section 2077 of the Code of Civil Procedure. The decisions of this court giving expression and application to this principle are numerous. In Brown v. Bachelder, 214 Cal. 753, 755 [7 Pac. (2d) 1027], it is stated, “That the presumption is highly favored in the law is made clear by the discussion of this court in Anderson v. Citizens’ S. & T. Co., 185 Cal. 386 [197 Pac. 113].”

The plaintiffs are the heirs at law of both Augustin Machado (the original owner of the tract) and Ramona Machado (his widow and grantor through whom one of the defendants claims) while the plaintiff Marie Machado is the heir at law of Jose Machado (the son and grantor through whom the other defendant deraigns title). While recognizing the force and effect of the principle of law that owners of land contiguous to a street, such as the defendants herein, are presumed to own to the center thereof, the plaintiffs contend that the factual situation here is such as to rebut and destroy this presumption. They base their suit to quiet title to the abandoned street on the theory that the fee to the land embraced therein was not allotted to any of the parties in the 1876 partition proceeding, and hence remained in common with them as the heirs of Augustin Machado, the original owner, and that as such heirs they have not since conveyed the same to anyone. In support thereof they refer us to the 1874 amendment of section 764 of the Code of Civil Procedure which authorized referees in partition, when for the advantage of those interested, to set apart a portion of the property for a way, road or street which “shall not he assigned to any of the parties . . . but shall remain an open and public way, road or street ... ”.

At common law a referee in partition had no authority to lay out a public street but could only create and attach to one parcel of land a right of way or easement and impose such servitude on another parcel where required for the beneficial partition of the property. (47 Cor. Jur. 500, sec. 571.) This was the rule under section 764, mpra, prior to its amendment in 1874. (Myers v. Daubenbiss, 84 Cal. 1, 5 [23 Pac. 1027].) Undoubtedly because of this lack of authority in the referee the code section was amended in the manner above indicated. To accord to this amendment the meaning advanced by the plaintiffs would result in this ease, where the strip set apart was never accepted, used or improved as a street and was later formally abandoned as such, in a partition of a part only of the tract in question. This would be contrary to the express intention of the original owner, plaintiffs’ ancestor, that the entire tract should go to his heirs in the shares designated by him and which intention obviously was sought to be given effect in the partition decree. In fact, the pleadings and orders, the report of the referee and the decree of the court confirming the report clearly indicate an intention to make a complete partition of the portion of the ranch theretofore allotted to the heirs of Augustin Machado. We are of the view that the code amendment was not intended to prevent the complete partition of the lands involved, elsewhere provided for in the code, but was to authorize referees in partition to create an easement for a private or a public way, instead of limiting their authority, as formerly, to the creation of an easement in behalf of one parcel of land partitioned over another parcel so partitioned. It goes without saying, that the former inability of a referee to create an easement for a private or public way must have rendered difficult the fair and equitable partition of large tracts of land so as to make all portions thereof accessible, and the code amendment must have been enacted to remedy this situation. The declaration in the code section, as amended, that the “portion so set apart” as a street shall not be “assigned to any of the parties” must here be held to apply to the easement for public use and not to the fee title and may well have reference to the settled proposition that no matter how clearly it may appear that an owner of a parcel of land holds fee title to the center of an adjoining street subject to the public easement, and that the boundary of his parcel is technically, therefore, the center of the street, he nevertheless has no right to the possession or occupancy of any portion thereof while used as a street. But where, as here, the strip set apart was never accepted, used or improved as a street and was thereafter formally abandoned as such, such right of possession and occupancy may not be denied to the contiguous owners. We therefore find nothing in the cited code section that in any way tends to overcome or rebut the presumption “highly favored in the law” that owners of lands adjacent to a road or street' (even though abandoned) own to the center thereof. (Anderson v. Citizens Sav. & T. Co., 185 Cal. 386 [197 Pac. 113].)

The plaintiff and appellants next refer us to the line of cases holding generally that while the presumption declared by the codes will in all proper cases be given effect, it is one which in many ways may be rebutted, and one of the specific ways in which it may be rebutted is by a description by metes and bounds. It will be recalled that the parcels allotted and partitioned to the widow and the son through whom the defendants respectively deraign title were described by metes and bounds. Without in any way detracting from the cases relied on by the appellants, we are of the view that the principle therein enunciated more properly has application to those situations where the description by metes and bounds is the result of the free exercise of choice by the grantor, and therefore evidences his intention to transfer only such of his property as is embraced within the metes and bounds description, and should not be applied to a case, such as this, wherein the method of description did not lie in the sole discretion of the referees or the court in the partition proceeding. The method of description employed by the latter was dictated by the provisions of section 765 of the Code of Civil Procedure, which, since its enactment in 1872, has declared that “The referees [in partition] must make a report of their proceedings . . . describing. the property divided and the shares allotted to each party, with a particular description of each share.” In our opinion, the “particular” or metes and bounds descriptions employed from the partition of the tract in 1876 down to the defendants’ acquisition of portions thereof by mesne conveyances were wholly the result of the statutory mandate that the allotted or partitioned parcels be given a “particular description” and therefore were not intended, nor do they serve, to rebut the favored presumption, that owners contiguous to a street or road own to the center thereof. Such descriptions may reasonably be said to have been employed to identify the parcels partitioned and transferred and not with the intention of excluding the abandoned street area.

The findings and judgment of the court below and our conclusion herein give effect to the undoubted intention of the original owner, Augustin Machado, and of the court in the petition proceeding to the end that the entire tract should be partitioned among the former’s heirs at law in the manner designated by him and thereafter effectively pass by mesne conveyances to their successors in interest. In the construction of boundaries, the intention of the parties is the controlling consideration. (Miller v. Grunsky, 141 Cal. 441 [66 Pac. 858, 75 Pac. 48]; 4 Cal. Jur. 373, sec. 2.) Whenever possible, a court should place itself in the position of the-parties and ascertain their intent, as in the case of any contract. As stated in Miller & Lux, Inc., v. Secara, 193 Cal. 755 [227 Pac. 171], “Intention, whether express or shown by surrounding circumstances, is all controlling ...” The declaration in the code that an owner of land bounded by a road or street is presumed to own to the center thereof is based on the supposed intention of the parties,' and the improbability of the grantor desiring or intending to reserve his interest in the street when he had parted with his title to adjoining land. This reasoning finds expression in Brown v. Bachelder, 214 Cal. 753, 755, 756 [7 Pac. (2d) 1027], and would seem to be peculiarly pertinent to a case such as this where a group of fourteen people originally owned undivided interests in the small area here involved. Surely, it would seem to run counter to the intention of the parties to conclude that the unaccepted, unused, unimproved and later abandoned strip designated as a street in the partition proceeding in 1876 did not pass, one-half each, to the adjoining owners upon partition and from them' by mesne conveyances to the respective defendants herein. Particularly when, in addition to other matters, the record discloses that there was not any defined or traveled road through this marsh land and that for many years there was, and still is, a line of fence posts “all along the center” of said strip with “wires on the posts”.

We conclude, therefore, that in the absence of any circumstances showing clearly that it was otherwise intended, the partition of the one-fourth interest originally owned by Augustin Machado among his heirs and devisees operated to convey as a part of the parcels allotted to his widow, Ramona Machado, and his son Jose Machado the fee to the center line of the contiguous unused, unaccepted, unimproved and later abandoned street, which fee passed by mesne conveyances to the grantee defendants as above indicated.

No other points require discussion. The judgment is affirmed.

Curtis, J., Carter, J., Gibson, J., Edmonds, J., and Waste, C. J., concurred.


source: Caselaw Access Project

author: GIBSON, J.

license: Public Domain

text:
    [Sac. No. 5268.
    In Bank.
    February 14, 1940.]
    HARRY M. KAMP, Appellant, v. CHARLES G. JOHNSON, as State Treasurer, etc., et al., Respondents.

      Herman Weinberger and Arthur L. Shannon for Appellant.
    Earl Warren, Attorney-General, and H. H. Linney and James J. Arditto, Deputies Attorney-General, for Respondents.
   GIBSON, J.

This action was instituted by the plaintiff pursuant to section 31 of the Retail Sales Tax Act of 1933 to recover tax paid under protest. Plaintiff appeals herein from the judgment entered for defendants by the trial court.

The plaintiff is engaged in the practice of optometry under the authority conferred by a registration certificate or license issued to him by the state board of optometry under the State Optometry Act. He does not carry a stock of frames, lenses or other tangible personal property for sale at his office, but keeps there only an assortment of samples of frames from which his patient makes a selection: When his examination of the. patient discloses the necessity of glasses, he prepares a prescription for the lenses to be fitted into the type of frame selected, and the prescription is then sent to the supply house to be filled. After the glasses are completed they are returned to plaintiff who fits and adjusts them to his patient’s eyes.

Plaintiff makes a lump sum charge to his patients, the form of his statement reading “For Professional Services Rendered”. There is no itemization in the statement of separate charges for services, lenses, frames or fitting, although the cost of the lenses and frames is taken into consideration in arriving at the amount of the lump sum charge. The only question presented for our consideration is whether the retail sales tax applies to the portion of the charge which may be said to represent the fair retail value of the glasses furnished by the plaintiff to his patient.

The State Board of Equalization, the tax administering agency, regards an optometrist as a retailer of glasses furnished to his patients, its sales tax ruling number 37 reading as follows:

“Oculists, opticians and optometrists must pay the tax on the receipts from the sales of glasses, frames, lenses and other items of tangible personal property sold by them. However, the tax does not apply to charges for eye examination and fitting glasses to a patient. If the charges made cover both glasses, frames, lenses and other items of tangible personal property and also charges for professional service, a segregation must be made and the tax paid on the fair retail value of the items of tangible personal property furnished.”

The plaintiff denies that he is engaged in the business of selling tangible personal property, contending that he is engaged in the practice of a profession and that the furnishing of glasses to his patients is purely incidental to the rendering of professional service. In support of this position plaintiff cites Pennington v. Bonelli, 15 Cal. App. (2d) 316 [59 Pac. (2d) 448], wherein the court characterized the activities of optometrists under the State Optometry Act as the practice of a profession and not the conduct of a business; and Babcock v. Nudelman, 367 Ill. 626 [12 N. E. (2d) 635], wherein the Illinois Supreme Court ruled that an optometrist was not a retailer within the meaning of the Illinois Retailer’s Occupation Tax Act, which is similar to our Retail Sales Tax Act.

The fact that plaintiff’s operations are regarded as the practice of a profession under the State Optometry Act does not preclude the possibility that they may involve sales of tangible personal property within the meaning of the Retail Sales Tax Act for plaintiff’s obligations for sales tax is to be determined through a consideration of the provisions of the latter act. (Jameson Petroleum Co. v. State, 11 Cal. App. (2d) 677, 680 [54 Pac. (2d) 776] ; County of Ventura v. Barry, 207 Cal. 189, 195 [277 Pac. 333] ; People v. Smith, 123 Cal. 70, 75 [55 Pac. 765].) We must, accordingly, turn to the Retail Sales Tax Act to ascertain plaintiff’s tax liability thereunder.

We have had occasion this day in our opinion in the case of Bigsby v. Johnson, Sac. No. 5278 (Cal.) [99 Pac. (2d) 268], to discuss at some length the factors which give rise to a sale of tangible personal property within the meaning of the Retail Sales Tax Act and a repetition here of that discussion is unnecessary. That there is a transfer of title to tangible personal property, the completed glasses, from the plaintiff to his patient cannot, of course, be denied. The evidence establishes that there is a consideration for that transfer for one of the elements entering into the calculation of the plaintiff’s charge to his patient is the value of the tangible personal property furnished to the patient. The fact that the billing rendered to the customer does not show separately the sales price of the glasses is immaterial, for the form of the billing could in no way affect the essential character of the transaction if it was in fact a sale of tangible persona] property within the meaning of the act. The manner in which the terms “retailer”, “sale”, and “business” are defined in the act compel, in our opinion, the conclusion that plaintiff makes a sale of tangible personal property within the meaning of the act when he furnishes glasses to his patient.

Our conclusion is supported by State Tax Com. v. Hopkins, 234 Ala. 556 [176 So. 210], wherein the court held that optometrists were retailers of tangible personal property within the purview of the Alabama Sales Tax Act. The decision of the Illinois Supreme Court in Babcock v. Nudelman, supra, is undoubtedly inconsistent with the view set forth herein. We have already however, in the Bigsby case refused to follow the reasoning of the Illinois Supreme Court in its construction of the Illinois Retailers Occupation Tax Act. Our rejection of the construction given by that court finds additional support in its decision in American Optical Co. v. Nudelman, 370 Ill. 627 [19 N. E. (2d) 582], wherein the court, despite its holding in the Babcock ease that the tax was not applicable to the furnishing or sale of glasses by an optometrist to his patients, refused to apply the tax with respect to the sales of the supply house which filled the optometrist’s prescription and thereby furnished lenses and frames to the optometrist. We do not believe that the legislature of this state intended so completely to relieve from the tax the sales of any tangible personal property not specifically exempted by the act. The broad definition of the term “retail sale” as “a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property ...” compels the conclusion that the tax must be paid at some time with respect to all tangible personal property sold for use or consumption and the sale of which is not specifically exempted from the tax and leaves for construction only the question as to the person to be regarded as the retailer or as making the retail sale of the tangible personal property. As we have already determined that the furnishing of the glasses by the plaintiff to his patient constitutes a sale of tangible personal property and as that sale is clearly not a sale for resale, it follows that the plaintiff is the retailer of the glasses within the meaning of the Retail Sales Tax Act. The judgment for defendants, should, therefore, be and it is affirmed.

Curtis, J., Edmonds, J., Carter, J., Shenk, J., and Waste, C. J., concurred.

      In the case of Bigsby v. Johnson the Supreme Court granted a rehearing on March 14, 1940.


author: EDMONDS, J.

text:
    [L. A. No. 17277.
    In Bank.
    February 29, 1940.]
    MARION R. BARNETT et al., Appellants, v. LA MESA POST No. 282, AMERICAN LEGION DEPARTMENT OF CALIFORNIA (a Corporation), Respondents.

      Penton Garfield, August J. O’Connor and G. J. Hider for Appellants.
    Gray, Cary, Ames & Driscoll and W. H. Jennings for Respondents.
   EDMONDS, J.

Marion R. Barnett and her young daughter sued to recover damages for personal injuries claimed to have been sustained by them when a pet show was given by the local post of the American Legion at La Mesa. The accident which occasioned the litigation is said to have occurred when they were struck by a horse owned by Fred Slocum and being ridden by Herbert Slocum, who are also named as defendants in the action. At the close of the plaintiffs’ case the court granted a motion for a nonsuit and thereafter entered a judgment of dismissal.

The facts are practically undisputed. The American Legion Post sponsored a parade as part of the' festivities to celebrate the burning of certain bonds which had been issued for local improvements. This parade was formed on the school grounds and included the palomino horse which caused the accident. The mother and daughter were not to participate in the parade but had come on the school grounds with Mrs. Barnett’s sister to deliver some caps'to the sister’s children. Thereafter they remained upon the school grounds viewing the formation of the parade.

The complaint contains two counts. In the first count, respondents are charged with negligence. The second count asserts a cause of action upon the ground that the horse which caused the injuries was a vicious and dangerous animal. The respondents deny these allegations and charge the injured persons with contributory negligence.

The testimony offered on behalf of the appellants shows that at the time of the accident Mrs. Barnett and her daughter were standing from seventy to ninety feet away from where the horses were grouped and were looking in the opposite direction. The palomino horse became uncontrollable, and while “rearing and whirling and backing around”, struck them. Mrs. Barnett was rendered unconscious by the impact and her daughter received minor abrasions.

The appellants contend that the evidence which they presented shows that the horse was a vicious and dangerous animal, which characteristics were well known to the respondents, and that the respondents acted negligently in forming the parade. On the other hand, the respondents claim, in support of the nonsuit, that there is not sufficient evidence to support a finding that the horse was or was known to be either dangerous or vicious.

Unquestionably the evidence is not sufficient to show either that the horse was a vicious animal or that the respondents knew that he had any bad habits which would make him dangerous to people near by. All of the testimony upon this point concerned the acts of the horse upon the school grounds. One witness, a boy of fifteen years of age and a participant in the parade, testified: “The horse cut up a couple of times before Mrs. Barnett was hurt. One time he came up in just a little bit of hitting me.” The young son of the chairman in charge of the parade asserted that for half an hour before the accident the horse kept bolting, circling around, crowhopping, rearing and plunging. Another witness said: “Well, that horse . . . seemed to be kind of skittish and didn’t seem like it was ever around a crowd like that before, and it was jumping around and it wouldn’t stand still and just moving all the time side-stepping and kind of jumping and cutting up all the time.” Several other witnesses testified to the same effect. However, there is no evidence whatever to show that the horse was known to be vicious at any time prior to the parade, and therefore the respondents cannot be held liable for its acts as an animal which should not have been allowed in the parade because of habits which made it dangerous. (Haneman v. Western Meat Co., 8 Cal. App. 698 [97 Pac. 695] ; Finney v. Curtis, 78 Cal. 498 [21 Pac. 120] ; Looney v. Bingham Dairy, 70 Utah, 398 [260 Pac. 855].)

But it does not follow that the nonsuit was properly granted upon the second cause of action which is based upon the asserted negligence of the respondents in the supervision and management of the animals exhibited. If the injured persons were invitees the respondents owed them the duty of ordinary care. If they were licensees, the respondents either knew of their presence on the school grounds, or are chargeable with this knowledge under the circumstances shown in the evidence, and are liable for any failure to exercise that same degree of care. (Hamakawa v. Crescent Wharf etc. Co., 4 Cal. (2d) 499 [50 Pac. (2d) 803] ; Lindholm v. Northwestern Pac. R. R. Co., 79 Cal. App. 34 [248 Pac. 1033] ; Lucas v. Walker, 22 Cal. App. 296 [134 Pac. 374].)

The respondents insist that because the actions of the horse which caused the injury were as apparent to bystanders as to the respondents, the appellants may not recover for any injuries sustained by them. This argument is one which might very properly be strongly urged before the trier of fact or in support of a judgment in their favor. However, a motion for a nonsuit may not be granted except where there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such verdict were given. In considering such a motion the evidence must be viewed most favorably to the plaintiff, with every legitimate inference drawn in his favor and conflicts disregarded. (Mitchell Camera Corp. v. Fox Film Corp., 8 Cal. (2d) 192 [64 Pac. (2d) 946] ; Mairo v. Yellow Cab Co., 208 Cal. 350 [281 Pac. 66].)

Measured by this rule, the evidence offered by the appellants tends to prove their charge of negligence and would support a verdict and judgment in their favor. They were therefore entitled to a determination by the jury of the issues of fact presented.

The judgment is reversed.

Carter, J., Gibson, J., Curtis, J., and Waste, C. J., concurred.


author: GIBSON, J. THE COURT.

text:
    [L. A. No. 17142.
    In Bank.
    February 29, 1940.]
    I. O. SUTPHIN, Respondent, v. FREDERICK A. SPEIK, Appellant.

      John W. Preston, Wood, Crump & Rogers, Crump & Rogers and John Perry Wood for Appellant.
    Leland J. Allen for Respondent.
   GIBSON, J.

This is an action to recover royalties due under an assignment of a participating royalty interest in an oil and gas lease. As will presently appear, a judgment entered in a prior action between the same parties has determined the issues involved in this case.

In 1926 the California Petroleum Corporation leased property consisting of two small lots in Huntington Beach, California (designated as lots 12 and 14), to C. K. Cole as lessee, reserving a royalty of 17Vs per cent. Cole assigned the lease to his wife, who on January 7, 1927, assigned to plaintiff Sutphin a royalty interest described as: “A participating royalty interest of Five per cent (5%) of the gross total production of all oil, gas and other hydrocarbons produced, saved and sold from said well on said premises, or any substitute well therefore ...” Subsequently, in June, 1928, the Coles assigned the entire lessee’s interest to defendant Speik, excepting therefrom landowner’s royalty, and royalties theretofore sold.

At the time the assignment to plaintiff was made, a well, designated as number 3, was being drilled, which later went into production. In October, 1932, well number 3 and its equipment were destroyed by fire, and defendant drilled another well in its place, using part of the original hole and casing. This well was numbered 3A and went into production in August, 1933. In October, 1933, well number 4, located some fifty feet from number 3A, was completed, and both wells are now producing.

Plaintiff Sutphin brought his first action against the defendant Speik on October 27, 1933, to recover royalties then due under his 5 per cent participating royalty interest. Judgment was rendered in plaintiff’s favor on April 5, 1934, in the sum of $6,388.82 and interest. Appended as an exhibit to the complaint in the present suit are the findings and judgment of the court in the original action. The material findings are as follows:

That plaintiff by written assignment for valuable consideration acquired a 5 per cent interest in the total production of oil and gas from lots 12 and 14 under the oil lease between the California Petroleum Corporation and Cole.

That at the time defendant received his assignment of the lease he had knowledge of the 5 per cent interest previously assigned to plaintiff.

That the last well (number 4) “produces from the same zone and pool as said redrilled well number 3”.

That “The plaintiff is now and ever since the 7th day of January, 1927, has been the owner of said five per cent of the total production of oil, gas and other hydrocarbons produced, saved or sold from said premises, and of the moneys derived from the sale of said five per cent of said total production.”

In its conclusion of law the court declared, among other things, that ‘ ‘ plaintiff is entitled to judgment declaring him the owner of five per cent of the total production of oil, gas and other hydrocarbons produced, saved or sold from lots 12 and 14 . . . whether or not same is produced from one or more wells upon said premises”.

The court adjudged plaintiff to be the owner of 5 per cent of- the total production of oil and gas from said lots 12 and -14, “whether same is produced from one or more wells upon said premises, and as such owner plaintiff is entitled to receive all moneys derived from the sale of said five per cent of the total production . . . from said lots 12 and 14”.

Defendant Speik appealed. The judgment was affirmed by the District Court of Appeal, Second Appellate District, Division One, and a hearing was denied by this court. (Sutphin v. Speik, 15 Cal. App. (2d) 516 [59 Pac. (2d) 611].) The judgment became final and was satisfied as to the royalties then adjudged to be due. In affirming the judgment, the opinion of the District Court of Appeal, after summarizing the facts, stated that it was the defendant Speik’s contention that the evidence was insufficient to support the finding of indebtedness, the finding that plaintiff was the owner of a 5 per cent interest in the total production from the property, and the finding that well number 4 produced from the same zone and pool as well number 3. The court rejected this contention, and upheld the judgment.

The present action was filed October 29, 1936, to recover royalties accruing after the entry of the judgment, and was grounded on the rights adjudicated by that judgment. Defendant pleaded as his chief defense that well number ■ 4 does not produce from any sand or oil deposit underlying the property but was drilled as a “whipstock well” diagonally into oil producing sand under the Pacific Ocean, more than 2,000 feet from the property, and that well number 4 therefore produces from sands and oil deposits which do not 'extend beneath these lots.

At the trial defendant made an offer to prove that a royalty was being paid to the State of California from the production of wells number 3A and 4 by virtue of an agreement permitting production from state land under the ocean. The court excluded the offered evidence.

Counsel for plaintiff offered in evidence, among other things, Speik’s opening brief and petition for hearing in the first case, and these were admitted for the limited purpose of showing similarity of contentions raised in the two actions.

It was stipulated by defendant that it was the contention of defendant in the former trial that plaintiff Sutphin had no interest in either well number 3A or 4.

The trial court in the present action made findings which reviewed the prior proceeding, and then found as follows:

That plaintiff has not received his 5 per cent royalty on oil and gas produced from wells 3A and 4 since entry of the former judgment.

That no wells other than 3A and 4 have been drilled and that “the location of said wells both above and below the surface of the ground is the same at this time as at the time the trial was had in said action and both are producing from the same sand as at the time of said former trial”.

That wells 3A and 4 produce from the same zone and pool.

That it is immaterial whether they are “whipstock wells” because of the doctrine of res judicata and that all of the defenses here urged existed at the time of the former trial.

Judgment accordingly went for the plaintiff in the sum of $31,932.54 together with interest. Defendant Speik brought this appeal.

Three weeks prior to the commencement of the present action Speik instituted a quiet title suit against Sutphin seeking a determination of rights and also a declaratory judgment in respect to the lease and assignment. That action raises substantially the same issues as those presented in the present action by Sutphin against Speik for royalties. The two cases were consolidated for trial and both are before this court at the present time. We are today deciding the quiet title suit by a memorandum opinion. (Speik v. Sutphin, L. A. No. 16530, post, p. 764 [99 Pac. (2d) 656].)

This brings us to a consideration of the issues on this appeal. The lower court decided the case on the theory that the prior judgment was res judicata. If this conclusion is correct, the judgment must be affirmed on that ground alone and it is neither necessary nor proper to reexamine on their merits the various defenses urged by appellant. The prior judgment, as will be seen from an examination of its provisions and of the foregoing excerpts from the findings and conclusions, determined that plaintiff was the owner of 5 per cent of the total production of the two wells. This determination in the prior judgment necessarily establishes plaintiff’s right in this action to recover royalties based on subsequent production of. wells 3A and 4, unless defendant’s attack on the applicability of the doctrine of res judicata is successful.

The contentions of defendant in this connection are as follows -. (a) The causes of action in the two suits are different, and the judgment in the first is not res judicata in the second, (b) The issue of ownership of oil or rights therein produced from state lands by a “whipstock well” was not raised or decided in the first action, and is not res judicata, (c) Defendant Speik, after the judgment in the first action, acquired an independent title to the oil from the state lands which he could not have set up in the first action. The defendant argues that the estoppel of a judgment extends only to facts and conditions as they were at the time the judgment was rendered, (d) The language in the prior judgment and in the District Court of Appeal opinion, which would purport to establish a right in such oil, went beyond the issues raised and is surplusage and void. In this connection it is argued that the District Court .of Appeal merely affirmed and did not modify the judgment; hence, its opinion cannot enlarge the scope of the judgment.

All of these contentions merely represent different methods of expressing the single defense that the assignment to plaintiff and the prior judgment in his favor were only intended to give to plaintiff a right in oil produced from a particular well or any “substitute therefor” drawing oil from strata directly underlying the leased premises; and that neither was intended, nor could be construed to establish in plaintiff any right to oil drawn through that well or any other well where the oil itself came from strata not underlying these lots.

The argument of defendant is, in substance, an attack upon the findings and judgment in the prior action, the undoubted purpose of which is to avoid the broad determination of the issues therein made. The assignment upon which plaintiff relies covered the original well number 3 (subsequently destroyed by fire) or any “substitute therefor”. It was entirely within the issues of the first action for the court to determine whether wells number 3A or 4 or any other wells then on the premises were substitutes for the original and destroyed well number 3. It is clear from an examination of the findings and judgment therein that plaintiff was adjudged in the prior action to be entitled to his percentage of the production of any wells then drilled on the particular premises regardless of where the wells were bottomed, or the source of the oil delivered by them. The suggestion made by defendant that the “judgment alone should be considered and the findings disregarded if outside the scope of the judgment” can have no force in view of the settled rule that the findings constitute the decision of the court. The further contention is made that the opinion of the District Court of Appeal upon the prior appeal cannot be looked to for a determination of the rights of the parties herein, because that court merely affirmed and did not modify the judgment. We need not consider this contention for that opinion is not necessary to plaintiff’s case. The findings and judgment of the lower court in the prior action are sufficiently broad for plaintiff’s present purposes.

As already indicated, defendant’s contention that the doctrine of res judicata is not applicable here is grounded upon the proposition that the causes of action involved in the prior and present suit are different, and that the defenses that title had been acquired from the state, and that the oil was being taken from lands outside the boundaries of the lots, were not raised in the prior action. A complete answer to this contention may be found in an examination of the scope of the doctrine of res judicata, which has been fully considered by this court in recent cases.

First, where the causes of action and the parties are the same, a prior judgment is a complete bar in the second action. This is fundamental and is everywhere conceded.

Second, where the causes of action are different but the parties are the same, the doctrine applies so as to render conclusive matters which were decided by the first judgment. As this court said in Todhunter v. Smith, 219 Cal. 690, 695 [28 Pac. (2d) 916] : “A prior judgment operates as a bar against a second action upon the same cause, but in a later action upon a different claim or cause of action, it operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action. " In the instant case, for example, the severable installments of royalties due gave rise to separate causes of action; but a determination of a particular issue in the prior action is res judicata in the second action. (See also, Pratt v. Vaughn, 2 Cal. App. (2d) 722 [38 Pac. (2d) 799].)

Next is the question, under what circumstances is a matter to be deemed decided by the prior judgment 1 Obviously, if it is actually raised by proper pleadings and treated as an issue in the cause, it is conclusively determined by the first judgment. But the rule goes further. If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable. In Price v. Sixth District, 201 Cal. 502, 511 [258 Pac. 387], this court said: “But an issue may not be thus split into pieces. If it has been determined in a former action, it is binding notwithstanding the parties litigant may have omitted to urge for or against it matters which, if urged, would have produced an opposite result . . . This principle also operates to demand of a defendant that all of its defenses to the cause of action urged by-the plaintiff be asserted under the penalty of forever losing the right to thereafter so urge them." (See, also, Elm v. Suburban Fruit Lands Co., 217 Cal. 223 [17 Pac. (2d) 1003] ; Andrews v. Reidy, 7 Cal. (2d) 366, 370 [60 Pac. (2d) 832]; Minnich v. Minnich, 127 Cal. App. 1 [15 Pac. (2d) 804].)

Defendant relies on English v. English, 9 Cal. (2d) 358 [70 Pac. (2d) 625]. In that action, plaintiff sued to rescind a separation agreement in which he had promised to pay his wife $200 per month until a total of $10,000 had been paid. He alleged that the agreement was obtained by fraud and duress. The wife contended that the validity of the agreement had been established by a default judgment in her favor in a suit to recover installments due under the contract, and that the issue was therefore res judicata. The court held that although a default judgment is conclusive as to facts necessary to uphold that particular judgment, it is not conclusive in a subsequent suit on a different cause of action against any defenses which defendant has, because the issues raised by these defenses were not tried and cannot be deemed adjudicated. This case states an exception to the normal rule of res judicata, limited to default judgments, and has no bearing on the situation before us.

It remains only to see whether the defense now raised by defendant, that the wells bottomed on state land, could have been raised in the first action. If so, the defense of res judicata applies. The answer seems entirely clear. At the time of the first action, wells number 3A and 4 were drilled and producing. Defendant knew or should have known of the source of the oil therefrom. If the asserted defense has merit, it was as good and available then as now. This being so, it can make no difference whether it was actually pleaded, or whether evidence was introduced thereon or not. We are not impressed by defendant’s assertion that he could not have raised the defense in the first action because it would amount to an admission of trespassing on state land. The defense might have been weak, embarrassing, or dangerous to the defendant; and he may have chosen to refrain from presenting it for reasons important to himself; but this can have no present effect upon the conclusiveness of the determination in the plaintiff’s favor. When we say that the issue could have been raised, we mean that it was relevant to or within the scope of the action, and not that it was at the time a defense upon which the deféndant might prevail.

A similar contention of defendant is that he could not set up his right derived from the state because he had not yet obtained it at the time of the first action. This argument might be persuasive if the issue presented here was as to the right to take oil from state land. But that is not the issue here. The issue is whether plaintiff under his assignment was entitled to 5 per cent of the production of certain wells drilled on certain lots, which production defendant was actually taking and marketing. Whether defendant originally had an absolute or qualified right to such production, whether defendant had to pay the state for that right, or whether, indeed, the wells actually, did draw oil from state land (a disputed point), are clearly immaterial matters. Obviously, if the state asserted a paramount right and stopped production, plaintiff would be entitled to nothing, since nothing would be produced. But here defendant did continuously take and sell the oil from the wells in question, and whenever he did, his activities came within the scope of the former judgment. It need hardly be added that his agreement with the state could not give him any right to enter and drill upon the private land here involved. The agreement clearly has no relation to the rights of the plaintiff under the assignment.

It follows therefore from a consideration of the former judgment, in the light of these rules, that plaintiff is entitled to his present judgment without any further consideration of the merits. Accordingly, we have made no attempt to discuss the conflicting evidence on such matters as the purpose of the assignment, the source of the oil, or other points previously determined.

The judgment is affirmed.

Edmonds, J., Carter,. J., Curtis, J., Waste, C. J., Wood, J., pro tem., and McComb, J., pro fern., concurred.

A petition for a rehearing was denied on March 29, 1940, and the following opinion then rendered thereon:

THE COURT.

Defendant in his petition for rehearing challenges certain portions of our opinion, which he interprets as meaning that in a second suit on a different cause of action, any issue which could have been raised in the first suit is res judicata in the second, even though not actually determined in the first. This is not our holding, and the opinion must be read in connection with the facts of this case, and with an understanding of the issue which was, in fact, decided in the former action.

The judgment in that action awarded plaintiff 5 per cent of the total production from the lots in question whether produced from one or more wells. That judgment, correctly or incorrectly, did not limit the right of plaintiff to production from wells which bottomed under the land. After that judgment became final, plaintiff’s right to a portion of the production from those wells was conclusive as between the parties, even in the present suit on a different cause of action, because the basic issue thus decided in the first case is identical with that in the present case. Defendant, in his petition, has again urged that the former judgment cannot be res judicata as to the new issue of the title to oil from wells bottomed on state land, which title was acquired after the conclusion of the first action. The difficulty with this argument is that the asserted “new issue” is not such in fact. Defendant has simply offered another legal theory by which the same issue might be differently decided. If he may have a new trial of the issue of right to the production of the oil from these wells because of the new argument that the source of the oil must be considered, then it would seem that in subsequent actions he can raise a “new issue” as to the title of A, B, C, or other possible claimants in addition to the state. In short, defendant’s contention is that though the prior judgment determined that plaintiff had a right to a specified percentage of the production of oil from any wells on certain land, plaintiff may be compelled to relitigate that right whenever defendant can discover a new theory upon which to attack it. This proposition is without support in principle or authority.

Shenk, J., and Houser, J., did not participate.


author: CURTIS, J.

text:
    [L. A. No. 17334.
    In Bank.
    March 12, 1940.]
    SOUTHERN PACIFIC COMPANY (a Corporation), Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent.

      W. I. Gilbert for Petitioner.
    J. H. O’Connor, County Counsel, and Douglas De Coster, Deputy County Counsel, for Respondent.
   CURTIS, J.

By this proceeding, petitioner seeks to prohibit the Superior Court of the County of Los Angeles from requiring petitioner to obey a certain subpoena duces tecum directed to a representative of petitioner in an action entitled, “Raymond Houch v. Southern Pacific Company et al.” Said subpoena was issued by the clerk of said superior court upon the application of the plaintiff in said action, accompanied by an .affidavit as required by section 1985 of the Code of Civil Procedure. No order of court was required by the rules of said court for the issuance of a subpoena duces tecum and no order of court was made directing the clerk of. said court to issue the said subpoena. Petitioner promptly after the service of said subpoena upon said representative of petitioner, made a motion, upon due notice to the plaintiff in said action, to recall said subpoena, which was denied by said court. Thereupon petitioner instituted this proceeding to prohibit said superior court from requiring the defendants in said action to obey said subpoena. Said subpoena required petitioner to produce, “All the records of said Company relative to those accidents which have occurred on the line of said Company extending from Alhambra, California, to Duarte, California, and running generally through Arcadia and Monrovia, and, particularly, the permanent records of said Company upon which said reports of accidents are itemized, and schedules for the two years last past before the 25th day of February, 1938, and, further, those records which have been made individually by the crew, or members of each crew, where the equipment has been involved in an accident on said line, as above set out, during the last two years heretofore as indicated.”

The main ground upon which petitioner contends that the writ should issue is that said subpoena was issued by the clerk without any order of court directing the issuance thereof by said officer. The law of this state governing the issuance of subpoenas is contained in sections 1985 and 1986 of the Code of Civil Procedure. Section 1985 of the Code of Civil Procedure provides that, “The process by which the attendance of a witness is required is the subpoena. It is a writ or order directed to a person and requiring his attendance at a particular time and place to testify as a witness. It may also require him to bring with him any books, documents, or other things under his control which he is bound by law to produce in evidence. ’ ’

“All applications before trial for subpoenas duces tecum shall be accompanied by an affidavit specifying the exact matters or things desired to be produced, and setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his possession or under his control. ”

Section 1986 of the Code of Civil Procedure in part reads as follows:

“1. A subpoena is issued as follows: To require attendance before a court, or at the trial of an issue therein ... it is issued by the clerk of the court in which the action or proceeding is pending under the seal of the court ...”

It will be noted that no distinction between ordinary subpoenas and subpoenas duces tecum in respect to the person by whom they are to be issued is made by code and the only act required of a party desiring the issuance of subpoena duces tecum, not required by one desiring the issuance of an ordinary subpoena, is the filing of an affidavit by the applicant as provided by section 1985. In each instance, the clerk of the court is designated as the proper official to issue the subpoena. No provision is made for any order of court as the basis or authority for the act of the clerk in issuing either an ordinary subpoena or a subpoena duces tecum. We, therefore, conclude that the clerk of court was authorized to issue said subpoena without an order of court.

It is contended, however, that the requirement of the code that an affidavit be filed as a prerequisite to the issuance of a subpoena duces tecum necessarily presupposes that a judicial determination as to the sufficiency of the affidavit to warrant the issuance of a subpoena duces tecum will be made before its issuance. While it is the duty of the clerk to see that an application for a subpoena duces tecum is accompanied by an affidavit as required by section 1985 of the Code of Civil Procedure, it is not his duty to pass upon the materiality of the evidence desired to be produced.

While it is true that the affidavit must set forth “in full detail the materiality” of the “matters or things” to the issue involved in the case, we are directed to no authority which makes it the duty of the clerk to pass upon the materiality of such matters. On the other hand, we find it stated upon most respectable authority that, “The approved method of testing the relevancy and materiality of documents required by a subpoena duces tecum is to move, as did the appellant here to quash, vacate or modify it.” (Application of Sun-Ray Cloak Co., 256 App. Div. 620 [11 N. Y. S. (2d) 202].) In 70 Corpus Juris, page 55, it is stated: “A witness upon whom has been served a subpoena duces tecum has a right to question the validity of the writ and the duty to produce the papers called for, and where a subpoena has been improperly issued to enforce the production of documents which the witness is not bound to produce, and his rights are invaded by it, he may properly apply to the court, whose duty it would be to enforce the writ, to vacate it or set it aside. The motion or application to set aside or vacate the subpoena gives the court the opportunity to examine the issues raised by the pleadings in the cause, and in the light thereof to determine the apparent relevancy of the evidence which is sought to be elicited, and also to pass upon the question whether an order for the production of the document in question would constitute an unlawful invasion of privacy.”

In passing upon such a motion, the court would have before it the affidavit and would determine from the matters therein stated whether the evidence sought to be procured thereby was material to the issues in the case. This was the procedure followed in this case by the petitioner herein. Petitioner, as one of the defendants in the case in which the subpoena was issued, moved the court to set aside and vacate the subpoena, which motion the court denied. If this is the accepted procedure in such matters, then we think it is apparent that the statements’ in the affidavit as to the documents to be produced and their materiality to the issues in the case were not to be passed upon by the clerk before the issuance of the subpoena, but were for the guidance of the court in case any objection was thereafter made to their production or introduction as evidence in the ease. The subpoena is merely the means whereby the documents or other things required to be produced are brought into court. Even if the opposite party fails in his motion to recall the subpoena duces tecum, or fails to make such a motion and the documents are brought into court, their admissibility is to be determined when they are offered in evidence. (Equitable Life Assur. Soc. v. Mpasstas, 256 App. Div. 878 [9 N. Y. Supp. (2d) 221].) The action of the clerk in the issuance of the subpoena duces tecum is merely ministerial as the purpose of the subpoena is to initiate proceedings to have the documents and other matters described in the subpoena brought before the court in order that the court may determine whether they are material evidence in the case pending before it.

It cannot be said that the issuance of a subpoena duces tecum requiring the production of private papers or documents in the manner provided by sections 1985 and 1986 of the Code of Civil Procedure is violative of article I, section 19, of the Constitution of this state, which seeks to protect the citizen against unreasonable searches and seizures. Before any such paper, document, book, or other thing is required to be produced in court, the party against whom it is sought to be used has the right to a judicial determination by the judge before whom the action is pending as to whether the matter sought to be produced is material to the pending case, and also whether its production in court will violate his constitutional rights against unlawful search and seizure. If he desires not to avail himself of this right before the trial of the action commences and prefers to await the time when he is called upon to produce the documents in court, he may then object to their admissibility on the ground of their immateriality or that his constitutional rights are violated by reason of his being compelled to submit them in evidence before the court. It will thus be seen that the party against whom the. evidence is offered has ample opportunity to protect all his rights before the court in which the action is pending.

The practice prescribed by said sections of our code is practically the same as that provided by the United States Supreme Court in the recently adopted Rules of Civil Procedure for the district courts of the United States. Rule 45 provides that every subpoena may be issued by the clerk under the seal of the court, and, “A subpoena may also command the person to whom it is directed to produce the books, papers, or documents designated therein.” In addition thereto this rule provides that the court upon a motion may quash the subpoena if it is unreasonable and oppressive or the court may deny the motion on condition that the person in whose behalf the subpoena is issued advances the reasonable costs of producing the documents. While our code does not provide for such a motion, the court undoubtedly has the inherent power to entertain such a motion, and to grant or deny it. (Application of Sun-Ray Cloak Co., supra.) It is hardly to be supposed that the United States Supreme Court would promulgate such a rule if there were any doubt that its enforcement would violate the constitutional rights of any citizen. The section of our state Constitution against unreasonable search and seizure is identical with that of the federal Constitution on the same subject.

Petitioner has cited a number of authorities in support of the proposition “that it is improper to permit a ministerial officer to pass upon the sufficiency of the affidavit required by section 1985 of the Code of Civil Procedure”. We have examined these cases and do not find the above statement to be entirely correct. The authorities cited do, however, at least inferentially, hold that it is improper for a ministerial officer to pass upon the materiality of the evidence required by section 1985 of the Code of Civil Procedure. They are, therefore, in complete harmony with our conclusion in this case as hereinbefore stated.

It is therefore ordered that the petition herein for a peremptory writ of prohibition be and the same is hereby denied, and the alternative writ heretofore issued be and the same is hereby discharged.

Gibson, J., Edmonds, J., Shenk, J., Houser, J., and Waste, C. J., concurred.

Carter, J., deeming himself disqualified, took no part in the consideration or decision of this case.


text:
    [L. A. No. 16866.
    In Bank.
    March 13, 1940.]
    In the Matter of the Estate of JAY B. LAMPMAN, Deceased. MARION L. PITCHER, as Executrix, etc., Appellant, v. HELEN T. LAMPMAN, Respondent.

      Frank C. Dunham and M. Everett Burton for Appellant.
    Hahn & Hahn, E. F. Hahn, Jr., Allyn H. Barber, Clock, Waestman & Clock, Newlin & Ashburn and Richard K. Gandy, as Amici Curiae, on Behalf of Appellant.
    Morin, Newell, Brown & Hamill and J. W. Morin for Respondent.
   CURTIS, J.

This is an appeal from certain portions of the judgment approving the first and final account of the executrix of the last will and testament of Jay B. Lampman, deceased. The appeal is taken by the executrix of said will, particularly from that portion of said judgment which related to the statutory fees of said executrix and her attorney, and also from that portion of said judgment which reduced the fee paid to an accountant for services rendered the executrix both in the preparation of her first and final account and also the income tax return for three years.

The testator at the time of his death was the owner of an apartment house in Glendale, appraised at $42,500, and recently acquired in trade. It was subject to a trust deed which had never been signed by the decedent, and upon which an unpaid balance of $38,000 remained at the time of his death. The executrix took possession of the apartment, managing it through a paid manager, and collecting the rents and paying the operating expenses. The gross income from said property received by the executrix was set forth in said final account as totaling approximately $19,615. During the course of administration the property was sold for $47,500, which sale was confirmed by the probate court. The purchaser assumed the payment of the trust deed and paid to the executrix the difference between the purchase price and the amount due on the trust deed. The actual amount of cash paid to the executrix from this sale was $14,003, as the balance then due on the trust deed was the sum of $33,497.

The executrix presented her petition for distribution and her first and final account to the probate court and sought the approval of the court to the payment of $1507.09 to herself, as her commission as executrix of the will, and also an equal amount for her attorney, upon the theory that she had therein accounted for a total estate of $67,788.42. The executrix also sought in said final account “a substantial sum” to be fixed by the court to herself, and the sum of $500 to her attorney, for extraordinary services in connection with the management of the estate and sale of the apartment house. The final account of the executrix showed that there was not sufficient money remaining in her hands to pay the allowed claims in full, and that it would be necessary to prorate the payments of said claims. Respondent, who is the principal creditor, filed objections to the payment of the amount of statutory fees claimed by said executrix, and also to the payment by the estate of $75, paid by the executrix to an accountant for the preparation of federal and state income tax returns for the year 1936, and the payment of $150 to the same accountant for services rendered the executrix in connection with the preparation of said final account and the preparation of income tax returns for the years 1937 and 1938.

Upon the hearing of said account the court upheld the objections thereto, and made the following findings:

“A. The court finds that at the date of the death of the above named decedent, there was a Trust Deed of record on the real property belonging to the said estate upon which there was due approximately $35,000, and that said real property was sold by the said executrix, said sale having heretofore been approved and affirmed by the said court for the sum of $47,500, the said purchaser paying to the said executrix the sum of $14,003, and agreeing to assume and pay the holder of said Trust Deed the balance then due on the said Trust Deed, to-wit, the sum of $33,497.
“B. The court further finds that there has been no claim filed by the holders of said Trust Deed with the said Executrix and that because of the foregoing facts there should be first deducted from the total amount of the Estate accounted for by said executrix, to-wit, the sum of $67,799.42, the sum of $33,497, being the amount due on said encumbrance, as hereinbefore set forth, leaving net balance of said estate to be accounted for by said executrix, in the sum of $34,302.42, upon which the statutory fee for the said executrix and her said attorney should be fixed, making the fee of said executrix and her said attorney in the sum of $1016.05 to each instead of the sum of $1507.99 to each, as set forth in said executrix’s account.”

The court also allowed the executrix $300 and her attorney $500 additional fees for extraordinary services rendered the estate. The court also allowed the $75 paid to the accountant for assisting the executrix in the preparation of the federal and state income tax returns for 1936, but disallowed and reduced the sum of $150 to $60 which the court found to be “reasonable compensation . . . for services rendered in the preparation of federal and state income tax returns”. In this regard, the court expressly found that the executrix had exceeded her authority in employing said accountant to assist her in the preparation of her final account.

The first question presented is whether the lower court was in error, in deducting the amount of the encumbrance due on the apartment house, which the purchaser agreed and assumed to pay, and thereafter fixing the statutory fee on the balance, to wit, $34,302.42, instead of $67,799.42.

Section 901 of the Probate Code establishes the right and fixes the measure of the commission of executors and administrators. Said section reads as follows: “The executor, when no compensation is provided by the will or he renounces all claim thereto, or the administrator, shall receive commissions upon the amount of estate accounted for by him, as follows: “For the first thousand dollars, at the rate of seven per cent; for the next nine thousand dollars, at the rate of four per cent; for the next ten thousand dollars, at the rate of three per cent; for the next thirty thousand dollars, at the rate of two per cent; and for all above fifty thousand dollars, at the rate of one per cent ...” Section 910 of the Probate Code establishes the fees of attorneys upon the same basis as those of executors and administrators.

It is apparent that “the amount of the estate accounted for” is the base for reckoning commissions, and that once this figure is established the matter of determining the correct statutory fees is merely a matter of computation. (11B Cal. Jur., p. 461, see. 1025; Estate of Straus, 144 Cal. 553, 556 [77 Pac. 1122].) The cases in this state which have analyzed and discussed the meaning of the phrase, “the amount of the estate accounted for”, in arriving at a solution of whether or not the correct base had been used in computing statutory fees of an executor or administrator are limited in number, and the fact that the cases in this jurisdiction relied upon by the appellant are practically identical with the cases relied upon by the respondent indicates that the opinions therein are susceptible of different and contrary interpretations.

Appellant, who claims to have “accounted for” the total sale value of the apartment house and furnishings, including the amount of the encumbrance thereon, insists that an executor is entitled to commissions upon the entire value of the property “which he has taken into his possession”. She argues that because she had taken into her possession the physical property consisting of the apartment house and furnishings, she is entitled to commissions based upon the total sale price of said apartment house and furnishings. There can be no doubt that the executrix actually took possession of the apartment house and furnishings. Also there can be no doubt that the taking possession of property belonging to the decedent is one of the tests of whether or not an executor is entitled to the allowance or commissions based upon the inclusion of said property in his accounts. As early as 1866, in the Estate of Isaacs, 30 Cal. 105, 106, this court reversed a judgment which disallowed to the executors commissions upon the $5,000 set apart to the widow in lieu of a homestead, saying, “The estate of the deceased, from which the five thousand dollars set apart to the widow in lieu of the homestead was derived, came to the possession of the executors, and they were made responsible for the whole estate, including the sum so set apart, and were entitled to their commissions thereon in their settlement.” This rule has been consistently followed. (Estate of Simmons, 43 Cal. 543; In re Ricaud, 70 Cal. 69 [11 Pac. 471]; Estate of Pease, 149 Cal. 167 [85 Pac. 149]; Estate of Boggs, 33 Cal. App. (2d) 30 [90 Pac. (2d) 814].)

It should be noted, however, that the taking possession of property claimed as part of the estate of decedent is not the sole test, or the only essential factor to be taken into consideration in determining “the amount of the estate accounted for” by the executor or administrator. An analysis of the decisions involving this particular question indicates that the crucial test is not so much the actual taking possession of the property, but the test is whether or not the executor or administrator is responsible for, or chargeable with, the property upon which commissions are sought. In fact, the very cases which hold that a method for determining whether or not an executor is entitled to commissions upon certain property is to determine whether or not such property has been taken into possession by the executor, base their conclusion upon the reasoning that an executor or administrator is "responsible for and chargeable with the property which he has taken into his possession. Thus in Estate of Isaacs, supra, the court allowed the commission to the executors upon the ground that the $5,000 given the widow in lieu of a homestead had’ come into the possession of the executors, “and they were made responsible” for the whole estate, including the sum so set apart, and in Estate of Ricaud, supra, where property had been included in the inventory, possession of which had been taken by the executors, but which during the course of administration had been turned over in compliance with a judgment secured against said executors in an action for possession of the property originally instituted against the decedent, the court refused to allow commissions computed upon the value of said real property, holding the executors were not entitled to such commissions for the reason that the value of the land “did not form any part of the value of the estate in the possession of the executors for which they were chargeable”. In In re Delaney, 110 Cal. 563 [42 Pac. 981], the court held the reasoning in the Ricaud case, supra, was applicable to that case, and refused to allow commissions upon property taken into possession by an executor, but lost in a lawsuit during the course of administration. It is also undoubtedly the basis of the reasoning in the subsequent decisions in this state. (Estate of Simmons, supra; Estate of Fernandez, 119 Cal. 579 [51 Pac. 851]; Estate of Carver, 123 Cal. 102 [55 Pac. 770]; Estate of Pease, 149 Cal. 167, 169 [85 Pac. 149]; Estate of O’Connor, 200 Cal. 646 [254 Pac. 269] ; Estate of Fritz, 140 Cal. App. 487 [35 Pac. (2d) 643]; Estate of Boggs, supra.) In other words, the principle which underlies all of these cases dealing with the question of the “amount of the estate accounted for” by an executor or administrator, is the premise that the measure of the executor’s responsibility is the measure of his compensation.

It was in accordance with this principle that the court in Estate of Carver, 123 Cal. 102 [55 Pac. 770], allowed commissions to the administratrix based upon the total value of the estate of the decedent rather than deducting therefrom the value of the land which had been turned over to the mortgagee upon a compromise of a foreclosure suit. The debt existing therein was the debt of the decedent for which he and his estate were liable, and the turning over of the property to the mortgagee in settlement of the debt was not a mere bookkeeping transaction, but an “accounting for” that portion of the estate. Likewise, in Estate of Pease, supra, the debt was a debt of the decedent, and a claim therefor had been presented to the estate. The court in allowing to the executor a commission based upon the total sale price of the property held that the payment of the mortgage was done by the real estate broker as an agent of the executor, and based its holdings upon the fact that “the executor is bound to account to the court for the entire proceeds of sales made under its orders”.

The trial court in the instant ease placed its reason for deducting the encumbrance from the total sale price of the apartment prior to computing the statutory fees, squarely upon the fact that the indebtedness of the trust deed was not that of the decedent and no claim had been presented against the estate. In other words, the executrix was not responsible for, or chargeable with, the entire purchase price' but only the excess of the total sale price over the encumbrance. The court in Estate of Pease, supra, makes this same distinction for it says: 11 The general rule appears to be that where property subject to an encumbrance is sold, the executor is entitled only to commissions on the net purchase price in excess of the encumbrances. (2 Woerner on American Law of Administration, 2d ed., p. 1166; Buerhaus v. De Saussure, 41 S. C. 457 [19 S. E. 926, 20 S. E. 64]; Baucus v. Stover, 24 Hun, 109; cf. Hitchcock v. Mosher, 106 Mo. 578 [17 S. W. 638].) An examination of these cases indicates that what was sold was merely the equity of redemption, and it may well be held that where property is sold subject to an encumbrance which still remains, the commissions should be calculated only on the value of the property sold. Here, however, the mortgage had been presented as a valid claim against the estate.”

In Estate of Boggs, supra, the court held that the executrix was only chargeable in her account with that portion of the estate of decedent which had actually come into her possession, and was not entitled to commissions based upon the property which had not come into her possession but which was held by a bank as security for an indebtedness which was larger than the actual value of the property held as security. It is apparent that since the facts in that case are different from those in the instant case in that the property there involved was not taken into the possession of the executrix, the decision therein is not particularly helpful in the instant case.

We are satisfied that the determinative factor in the instant case is whether or not the executrix herein was chargeable with, or responsible for, the total value of the apartment house and furnishings, as evidenced by the sale price of $47,500, or only for the actual sum received by her, that is to say, $14,003. We think there is no doubt that she was only chargeable with the $14,003 and that, therefore, the probate court did not err in refusing to allow her commissions based upon the total sale price of the property.

In this connection it may be noted that both the executrix and the attorney herein received additional fees for extraordinary services in connection with the management and sale of the apartment house and the administration of the estate. This power of the court to grant additional fees for extraordinary services is one which may be used to equalize any injustice which may result when the estate upon which the commissions are allowed is small, and the services involved are extra onerous.

Appellant’s second contention that the court erred in reducing the fee allowed the accountant for services to her in preparing her final account cannot be sustained in the absence of a showing of an abuse of discretion. The matter of payment to third persons for services rendered an exeeutor rests in the sound discretion of the court. (Estate of Boggs, supra.)

The judgment is affirmed.

Houser, J., Shenk, J., Carter, J., Edmonds, J., Gibson, J., and Waste, C. J., concurred.