he ought to give possession to his vendee; but if the other cotenants are in possession, the vendor has no right to take it from them. He may, therefore, from necessity, make a valid sale without placing the property in the custody of his vendee." And see Brown v. Graham, 24 Ill. 630, and Newell v. Desmond, 63 Cal. 242.

The law being as above stated, it is clear that judgment was properly entered against the appellant, unless his second contention can be sustained. That contention is, that the Bank of San Luis Obispo was not a creditor of Brown until more than a year after the sale, and consequently was not in a position to attack the sale. And it is said: "The statute, we think, visits no such penalty upon a bona fide purchaser as to declare a transfer void as to subsequent creditors."

The obvious answer to this position is, that the statute, section 3440 of the Civil Code, " denounces the transfer as fraudulent and void as against the claims of a creditor who is such creditor during any of the time that the person who made the transfer remains in possession after a transfer which is not accompanied by an immediate delivery, and followed by an actual and continued change of possession. Such a transfer being void as to the creditor, he may cause the property to be seized in the same manner as he might have done had there been no attempted transfer by the debtor": Watson v. Rodgers, 53 Cal. 401. The law is so written, and though it may sometimes seem to work a hardship, the courts cannot evade its force and effect by an inquiry into the consideration paid by the purchaser or the good faith of the transaction: Woods v. Bugbey, 29 Cal. 467.

It results that the judgment should be affirmed, and we so advise.

HAYNES, C., and VANULIEF, C., concurred.

For the reasons given in the foregoing opinion, the judgment is affirmed.

SALES - NECESSITY FOR DELIVERY. Retention of possession by the seller upon a sale of chattels, in itself, makes the transaction fraudulent as to subsequent bona fide creditors and purchasers: Stephens v. Gifford, 137 Pa. St. 219; 21 Am. St. Rep. 868, and note; Davis v. Bigler, 62 Pa. St. 242; 1 Am. Rep. 393; Renninger v. Spatz, 128 Pa. St. 524; 15 Am. St. Rep. 692, and note; Cochrane v. Gibert, 41 La. Ann. 735. To render a sale of chattels valid as against the creditors of the vendor and subsequent purchasers from him, the vendee must take actual possession of them: Claflin v. Rosenberg, 42 Mo. 439; 97 Am. Dec. 336, and extended note; McDonough v. Prescott, 62 N. H. 600.

Where a sale of chattels is not followed by an actual and continued change of possession, the burden of proof is upon the vendee to show that the sale was made in good faith: Clark v. Lee; 78 Mich. 221.

A sale of personal property not followed by delivery was, at common law, void, but under the Oregon statute it is valid as to creditors, if the bill of sale is recorded within ten days: Monroe v. Hussey, 1 Or. 188; 75 Am. Dec. 552, and note. Although a sale of goods without delivery of possession is void as to existing creditors, yet as to subsequent creditors it is fraudulent only as to those in fact intended to be defrauded: Ditman v. Raule, 124 Pa. St. 225.

LATTIN V. GILLETTE.

[95 CALIFORNIA, 317.]

STATUTE OF LIMITATIONS - TWO-YEARS CLAUSE APPLICABLE TO LIABILITIES ARISING FROM TORTS. - Section 339 of the California Code of Civil Procedure, which provides that an action upon a contract, obligation, or liability not founded upon an instrument in writing must be brought within two years after the cause of action shall have accrued, is applicable to all actions at law not specifically mentioned in other portions of the statute, and to liabilities arising in consequence of torts committed. STATUTE OF LIMITATION BEGINS TO RUN AGAINST Action for NEGLIGENCE AS SOON AS NEGLIGENCE IS Completed. - The statute of limitations begins to run against an action for misconduct or negligence from the date when the act of misconduct or negligence is completed, and it is immaterial whether the negligence out of which the cause of action arises is the breach of an implied contract or the affirmative disregard of some positive duty.

TIME OF LIMITATION NOT PROLONGED BY WANT OF KNOWLEDGE OF NEGLIGENCE. The right to maintain an action for negligence is distinguished from the measure of damages, and although the entire damage resulting from the negligence may not have been known until the right to a recovery is barred, yet the time within which an action may be brought is not thereby prolonged.

SEARCHER OF RECORDS - LIABILITY OF, FOR NEGLIGENCE — STATUTE OF LIMITATIONS. One who holds himself out as an examiner of titles is bound to exercise skill and care in making such examination, and is liable in damages for a failure to do so, but an action against him for damages resulting from his negligence in examining and reporting upon the condition of the title to real estate must be commenced within two years from the giving of the report, or it is barred by the statute of limitations, although the plaintiff was deprived of a portion of the land through a suit determined within two years before the commencement of the action for damages. STATUTE OF LIMITATIONS - CERTIFICATE OF TITLE GIVEN BY SEARCHER OF RECORDS NOT WITHIN FOUR-YEARS CLAUSE OF. Section 337 of the California Code of Civil Procedure, prescribing a four-years limitation, refers to contracts, obligations, or liabilities arising from instruments of writ ing executed by the parties who are sought to be charged, in favor of

those who seek to enforce the contracts, obligations, or liabilities, but does not apply to a certificate of title given by a searcher of records, where dainages are claimed for his negligence in giving an incorrect cer. tificate.

J. D. Bethune and A. W. Hutton, for the appellant.

Chapman and Hendrick, for the respondents.

HARRISON, J. In June, 1886, the plaintiff employed the defendants, who were engaged at Los Angeles in the business of searching public records and examining titles to real estate, to examine the title of one Birnbaum to a tract of land in Los Angeles County, for which he had made a contract of purchase, and ascertain if his title was good, and paid them one thousand dollars for their services. The defendants, under said employment therein, made a report to the plaintiff, and gave him a certificate in writing, on the twelfth day of June, 1886, that the title to the land was vested in Birnbaum, free of all encumbrances. Thereupon the plaintiff purchased and paid for the land. Afterwards, and within two years prior to the commencement of this action, a suit was brought in the superior court of Los Angeles County in reference to the title to said land, which the plaintiff was subjected to the cost and expense of defending, and in which a judgment was rendered, to the effect that at the date of said certificate an undivided one half of said land was vested in the heirs of one Smith, and the plaintiff herein was thereupon deprived of the said half of the land. In May, 1890, he commenced this action against the defendants for damages resulting from their negligence in the examination and report upon the condition of the title. Defendants demurred to the complaint, upon the ground, among others, that the suit was not brought until more than two years after the cause of action had accrued, and was therefore barred by the statute of limitations. The court sustained the demurrer to the complaint, and judgment was rendered against the plaintiff, from which he has appealed.

Section 339 of the Code of Civil Procedure provides that an action upon a "contract, obligation, or liability," not founded upon an instrument in writing, must be brought within two years after the cause of action shall have accrued. This provision was declared in Piller v. Southern Pac. R. R. Co., 52 Cal. 44, to be "applicable to all actions at law not specifically mentioned in other portions of the statute." The word "liability" is the most comprehensive of the several terms used

in this section, and includes both of the others, inasmuch as it is the condition in which an individual is placed after a breach of his contract, or a violation of any obligation resting upon him. It is defined by Bouvier to be "responsibility; the state of one who is bound in law and justice to do something which may be enforced by action. This liability may arise. from contracts, either express or implied, or in consequence of torts committed"; and this definition was approved in Wood v. Currey, 57 Cal. 209.

The statute of limitations begins to run against a cause of action as soon as the right of action has accrued. Upon the breach of any special contract, the statute begins to run at the date of the breach, and a right of action growing out of the negligence of another accrues whenever the act of negligence is complete. "When misconduct or negligence constitutes a cause of action, the statute of limitations begins to run from the time when the defendant had been guilty of such misconduct or negligence": Wood v. Currey, 57 Cal. 209. Whether the negligence out of which the cause of action arises is the breach of an implied contract, or the affirmative disregard of some positive duty, is immaterial. In either case, the liability arises immediately upon such breach of contract or disregard of duty, and an action to recover the damages, which are the measure of such liability, may be immediately maintained. The right to maintain the action is distinguished from the measure of damages, and although the entire damage resulting from such negligence may not have been sustained, or the fact that the negligence occurred may not have been known until the right to a recovery is barred, yet the time within which an action may be brought is not thereby prolonged.

In the present case, the obligation assumed by the defendants arose out of their agreement that they would examine the title of the property, and ascertain if the same was good inBirnbaum, and report the same to the plaintiff. Having held themselves out as examiners of titles, they were bound to exercise skill and care in making such examination, and became. liable in damages for a failure to exercise such skill and care; and the breach of their agreement, for which they became liable, is alleged in the complaint to have been that they "negligently and unskillfully conducted such examination, and did not truthfully report the condition of the title to the plaintiff," but reported, on the 12th of June, 1886, that the title was vested in Birnbaum, free of all encumbrances; whereas, in fact, at the

date of said certificate he was the owner of only an undivided one half thereof, and the same "appeared of record on the public records of said county." The giving of this certificate was the breach of their agreement, and constituted the negligence for which they became liable. No further or subsequent act was done or contemplated to be done by them under their employment. Their liability for this negligence, if any existed, arose immediately, and an action therefor could have been immediately commenced against them, and unless commenced within two years thereafter, was barred by the statute of limitations.

The running of the statute was not suspended by the fact that the plaintiff did not ascertain the error in the certificate, or by the fact that the existence of the error was not determined by the superior court until more than two years had expired. The judgment of the court did not constitute the negligence of the defendants, but was only evidence that they had been guilty of negligence; and the eviction of the plaintiff under such judgment was not the cause of action against the defendants, but was merely an element in determining the amount of damages that he had sustained by reason of their negligence. "Where an attorney is sued for malpractice, the cause of action arises from the time when such malpractice occurred, and that without any reference to the circumstance whether the client then knew the fact or not ": Wood on Limi tations, sec. 122. In cases of damages resulting from malfeasance or misfeasance, "the cause of action arises immediately on the happening of the default, and is not postponed to the damage thereby occasioned ": Angell on Limitations, sec. 136. "In actions for official or professional negligence, the cause of action is founded on the breach of duty which actually injured the plaintiff, and not on consequential damage. Thus in an action against an attorney for neglect of professional duty, it has been held that the statute of limitations begins to run from the time when the breach of duty was committed, and not from the time when the consequential damage accrued ": 2 Greenl. Ev., sec. 433. In Troup v. Smith, 20 Johns. 33, a surveyor had been employed to survey a tract of land into lots suitable for sale, but did his work so unskillfully as to cause damage to the plaintiff, for which he brought suit, and to a plea of the statute of limitations replied that the error was not discovered by him for some years after the survey had been completed, but it was held by the court that this fact did not impair the effect