A. I don't remember. I said I don't remember positively whether I had written a written resignation or not; but that is my impression. Q. Then you don't state positively that you ever wrote a resignation? A. No, I am not positive about it. Q. Will you state positively that you ever handed any person a written resignation? A. No, sir." It also appeared that the appellant moved its place of business in 1883 from 657 Market to First street, and that he moved with it. It further appeared from the affidavits of witnesses for the respondent, that until late in 1893, when they had their last business with the appellant, Ryer was acting for appellant, as usual, and, as they understood it, as president. It further appeared that as late as September 12 and 18, 1893, promissory notes made to the appellant were indorsed by Ryer as president. These facts are entirely inconsistent with his statement that he resigned as president in August, 1892-even supposing that the facts testified to by him constituted a resignation. There is no pretense that any other president was ever elected. It is said that Ryer's declarations could not bind or estop appellant. That is quite true; but they were admissible evidence to contradict the statements in the affidavits of Ryer, who was the only witness introduced by appellant on this point. It is a significant circumstance that the appellant did not introduce any record of the proceedings of the corporation to show any proceedings taken upon the alleged resignation of Ryer; and it is still more significant that no other officer, stockholder, or member of the corporation appellant appeared to deny in any form that Ryer was president at the time of the service. Under these circumstances, we cannot say that the evidence as to proper service was not to say the least substantially conflicting. And in such a state of the evidence, the conclusion of the court below cannot, upon well-established rules, be disturbed.

We need not examine the point, based on the affidavit of C. S. Arnold, that the cause of action set forth in the complaint had been settled and paid by a certain

promissory note. Whether the facts stated in Arnold's affidavit would have constituted a defense to the action, if appellant had appeared and set them up, is not a question now before us. The position taken by appellant on this appeal is that the court had no jurisdiction. to render any judgment whatever in the case. The case of Norton v. Atchison etc. R. R. Co., 97 Cal. 388; 33 Am. St. Rep. 198, is not in point. In that case the court below found that Wade, upon whom the service was made, was not the general managing agent of the corporation defendant; and we there said that "the evidence before the lower court was conflicting, and we would not be warranted in disturbing the finding of the lower court as to that fact."

The order appealed from is affirmed.

HENSHAW, J., and TEMPLE, J., concurred.
Hearing in Bank denied.

[S. F. No. 174. Department Two.-July 17, 1896.] M. S. JEFFERS ET AL., APPELLANTS, v. EASTON, ELDRIDGE & CO. ET AL., RESPONDENTS.

LANDLORD AND TENANT-ASSIGNMENT OF LEASE-SALE-UNPAID PURCHASE MONEY-WANT OF TITLE IN LESSOR-FAILURE OF CONSIDERATION. Where the whole of the term of a leasehold estate is assigned, there is no relation of landlord and tenant between the assignor and the assignee, but only that of seller and purchaser, and if the original lessor had no title when the lease was made, and the assignee is compelled to attorn to the holders of the legal title to prevent eviction, there is a failure of consideration for the assignment of the lease, and the assignor cannot recover any unpaid installments of purchase money. ID. ESTATES FOR YEARS-PERSONAL PROPERTY-RULES GOVERNING ASSIGNMENTS. An estate for years is personal property-a chattel real; and the rules which govern conveyances of real property do not apply to assignments of estates for years, but they are governed generally by the rules applicable to sales of personal property. ID.-SALES-CAVEAT EMPTOR-IMPLIED WARRANTY OF TITLE-REMEDY OF PURCHASER FOR FAILURE OF TITLE.-In sales of personal property, including assignments of estates for years, though the rule of caveat emptor applies to the quality of the thing sold, the

seller impliedly warrants the title, without reference to the knowledge or want of knowledge of the vendor as to the real state of the title, or whether he did or did not make a distinct affirmation of his title; and, upon the total breach of a warranty of title, the purchaser may recover the purchase money paid, and has a good defense against an action by the seller to recover the purchase money. ID.-SURRENDER OF POSSESSION TO PARAMOUNT OWNER-BURDEN OF PROOF-One who receives the possession of property upon a sale or other contract from a person who has no title to it, may yield it to the true owner on demand, without waiting for an eviction; but, in such case, he assumes the burden of proving that the one to whom he yielded the possession had a paramount title. ID. DENIAL OF TITLE-TERMINATION OF ESTOPPEL.-The estoppel of one who has received the possession of property from another to deny the title of the person from whom he received it, terminates when possession is yielded upon demand of the true owner, which the possessor could not legally resist.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. CHARLES W. SLACK, Judge.

M. M. Estee, for Appellants.

A tenant cannot dispute his landlord's title. (Civ. Code, sec. 1948; Hoen v. Simmons, 1 Cal. 119; 52 Am. Dec. 291; Morse v. Roberts, 2 Cal. 515; Ramires v. Kent, 2 Cal. 558; Tewksbury v. Magraff, 33 Cal. 237; Peralta v. Ginochio, 47 Cal. 459; Holloway v. Galliac, 47 Cal. 474; Lattaillade v. Santa Barbara Gas Co., 58 Cal. 4; Louer v. Hummel, 21 Pa. St. 450; Bigler v. Furman, 58 Barb. 545; Carpenter v. Thompson, 3 N. H. 204; 14 Am. Dec. 348.) Defendant cannot claim want of consideration for the assignment until it has restored the possession of the premises to its assignor. (Hammond v. Wallace, 85 Cal. 522; 20 Am. St. Rep. 239; Patten v. Deshon, 1 Gray, 325; Blake v. Sanderson, 1 Gray, 335; Wall v. Hinds, 4 Gray, 256; 64 Am. Dec. 64; Babcock v. Scoville, 56 Ill. 465; Jackson v. Port, 17 Johns. 479; McLennan v. Grant, 8 Wash. 603; Bulkley v. Devine, 127 Ill. 406; Civ. Code, sec. 1948.) There being no deception, there was no want of consideration, and defendant is bound by its contract. (Codman v. Jenkins, 14 Mass. 96; Watertown v. White, 13

Mass. 481; 2 Abridgment of American Law, 443; Jackson v. Davis, 5 Cow. 129; 15 Am. Dec. 451; Jackson v. Harsen, 7, Cow. 325; 17 Am. Dec. 517; Thompson v. Clark, 7 Pa. St. 62; Presstman v. Stilljacks, 52 Md. 647.) Giving possession was sufficient consideration for the assignment. (Civ. Code, sec. 1605; 5 Lawson's Rights, Remedies, and Practice, 3762, 3763, and cases cited: Kelly v. Lynch, 22 Cal. 661; White v. Baxter, 71 N. Y. 254; Lewis v. Seabury, 74 N. Y. 409; 30 Am. Rep. 311; Conover v. Stillwell, 34 N. J. L. 54; Bradshaw v. McLoughlin, 39 Mich. 480.) When a lessee surrenders possession without a legal contest, he assumes the burden of proving that the person entering had title paramount. (Greenvault v. Davis, 4 Hill, 643; Cowan v. Silliman, 4 Dev. 46; Hamilton v. Cutts, 4 Mass. 349; 3 Am. Dec. 222; Booth v. Starr, 5 Day, 282; Camarillo v. Fenlon, 49 Cal. 202.) The entry into possession of the assignee under the assignment creates the relation of landlord and tenant between him and the lessor. (Code Civ. Proc., sec. 326; Bonetti v. Treat, 91 Cal. 223; Mauldin v. Cox, 67 Cal. 387; Standley v. Stephens, 66 Cal. 541; McLeran v. Benton, 43 Cal. 467; Abbey Homestead Assn. v. Willard, 48 Cal. 615; Mecham v. McKay, 37 Cal. 155; Springs V. Schenck, 99 N. C. 551; 6 Am. St. Rep. 552; Jackson v. Miller, 6 Wend. 228; 21 Am. Dec. 316.) the lessee remains liable on his agreement to pay rent. (6 Lawson's Rights, Remedies, and Practice, sec. 2845; Bonetti v. Treat, supra; Mason v. Smith, 131 Mass. 510; Greenleaf v. Allen, 127 Mass. 248; Wall v. Hinds, 4 Gray, 256; 64 Am. Dec. 64; Washington etc. Gas. Co. V. Johnson, 123 Pa. St. 576; 10 Am. St. Rep. 553; Lodge v. White, 30 Ohio St. 569; 27 Am. Rep. 492; Bailey V. Wells, 8 Wis. 141; 76 Am. Dec. 233; Gear on Landlord and Tenant, sec. 125, note 9.) As George Hyde always had been in possession of the property and treated it as his own, with the knowledge and consent of Mrs. Hyde, she is estopped from denying the validity of his acts. (Taylor on Landlord and Tenant, sec. 84; Code Civ.

But

Proc., sec. 326; Talbert v. Singleton, 42 Cal. 395; Thompson v. Pioche, 44 Cal. 508.

Charles F. Hanlon, for Respondents.

Easton, Eldridge & Co. are not liable for rent until plaintiffs have paid it to the landlord. (Wolveridge v. Steward, 1 Cromp. & M. 656; Martineau v. Steele, 14 Wis. 272; Burnett v. Lynch, 5 Barn. & C. 589; Moule v. Garrett, L. R. 7 Ex. 101; Sutliff v. Atwood, 15 Ohio St. 194, and cases cited; Farrington v. Kimball, 126 Mass. 314; 30 Am. Rep. 680; Humble v. Langston, 7 Mees. & W. 517; McHenry v. Carson, 41 Ohio St. 212; Civ. Code, sec. 822.) Not only an assignee, but even a tenant, can dispute the title of the landlord, where he was induced to accept the lease under a mistake as to the true title. (Bigelow on Estoppel, 5th ed., 523, 527; Rogers v. Pitcher, 6 Taunt. 202; Gregory v. Doidge, 3 Bing. 474; Carter v. Marshall, 72 Ill. 611; Claridge v. Mackenzie, 4 Man. & G. 143; Pacific etc. Ins. Co. v. Stroup, 63 Cal. 153; Swift v. Dean, 11 Vt. 323; 34 Am. Dec. 693; Shultz V. Elliott, 11 Humph. 186; Tewksbury v. Magraff, 33 Cal. 244; Peralta v. Ginochio, 47 Cal. 460; Palmtag v. Doutrick, 59 Cal. 167; 43 Am. Dec. 245; Morse v. Goddard, 13 Met. 179; 46 Am. Dec. 728; Holloway v. Galliac, 47 Cal. 476; Oneto v. Restano, 89 Cal. 68; Franklin v. Merida, 35 Cal. 567; 95 Am. Dec. 129.) There is no consideration now for the payment of the purchase price of the lease. (Morse v. Goddard, supra; Franklin v. Merida, supra; Hamilton v. Cutts, 4 Mass. 349.) There was no relation of landlord and tenant between the assignor and assignee. (Smiley v. Van Winkle, 6 Cal. 605.) A constructive eviction may be pleaded and proven with the same force and effect as an actual ouster by title paramount. (Deering's Civ. Code, sec. 1948, note, and cases cited; Merryman v. Bourne, 9 Wall. 600; Thompson v. Pioche, 44 Cal. 508; Moffat v. Strong, 9 Bosw. 57; Bigelow on Estoppel, 5th ed., 521, 522, 528-30; Sprague V. Baker, 17 Mass. 586; Carter v. Denman, 23 N. J. L. 271; Parker v. Dunn, 2 Jones, 203; Chambers v. Pleak, 6 Dana,