the amount for which it was proposed to sell the property, and the time of the sale; that the sale was from time to time postponed at their joint request; that they, with this knowledge, undertook to ratify the Burr trust deed until full payment of all indebtedness due from them, or either of them, to the bank. Upon the other hand, it is not apparent that Mahoney, or the beneficiaries, or the property suffered in any of their rights under the sale, or that bidders, by reason of any of the acts of the bank, were deterred from attending it. Moreover, this ground of attack seems never to have been presented in the trial court, and was not raised by the first brief of respondents here filed. The consideration was not in the mind of the chancellor in deciding the case. Usually, attacks such as this are made in direct proceedings, accompanied by an offer to do equity. No pleading in the case presents the proposition, nor is any offer made to restore to the bank any of the moneys by it admittedly paid. It cannot, under all these circumstances, be here held that the sale was either void or voidable. not been paid, and not because its payment | Mahoney and Burnett had actual notice of contravened the trust, but solely because of the intervening rights of the beneficiaries under the Burnett deed. But the beneficiaries were not purchasers or incumbrancers for value. The consideration for which they received Mahoney's interest was a good consideration, but it was not a valuable one. The later payments or outlays by the bank were not optional advances taken by Mahoney, and put in his own pocket. They are found by the court to be payments made to be used, and which were used, to pay street assessments and taxes, and to improve the property. They were all for the preservation and benefit, not only of appellant's security, but equally of the beneficiaries' interest in the land. As to the payment of the taxes and other superior liens, it is sufficient to say that appellant could have paid them to protect its security, and held the property for such payments, without any express authority. 1 Jones, Mortg. § 358; Insurance Co. v. Newell (Sup.) 28 N. Y. Supp. 913. The right depends, not upon express contract, but upon the general principles of equity. As to many of the other payments, Burnett, as trustee, not only sanctioned and ratified them so far as he had the power, but requested the making of them both orally and in writing, and signed as trustee the promissory notes evidencing them. Nor is it at all apparent that Burnett's acts in subjecting the interest of his beneficiaries to the terms of the Burr trust deed were in contravention of his trust and void. Το make improvements, he was authorized "to raise money, by mortgage or otherwise, on said property, * * and to pay the same out of the rents and profits of the whole of said property, after deducting so much as may be necessary for the support of said children." The express power to raise money upon the property by mortgage or otherwise is conferred. He could not raise money "by mortgage on said property" without subjecting the corpus of the property to the lien of the mortgage. The direction for payment out of the rents and profits is not the designation of a fund, within the meaning of the cases. It is simply a direction. To hold that the language means merely that, if he desired to make improvements upon the property, he could do so only out of the surplus rents and profits, instead of investing them, renders meaningless and inoperative the power to mortgage. If the instrument meant only that, it should, as it easily could, have been aptly expressed. But the determination of the main question under consideration is not essentially affected by the interpretation of the Burnett deed. It is apparent that the moneys for which the property was sold were actually disbursed under the terms of the trust; that there was no fraud in the bank's claim to recover them; that the payment of many of them was requested by both Mahoney and Burnett; that 4. The complaint pleaded ownership in plaintiff. The court, in very voluminous findings, set forth the specific probative facts and circumstances of the transactions of the parties, and went no further. Under its conclusions of law, separately stated, is found this language: "And, as conclusions of law, this court finds that plaintiff was not at the time of the commencement of this action, or on the 29th day of December, 1881, or at any other times, the owner or seised in fee ** of the land in the complaint described." Re spondents contend that this is a misplaced finding of fact, and that, not being attacked, it must stand, and will support the judgment. In aid of this contention are cited Jones v. Clark, 42 Cal. 192; Breuner v. Insurance Co., 51 Cal. 107; Smith v. Acker, 52 Cal. 217; Bath v. Valdez, 70 Cal. 355, 11 Pac. 724; Foot v. Murphy, 72 Cal. 105, 13 Pac. 163; Burton v. Burton, 79 Cal. 490, 21 Pac. 847; Millard v. Legion of Honor, 81 Cal. 342, 22 Pac. 864; and Spargur v. Heard, 90 Cal. 228, 27 Pac. 198. Other cases could be added to this list, but an examination of them will disclose that they are alike in their essential features. In each of them the appellant was seeking to overthrow the judgment because of the alleged absence of a finding. A sufficient finding had been placed in the conclu sions of law, and in nearly if not quite all of the cases it was the finding of a simple, unmixed, ultimate fact. Under such circumstances this court evinced a natural and strong unwillingness to consider so technical an objection, and to reverse a case fairly tried, and set aside a judgment justly given, because of a mere clerical misprision. So in Millard v. Legion of Honor, 81 Cal. 340, 22 Pac. 864, it said, "But surely the main object [of findings] was not to afford a cover under which a losing party might successfully set support it. For the foregoing reasons the order and judgment appealed from are reversed, and the cause remanded. We concur: BEATTY, C. J.; GAROUTTE, J.; VAN FLEET, J.; MCFARLAND, J.; TEMPLE, J. HARRISON, J., deeming himself disqualified, did not participate in this decision. (106 Cal. 580) CHEVALIER v. COMMINS et al. (No. 15,- 2. An agreement between a saloon keeper and a merchant selling him goods that, in case he becomes insolvent, he will turn over his stock of goods to the merchant, is void as against creditors, as in direct contravention of the insolvent act. 3. A bill of sale by an insolvent saloon keeper of his entire business is, as against creditors, prima facie fraudulent. Department 1. Appeal from superior court, city and county of San Francisco; John Hunt, Judge. Action by George F. Chevalier against Edward Commins and others. There was a judgment for plaintiff, and defendants appeal. Affirmed. a trap to capture a just judgment." But the The specific facts, as has been shown, do not rule laid down in the above cases is not one which permits of extension. It was announced to aid the ends of justice, not to defeat them. Paraphrasing the language above quoted, surely the main object of findings was not to afford a cover under which the prevailing party might successfully set a trap to hold an unjust judgment. The statute imposes upon the judge the duty of stating separately his findings of fact and his conclusions of law. Code Civ. Proc. § 633. The reason is obvious,--that the court may examine the facts found, and see whether or not they justify the conclusions of law and the judgment supported by them. Emeric v. Alvarado, 64 Cal. 603, 2 Pac. 418. It is true that ownership may be pleaded and found as an ultimate fact. No reference is needed to the numerous cases so holding. But it is equally true that ownership may be pleaded as a conclusion of law, and may be determined by the court as such a conclusion, and not as a fact. Thus, in Turner v. White, 73 Cal. 299, 14 Pac. 794, this court said: "It is perfectly true that in general an allegation that a party is the owner of real property is an allegation of an ultimate fact, and not of a conclusion of law. But as held in Levins v. Rovegno, 71 Cal. 273, 12 Pac. 161, the same averment or statement may be of a fact or of a conclusion, according to the context." Levins v. Rovegno, supra, is precisely in point. There, as here, the court found, "as a conclusion of law, that the defendants are the owners in fee simple"; and this court, after an elaborate discussion of the subject of findings, declared that the court below properly treated the ownership as a conclusion of law to be deduced from the facts found. So, here, it was by reason of the facts found, the previous payment by Mahoney, and the consequent extinguishment of the trust deed, that the court concluded that the trustees' deed to the bank conveyed no title, and that consequently plaintiff never was the owner. If it be not clear that the statement is one of fact, this court will be reluctant to take it from its context, and treat it as a fact. Haynes, New Trials & App. § 242. Still further, if it be regarded as a misplaced finding of fact, or a mixed matter of law and fact, which should be treated as a finding, it is nevertheless a finding drawn from the special fact of payment. If full authority is not to be given to the declaration of the judge, who, by putting it in the conclusions, holds out that he has reached the result by the application of the law to the facts, at least some weight must be accorded to his action, unless the error is merely a misprision. Treating it then as a finding, it is a finding drawn from the facts previously found. But a general finding, drawn as a conclusion from facts previously found, cannot stand if the specific facts do not support it. People v. Reed, 81 Cal. 76, 22 Pac. 474; Geer v. Sibley, 83 Cal. 4, 23 Pac. 220. v.39p.no.9--59 Mullany, Grant & Cushing and Wm. Grant, for appellants. Geo. A. Rankin, for respondent. VAN FLEET, J. Plaintiff brings this action, as assignee in insolvency of one Healy, to recover certain personal property, or its value, which it is alleged was transferred by said Healy to defendants within one month before the filing of the petition in insolvency, with a view to give a preference to the defendants, and with reasonable cause by the latter to believe said Healy was insolvent, in violation of section 55 of the insolvent act of 1880. Verdict and judgment were for plaintiff, and from the judgment and an order denying a new trial the defendants appeal. 1. It is contended that the evidence is insufficient to sustain the verdict; that it establishes without conflict that defendants in taking the transfer acted in the utmost good faith, upon a valuable consideration, and without cause to believe that Healy was insolvent, or that he was making said transfer in contemplation of insolvency; and, further, that it appears without controversy that the transfer was made and accepted in pursuance of a ver bal understanding made between defendants and Healy in 1890, whereby the latter agreed that, in consideration of defendants' (who were wholesale liquor dealers) selling Healy goods on credit with which to carry on business, the latter would trade with no other house, and, if at any time he failed in the business or should cease to carry it on, he should turn the place and stock on hand over to the defendants. The transfer complained of was made by the insolvent, Healy, who was carrying on the business of saloon keeping, by a bill of sale made January 27, 1892, whereby he transferred to defendants his entire stock in trade, saloon fixtures, and furniture of every kind, accompanied by possession of the saloon. Upon the question as to the purpose and intent with which this transfer was made, Healy testified on behalf of plaintiff: "I was not able to attend to my business myself at that time. I was at home at the time of this transfer. I was sick, and Thomas Donohue was running the business. I saw on that day that I would be unable to pay my bills as they came due, and for that reason I turned over my business to the defendants. I had friendship for E. Commins & Co. in a business way. They started me up, and that was all; nothing more than in a business way. I sent Thomas Donohue to the place of E. Commins & Co., to see them with reference to turning the saloon and business over to them. Q. Why did you not send to some of your other creditors instead of to Mr. Commins? A. They were my heaviest creditors, and I thought it was only right to turn the place over to them. I intended to give them the preference; that is why I sent down a man to turn the place over to them. I do not know what goods I had in the place on the 27th of January, 1892, that I had bought from E. Commins & Co., or what goods I had there that I had bought from other parties." One Donohue testified: "I was barkeeper for Mr. Healy, and remember the bill of sale or assignment to E. Commins & Co. from Mr. Healy. I went down to see Mr. E. Commins myself. Mr. Healy owed considerable money then, and could not pay his bills, and he turned the place over to Mr. Commins. January 28, 1892, was steamer day, and we expected bills to be presented on that day; but I do not know the amount of bills that were expected. The bills due amounted to $1,500 or $1,600, as near as I can judge. We did not have any money to pay those bills with, and there was not enough of goods on hand to pay that amount. I went on behalf of Mr. Healy down to see Mr. E. Commins, and I called upon him on the 27th day of January, 1892, and saw himself, and told him how there were bills, and that Mr. Healy was sick, and was not able to attend to his business, and that he had no money to meet those bills to-morrow, being collection day, and that he wanted to turn the place over to him. He said: 'All right. I will make a bill of sale, and you can take it out to Mr. Healy, and have him sign it, and bring it back to me, and I will go down and take possession of the place.' I did so. I took the bill of sale out to Mr. Healy, and had him sign it, and brought it back to Mr. Commins, and gave it to him, and he told me to go up to the place, and he would be up there inside of an hour, and take posses sion of it, and I did so. I went back, and he came there about three or four o'clock in the afternoon, and took possession of the place, and put another gentleman in there, and I walked out. I told him that the next day was steamer day, and that Mr. Healy had no money to pay any of the bills that were due. He said that he had been a friend of Mr. Healy, and if anybody was to get the place that he knew that we could not pay the bills, and that he was entitled to it, as he had given Mr. Healy the goods in the first start, and, if anybody should have any preference, he was entitled to it. Then he asked me what bills were due, and I told him I could not tell him the amount of the bills that were due for whisky, cigars, etc. I did not name any of the creditors." Defendant Edward Commins and his bookkeeper gave testimony tending to contradict the witness Donohue as to his statement that he informed defendants of the financial condition of Healy at the time. They testified that Donohue said nothing about Healy owing any one else; that he gave as the sole reason for the transfer that Healy was sick, and had to go out of business; that defendants had no knowledge of any other debts owing by Healy, and no reason to believe him insolvent; that the transfer was taken by them solely in pursuance of an understanding they had with Healy that he should turn the business over to them in the event of his retiring. In this state of the evidence, it is idle for appellants to contend that the evidence was without conflict as to the purposes for which the transfer was made. Their argument is largely a suggestion of facts going to show that the witness Donohue had acted in bad faith in the transaction, and was not worthy of belief,-reasons which, addressed to a jury, might tend to affect the question of his credibility, but which have no place in discussing the question as to whether there was a conflict of evidence upon the point in question. It is obvious that, if the jury believed his testimony and that of Healy, there was evidence to sustain their verdict. The evidence of the alleged understanding between Healy and defendants about turning the saloon over to the latter was perhaps admissible on the question of the intent of the parties in making the transfer, but only for such purpose. If it constituted a valid or binding contract between the parties to it, which is doubtful, it was clearly void as against creditors, as being in direct contravention of the provisions of the insolvent act. Under it the parties could have accomplished indirectly the very thing denounced by section 55 of that act as fraudu lent. Even if clearly established, therefore, such verbal understanding constituted in itself no defense to the action. 2. It is claimed that the court erred in charging the jury that the bill of sale in question given by Healy was not a sale in the ordinary course of business, and was therefore prima facie fraudulent and void. The instruction was clearly right. It appeared without con flict that the business of Healy was that of saloon keeper,-a vendor of liquors in retail quantities, or drinks, over the bar. The bill of sale constituted a disposition of the entire business in bulk, and was therefore not a transfer in the ordinary course of the business in which the seller was engaged; and it was right for the court to so charge the jury as matter of law. Nor, for the reasons above stated, was the instruction erroneous because it ignored the alleged agreement or understanding between Healy and defendants. For the same reasons, it was not error for the court to exclude the offered evidence of a custom among liquor dealers to enter into similar arrangements with saloon keepers. We find no error in the record. Judgment and order affirmed. SARGENT v. SARGENT. (No. 19,327.) A contract whereby a husband and wife agree to live apart-the wife to have the custody of their child, and to receive a certain amount per month from the husband, and releasing the respective claims of each in the property of the other cannot be revoked by the husband, under Civ. Code, § 101, declaring that consent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation, but the other refuses, such refusal is a desertion. In bank. Appeal from superior court, Los Angeles county; Lucien Shaw, Judge. Action by E. W. Sargent against Grace Ella Sargent for the custody of a minor. Judgment was rendered for plaintiff, and defendant appeals. Reversed. Wells, Monroe & Lee, for appellant. John D. Pope and Wilson & Lamme, for respondent. relatives or friends as she should see fit; and that the husband should pay to the wife, so long as the marriage relation should exist, and she should continue to live apart from him, the sum of $60 per month, for the support and maintenance of the wife and daughter, except that after the daughter should attain the age of 18 years the father should contribute directly to her support, and the wife should from that time receive but $30 per month. The agreement further stipulated, among other things, for the payment to the wife of a certain sum in cash, in advance, and for a division of the community property of the parties; and it was covenanted that thereafter the husband should not receive or claim any of the wife's property or effects then owned or thereafter earned or possessed by her, but that she might sell, dispose of, or bequeath the same during her life, or by will or otherwise, as fully and effectually as if sole and unmarried; and, on the wife's part, that she should not at any time, while the husband continued to perform the agreement, contract any debt or liability of any character for which the husband should be liable, nor claim any alimony. In conclusion, the parties bind themselves to the faithful performance of the conditions and obligations of said agreement, "provided, always, and it is hereby agreed, that if the said husband and wife should be reconciled, and return to cohabitation, or if their marriage should be dissolved, then, in such case, all the covenants and conditions herein contained shall become void, but without prejudice to any act previously made or done hereunder," etc. The court further found that on September 12, 1892, respondent, the husband, "elected to revoke, and did revoke, said contract of separation, and requested that the marital relations between him and the said Grace Ella Sargent be resumed." This finding refers to, and is based upon, a letter or notice, attached to the complaint as an exhibit, addressed by respondent to the appellant at the city of Los An VAN FLEET, J. Appellant and respond-geles, where they both were at the time, ent are husband and wife. This action was brought by the husband to have awarded to him the exclusive custody and control of Lillie W. Sargent, the minor daughter of the parties, aged 13 years,-the sole issue of the marriage, then living with the mother. The court found that the parties, in April, 1890, entered into a contract of separation, wherein it was agreed that, by reason of unhappy differences, the parties should live separate and apart during the continuance of their matrimonial obligations, unless they should mutually agree to resume them; that the wife should have the sole and exclusive custody and control of said minor child, and of her education and bringing up, until the child should attain the age of 18 years, without any interference whatsoever on the part of the husband; that the wife should be at liberty to live in such place or with such wherein appellant is informed by respondent that: "As provided by section 101 of the Civil Code, I now revoke, and declare null and void, an article of separation that was signed by us, dated April 26, 1890. As husband and father, I elect that we make our home for the present in this city. In revoking this article of separation, I also revoke every part thereof, particularly the clause that gives you the custody and care of the person of our daughter, Lillie; and, as father, I shall exercise and assume such control myself, considering always the wishes of my wife, her mother. The payment of money I have been making you will cease." Upon these findings, and others, relating to the conduct and character of the respondent, which we do not deem material to the question involved, the court concluded, as matter of law, that said agreement of separation "was revocable at the option of either of the parties thereto"; that the same was revoked by respondent, by virtue of the letter above referred to, declaring such revocation; that respondent was entitled to have the same canceled and annulled; and that he was entitled to the custody and control of said minor. Judgment was entered in conformity with these findings, and from it this appeal is prosecuted. The only question presented by the appeal is whether the findings support the judgment. The solution of the question, in the view taken and presented by both parties to the controversy, in their briefs, depends upon the question whether the articles of separation between the parties were, or could be, revoked in the manner attempted. And this is the only question argued. The position taken by respondent, and sustained by the court below, is that, by virtue of section 101 of the Civil Code, the respondent had the right to absolutely revoke his entire contract with appellant at any time, by merely withdrawing his assent thereto, and notifying appellant of the fact, and that this result was accomplished by sending the letter mentioned in the findings. We do not regard the provision in question as having any such effect as was here attributed to it. That section is found in the chapter of the Code entitled "Divorce," and under the subdivision or title "Dissolution of Marriage," defining the causes for divorce. The six sections immediately preceding relate to desertion, and define what circumstances will, and what will not, constitute desertion. Section 99 provides that "separation by consent, with or without the understanding that one of the parties will apply for a divorce, is not desertion." Section 100 provides: "Absence or separation, proper in itself, becomes desertion whenever the intent to desert is fixed during such absence or separation." Then comes the section in question (101), which provides: "Consent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restoration, but the other refuses, such refusal is desertion." It is obvious to our minds that, regarding the connection in which this latter section is placed, and the logical relation it bears to the antecedent provisions on the subject, it was intended simply to declare the effect of such revocation upon the legal status of the parties, as affecting that particular ground of divorce. Its effect is to put the recalcitrant spouse in default, and to give to the other a right which he did not have under the previously existing circumstances,-a right which, if such refusal be persisted in for the statutory period, will ripen into a cause for divorce. That the effect of the section, and its only effect, is that declared in the language of the section itself, as above italicized, is, we think, plain. This view is strengthened by reference to section 159 of the same Code. That section provides: "A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property, and except that they may agree in writing to an immediate separation, and may make provision for the support of either of them and of their children during such separation." There is nothing in this language to indicate an intention that the contract of separation there provided for shall be dependent for its subsistence upon the mere will of either spouse. To the contrary, the section provides in terms that the contract may provide for such separate maintenance during such separation. And that this was the construction put upon their contract by the parties themselves, at the time of its execution, is evidenced by its language, wherein it was provided "that if the said husband and wife shall be reconciled and return to cohabitation, or if their marriage shall be dissolved, then, in such case, all the covenants and conditions herein contained shall become void," etc. The contract in question is in conformity with the right given by section 159, and until avoided by the mutual resumption of marital duties, or the divorce of the parties, it remains binding and obligatory upon the parties thereto, as effectually as any other contract,-subject only to the limitation imposed by section 101, as above indicated. In all other respects the contractual relation subsists intact. To hold that one competent to contract, who, upon a subject-matter good in law, and for a sufficient consideration, enters into written stipulations and covenants of the most solemn character with another, should the next moment, without pretense of fraud, mistake, or undue influence, or other cause than a mere change of mind, be permitted to absolutely withdraw from and set at naught such obligations, without regard to the desire of the other contracting party, would, to say the least, be a strong depar ture in the law of contracts. There is no doubt that resumption of cohabitation would avoid the contract,-as to all features, at least, remaining executory,-even without any provision to that effect in the instrument, since the law itself attaches such consequence, upon the theory that the consideration for the deed has failed. Wells v. Stout, 9 Cal. 491; Schouler, Dom. Rel. § 218. But there has been no such resumption here. The parties are still living separate. Nor has the other contingency provided for in the contract-divorce-occurred. The contract must therefore be regarded as still subsisting, and binding upon the parties. And this binding character runs to the provision with reference to the custody of the child, equally with any other feature. Parents have a right to contract with each other as to the custody and control of their offspring, and to stipulate away their re spective parental rights, and such contracts are birding upon them. Schouler, Dom. Rel. |