period than one year, or for the sale of real property, or of an interest therein, is not competent evidence, unless such agreement be subscribed by the party sought to be charged, or by his agent, whose authority so to do must be in writing and subscribed by the party sought to be charged.2 The agreement or memorandum is only required to be subscribed by the party sought to be charged, and it need not be subscribed by both parties to the agreement.3 In England and some of the states, the agreement is only required to be signed by the party sought to be charged. In which case the signature may be in any part of such agreement.4 No evidence is admissible to charge a person upon a representation as to the credit of a third person, unless such representation or some memorandum thereof be in writing and either subscribed by, or in the handwriting of the party to be charged.5 No executor or administrator is to be charged upon any special promise to answer damages or to pay the debt of the testator, or intestate out of his own estate, unless the agreement is in writing and signed by such executor or administrator, or by some other person by him thereunto specially authorized. CHAPTER XXII. OF CONCLUSIVE EVIDENCE. In California no evidence is by law made conclusive unless so declared by the Code of Civil Procedure of that state.1 The following evidence is, by the Code of Civil Procedure of the State of California conclusive, namely: I. A malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another; 2. The truth of facts recited, from the recital thereof in a written instrument, between the parties thereto, or their successors in interest by a subsequent title; but this rule does not apply to the recital of a consideration; 3. Whenever a party has by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot in any litigation arising out of such declaration, act, or omission, be permitted to falsify it; 4. A tenant is not permitted to deny that the title of his landlord to leased property existed at the time of the commencement of the relation; 5. The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate; 6. The judgment and order of a court, when declared by that code to be so, is conclusive; but such judgment or order must be alleged in the pleadings if there be an opportunity to do so. If there be no such opportunity, the judgment or order may be used as evidence.2 A judgment or order of a court or judge of that state, or of the United States having jurisdiction to pronounce the judgment or make the order, when against a specific thing, or in respect to the probate of a will, or the 1 Code of Civil Procedure, Sec. 1978. 2. Code of Civil Procedure, Sec. 1962. administration of the estate of a decedent, or in respect to the personal, political, or legal condition or relation of a particular person, is conclusive upon the title to the thing, the will, or administration, or the condition or relation of the person.3 In such cases, the judgment or order is, in an action in rem, or in a proceeding in the nature of an action in rem.4 A judgment or order of a court or judge of that state, or of the United States having jurisdiction to pronounce the judgment or make the order is in respect to the matter directly adjudged, conclusive between the parties to the action, and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing, under the same title, and in the same capacity, provided they had notice actual or constructive of the pendency of the action or proceeding.5 In California, the judgment in an action for the foreclosure of a mortgage is as conclusive against the person having a conveyance of the mortgaged property from or under the mortgagor, and against a person having a lien thereon, when such conveyance or lien does not appear of record in the proper office at the time of the commencement of the action, as it would have been if they were parties to the action. All persons who are represented by parties to an action. and claim under them, or are in privity with them, are equally concluded by the judgment or order, as are the parties to the action.7 Parties to an action are deemed to be the same when those between whom the evidence is offered, were on opposite sides in the former case, and a judgment or other determination could, in that case, have been made between them alone, though other parties were joined with both or either.8 That only is deemed adjudged in a former judgment, which, 3. Code of Civil Procedure, Sec. 1908, Sub. 1. 4. Greenleaf Ev., Sec. 525. 5. Code of Civil Procedure, Sec. 1908, Sub. 2; Greenleaf Ev.. Sec. 19, 522. S. Code of Civil Procedure, Sec. 1910; Greenleaf Ev. Sec. 523. upon its face, appears to have been so adjudged, or which was actually and necessarily included therein, or was necessary thereto.9 When authority is given to a court to adjudge as to the jurisdictional facts, such adjudication is conclusive, and may appear by recitals in the judgment, at least in respect to judgments of courts of record.10 Under the California code, when a person is surety for another person, and as such surety is a party to an action or proceeding, and the principal had notice of the action or proceeding, and an opportunity, at the surety's request, to join in the defense, such principal is bound, the same as the surety, from the time of such request to join in the defense.11 A judgment in rem rendered by a court having jurisdiction to render the same, is conclusive as to property, and the title thereto;12 and as a general rule, a judgment as to the status of person is conclusive.13 Judgments, however, which are not conclusive as to all the parties, or as to all those who could have been parties to an action or proceeding, and who are directly affected by such judgment, is not conclusive as to any of them.14 In California the effect of a judgment or order of a court of a sister state, is the same in that state, as it is in such sister state, except that the authority of a guardian, or committee, or of an executor or administrator does not extend beyond the jurisdiction of the government under which he is invested with his authority;15 and this is the general rule in the United States. 16 In the following cases the judgments and orders of the court, or of a judge of a court, in California, having jurisdiction to render the judgment or make the order, is conclusive, namely: 9. Code of Civil Procedure, Sec. 1911; 1 Greenleaf. 528. 12. 1 Greenleaf Ev., 541; Code of Civil Procedure, Sec. 1914 and Sec. 1915, Sub. 1. 13. 1 Greenleaf Ev., Sec. 544. 14. 1 Greenleaf Ev., Sec. 524, Sec. 525. 15. Code of Civil Procedure, Sec. 1913. 16. 1 Greenleaf Ev., Sec. 544. I. The settlement of the account and the allowance thereof, of an executor or administrator, by the court, or upon appeal, saving, however, to all persons laboring under any legal disability, the right to open and examine the account, or to proceed by action against the executor or administrator, either individually, or upon his bond, before final distribution of the estate of the decedent :17 2. The order or decree of the court distributing the estate of a decedent as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside or modified on appeal;18 3. The order of a court entered in the minutes of the court, that the required proof had been made and notice given, on a petition for letters of administration;19 4. That the probate of a will is conclusive unless contested within one year after such probate, saving to infants and per unsound mind the like period of one year after their respective disabilities are removed.20 The recitals in a public statute are conclusive evidence of the facts recited for the purpose of carrying it into effect, but no further; and the recitals in a private statute are conclusive evidence between the parties who claim under its provision, but no further.21 A judgment or order to be conclusive must be a final judgment, and in case of an appeal within the time and as provided by statute, the final judgment or order upon an appeal, is the final judgment. 17. Code of Civil Procedure, Sec. 1637. |