that the mortgage was executed to secure to the defendant a part of the purchase-money of the said land, the other portion having been paid by Keppel, the purchaser, in cash prior to the delivery of the conveyance to him by the defendant; that on the 24th of November, 1883, the deed of conveyance of the land sold to Keppel was delivered to him by defendant, and was recorded in the proper office in Butte County, on the twenty-sixth day of November, 1883. The mortgage to plaintiff was executed on the 22d of November, 1883, and was recorded in the proper office in Butte County on the twentysecond day of November, 1883. This last mortgage was executed to secure a loan of a large sum of money made by plaintiff to Keppel. While Keppel was negotiating with plaintiff for this loan, it became known to plaintiff that the title of a portion of the land which he (Keppel) offered as security was in the corporation defendant, for the purchase of which Keppel was then negotiating with the corporation. This purchase was consummated by the delivery of the deed above mentioned, executed to Keppel by the corporation, a payment of a portion of the purchase-money by Keppel, and, concurrently with the execution of the deed, the execution to the corporation by Keppel of the mortgage above mentioned to secure the payment of the remainder of the purchasemoney. All the above constituted parts of the transaction of purchase by Keppel of the corporation of the land above referred to. Of this negotiation of Keppel to purchase, the plaintiff, at the time of making the loan to him, was aware; and he must be held to have known that the mortgage conveyed to him no interest in this land until the delivering of the deed by the corporation to Keppel. Being aware of the purchase by Keppel of this land of the defendant, plaintiff must be held to have known of the terms of the purchase, and all of them; and if he did not know them, he must have deliberately abstained from knowing. The evidence shows that the plaintiff was in communication with Keppel all the time that the purchase was pending, knew all the terms of it, and it would be most strange if they were not communicated to plaintiff by Keppel. Having readily accessible means of acquiring knowledge of a fact, which he might have ascertained by inquiry, is equivalent to notice and knowledge of it. This is well settled by repeated decisions of this court: Fair v. Stevenot, 29 Cal. 486; Smith v. Yule, 31 Id. 184; 89 Am. Dec. 167; Pell v. McElroy, 36 Cal. 272; Thompson v. Pioche, 44 Id.

516. Under these circumstances, we must hold that plaintiff knew that a part of the purchase-money was not paid when the deed was executed to Keppel by the corporation, and that a mortgage was executed by Keppel to the corporation to secure this unpaid portion of the purchase-money at the same time that the deed was executed. This being the state of the case, we must hold that the plaintiff had notice of defendant's mortgage when the mortgage to him on the land mentioned became operative, and that, therefore, his mortgage as to this land must be postponed to that of the corporation defendant. The finding to the contrary of the above is not sustained by the evidence.

But it is urged that the corporation is by the conduct of one of its officers estopped from setting up the priority of its mortgage to that of plaintiff. This contention is based on the following facts found by the court below: "That in making said loan of eighty thousand dollars to defendant Garret Keppel, and during the time negotiations and granting of said loan, F. W. Goad, Esq., was the agent and attorney for plaintiff, and was authorized to examine into the title of the land described in plaintiff's mortgage; that said Goad was informed that the legal title to the land described in said deed, dated October 23, 1883, from defendant Spring Valley Mining and Irrigating Company, to defendant Garret Keppel, was in said defendant corporation, grantor; that said Goad, as such agent and attorney, after obtaining said information, and on or about the tenth day of November, 1883, with defendant Garret Keppel called at the principal office of said corporation defendant, which was in San Francisco; that said Goad there met Willis E. Davis, the secretary of the Spring Valley Mining and Irrigating Company, and told said secretary that plaintiff, A. Montgomery, had employed him to examine the title to said land to see whether it was satisfactory; that he (said Goad) was employed to do so by said plaintiff, and was plaintiff's agent in such matters; that he wanted to see that the title was perfect; that plaintiff, A. Montgomery, wanted to know how much money he would have to pay the defendant Spring Valley Mining and Irrigating Company in order to get a perfect title, as plaintiff was taking a mortgage; that said secretary then gave as such sum $12,978; that said Goad then informed said secretary that if he found the title perfect in other respects at Oroville, where he was going, he should put plaintiff's mortgage on record, and upon his return to San Francisco

would pay the $12,978,-give a check for it,—and take the deed of the Spring Valley Mining and Irrigating Company, which deed, being that herein before referred to, had been prepared in form, and was shown to said Goad by said secretary; that said Goad went to Oroville on or about the nineteenth day of November, 1883, and staid until the 22d, when plaintiff's mortgage was acknowledged and recorded; that said Goad returned to San Francisco, and on his way back, on the 23d, paid, at the request of defendant Garret Keppel, to the Marysville Savings Bank, $61,138.70; that upon his return to San Francisco, and upon the twenty-fourth day of November, 1883, said Goad, at his office, delivered a check in payment of said sum, $12,978, in the presence of defendant Garret Keppel, to said Davis, the secretary of the corporation defendant, of which check the following is a copy:

"No.

SAN FRANCISCO, November 24, 1883. "The Bank of California pay to Spring Valley Mining and Irrigating Company, or order, twelve thousand nine hundred and seventy-eight ($12,978) dollars.

"Indorsed:

"A. MONTGOMERY.

"Per W. F. GOAD.

"SPRING VALLEY MINING AND IRRIGATING COMPANY. "By WILLIS E. DAVIS, Secretary.

"That said check was paid; that, upon the delivery of said check, said secretary, Davis, delivered said deed of said corporation, executed and acknowleged by the president and secretary, to defendant, Garret Keppel, and said Goad; that said Goad thereupon sent said deed to the office of the county recorder of Butte County, where the same was filed for record on the twenty-sixth day of November, 1883, as aforesaid."

We cannot see how an estoppel can grow out of these facts. In the first place, admitting that Davis was the secretary of the corporation, it does not appear that he had authority to bind or affect the corporation by any statement he might make in regard to Keppel's purchase. Conceding that he had authority to affect the corporation by the statement of a fact, the question put to him was not as to a fact, but as to a question of law. Further, that a statement shall operate as an estoppel, it must be made with the express intention to deceive, or with such carelessness or culpable negligence as to amount to constructive fraud: Boggs v. Merced Mining Co., 14 Cal. 367, 368; Davis v. Davis, 26 Id. 40, 41; 85 Am. Dec. 157. We

see here no intention of Davis to deceive, nor can we perceive that plaintiff was or could be misled by anything which Davis stated to his attorney. That the plaintiff was not without the means of acquiring the knowledge which he sought is too plain for argument. He might have ascertained it from the mortgagor, with whom he was communicating all the time that the negotiation for the loan was going on; or if he had inquired of the company as to the terms of its transactions with Keppel, he would, no doubt, have ascertained what they were. There is no estoppel shown by the evidence or the finding: Davis v. Davis, supra. The mortgage of the corporation must be held prior and superior to that of the plaintiff on the land above mentioned, and therefore the judgment and order denying a new trial must be reversed, and the cause remanded for a new trial.

Ordered accordingly.

CONSTRUCTIVE NOTICE-FACTS PUTTING PARTY ON INQUIRY: Converse v. Blumrich, 14 Mich. 109; 90 Am. Dec. 230, note 242. One is chargeable with actual notice of facts if he has knowledge of such facts as would lead a fair and prudent man to make further inquiries, and if such inquiries, if pursued with ordinary diligence, would have given him knowledge of the facts with notice of which he is sought to be charged: Knapp v. Bailey, 79 Me. 195; 1 Am. St. Rep. 295, and note 300. Purchaser has notice of not only facts definitely communicated to him, but of all facts which the proper use of that information, with ordinary diligence and prudence, would enable him to ascertain: Oliver v. Sanborn, 60 Mich. 346; Gaines v. Summens, 50 Ark. 322.

ESSENTIAL ELEMENT OF STATEMENT AMOUNTING TO AN ESTOPPEL is, that it was made with express intent to deceive, or with such carelessness as will be construed to be culpable negligence on part of one making statement: Bynum v. Preston, 69 Tex. 287; 5 Am. St. Rep. 49, note 53.

[IN BANK.]

JOHNSTON V. SAN FRANCISCO SAVINGS UNION.

[75 CALIFORNIA, 134.]

OPINION OF TRIAL COURT IS NOT THE "FINDINGS."

JUDGMENT CANNOT BE ATTACKED IN COLLATERAL ACTION on the ground that it is not supported by the findings.

JUDGMENT ENTERED AGAINST ONE IN HIS TRUE NAME, who was not named as a party defendant, nor served with summons under a fictitious name, but who came in and answered, reciting that he was sued by a certain fictitious name, is binding in a collateral proceeding, although the complaint was not amended by inserting his true name. The service of summons was waived by appearance, and the failure to insert the true name in the complaint was not such an irregularity as rendered the judgment void.

AM. ST. REP., VOL. VIL-9

ADVERSE INTEREST TO MORTGAGOR CANNOT PROPERLY BE LITIGATED IN FORECLOSURE SUIT; but if it is put in issue, tried, and determined, the judgment is not void on a collateral attack.

DECISION OF SUPREME COURT on Former AppÉAL AS TO CERTAIN QUESTION INVOLVED BECOMES LAW OF CASE, and will be followed on a second appeal. SURVIVING HUSBAND HAD Power, under Act of CALIFORNIA OF 1850, TO KEEP ALIVE COMMUNITY DEBT existing at the death of the wife, and secured by mortgage upon the community property, by renewals, extensions, and substitutions of the debt and the security, and the wife's descendants were bound by his acts in this regard; but he had no power to bind the interests of the descendants by a mortgage of the property for a debt contracted by him after the dissolution of the community. ONE WHO COMES INTO EQUITY FOR RELIEF AGAINST CLOUD CAST BY FORECLOSURE PROCEEDINGS UPON HIS INTEREST, which escaped being bound by the decree in foreclosure through a slip in the proceedings, will be required, as a condition for relief, to pay his proportion of the mortgage debt, less the amount of the rents and profits of his interest received by the mortgagee, who purchased at the foreclosure sale and went into possession thereunder.

ACTION to quiet title. The facts are stated in the opinion.

Eugene R. Garber and George C. Ross, for the plaintiffs.

A. and H. C. Campbell, and Cope and Boyd, for the de fendant.

HAYNE, C. An action to quiet title. In 1859 the property in controversy was the community property of James Johnston, Sen., and Petra Jara, his wife. In that year Johnston was indebted to J. and William M. Morris in the sum of seventeen thousand dollars, secured by mortgage upon the property, and "which said indebtedness was a debt contracted during the lifetime of said Petra, and after her intermarriage with said James Johnston, Sen., and was a debt of said marital community." Petra Jara died on April 30, 1861, leaving the three plaintiffs her surviving children. Prior to her death the debt had been reduced by payments, and subsequently there were many changes in the form of the indebtedness. In this regard the court finds: "That said debt was never paid, but that said James Johnston, Sen., at different times renewed and extended such debt, and the security therefor, which indebtedness and security were held by other persons than said J. and William M. Morris, but that it always existed and continued, increased by the accumulation of interest at said rate; and that new mortgages were by said James Johnston, Sen., substituted for the old from time to time as they fell due; that the loan made by the defendant herein and the mortgage given there