issued successively but separately on the same facts or transaction, than as duplicates, which implies, I think, simultaneous execution or origin.

And assuming this to be the fact, the force and effect of the second certificate, as evidence of the fact stated therein, is not at all impaired by the circumstance that it was issued some time after the registry of the memorandum and articles. It is doubtless contemplated by the act, that the registrar will issue the certificate as soon as the corporation is entitled to it.

But there is nothing in the act or the circumstances of the case that makes its validity depend on the date of its issue. So far, at least, as third persons are concerned, it is immaterial when it issues, so that it is subsequent to the registration of the memorandum and articles of association by the registrar.

But speaking by the evidence, this is really the only certificate that ever was issued to the plaintiff. The attempt to prove the issue of one on May 2, 1876, failed. The original was not produced, and the alleged copy is not competent evidence of the fact.

On the whole, my conclusion is, that the plea in abatement is not proved. On the contrary, it satisfactorily appears plaintiff is a duly organized corporation under the laws of Great Britain with power and authority to take an assignment of these notes and mortgages, and to maintain this suit thereon.

This defense is purely technical and utterly without merit. It is admitted that the defendants have the legal right to make it, even if they should thereby succeed in defrauding the plaintiff out of this large sum of money. In the administration of justice by finite beings according to finite laws, it must sometimes happen that the wrong prevails.

But, happily, in this case, the attempt to escape the payment of an honest debt, on the ground set up in this plea, has so far come to naught.

SUPREME COURT OF IDAHO.

TOULOUSE ET AL. V. BURKETT, ADMINISTRATOR.

Filed February 15, 1886.

ESTATES OF DECEDENTS-EQUItable Cause of ACTION-PRESENTATION OF CLAIM.-In cases purely equitable and in which purely equitable relief is sought, the cause of action set out in the complaint does not constitute a "claim" which must be presented to the administrator before an action can be maintained under section 138 of the Probate Practice Act.

FINDINGS-REVIEW OF EVIDENCE-NEW TRIAL.-Errors in findings of fact on the ground that they are not supported by the evidence can only be reviewed in the appellate court on an appeal from an order overruling a motion for a new trial.

PLEADING-PFESENTATION OF CLAIM NEED NOT PE ALLEGED.-In actions against an estate it is not necessary to allege in the complaint that the "claim" sought to be collected has been presented to the administrator for his allowance.

APPEAL from the second judicial district court of Alturas county. The opinion states the facts.

Kingsbury & McGowan and Brumback & Lamb, for the appellants. A. F. Montandon, for the respondents.

BUCK, J. The plaintiffs in this action were partners doing business as miners in Alturas county, in this territory, and the owners of certain mines mentioned in the complaint.

On the fifteenth day of October, 1881, they executed and delivered to Nicholas Boucher, and to his heirs and assigns, a deed of the undivided one third of said mines in consideration of two thousand dollars. The said consideration was not paid at the time said deed was delivered to said grantee, but said indenture of deed contained the stipulation by the grantors that said grantee "agrees to work on said mines without remuneration until the same are sold or otherwise disposed of, and should the same be sold, or mineral extracted thereform be sold, the grantors shall receive the said two thousand dollars consideration out of the first money received from said sales over and above the value of said services of grantee."

The complaint alleges that said conveyance was made and delivered in pursuance of a contract of partnership between the grantors and grantee therein, whereby the partners were each to own one-third of said mines, and be equal partners in working the same, but through accident and mutual mistake, all of said parties being illiterate and of foreign birth, not understanding the English language, the intended contract of partnership with condition to convey the one-third interest in said mines was made to convey said interest absolutely and without fully stating the terms and conditions of said partnership and of said conveyance; that said grantee received the benefits of said contract with plaintiffs on said terms, worked according to said agreement until August 24, 1882, when a contract of sale of said mines was made. That afterwards, the said sale not being made, the plaintiff's and grantee Boucher received four thousand dollars forfeit money therefrom, which sum was paid to said Boucher, and by him divided equally between

them, the said Boucher retaining therefrom one thousand three hundred and thirty-three dollars and thirty-three cents. That said forfeit was first paid to said Boucher, and one third retained by him against the protest of plaintiffs who claimed the same as a part of the proceeds of the said mines which should be applied on the said purchase-price of two thousand dollars. That after the receipt of said forfeit, said Boucher refused and neglected to work on said mines and left the same, and continued away therefrom until the first day of June, 1883, when he died, and defendant Burkett was duly appointed administrator of his estate. The complaint further alleges that the plaintiffs have performed their part of said agreement of sale and partnership, but that neither Boucher nor his representatives have performed their part thereof but have refused so to do, and still refuse and neglect to fulfill the same; that at the date of the commencement of this action there was five hundred and forty-six days' labor due from defendants on said contract, wherefore plaintiffs pray that said deed be rescinded, that said contract be reformed to comply with the real understanding of the parties, that said defendant as administrator of the estate of the said Boucher be decreed to reconvey said one-third interest to plaintiffs, and in case said relief cannot be granted, the vendors' lien on said premises be foreclosed and sold to pay the amount ascertained to be due plaintiffs in consequence of a breach of said contract; that plaintiffs have a personal judgment against defendant for any deficiency, and for such further relief as may be agreeable to equity.

The defendant answered the complaint, admitting that plaintiffs were the owners and in possession of said mines, as alleged in the complaint, by a failure to deny the same, and the making and delivery of said deed, but deny all the other material allegations of the complaint, and prays that the suit be dismissed at plaintiff's costs. The case was tried by the court, and the findings of fact sustained the allegations of the complaint, with the exception of finding that there was no mistake in the execution of the said deed. That the plaintiffs were entitled to two thirds of five hundred days' labor from said Boucher, or on his behalf from said mines, and that the said labor is of the value of four dollars per day, amounting to one thousand, three hundred and thirty-three dollars and thirty-three cents. As conclusions of law, the court find:

1. That two thousand dollars is due plaintiffs from said estate of Boucher, and is a lien upon the interest in said mines described in said deed;

2. The one thousand, three hundred and thirty-three dollars and thirty-three cents due plaintiffs for labor as aforesaid, is a part of the purchase-price of said mine, and it is a valid lien on the same;

3. That by the commencement of this action the plaintiffs elected to terminate the contract, and that they are not allowed any other or greater sum than is herein allowed for the failure to perform said contract;

4. That the four thousand dollars forfeit-money was received by all

the parties and settled between themselves, and plaintiffs are not entitled to recover the same;

5. That upon the sale of the property by the administrator he should settle and discharge the costs of this action and the sum of three thousand, three hundred and thirty-three dollars and thirty-three cents, herein declared to be a lien upon said premises.

The defendant appeals from the judgment, and incorporates in the record a bill of exceptions. In the bill, exception is taken to several of the findings of fact by the court as being contrary to the evidence, but as no part of the evidence in the court below is brought up in the record, this court has no means of determining the correctness of the findings of fact.

It is also well established that exceptions to findings of fact on the ground that they are contrary to the evidence can only be reviewed on a motion for new trial: Pico v. Cuyas, 47 Cal. 174; Rice v. Inskeep, 34 Id. 224; Code Civ. Proc., sec. 411; Hayne on New Trial, sec. 96.

The second point made in appellant's brief is that the complaint is not sufficient to sustain the judgment in that it fails to allege that the claim of plaintiffs was presented to the administrator for his acceptance or allowance: Probate Act, sec. 128.

Upon this objection, it has been held in the adjudicated cases that it is not necessary to allege the presentation and rejection of the claim, but that it may be proven on the trial without such allegation: Hentsch v. Porter, 10 Cal. 555; Coleman v. Woodworth, 28 Id. 568. It is, however, admitted by respondent that no such evidence was in fact given, and it is insisted that the cause of action, as set out in the complaint, is not a "claim" in contemplation of the probate act.

In Gray v. Palmer, 9 Cal. 616, in which very elaborate briefs were prepared, and exhaustive arguments were made to determine the signification of this term as used in statutes identical with our own, the court say: "It would seem clear, from the different sections of the act construed together, as well as from the nature and reason of the case, that the words 'claimant' and 'claim' are used as synonymous with creditor and legal demand for money."

In Fallon v. Butler, 21 Cal. 24, a suit to foreclose a mortgage, Judge Field says: "The term 'claim' in the probate act only has reference to such debts or demands against the decedent as might have been enforced in his life-time by personal actions for the recovery of money, and of which only a money judgment could have been rendered."

The adjudicated cases and the reason of the law indicate the rule to be as suggested by Justice Field above cited: that in cases purely equitable, or in which a purely equitable relief is sought, the cause of action set out in the complaint does not constitute a "claim" which must be presented to the administrator under section 138 of our probate act before on action may be maintained.

This is held to be the rule in actions for the foreclosure of mortgages and liens where personal judgments over are not sought. In the

case at bar, the plaintiff's were in the possession of the property in dispute, and had a vendor's lien thereon for the unpaid purchase-price. The real object of the suit was to foreclose this lien. It is true the plaintiff's demanded a personal judgment over against the adminis trator; the test, however, is not what a litigant demands, but what he is entitled to receive. His prayer for general relief enabled the court to grant such relief as was agreeable to equity. The only remaining point is that the plaintiff, Toulouse, was permitted to testify against the objection of defendant, and contrary to section 898, subdivision 3, of our code of civil procedure, as to the ownership and possession of the mines conveyed at the time the deed was made.

An inspection of the pleadings shows that such ownership and possession was alleged in the complaint and not denied in the answer. The testimony referred to could not have injured defendant, as it went to facts admitted in the pleadings. We find no error in the trial below, and the judgment is affirmed.

HAYS, C. J., and BRODERICK, J., concurred.

Subsequently, a petition for a reargument was filed, and on March 3, 1886, the following decision was rendered thereon:

BUCK, J. On the fifteenth instant the decision of the court herein was announced confirming the judgment appealed from. On the twenty-third the appellant filed his petition for a reargument. As a basis for the petition, it is set out that the court was mistaken in stating that the allegation of ownership and possession of the premises in dispute set out in the complaint was admitted in the answer by a failure of defendant to deny the same, and on the further ground that the cases of Gray v. Palmer, 9 Cal. 616, and Fallon v. Butler, 21 Id. 24, are practically overruled in Ellis v. Polhemus, 27 Id. 354, and in Pitte v. Shipley, 46 Id. 162. The allegation of ownership and possession of the premises in dispute are denied in terms but admitted in fact in the answer. The defendants allege in their answer that the quitclaim deed set out in the complaint contained the exact understanding of the parties and that there was no mistake or misunderstanding. If this be true, the defendants stand in the relation of vendee of the plaintiffs, the vendors in the deed. This action is brought to foreclose the vendor's lien for alleged unpaid purchase-money. In such an action the vendee is estopped from denying his vendor's title, while in some actions the vendee may dispute his vendor's title, the doctrine is (Bigelow on Estoppel, 415) "that until the grantee has paid for the land he holds in respect to the payment a relation of duty to the grantor similar to that of tenant and landlord. The grantee cannot escape the payment of the purchase-price by disclaiming the title of his grantor." In the case at bar, the defendant admits that whatever rights he has to the premises he has by virtue of purchase from plaintiffs, and in an action to foreclose the vendor's lien for purchase-price, admitting, as he does, the purchase, the issue is, Is there purchase-money due? He cannot disavow his vendor's title on that issue: Bigelow on Estoppel,