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not been paid, and not because its payment Mahoney and Burnett had actual notice of contravened the trust, but solely because of the amount for which it was proposed to sell

un- the der the Burnett deed. But the beneficiaries the sale was from time to time postponed at were not purchasers or incumbrancers for their joint request; that they, with this value. The consideration for which they re- knowledge, undertook to ratify the Burr trust ceived Mahoney's interest was a good con- deed until full payment of all indebtedness sideration, but it was not a valuable one. due from them, or either of them, to the bank. The later payments or outlays by the bank Upon the other hand, it is not apparent that were not optional advances taken by Ma- Mahoney, or the beneficiaries, or the property honey, and put in his own pocket. They suffered in any of their rights under the sale, are found by the court to be payments made or that bidders, by reason of any of the to be used, and which were used, to pay acts of the bank, were deterred from attendstreet assessments and taxes, and to im- ing it. Moreover, this ground of attack seems prove the property. They were all for the never to have been presented in the trial preservation and benefit, not only of ap- court, and was not raised by the first brief pellant's security, but equally of the bene- of respondents here filed. The consideration ficiaries' interest in the land. As to the was not in the mind of the chancellor in de payment of the taxes and other superior ciding the case. Usually, attacks such as this liens, it is sufficient to say that appellant are made in direct proceedings, accompanied could have paid them to protect its security, by an offer to do equity. No pleading in the and held the property for such payments, case presents the proposition, nor is any of. without any express authority. 1 Jones, fer made to restore to the bank any of the Mortg. $ 358; Insurance Co. v. Newell (Sup.) moneys by it admittedly paid. It cannot, un28 N. Y. Supp. 913. The right depends, not der all these circumstances, be here held that upon express contract, but upon the general the sale was either void or voidable. principles of equity. As to many of the other 4. The complaint pleaded ownership in payments, Burnett, as trustee, not only sanc- plaintiff. The court, in very voluminous findtioned and ratified them so far as he had the ings, set forth the specific probative facts power, but requested the making of them and circumstances of the transactions of the both orally and in writing, and signed as trus- parties, and went no further. Under its contee the promissory notes evidencing them. clusions of law, separately stated, is found Nor is it at all apparent that Burnett's acts this language: "And, as conclusions of law, in subjecting the interest of his beneficiaries this court finds that plaintiff was not at the to the terms of the Burr trust deed were time of the commencement of this action, or in contravention of his trust and void. To on the 29th day of December, 1881, or at any make improvements, he was authorized “to other times, the owner or seised in fee • raise money, by mortgage or otherwise, on of the land in the complaint described." Resaid property,

and to pay the same spondents contend that this is a misplaced out of the rents and profits of the finding of fact, and that, not being attacked, it whole of said property, after deducting so must stand, and will support the judgment much as may be necessary for the support of In aid of this contention are cited Jones v. said children." The express power to raise Clark, 42 Cal. 192; Breuner v. Insurance Co. money upon the property by mortgage or oth- 51 Cal. 107; Smith v. Acker, 52 Cal. 217; erwise is conferred. He could not raise mon- Bath v. Valdez, 70 Cal. 355, 11 Pac. 724; ey “by mortgage on said property" without Foot v. Murphy, 72 Cal. 105, 13 Pac. 163; subjecting the corpus of the property to the Burton v. Burton, 79 Cal. 490, 21 Pac. 847; lien of the mortgage. The direction for pay- Millard v. Legion of Honor, 81 Cal. 342, 22 ment out of the rents and profits is not the Pac. 864; and Spargur v. Heard, 90 Cal. 228, designation of a fund, within the meaning 27 Pac. 198. Other cases could be added to of the cases. It is simply a direction. To this list, but an examination of them will hold that the language means merely that, if disclose that they are alike in their essential he desired to make improvements upon the features. In each of them the appellant was property, he could do so only out of the sur- seeking to overthrow the judgment because plus rents and profits, instead of investing of the alleged absence of a finding. A sutithem, renders meaningless and inoperative cient finding had been placed in the conclu. the power to mortgage. If the instrument sions of law, and in nearly if not quite all of meant only that, it should, as it easily could, the cases it was the finding of a simple, un. have been aptly expressed. But the deter- mixed, ultimate fact. Under such circummination of the main question under consid- stances this court evinced a natural and eration is not essentially affected by the in- strong unwillingness to consider so technical terpretation of the Burnett deed.

an objection, and to reverse a case fairly parent that the moneys for which the prop- tried, and set aside a jud nent justly given, erty was sold were actually disbursed under because of a mere clerical misprision. So in the terms of the trust; that there was no Millard v. Legion of Honor, 81 Cal. 310, 22 fraud in the bank's claim to recover them; Pac. 864, it said, “But surely the main object that the payment of many of them was re (of findings] was not to afford a cover under quested by both Mahoney and Burnett; that which a losing party might successfully set

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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 support it. For the foregoing reasons the which permits of extension. It was an- order and judgment appealed from are renounced to aid the ends of justice, not to de- versed, and the cause remanded. feat them. Paraphrasing the language above quoted, surely the main object of findings We concur: BEATTY, C. J.; GAROUTTE, was not to afford a cover under which the J.; VAN FLEET, J.; McFARLAND, J.; prevailing party might successfully set a TEMPLE, J. trap to hold an unjust judgment. The statute imposes upon the judge the duty of stat

HARRISON, J., deeming himself disquali. ing separately his findings of fact and his

fied, did not participate in this decision. conclusions of law. Code Civ. Proc. 8 633. The reason is obvious,--that the court may

(106 Cal. 580) examine the facts found, and see whether ol not they justify the conclusions of law and CHEVALIER V. COMMINS et al. (No. 15,the judgment supported by them. Emeric y.

704.) Alvarado, 6+ Cal. 603, 2 Pac. 418. It is true (Supreme Court of California. March 24, 1895.) that ownership may be pleaded and found as Review on APPEAL-FRAUDULENT CONVEYANCES. an ultimate fact. No reference is needed to 1. A verdict will not be disturbed on the the numerous cases so holding. But it is

ground that the witness on whose testimony it

rests is not worthy of credit. equally true that ownership may be pleaded

2. An agreement between a saloon keeper as a conclusion of law, and may be determin- and a merchant selling him goods that, in case ed by the court as such a conclusion, and not

he becomes insolvent, he will turn over his stock as a fact. Thus, in Turner v. White, 73 Cal.

of goods to the merchant, is void as against cred

itors, as in direct contravention of the insolvent 299, 14 Pac. 794, this court said: “It is per

act. fectly true that in general an allegation that 3. A bill of sale by an insolvent saloon keepa party is the owner of real property is an

er of his entire business is, as against creditors, allegation of an ultimate fact, and not of a

prima facie fraudulent. conclusion of law. But as held in Levins v.

Department 1. Appeal from superior court, Rovegno, 71 Cal. 273, 12 Pac. 161, the same

city and county of San Francisco; John Hunt, averment or statement may be of a fact or of Judge. a conclusion, according to the context." Action by George F. Chevalier against EdLevins v. Rovegno, supra, is precisely in

ward Commins and others. There was a judgpoint. There, as here, the court found, "as ment for plaintiff, and defendants appeal. a conclusion of law, that the defendants are Affirmed. the owners in fee simple"; and this court, Mullany, Grant & Cushing and Wm. Grant, after an elaborate discussion of the subject for appellants. Geo. A. Rankin, for respondof findings, declared that the court below

ent. properly treated the ownership as a conclusion of law to be deduced from the facts VAN FLEET, J. Plaintiff brings this acfound. So, here, it was by reason of the tion, as assignee in insolvency of one Healy, facts found, the previous payment by Ma- to recover certain personal property, or its honey, and the consequent extinguishment of value, which it is alleged was transferred by the trust deed, that the court concluded that said Healy to defendants within one month the trustees' deed to the bank conveyed no before the filing of the petition in insolvency, title, and that consequently plaintiff never with a view to give a preference to the dewas the owner. If it be not clear that the fendants, and with reasonable cause by the statement is one of fact, this court will be re- latter to believe said Healy was insolvent, in luctant to take it from its context, and treat violation of section 55 of the insolvent act of it as a fact. Haynes, New Trials & App. 1880. Verdict and judgment were for plain. $ 242. Still further, if it be regarded as a tiff, and from the judgment and an order demisplaced finding of fact, or a mixed matter nying a new trial the defendants appeal. of law and fact, which should be treated as 1. It is contended that the evidence is in. a finding, it is nevertheless a finding drawn sufficient to sustain the verdict; that it estabfrom the special fact of payment. If full lishes without conflict that defendants in takauthority is not to be given to the declara- ing the transfer acted in the utmost good tion of the judge, who, by putting it in the faith, upon a valuable consideration, and withconclusions, holds out that he has reached out cause to believe that Healy was insolvent, the result by the application of the law to or that he was making said transfer in conthe facts, at least some · weight must be ac- templation of insolvency; and, further, that it corded to his action, unless the error is mere- appears without controversy that the transfer ly a misprision. Treating it then as a find- was made and accepted in pursuance of a vering, it is a finding drawn from the facts pre- bal understanding made between defendants viously found. But a general finding, drawn and Healy in 1890, whereby the latter agreed as a conclusion from facts previously found, that, in consideration of defendants' (who were cannot stand if the specific facts do not sup- wholesale liquor dealers) selling Healy goods port it. People v. Reed, 81 Cal. 76, 22 Pac. on credit with which to carry on business, the 474; Geer v. Sibley, 83 Cal. 4, 23 Pac. 220. latter would trade with no other house, and,


if at any time he failed in the business or sion of it, and I did so. I went back, and he should cease to carry it on, he should turn the came there about three or four o'clock in the place and stock on hand over to the defend- afternoon, and took possession of the place, ants. The transfer complained of was made and put another gentleman in there, and I by the insolvent, Healy, who was carrying on walked out. I told him that the next day was the business of saloon keeping, by a bill of steamer day, and that Mr. Healy had no monsale made January 27, 1892, whereby he trans- ey to pay any of the bills that were due. He ferred to defendants his entire stock in trade, said that he had been a friend of Mr. Healy, saloon fixtures, and furniture of every kind, and if anybody was to get the place that he accompanied by possession of the saloon. Up- knew that we could not pay the bills, and that on the question as to the purpose and intent he was entitled to it, as he had given Mr. with which this transfer was made, Healy Healy the goods in the first start, and, if any. testified on behalf of plaintiff: “I was not able body should have any preference, he was entito attend to my business myself at that time. tled to it. Then he asked me what bills were I was at home at the time of this transfer. I due, and I told him I could not tell him the was sick, and Thomas Donohue was running amount of the bills that were due for whisky, the business. I saw on that day that I would cigars, etc. I did not name any of the credbe unable to pay my bills as they came due, itors.” Defendant Edward Commins and his and for that reason I turned over my business bookkeeper gave testimony tending to contrato the defendants. I had friendship for E. dict the witness Donohue as to his statement Commins & Co. in a business way. They that he informed defendants of the financial started me up, and that was all; nothing more condition of Healy at the time. They testithan in a business way. I sent Thomas Don- fied that Donohue said nothing about Healy ohue to the place of E. Commins & Co., to see owing any one else; that he gave as the sole them with reference to turning the saloon and reason for the transfer that Healy was sick, business over to them. Q. Why did you not and had to go out of business; that defendsend to some of your other creditors instead ants had no knowledge of any other debts owof to Mr. Commins? A. They were my heav- ing by Healy, and no reason to believe him iniest creditors, and I thought it was only right solvent; that the transfer was taken by them to turn the place over to them. I intended to solely in pursuance of an understanding they give them the preference; that is why I sent had with Healy that he should turn the busidown a man to turn the place over to them. I ness over to them in the event of his retiring. do not know what goods I had in the place on In this state of the evidence, it is idle for apthe 27th of January, 1892, that I had bought pellants to contend that the evidence was from E. Commins & Co., or what goods I had without conflict as to the purposes for which there that I had bought from other parties.” the transfer was made. Their argument is One Donohue testified: "I was barkeeper for largely a suggestion of facts going to show Mr. Healy, and remember the bill of sale or that the witness Donohue had acted in bad assignment to E. Commins & Co. from Mr. faith in the transaction, and was not worthy Healy. I went down to see Mr. E. Commins of belief,-reasons which, addressed to a jury, myself. Mr. Healy owed considerable money might tend to affect the question of his credthen, and could not pay his bills, and he turn- ibility, but which have no place in discussing ed the place over to Mr. Commins. January the question as to whether there was a con28, 1892, was steamer day, and we expected flict of evidence upon the point in question. It bills to be presented on that day; but I do not is obvious that, if the jury believed his testiknow the amount of bills that were expected. mony and that of Healy, there was evidence The bills due amounted to $1,500 or $1,600, as to sustain their verdict. The evidence of the near as I can judge. We did not have any alleged understanding between Healy and demoney to pay those bills with, and there was fendants about turning the saloon over to the not enough of goods on hand to pay that latter was perhaps admissible on the question amount. I went on behalf of Mr. Healy of the intent of the parties in making the down to see Mr.' E. Commins, and I called up- transfer, but only for such purpose. If it conon him on the 27th day of January, 1892, and stituted a valid or binding contract between saw himself, and told him how there were the parties to it, which is doubtful, it was bills, and that Mr. Healy was sick, and was clearly void as against creditors, as being in not able to attend to his business, and that he direct contravention of the provisions of the had no money to meet those bills to-morrow, insolvent act. Under it the parties could have being collection day, and that he wanted to accomplished indirectly the very thing deturn the place over to him. He said: 'All nounced by section 55 of that act as fraudu. right. I will make a bill of sale, and you can lent. Even if clearly established, therefore, take it out to Mr. Healy, and have him sign it, such verbal understanding constituted in itself and bring it back to me, and I will go down no defense to the acțion. and take possession of the place.' I did so. I 2. It is claimed that the court erred in char. took the bill of sale out to Mr. Healy, and had ging the jury that the bill of sale in question him sign it, and brought it back to Mr. Com- given by Healy was not a sale in the ordinary mins, and gave it to him, and he told me to course of business, and was therefore prima go up to the place, and he would be up facie fraudulent and void. The instruction there inside of an hour, and take posses- was clearly right. It appeared without conflict that the business of Healy was that of relatives or friends as she should see fit; saloon keeper,-a vendor of liquors in retail and that the husband should pay to the wife, quantities, or drinks, over the bar. The bill so long as the marriage relation should exof sale constituted a disposition of the entire ist, and she should continue to live apart business in bulk, and was therefore not a from him, the sum of $60 per month, for transfer in the ordinary course of the business the support and maintenance of the wife and in which the seller was engaged; and it was daughter, except that after the daughter right for the court to so charge the jury as should attain the age of 18 years the father matter of law. Nor, for the reasons above should contribute directly to her support, stated, was the instruction erroneous because and the wife should from that time receive it ignored the alleged agreement or under- but $30 per month. The agreement further standing between Healy and defendants. stipulated, among other things, for the payFor the same reasons, it was not error for the ment to the wife of a certain sum in cash, court to exclude the offered evidence of a in advance, and for a division of the comcustom among liquor dealers to enter into munity property of the parties; and it was similar arrangements with saloon keepers. covenanted that thereafter the husband

We find no error in the record. Judgment should not receive or claim any of the wife's and order affirmed.

property or effects then owned or thereafter

earned or possessed by her, but that she We. concur: GAROUTTE, J.; HARRI- might sell, dispose of, or bequeath the same SON, J.

during her life, or by will or otherwise, as fully and effectually as if sole and unmar

ried; and, on the wife's part, that she should (106 Cal. 541)

not at any time, while the husband continSARGENT v. SARGENT. (No. 19,327.)

ued to perform the agreement, contract any (Supreme Court of California. March 21, 1895.)

debt or liability of any character for which HUSBAND AND WIPE-AGREEMENT TO SEPARATE- the husband should be liable, nor claim any Revocation.

alimony. In conclusion, the parties bind A contract whereby a husband and wife agree to live apart--the wife to have the custody

themselves to the faithful performance of the of their child, and to receive a certain amount conditions and obligations of said agreement, per month from the husband, and releasing the “provided, always, and it is hereby agreed, respective claims of each in the property of the other-cannot be revoked by the husband, un

that if the said husband and wife should be der Civ. Code, $ 101, declaring that consent to a

reconciled, and return to cohabitation, or if separation is a revocable act, and if one of the their marriage should be dissolved, then, in parties afterwards, in good faith, seeks a rec- such case, all the covenants and conditions onciliation, but the other refuses, such refusal is a desertion.

herein contained shall become void, but

without prejudice to any act previously made In bank. Appeal from superior court, Los

or done hereunder,” etc. The court further Angeles county; Lucien Shaw, Judge.

found that on September 12, 1892, respondAction by E. W. Sargent against Grace

ent, the husband, "elected to revoke, and did Ella Sargent for the custody of a minor.

revoke, said contract of separation, and reJudgment was rendered for plaintiff, and

quested that the marital relations between defendant appeals. Reversed.

him and the said Grace Ella Sargent be reWells, Monroe & Lee, for appellant. John sumed.” This finding refers to, and is based D. Pope and Wilson & Lamme, for respond- upon, a letter or notice, attached to the coment.

plaint as an exhibit, addressed by respond

ent to the appellant at the city of Los AnVAN FLEET, J. Appellant and respond. geles, where they both were at the time, ent are husband and wife. This action was wherein appellant is informed by respondent brought by the husband to have awarded to that: “As provided by section 101 of the him the exclusive custody and control of Civil Code, I now revoke, and declare null Lillie W. Sargent, the minor daughter of the and void, an article of separation that was parties, aged 13 years,-the sole issue of the

signed by us, dated April 26, 1890. As husmarriage,-then living with the mother. The band and father, I elect that we make our court found that the parties, in April, 1890, home for the present in this city. In revokentered into a contract of separation, where- ing this article of separation, I also revoke in it was agreed that, by reason of unhappy every part thereof, particularly the clause differences, the parties should live separate that gives you the custody and care of the and apart during the continuance of their

person of our daughter, Lillie; and, as famatrimonial obligations, unless they should ther, I shall exercise and assume such conmutually agree to resume them; that the trol myself, considering always the wishes of wife should have the sole and exclusive cus- my wife, her mother. The payment of money tody and control of said minor child, and of I have been making you will cease." Upher education and bringing up, until the on these findings, and others, relating to the child should attain the age of 18 years, with- conduct and character of the respondent, out any interference whatsoever on the part which we do not deem material to the quesof the husband; that the wife should be at tion involved, the court concluded, as matter liberty to live in such place or with such of law, that said agreement of separation "was revocable at the option of either of the same Code. That section provides: “A the parties thereto"; that the same was re- husband and wife cannot, by any contract voked by respondent, by virtue of the letter | with each other, alter their legal relations, above referred to, declaring such revocation; | except as to property, and except that they that respondent was entitled to have the may agree in writing to an immediate sepasame canceled and annulled; and that he ration, and may make provision for the supwas entitled to the custody and control of port of either of them and of their children said minor. Judgment was entered in con- during such separation." There is nothing formity with these findings, and from it this in this language to indicate an intention that appeal is prosecuted. The only question pre- the contract of separation there provided for sented by the appeal is whether the findings shall be dependent for its subsistence upon support the judgment.

the mere will of either spouse. To the conThe solution of the question, in the view trary, the section provides in terms that taken and presented by both parties to the the contract may provide for such separate controversy, in their briefs, depends upon maintenance during such separation. And the question whether the articles of separa- that this was the construction put upon tion between the parties were, or could be, their contract by the parties themselves, at revoked in the manner attempted. And this the time of its execution, is evidenced by is the only question argued. The position its language, wherein it was provided “that taken by respondent, and sustained by the if the said husband and wife shall be reconcourt below, is that, by virtue of section 101 ciled and return to cohabitation, or if their of the Civil Code, the respondent had the marriage shall be dissolved, then, in such right to absolutely revoke his entire contract case, all the covenants and conditions herein with appellant at any time, by merely with- contained shall become void," etc. The condrawing his assent thereto, and notifying tract in question is in conformity with the appellant of the fact, and that this result right given by section 159, and until avoided was accomplished by sending the letter men- by the mutual resumption of marital duties, tioned in the findings. We do not regard

or the divorce of the parties, it remains bindthe provision in question as having any such ing and obligatory upon the parties thereto, effect as was here attributed to it. That as effectually as any other contract, subsection is found in the chapter of the Code

ject only to the limitation imposed by sec. entitled “Divorce," and under the subdivi- tion 101, as above indicated. In all other sion or title “Dissolution of Marriage,” de

respects the contractual relation subsists infining the causes for divorce. The six sec

tact. To hold that one competent to contions immediately preceding relate to deser- tract, who, upon a subject-matter good in tion, and define what circumstances will, and

law, and for a sufficient consideration, enters what will not, constitute desertion. Section

into written stipulations and covenants of 99 provides that "separation by consent,

the most solemn character with another, with or without the understanding that one

should the next moment, without pretense of the parties will apply for a divorce, is

of fraud, mistake, or undue influence, or othnot desertion." Section 100 provides: "Ab

er cause than a mere change of mind, be peror separation, proper in itself, be

mitted to absolutely withdraw from and set comes desertion whenever the intent to de- at naught such obligations, without regard sert is fixed during such absence or separa

to the desire of the other contracting party, tion." Then comes the section in question

would, to say the least, be a strong depar(101), which provides: "Consent to a sepa

ture in the law of contracts. There is no ration is a revocable act, and if one of the doubt that resumption of cohabitation would parties afterwards, in good faith, seeks a

avoid the contract,--as to all features, at reconciliation and restoration, but the other least, remaining executory, even without refuses, such refusal is desertion.It is ob- any provision to that effect in the instruvious to our minds that, regarding the con

ment, since the law itself attaches such connection in which this latter section is placed, sequence, upon the theory that the considand the logical relation it bears to the ante

eration for the deed has failed. Wells v. cedent provisions on the subject, it was in

Stout, 9 Cal. 191; Schouler, Dom. Rel. $ 218. tended simply to declare the effect of such

But there has been no such resumption here. revocation upon the legal status of the par

The parties are still living separate. Nor ties, as affecting that particular ground of

has the other contingency provided for in divorce. Its effect is to put the recalcitrant the contract-divorce--occurred.

The conspouse in default, and to give to the other a tract must therefore be regarded as still right which he did not have under the pre- subsisting, and binding upon the parties. viously existing circumstances,-a right And this binding character runs to the prowhich, if such refusal be persisted in for vision with reference to the custody of the the statutory period, will ripen into a cause child, equally with any other feature. Parfor divorce. That the effect of the section, ents have a right to contract with each and its only effect, is that declared in the other as to the custody and control of their language of the section itself, as above ital- offspring, and to stipulate away their reicized, is, we think, plain. This view is spective parental rights, and such contracts strengthened by reference to section 159 of are birding upon them. Schouler, Dom. Rel.


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