$500, I was not strapped. Now I have no choice. Must do as I can, if anything. I shall probably never live east of here, and don't care much about this wicked judgment, and cannot pay much if I would. I am an old man, and if I can be discharged from the judgment for the amount of $40.00 I will make the sacrifice. Is Nelson living? Is Pardee living? Are you the son of Judge Piper, of Lewiston, New York, (Niagara county,) 40 years ago. Yours, etc., A. U. BECKER." Exhibit D: "Red Cloud, Webster Co., Nebr., June 5th, 1886. G. S. Piper, Fulton, N. York. Dear Sir: I wrote you January last; got no reply. Will you for me try to get the judgment, Willis Nelson against me, discharged from record, cheap as you can. I pay you. You please recollect I asked you if you was still counsel for other party. You did not reply. Please reply, and oblige me. Yours, etc., ANSON U. BECKER. Exhibit E: "Red Cloud, Neb., October 18th, 1886. G. S. Piper, Fulton, N. York. Dear Sir: Can you aid me in getting discharged from the judgment held against me by W. S. Nelson, of your place; if you can and will, I will pay you. Please write me. Yours, etc., A. U. BECKER.

Section 22 of the Civil Code provides that, "in any cause founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same, shall have been made in writing, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise.

Assuming, as is argued by the plaintiff, that the provisions of said section apply to actions founded upon a foreign judgment, which we do not now decide, are the letters copied above sufficient to remove the bar of the statute? We think not. The last two letters are privileged communications, and were not entitled to be read in evidence. They were introduced over the objection of the defendant. They clearly show upon their face that they were written by the defendant to Piper, an attorney, for the purpose of employing him professionally to procure the cancellation of the judgment herein sued upon, and were not intended to be communicated to the plaintiff. In the letters he proposed to Piper to pay him for his services. The statute expressly prohibits an attorney from giving evidence of any confidential communication made to him by his client, unless the client consents thereto. Code, §§ 328, 333. The protection of the statute applies to communications made from a party to an attorney in negotiating to employ him. The fact that Piper, to whom the letters were addressed, was one of the attorneys for the plaintiff in obtaining_the judgment, can make no difference. He was not addressed in that capacity, as the letters clearly show. The defendant doubtless thought that, after the lapse of nine years, he was no longer Nelson's attorney, and supposed he could employ him. These two communications are privileged, and, as the defendant did not waive the protec

66

tion of the statute, they cannot be considered as evidence in the case The defendant in the other two letters does not acknowledge that the judgment is an existing liability. They mention the judg ment, it is true, but that is not of itself sufficient. In the first letter the defendant speaks of it as the "wrongfully procured judgment," and insists that it is barred in Nebraska by the statute of limitations. In the other he refers to it as the wicked judgment." The defendant was liable in New York, as the judgment was not barred there. The letters were nothing more than propositions to give $40 to buy his peace. The fair and reasonable construction of the language used indicates that it was not the intention of Becker to unqualifiedly acknowledge that he was bound for the satisfaction of the judgment. To remove the bar of the statute, the debtor must unqualifiedly acknowledge an existing liability. Rolfe v. Pilloud, 16 Neb. 21, 19 N. W. Rep. 615, 970; Devereaux v. Henry, 16 Neb. 55, 19 N. W. Rep. 697; Bangs v. Hall, 2 Pick. 368; Danforth v. Culver, 11 Johns. 146; Hanson v. Towle, 19 Kan. 273; Barlow v. Barner, 1 Dill. 418; Ft. Scott v. Hickman, 112 U. S. 150, 5 Sup. Ct. Rep. 56. In Hanson v. Towle, supra, the court in the opinion say: "A mere reference to the indebtedness, although consistent with its existing validity, and implying no disposition to question its binding obligation, or a suggestion of some action in reference to it, is not such an acknowledgment as is contemplated by the statute. There must be an unqualified and direct admission of a present subsisting debt, on which the party is liable." We are satisfied that the letters introduced in evidence did not take the judgment out of the statute of limitations. It is argued that the court erred in excluding the letters written by the defendant's wife to the plaintiff in November, 1887. The testimony conclusively shows that the defendant knew nothng of these letters until long after they were written. The letters disclose that she proposed to use her own means to procure a discharge of the judgment, and make her husband a Christmas present of the judgment satisfied. The letters were inadmissible. The judgment of the district court is affirmed. The other judges

concur.

IRISH V. PULLIAM et al. (Supreme Court of Nebraska. May 6, 1891.) MECHANIC'S LIEN-WAIVER-EVIDENCE.

In an action by a material-man to fore close a mechanic's lien, the owner of the property answered in substance that one P. & Co. were the lowest bidders for the erection of the buildings; that, they being unable to give bond, the material-man agreed with him that in consideration of furnishing certain material to P. & Co. for the erection of the building, he would waive his lien upon the same, etc. The testimony showed that a memorandum was made of the terms of the agreement, but that it was to be reduced to writing, and signed by the parties. Before the agreement was reduced to writing and signed the owner let the contract for the erection of the buildings to P. & Co. Held, that under the proof the contract was not to be complete

until signed by the parties, and that the materialman was entitled to a lien.

(Syllabus by the Court.)

Appeal from district court, Douglas county; WAKELEY, Judge.

Winfield S. Strawn, for appellant. F. L. Weaver, for appellees.

MAXWELL, J. This is an action to foreclose a mechanic's lien. Pulliam, Dickey & Co. entered into a contract with Allen H. Fitch to erect a dwelling-house for him and his wife, in the city of Omaha, for the sum of $7,244. The contractors could not, or at least did not, enter into a bond for the completion of the building according to the plans and specifications, and to pay the laborers and material-men. In lieu of this, however, the Fitches allege in their answer to the petition "that said Pulliam, Dickey & Co. were the lowest bidders therefor, bidding to do said work, according to the plans and specifications submitted, at a contract price of $7,244, but were unable to give bonds for the protection of these defendants against liens, and for the satisfactory completion of said work. Plaintiff thereupon, after looking over and inquiring into the plans, specifi. cations, and contract price aforesaid, offered, promised, and agreed to furnish all the lumber necessary for the erection of said buildings according to said specifications and contract, and to waive his right of lien therefor, except as to such funds as might remain in the hands of these defendants, due and owing said Pulliam, Dickey & Co. after paying for the labor and the other material not to be furnished by plaintiff under his contract aforesaid, in consideration of and provided that the erection and construction of said buildings be given by these defendants to said Pulliam, Dickey & Co., which offer, promise, and agreement was accepted by defendants, and by them fully carried out and performed, and these defendants made no other or different contract in relation thereto with said parties. That they have paid out and expended the contract price of $7,244 for the furnishings and construction of the buildings aforesaid, and that because of the neglect, failure, and refusal of plaintiff to furnish the lumber according to his contract and agreement as hereinbefore mentioned, defendants, owing to the irresponsibility of said Pulliam, Dickey & Co., have been compelled to and did expend and pay out to their damage a further sum of $1,607.45 for the lumber necessary to complete said buildings according to the plans and specifications aforesaid." This is denied in the reply. The testimony tends to show that the plaintiff, if the contract was let to Pulliam, Dickey & Co., proposed to furnish the lumber for the buildings, and waive his lien upon the buildings. A memorandum was drawn up by the plaintiff, Fitch, and Pulliam. This, however, merely contained what purported to be the terms of the agreement. It was not signed by either of the parties, but a formal agreement was to be drawn up and signed. Mr. Fitch, upon cross-examination, testifies in regard to this memorandum as follows: "Question.

You say now Mr. Irish agreed to reduce it to writing, sign it himself, and send you a copy? Answer. For my signature. Q. Didn't you swear yesterday he was to reduce it to writing, and both sign it, and each keep a copy? A. Words to that effect." The other testimony in the record tends to show that the agreement was to be reduced to writing, and signed by the parties, before it took effect. Where such is the case, the agreement will not be binding in law until it is duly signed. Chinnock v. Marchioness of Ely, 4 De Gex, J. & S. 638, 646; Commissioners v. Brown, 32 N. J. Law, 504; Eads v. Carondelet, 42 Mo. 113; Morrill v. Tehama Co., 10 Nev. 125; Congdon v. Darcy, 46 Vt. 478; Fredericks v. Fasnacht, 30 La. Ann. 117; Bourne v. Shapleigh, 9 Mo. App. 64; Mac Mackin v. Timmins, (Pa.) 30 Alb. Law J. 56; Hough v. Brown, 19 N. Y. 111; 3 Amer. & Eng. Enc. Law, 854. The fact that the parties stipulated to reduce the agreement to writing, which was to be signed by the parties, is strong evidence to show that they did not intend the agreement to be complete until reduced to writing and signed. Ridgway v. Wharton, 6 H. L. Cas. 238; Lyman v. Robinson, 14 Allen, 242; Brown v. Railroad Co,44 N. Y. 79; Methudy v. Ross, 10 Mo. App. 101; 3 Amer. & Eng. Enc. Law, 855. The case at bar furnishes an illustration of the necessity of reducing to writing a contract of that kind, and have both parties sign it the same, as the parties wholly disagree as to the terms of the alleged memorandum. The building seems to have cost very much more than the contract price. Just what changes were made in the plans and specifications is not clear, nor are they material in this case. Mr. Fitch, without waiting until the contract with the plaintiff in regard to furnishing the lumber and waiving his lien therefor was reduced to writing and signed, entered into a contract with Pulliam, Dickey & Co. for the erection of the building. The plaintiff had not at that time waived his lien, although the terms of agreement seem to have been substantially settled. There is always a liability, however, for parties to disagree as to the details of a contract like that in controversy, and, therefore, until the agreement is entered into, the contract was not complete. Connery v. Best, 1 C. & E. 291; Bushell v. Pocock, 53 Law T. (N. S.) 860; Hawkesworth v. Chaffey, 54 Law T. (N. S.) 72; 3 Amer. & Eng. Ene. Law 855. The defendants whose names are not mentioned in this opinion are alleged to be lienholders, and their rights are not affected. The judgment of the court below against Allen Fitch and wife is reversed, and a decree will be entered in this court for the amount due the plaintiff, and for foreclosure of his lien upon the property. Judgment accordingly. The other judges concur.

TAYLOR V. COOTS.

(Supreme Court of Nebraska. May 6, 1891.) FORECLOSURE OF MORTGAGE-COLLATERAL ATTACK -SERVICE BY PUBLICATION-JURISDICTION.

1. In 1857 one R. J. T. executed a mortgage on certain real estate in Douglas county. In 1872

an action was brought to foreclose the mortgage, service by publication, and a decree of foreclosure and sale had, under which the real estate was sold, the sale confirmed, and a deed made to the purchaser. Held that, if the court had jurisdiction, any errors committed by it in the course of the proceedings were not subject to collateral attack.

2. Where the defendant was a non-resident of the state, an affidavit for publication, in which it was set forth that the action was brought to foreclose a mortgage of real estate in Douglas county, that the defendant was a non-resident, and absent from the state, and could not be served with a summons therein, was sufficient to authorize service by publication.

3. A notice of the pendency of an action to foreclose a mortgage, published five consecutive weeks in a weekly newspaper, is a good publication, although one week longer than necessary.

4. Proof of publication, sworn to by the bookkeeper of the company printing the same, is sufficient evidence prima facie of that fact. The proof may also be made by any person having actual knowledge of the fact.

5. The sufficiency of the petition is not a test of jurisdiction, as the court may commit an error in holding it sufficient; but this, if the court had jurisdiction, will not render the judgment subject to collateral attack. Trumble v. Williams, 18 Neb. 144, 24 N. W. Rep. 716.

(Syllabus by the Court.)

Appeal from district court, Douglas county; CLARKSON, Judge.

B. G. Burbank and John W. Lytle, for appellant. Win. D. Beckett and Guy R. C. Read, for appellee.

--

MAXWELL, J. Ademurrer to the amend. ed petition was sustained in the court below, and the action dismissed. The amended petition is as follows: "That prior to the 11th day of April, 1857, the late Richard J. Taylor was the owner in fee-simple of lot seven, in block 181, in the city of Omaha, Douglas Co., Neb. That the said plaintiff was the wife of the said Richard J. Taylor, who died on or about the day of February, 1888, and that he left no will or bequest to any person. That said property was inherited by his heirs, who are the children of this plaintiff and the said Richard J. Taylor, and that said heirs have executed a deed conveying said property to this plaintiff, and she now succeeds to all the rights in said property held by the said Richard J. Tay. lor. That on said 11th day of April, 1857, the said Richard J. Taylor executed to one Wm. B. Street a certain mortgage upon said premises held by him at that time to secure a promissory note in the sum of $243.80. That on the 6th day of January, 1872, the said Wm. B. Street com. menced foreclosure proceedings against said Richard J. Taylor upon said note and mortgage, by filing a pretended petition in said action. A copy of said petition is as follows, to-wit: In the district court of Douglas county. In equity. William B. Street, Plaintiff, vs. Richard J. Taylor, Defendant. Petition. Now comes the plaintiff, and complains, and says: (1) That on the 11th day of April, 1857, the said defendant made his certain promissory note, dated on said day at Des Moines, Polk Co., Iowa, whereby, for value received, three months after date, I promise to pay to the order of said plaintiff $243.80, at Oskaloosa, Mehaska

(3)

Co., Iowa, and delivered the same to said plaintiff, who thereby became and still is the true and lawful owner and holder thereof. (2) That, for the purpose of securing the payment of said note by his certain indenture of mortgage of even date therewith, said defendantconveyed to said plaintiff certain lands described as follows: Lot 8, in block 99; lot 8, in block 160; lot 1, in block 254; lot 3, in block 184: and lot 7, in block 181,-in the city of Omaha, in Douglas county, subject to a condition that the same should be void in case of non-payment of said note at the time agreed to between the parties, which mortgage was duly executed and acknowledged and on the 18th day of July, 1859, recorded in the registry of said county. That no part of said note has ever been paid or collected, and no proceedings have been had at law to enforce the same. Wherefore said plaintiff prays a judgment of foreclosure and sale of said premises; that the proceeds arising on said sale be applied to pay said mortgage debt; that execution be granted for any deficiency that may arise after the said sale or the proceeds thereof to answer said debt; and that he may have all other relief necessary and proper, with costs. ALBERT SWARTZLANDER and J. M. WOOLWORTH, Attorneys.' The above petition was in no manner verified as required by law. (4) In connection with the above petition, plaintiff filed an affidavit for the purpose of obtaining service by publication upon the said Richard J. Taylor, who is a non-resident of the state of Nebraska. The fol lowing is a copy of said affidavit: 'State of Nebraska, Douglas County-ss.: Albert Swartzlander, being duly sworn, says that he is one of the attorneys for plaintiff in above petition; that the plaintiff and defendant is each a non-resident of and absent from this state: that said defendant cannot be served with summons therein; that this action is brought to foreclose a mortgage and the sale of real estate in said county under mortgage. ALBERT SWARTZLANDER. Subscribed in my presence, and sworn to before me, this 6th day of January, 1872. GEORGE ARMSTRONG, Clerk.' (5) Plaintiff further alleges that said Wm. B. Street commenced the publication of service on the 3d day of January, 1872, and three days before the petition in said cause and the affidavit for service had been filed in said district court; that proof of said service was filed in said court on the 11th day of March, 1872; that the affidavit of proof of publication was made by L. Richardson, one of the proprietors of Omaha Weekly Herald, a newspaper published in Omaha, Neb.; wherefore plaintiff says that said service was wholly null and void, and of no effect, for the purpose of service upon said Taylor. (6) That on the 28th day of February, 1872, the said Wm. B. Street commenced a second publication of said notice for service in said newspaper, thereby seeking to obtain jurisdiction in said cause. The affidavit which was filed to prove the service was made by John, S. Briggs, who was a book-keeper of said newspaper, and is as follows: 'Jno. S. Briggs, being duly sworn, deposes and

says that he is a book-keeper of the Omaha Weekly Herald, a newspaper printed in Omaha, iu said county of Douglas; that the printed notice hereto attached was published in said weekly newspaper five consecutive weeks next after and including the 28th day of February, A. D. 1872; the said newspaper was during that time in general circulation in the county of Douglas and state of Nebraska. JOHN L. BRIGGS. Sworn to before me and subscribed in my presence this - - day of -.' Plaintiff alleges that said affida vit is no proof of the publication, because the said affidavit is not made by the printer of said newspaper, the foreman, or chief clerk, nor by any one who swears of his own knowledge that said publication was so made, and was therefore null and void. (7) That on the 18th day of April, 1872, a decree was rendered in said cause; that said decree was rendered without the knowledge or appearance of said Richard J. Taylor, or any one for and on his behalf. The following is a copy of said decree: 'The default of the said defendant having been heretofore entered in this cause, and he still failing to answer the petition herein, on motion of J. M. Woolworth, this court computes and finds the amount due by said Richard J. Taylor for principal and interest to the first day of this term, and protest upon the mortgage debt in the petition mentioned, to be $604.32, and that the several allegations in the said petition are true. It is further ordered and adjudged and decreed: 1. That the mortgaged premises in the petition mentioned, to-wit, lot 8, in block 99; lot 8, in block 160; lot 1, in block 254; lot 3, in block 184; and lot 7, in block 181,-in the city of Omaha, Douglas Co., Neb., be sold by the sheriff of this county upon such proceedings as are in that behalf prescribed by law for the sale of real estate on execution. 2. That the sheriff apply the proceeds arising on said sale-First, to the costs, disbursements, and expenses to which, in and about said sale, he may be subject; second, to the payment of his commissions attending said sale, and the costs of this suit; third, to the payment of the said plaintiff of the sum so as aforesaid in and by this judgment found due to him, together with interest thereon, from the first day of this term, and that he may bring the surplus arising on said sale if any there be, into this court to abide its order in the premises, and that the said sheriff report his proceedings to the court with all convenient speed; fourth, that the said defendant be, and he is, barred and foreclosed of and from all right, claim, and equity of redemption of, in, or to the said mortgaged premises, and every part thereof.' (8) That the petition above set forth does not set forth a cause of action, but expressly states that said mortgage was to be null and void in case of nonpayment of said note at the time agreed to between the parties. That said note was not paid when due. The decree above set forth finds that the several allegations in the said petition are true. Wherefore plaintiff alleges that said decree is wholly null and void, and of no force and effect. (9) That the said note and mortgage

could not constitute a valid cause of action at the time said suit was commenced, because the statute of limitations had raised a complete bar to the bringing of said suit, no part of said note having been paid within fourteen years from the time when the same was due and payable, and no promise having been made to pay the same after the statute bad interposed a bar to the maintenance of the action; wherefore plaintiff says that all of the said proceedings were null and void. (10) That on the 25th day of May, 1872, an order of sale was issued, based upon said decree, and on the 28th day of June, 1872. said lot 7, in block 181, was sold thereunder to one A. W. Street for $135. That said premises have been conveyed, through numerous persons, to the defendant here. in. That, by reason of the null and void proceedings in said cause, said A. W. Street, and all who claim under and through said sheriff's sale, had due and legal notice of the rights of the said Richard J. Taylor in and to said premises, and that defendant herein is not a bona fide purchaser of the same. (11) That there was no affidavit filed thereon to base a second publication in said newspaper heretofore mentioned, and that the affidavit first filed for service by publication was null and void, for the purpose of forming a basis for a second publication of service. That she hereby tenders into court such sum of money as the court may find is due the defendant herein by reason of said foreclosure suit, or the sale thereunder, in case the court finds any sum to be so due and a charge upon said estate. Wherefore plaintiff prays that said title to said lot be forever quieted in this plaintiff, and for costs of suit."

The question presented in this case is, did the court in the action to foreclose the mortgage have jurisdiction? The fourth subdivision of section 77 provides for serv ice by publication "in actions which relate to or the subject of which is real or personal property in this state, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partially in excluding him from any interest therein, and such defendant is a non-resident of the state or a foreign corporation." Section 78: "Before service can be made by publication, an affidavit must be filed that service of a summons cannot be made within this state on the defendant or defendants to be served by publication, and that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication." Section 79: "The publication must be made four consecutive weeks, in some newspaper printed in the county where the petition is tiled, if there be any printed in such county; and, if there be not, then in some newspaper printed in the state, of general circulation in that county. It must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to answer. Section 80: 'Service by publication shall be deemed

support the state government and state institutions, and afterwards come in with an air of injured innocence claiming the land as his own. Such conduct does not comport with good citizenship, and should not be encouraged by the courts. The petition fails to state a cause of action, and the demurrer thereto was properly sustained. The judgment of the court below is therefore affirmed. The other judges

concur.

It is objected that Briggs, who swears to the publication, was book-keeper of the Omaha Weekly Herald, and therefore the proof of publication is not sufficient. Section 80 provides that the service may be proved by the affidavit of the printer, his foreman or principal clerk, or other person knowing the same. The book-keeper no doubt was principal clerk of the Weekly Herald, and had express authority to make the affidavit. The number of publications could be proved by any one know. ing the facts, even if not connected with the paper, and were it necessary the court would permit proof to be made even after judgment. But that is unnecessary in this case. The case was tried before a capable and painstaking judge, who no doubt was convinced that Briggs was the principal clerk, and the court held the affidavit sufficient, and in this collateral attack we must so hold.

Objections are made to the petition to foreclose the mortgage that it does not state facts sufficient to constitute a cause of action. The court before which the case was tried sustained the petition, and granted the decree of foreclosure and sale, and after the sale of the premises confirmed it, and caused a deed to be made to the purchaser. The sufficiency of the petition is not a test of jurisdiction. This court so held in Trumble v. Williams, 18 Neb. 144, 24 N. W. Rep. 716. The court may commit an error in sustaining an insufficient petition. That, however, does not affect the validity of the judgment, if no direct proceeding is had to vacate or set it aside, providing the court had jurisdiction. A number of the questions presented in this case were decided in Day v. Thompson, 11 Neb. 123, 7 N. W. Rep. 533, and the sale of real estate under an attachment sustained. The whole course of the legislation of this state has favored the repose of titles. A reasonable time is given to every one to assert his claims in the courts, but, if he fails to do so within the periods provided by law, his right to proceed will be barred. There is but little justice in allowing a party to lie by for 30 years, and practically abandon his claim to certain real estate, allow others to pay the taxes and bear the burdens cast upon it with the various improvements, and to

RETT.

(Supreme Court of Nebraska. May 6, 1891.) ADVERSE POSSESSION-COLOR OF TITLE-PAYMENT OF TAXES.

1. A party who has been in the actual, open, notorious, exclusive, adverse possession of real estate for 10 years thereby acquires an absolute title to the same.

2. Color of title is not essential to adverse

possession. It is the actual, continuous, open, notorious, exclusive, adverse possession that ripens into an absolute title. Payment of taxes by the occupant for a series of years is a strong circumstance, in connection with others, tending to show the adverse holding and the abandonment of the property by the holder of the title.

3. Upon all the essential facts necessary to show adverse possession there was no conflict in the testimony, and adverse possession was clearly established, and the instructions could not aid the plaintiff, there being no testimony to sustain them. (Syllabus by the Court.)

Error to district court, Douglas county; HOPEWELL, Judge.

Congdou & Hunt, for plaintiff in error. Lake & Hamilton, for defendant in error.

PER CURIAM. This is an action to recover the possession of lots 1 and 6, in block 88, and lots 1 and 2, in block 89, in the city of Florence, Douglas county. The answer is a general denial, and that the plaintiff's cause of action did not accrue within 10 years next before the beginning of the action. The action was brought on the 5th day of November, 1887. On the trial of the cause in the court below a verdict was rendered in favor of the defendant, and, a motion for a new trial having been overruled, judgment was entered on the verdict. A number of errors are assigned in this court, particularly in regard to instructions given and refused by the court. It is unnecessary to review the instructions either given or asked on behalf of the plaintiff, as, in our view, there is no testimony to sustain them. The defendant was called as a witness in his own behalf, and testified as follows: "Question. When did you first take possession of those lots, Mr. Barrett? Answer. I bought the place in 1870; I first bought the place in 1870. Those two lots were then inclosed by the man that I bought them from. Q. Which two,-the ones where your house is? A. Yes, sir; one and two, in block 89. Q. One and two, in block 89? A. Yes, sir. By a juror: Q. I thought you said your house was on lot 8, in block 89? A. Yes, sir. Q. You bought the two lots 1 and 2? A. 1 and 2. Q. Who was the man you bought of? A. Olsen. Q. A man named Olsen? A. Yes, sir. Q. Were those two lots included in what you