between a stockholder who had lost his certificate, to which was attached a blank power of attorney for its transfer signed by the original holder, of whom the loser purchased it, and the vendee of the finder who had purchased it in good faith, and to whom the company issued a certificate after notice of. the loss by the true owner. It was there held that the holder of a certificate so indorsed and transferred is entitled to the same rights respecting it as against third parties, which the law confers upon the holder of commercial paper. It is obvious that a broad distinction exists between that case and this. The corporation there might well be estopped to deny the title of one to whom it transferred the stock after notice of the loss; but that does not touch the question of its right to enforce a delinquent assessment notwithstanding the transfer. In this state neither the finder of an indorsed certificate nor his vendee would acquire any right to the stock. wood v. Meadow Valley Min. Co., 50 Cal. 412.)

(Sher

The fact that plaintiff did not know of the assessment at the time he demanded the transfer, nor at the time suit was commenced, does not affect the validity of the assessment nor the liability of the stock therefor; but it is evident that if respondent's contention is sound the holder of stock may not only be deprived of the benefit of an advantageous sale, which he would desire to make under any circumstances, but he would be denied the right to dispose of his stock to avoid personal liability for debts about to be incurred which he did not approve, and which in his judgment would be ruinous not only to the corporation, but to himself as a stockholder.

The judgment and order appealed from should be reversed.

BRITT, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are reversed.

HENSHAW, J., TEMPLE, J., MCFARLAND, J.

Hearing in Bank denied.

[S. F. No. 262. Department One.-May 25, 1896.] CAROLINE E. MCCARTHY, RESPONDENT, v. MRS. J. L. BROWN, APPELLANT.

FINDINGS ULTIMATE FACTS.-Findings should state the ultimate facts pleaded, and not probative facts, and findings which follow the pleadings in the statement of ultimate facts are sufficient. ID.-EJECTMENT-FINDING AS TO OUSTER-Surplusage-CONCLUSIONS OF LAW. In an action of ejectment a finding that the defendant ousted the plaintiff is the finding of an ultimate fact; and a further finding that at a specified date the defendant ousted and ejected the plaintiff from the premises in controversy, and wrongfully and unlawfully withheld said possession from plaintiff, is a sufficient finding as to the fact of ouster and withholding of possession, the qualifying words "wrongfully and unlawfully" being harmless surplusage, nor is such finding of fact impaired by its having been placed under the heading of conclusions of law.

ID.—LANDLORD AND TENANT-TENANCY AT WILL-NOTICE TO QUITDENIAL OF TITLE.-Where the averments of seisin and right of possession in the plaintiff in an action of ejectment are denied in the answer, and a distinct claim of ownership by the defendant is therein alleged, the defendant, having disclaimed the plaintiff's title, cannot invoke the protection and advantages of the relation of landlord and tenant, or insist that he was in possession as a tenant at will, and was entitled to service of notice to quit; but the effect of the denial of plaintiff's title is to make the defendant a trespasser, and he is not entitled to notice to quit. ID. FINDING AS TO RIGHT OF POSSESSION-WRONGFUL WITH HOLDING.— Findings which show a paramount source of title, with mesne conveyances to plaintiff therefrom, antedating the commencement of the action, discloses title in the plaintiff, carrying with it the right of possession, and the withholding of the possession from one who is seised of the premises is presumptively adverse to his right and is wrongful.

APPEAL from a judgment of the Superior Court of Mariposa County. JOHN M. CORCORAN, Judge.

The facts are stated in the opinion.

J. J. Trabucco, and James F. Peck, for Appellant.

Where a material fact is not found the judgment will be set aside upon appeal. (Traverso v. Tate, 82 Cal. 170; Estate of Langan, 74 Cal. 353.) In order to justify a judgment of ejectment, facts must exist, and be found in the findings, which show as a matter of law that plaintiff is entitled to the possession of the premises. (Sauer v. Meyer, 87 Cal. 34; Hestres v. Brennan, 37 Cal. 385; Meeks

v. Kirby, 47 Cal. 168.) As defendant was a tenant at will and rightfully in possession until notice given, there should have been a finding as to notice to show that the holding of possession had become wrongful. (Civ. Code, sec. 789; Frisbie v. Price, 27 Cal. 253.) Facts not found are presumed not to exist. (West Coast Lumber Co. v. Newkirk, 80 Cal. 275.) The findings, "and ever since the eleventh day of December, 1890, wrongfully withheld possession," and "that on the eleventh day of December, 1890, the defendant's possession for the first time became adverse to plaintiff," and "and by her acts at that date she ousted the plaintiff from possession," are all conclusions of law. (Paulson v. Nunan, 64 Cal. 290; In re Langan, supra; Caperton v. Schmidt, 26 Cal. 495; 85 Am. Dec. 187; Payne v. Treadwell, 16 Cal. 222; Thompson on Trials, par. 1412; Smith v. Doe, 15 Cal. 101.)

F. H. Gould, and J. H. Rogers, for Respondent.

If the complaint states a cause of action, as the court has determined in this case it does, it is sufficient to find. as a fact that the allegations of the complaint are all true. (McEwen v. Johnson, 7 Cal. 260.) It is not necessary for the court in its findings to present the result of last analysis. The facts to be found and to be pleaded lie in the same plane. (Hihn v. Peck, 30 Cal. 286.) The fact that a finding of facts is called a conclusion of law does not make it one, and if findings of fact are found among conclusions of law, and there is a conclusion of law supported thereby, the judgment cannot be overturned. (Jones v. Clark, 42 Cal. 192; Hayne on New Trial and Appeal, sec. 242; Brenner v. Liverpool etc. Ins. Co., 51 Cal. 107; 21 Am. Rep. 703; Edwards v. Sonoma Valley Bank, 59 Cal. 148; Meek v. McClure, 49 Cal. 626.) The allegations in this state to maintain ejectment are the title of plaintiff and possession by defendant. (Payne v. Treadwell, 16 Cal. 220; Haight v. Green, 19 Cal. 118; Salmon v. Symonds, 24 Cal. 266; Depuy v. Williams, 26 Cal. 314.) Defendant cannot disavow her tenancy, dispute her landlord's title, and still demand her notice to quit. (Conner

v. Jones, 28 Cal. 60; Smith v. Ogg Shaw, 16 Cal. 88; Dodge v. Walley, 32 Cal. 225; Bolton v. Landers, 27 Cal. 104; Sampson v. Applegate, 75 Cal. 345.) The fact appears positively from defendant's own pleading, and is therefore admitted. Facts that are admitted should not be found. (Phelan v. Gardner, 43 Cal. 306; Hall v. Arnott, 80 Cal. 348.) An averment of ouster is not a conclusion of law. (17 Am. & Eng. Ency. of Law, 289; Smith v. Doe, 15 Cal. 101; Boles v. Cohen, 15 Cal. 151; Garrison v. Simpson, 15 Cal. 93; Boles v. Weifenback, 15 Cal. 144.) The word "wrongfully," in the allegation "defendant wrongfully withheld possession of the said land," is harmless surplusage. (Payne v. Treadwell, supra.) Immaterial findings should be disregarded. (Melone v. Del Norte County, 77 Cal. 217; Robarts v. Haley, 65 Cal. 402; McCourtney v. Fortune, 42 Cal. 387; Porter v. Woodward, 57 Cal. 535.)

VANCLIEF, C.-Ejectment. Judgment for plaintiff. Appeal from judgment on judgment-roll.

Appellant claims that the findings do not support the judgment, because: 1. The finding (No. 16) that defendant "ousted the plaintiff" is a conclusion of law, in that it does not find the facts constituting the ouster; 2. That there is no finding "that plaintiff, at the time of commencing the suit, was entitled to the possession" of the demanded premises.

1. In the case of Smith v. Mohn, 87 Cal. 497, it was said: "They [findings] should be statements of the ultimate facts, and not of the probative facts. (Mathews v. Kinsell, 41 Cal. 512.)"

In Hihn v. Peck, 30 Cal. 286, the court said: "It has been uniformly held that it is not necessary for the court in its findings to present the results of last analysis, but, on the contrary, that it would be sufficient if the court found the facts entering as terms into the legal proposition upon which the prevailing party based his right of recovery. The 'facts' which the court is to find, and the 'facts' which a pleader is to state, lie, ac

OXIII. CAL.-2

cording to the decisions in this state, in the same plane -that is, in both connections, facts are to be stated according to their legal effect."

In Murdock v. Clarke, 90 Cal. 435, the court said: "A finding which follows the pleading is sufficient. In this, as in other cases, it is sufficient to find the ultimate facts."

Therefore, to determine the sufficiency of a finding of fact, it is only necessary to ascertain what statement of that fact is required in the pleading.

In Payne v. Treadwell, 16 Cal. 243, the court said: "Now, what facts must be proved to recover in ejectment? These only: that the plaintiff is seised of the premises, or of some estate therein, in fee, or for life, or for years, and that the defendant was in their possession at the commencement of the action. . . It is the ultimate facts-which could not be struck out of a pleading without leaving it insufficient and not the evidence of these facts, which must be stated."

In Garrison v. Sampson, 15 Cal. 95, proof of holding over of premises by defendant was objected to by defendant, on the ground that such proof was inadmissible under the general allegation of the complaint, and could only be admitted under specific averment of the facts. The court, on appeal, said: "We do not think this point well taken. . . A holding over by the defendant is, in effect, an ouster, and may be so charged." In Boles v. Cohen, 15 Cal. 151, the court said: "The complaint . . distinctly alleges prior possession in the plaintiffs, and an entry and ouster by the defendants, and that the defendants are still in possession of the property. There can be no doubt of the sufficiency of these allegations." (See, also, Boles v. Weifenback, 15 Cal. 144.)

While I think the ultimate fact of ouster is sufficiently expressed in finding No. 16, under the heading of facts, there can be no doubt that it is so in finding No. 6, under the heading of "conclusions of law," as follows: "That on December 11, 1890, defendant did oust and