MCFARLAND, J. This is a proceeding brought in the name of the people to have it decreed that the town of Sausalito is not a duly-organized municipal corporation, etc. Judgment went for the defendants, and plaintiff appeals. It is contended by appellant that the board of supervisors of Marin county did not "canvass the votes" given at the election called to determine whether or not the town should be incorporated, because said board did not have before it the ballots deposited at said election, and did not count the same, but merely canvassed the "returns." St. 1883, p. 93. This position is not tenable. To canvass the votes does not necessarily mean to count the ballots; and to give it the latter meaning would be to defeat the entire purpose of the statute, for it provides that the election shall be conducted "in accordance with the general election laws of the state," and as the ballots were returned to the county clerk the board could not get possession of them, and therefore could not have counted them, To "canvass the returns" and to "canvass the votes" are frequently used in statutes and judicial opinions synony- | mously, and in the case at bar the words used should be held to have been intended in the sense that would give effect to the statute. Appellant introduced certain "records" (so called) of the board of supervisors, from which it appears that, after the canvass, the board entered an order on its minutes, as required by section 3 of the act under which the election was held (St. 1883, p. 94, § 3), which showed that votes were cast as follows: "For incorporation received 128 votes; against incorporation received 105 votes;" and then, after a showing of certain votes for officers, there was this statement in the order: "Total votes polled, 266." Appellant contends that these minutes, or "records," bind respondents to the proposition that there was not a majority of votes cast for incorporation, because of said statement, "Total votes polled, 266,"-128 not being a majority of 266; but we do not think so. The board was not required to enter on their records the number of votes polled. Moreover, it does not appear what was meant by "polled." The board may have meant merely that there were certain Blank official ballots deposited in the ballot box. Under any view, as the board found and ordered that a majority of the votes cast were for incorporation, the respondents, when the validity of the incorporation was attacked by this action, had the right to explain any uncertainty that might arise from the statement about the 266 votes polled, by showing the real facts upon a judicial count of the ballots in court. The board sufficiently complied with the provision of the statute that a certified copy of the order declaring the territory duly incorporated should be filed in the office of the secretary of state. The provision is that "the board shall, by an order entered upon their minutes, declare such territory duly incorporated as a municipal corporation,”— giving its class, name, etc.; and that a copy of "such order" shall be filed. This was done, and there was no necessity of certifying and filing all the entries which were made at the time on the minutes of the board. The foregoing points made by appellant are largely technical. The real point on the merits is whether or not there was, in fact, a majority of votes cast "for incorporation." The votes were counted by the court; and the statement on motion for a new trial declares that "upon such count it appeared that there were 130 votes cast for incorporation; 112 votes against incorporation; 7 official ballots without mark placed thereon by the elector to indicate the voter's wish in any particular, either on the subject of incorporation or officers; 17 official ballots without mark placed thereon by the elector to indicate his wish on the subject of incorporation, but having marks against names of officers named on ballots." According to this statement, there was certainly a majority for incorporation. It is clear that the 7 ballots without any marks to indicate the elector's wish "in any particular" were not votes in any sense. They were mere blanks, and were not to be counted or considered for any purpose. The sum of 112 votes against incorporation and the 17 for officers only is 129, less than the number of votes for incorporation; and therefore a majority of the votes cast were for incorporation. But there is a dispute between the parties as to how nine of the ballots should have been counted. Appellant contends that ballot marked "C" should have been counted against incorporation; but the only marks on it were made with a lead pencil, and not with the official stamp, and it was properly excluded. Lay v. Parsons (Cal.) 38 Pac. 447. Appellant also contends that ballot F should have been counted against incorporation; but it had no mark of any kind except that, at the bottom, entirely below all the printed matter, it had the words "Against incorporation" written with a pencil, and was properly excluded. There is no provision for that method of voting except when one desires to vote for a candidate for office whose name is not on the printed list on the ballot. Under our present election laws it is not enough to find out generally the intention of the voter (as it was under a former and simpler system); that intention must be expressed in the manner prescribed by the law, which has also other purposes, as the preservation of absolute secrecy, etc. Appellant also contends that ballot E should not have been counted for incorporation; but this ballot was stamped at the proper place with the official stamp, and the only objection to it is that the cross strokes were blurred, and that is not a sufficient circumstance to make the vote invalid. Appellant also contends that ballot 1 should not have been counted for incorpora tion. The only objection to this ballot is that a part of the cross was on the line below; but the court, upon inspection of the ballot, held that the greater part of the cross was above the line, and we cannot disturb the ruling. The foregoing are the only points which appellant makes in his brief on this branch of the case. Of the other five disputed ballots, A, D, and G were counted against incorporation, over the objections of respondents; and B, which showed no attempt at voting on the subject of incorporation, was counted as a vote on officers, against the objections of respondents, who claimed that it should not have been counted at all, because the marks for officers were not in the right place. H was counted for incorporation. This ballot had the cross marked in the center of the ballot, and not in the square provided for it under the election law. But ballots A and D have the same defect as ballot H, and were counted against incorporation; and B, which was counted for officers, had also the same defect; and ballot G, counted against incorporation, had the cross entirely outside of the square, and beyond the dotted line. It is quite clear, therefore, that, if H, counted for incorporation, should have been excluded, then A, D, B, and G should also have been excluded, and thus the majority for incorporation would have been greater. The foregoing views are conclusive in favor of respondents, and it is unnecessary to examine the position taken by the learned judge of the court below, in a very able opinion, that under the language of the statute under which the election was held only those votes are to be considered which were cast on the proposition of incorporation. He distinguishes the language of this statute "from language in constitutions and statutes which require that before a measure shall be deemed adopted it must receive the 'assent of the majority of the electors of a territory,' the votes of a majority of the electors of a county, 'the assent of a majority of the electors voting at a general election,'" etc. We are much inclined to agree with the learned judge on this point, but we are not called upon to definitely determine it in this case. The judgment and order denying the motion for a new trial are affirmed. We concur: VAN FLEET, J.; HARRISON, J.; GAROUTTE, J.; HENSHAW, J. (106 Cal. 608) FRANKEL v. BOYD et al. (No. 19,525.) 1 (Supreme Court of California. March 30, 1895.) DIVORCE-AWARD OF COMMUNITY PROPERTY TO WIFE-COMMUNITY DEBTS. A decree of divorce in favor of a wife, awarding to her, under Civ. Code, § 146, all the community property of herself and husband, who has no separate estate, does not cut off the 1 Rehearing denied. rights of one who has previously furnished her husband with groceries and provisions for his family upon the faith of his possession and ownership of such property to have it subjected to the payment of his debt in an action in the nature of a creditor's bill. Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; Waldo M. York, Judge. Bill by M. E. Frankel against E. H. Boyd and others for a decree adjudging certain lands of defendant S. J. Boyd liable to the satisfaction of plaintiff's demands. From the granting of the relief prayed for, and the refusal of a new trial, the defendant S. J. Boyd appeals. Affirmed. Kendrick & Kendrick and J. B. Hollaway, for appellant. Shinn & Wilbur and Wilson & Lamme, for respondent. SEARLS, C. This is a bill in equity to obtain a decree adjudging certain lands of the defendant S. J. Boyd liable to the satisfaction of a demand of plaintiff for $600 and interest. Plaintiff had a decree as prayed for, from which decree, and from an order denying her motion for a new trial, said defendant S. J. Boyd appeals. For many years prior to January 30, 1891, the defendants herein were husband and wife, and the owners of, as community property, a tract of land in the county of Los Angeles, of the value of, say, $50,000, upon which they resided with their family and upon which they had filed a declaration of homestead. They had no other property than this land and the improvements thereon, together with live stock, farming utensils, furniture, etc., and neither of defendants owned any separate property. There was a mortgage of $5,000 upon the property. The plaintiff herein was a merchant, living in the vicinity of defendants, and familiar with their financial standing. Relying upon the ownership by defendants of said property, plaintiff was induced to extend to them credit, and did sell and deliver to the defendant E. H. Boyd (the husband) through defendant S. J. Boyd (his wife), groceries, provisions, etc., for family use, upon credit, until there was due him on said January 30, 1891, the sum of $600 for goods thus sold. On said January 30, 1891, defendant S. J. Boyd commenced an action against her husband, E. H. Boyd, for a divorce upon the ground of adultery, and procured an injunction against the defendant, therein restraining him from disposing of, incumbering, or interfering with said property, and from col. lecting any indebtedness due the parties, or either of them. On the 27th day of May, 1891, a decree of divorce was made and rendered in said cause in favor of plaintiff and against the defendant therein, and awarding to her, the said S. J. Boyd, all of the community property, including all the property herein before mentioned and referred to, subject to the mortgage of $5,000. Defendant gation rests upon the debtor to discharge all his debts to the extent of his ability, and that, in so far as he has, without the sanetion of positive law, placed his assets beyond the reach of his creditors by a fraudulent transfer thereof, or by a transfer without consideration, under circumstances calcu E. H. Boyd was thereby rendered, and ever since has been, insolvent, and entirely without property. On the 4th day of November, 1891, the plaintiff herein, M. E. Frankel, commenced an action against said defendant E. H. Boyd, to recover said sum of $600 so due as aforesaid, and thereafter, and on the 30th day of August, 1892, obtained a judg-lated to defeat the just claims of creditors, ment for said sum, upon which he caused an execution to be issued and levied upon all the right, title, and interest of defendant E. H. Boyd in the land and premises aforesaid. Appraisers were appointed, and a homestead exemption was set apart, etc. Thereupon said S. J. Boyd served notice upon the sheriff, claiming the whole property in fee simple absolute, whereupon the execution was returned unsatisfied, and this action instituted. which constitutes constructive fraud, the court will intervene and hold the right of the creditor an equitable lien upon property thus transferred, as well as upon property which cannot be reached by the ordinary process at law. These remarks are indulged in as preliminary to saying that, if plaintiff is entitled to have his judgment satisfied out of the property described in the complaint, his bill is in proper form, and states facts sufficient to constitute a cause of action. The question of the right of plaintiff, as a judgment creditor, to follow the community property of his debtor, E. H. Boyd, and his wife, S. J. Boyd, and to ap after such property has been awarded to the wife in the divorce proceedings, must turn upon the proper construction of the statute under which the court awarded such property. Under our Civil Code all property acquired after marriage by either husband or wife or both, except that acquired by gift, bequest, devise or descent, is community property. Civ. Code, §§ 162-164. "Upon the death of the husband one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband. The statute of limitations was pleaded by defendant, and the court very properly, as we think, found against the plea. The action is in the nature o a creditor's bill to have what, at the date when the credit was given, was community property, appropri-propriate it to the satisfaction of his judgment ated to the payment of a community debt. The real question is: Has a general creditor of the husband, who has credited the latter upon the faith of his possession and ownership of community property, a right to follow such property, and have a decree establishing the liability thereof for the satisfac tion of his demand, after such property has been awarded to the wife by a decree of divorce, in a case where the husband had no separate or community property? The contention of appellant is that, as the decree of divorce, duly given and made, divested all the community interest in said property, and awarded it to the wife, long before the plaintiff herein acquired any specific lien thereon against the husband, plaintiff cannot, in the absence of fraud, assert any right to have such property appropriated to the satisfaction of his demand. That the plaintiff has no specific lien upon the property sought to be held liable for the satisfaction of his debt may be conceded. Had his judgment or execution established such lien, there would have been no necessity for this action. The nature and purpose of a creditor's bill is to enable the creditor to apply to the payment of his debt property of the judgment debtor, which by its nature cannot be taken in an exccution at law, or to convert the holder of a legal estate into a trustee, and call for a conveyance, or to have it sold in satisfaction of his claim, or to aid the creditor in reaching property of his debtor by removing fraudulent judgments or conveyances which defeat his remedy at law. So, too, a creditor's bill will lie to defeat a gift by the debtor, the necessary effect of which is to defeat the existing debt due from him to his creditor at the date of such gift. These constitute a few of many instances in which creditors' bills, or bills in the nature of creditors' bills, will lie. In such cases equity proceeds upon the theory that a moral obli In the case of the dissolution of the community by the death of the husband, the entire community property is equally subject to his debts, the family allowance and the charges and expenses of administration." Civ. Code, § 1402. . Upon the dissolution of the marriage by the decree of a court of competent jurisdiction the community property and the homestead shall be assigned as follows: "(1) If the decree be rendered on the ground of adultery or extreme cruelty, the community property shall be assigned to the respective parties in such proportion as the court, from all the facts of the case and the condition of the parties, may deem just. (2) If the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property shall be equally divided between the parties." Civ. Code, § 146. The remaining subdivisions of the same section relate to the disposition of the homestead, and need not be noticed. The groundwork of the several provisions of the Civil Code herein quoted and referred to are to be found in the "act defining the rights of husband and wife," passed April 17, 1850. St. 1850, p. 254. The eleventh section of that act provided as follows: "Upon the dissolution of the community by the death of either husband or wife, one-half of the common property shall go to the survivor, and the other half to the descendants of the deceased husband or wife subject to the payment of the debts of the deceased," etc. Under this provision it was plausibly contended that it was only the half of the common property which went to the descendants which was subject to the debts of the deceased, and that the survivor took onehalf of the property discharged from such debts. The supreme court, however, held in Panaud v. Jones, 1 Cal. 488; In re Tomkins' Estate, 12 Cal. 114; Packard v. Arellanes, 17 Cal. 525; Johnston v. Union, 75 Cal. 134, 16 Pac. 753, and in a number of other cases, -that the estate in law consisted of the residue after all debts were paid, and that all of the community or common property was liable for such debts. In Packard v. Arellanes, supra, the court, speaking through Cope, J., said: "Our whole system by which the rights of property between husband and wife are regulated and determined is borrowed from the civil and Spanish laws, and we must look to these sources for the reasons which induced its adoption and the rules and principles which govern its operation and effect. The relation of husband and wife is regarded by the civil law as a species of partnership, the property of which, like that of any other partnership, is primarily liable for the payment of its debts. * * * It is the well-settled rule of that law that the debts of the partnership have priority of claim to satisfaction out of the community estate. Jones v. Jones, 15 Tex. 143, and authorities there cited. * * The legislature intended to establish a similar relationship as to property as that existing in the civil law. The contracting of debts is one of the incidents of that relationship, and it would be unreasonable to suppose that the intention was to do away with so important a principle as that of the liability of the community property for their payment. We think that for all purposes connected with the administration of such property the debts of the community are to be regarded not as the mere private and individual debts of the husband, but as obligations involving the liability of each of the members of the community." The contention of respondent is that a like construction should be given to section 146, Civ. Code, with that so often imposed upon section 11 of the act of 1850, and that, when the community is dissolved, not by death, but by the only process known to our law, viz. by a decree of divorce, the authority of the court to assign all the community property to one of the spouses must be taken and construed as meaning the residue of such property after the payment of the existing debts of the husband, contracted upon the faith of such property. By parity of reasoning this result would seem to follow. The community property to be distributed may well be considered (as in case of partnership, to which in many respects it bears a close resemblance) as the residue which remains after the discharge of the community obligations. Had the husband, by a voluntary conveyance, transferred all of the community property to his wife, leaving himself without means, it is not doubted but that the property so transferred would have been liable to his creditors for existing debts. When the court assigned all the property to appellant it in effect did what in law the husband should have done under like circumstances, and the conclusion is reached that in such a case, where all the community property has been assigned to the wife, leaving the husband without separate property, the property so assigned is taken subject to the equitable claim of existing contract creditors, whose demands are due or to become due on account of credit extended during the existence of the marital relation to the husband for the benefit of the community. In the present instance this construction works no hardship to the appellant. She purchased the supplies for which the credit was given (as the agent of her husband), and they were used by the family. In her complaint for a divorce, the fact "that the supplies for defendant's family have not been paid for, and are now due, amounting to more than $400," is alleged as a predicate in part for the prayer that she have the property set apart to her, and for an injunction to restrain defendant from making collections, etc. Under such circumstances, every moral consideration prompts the satisfaction of the demand from the community property. And we are of opinion the moral and legal obligations go hand in hand. The other errors assigned do not call for comment. The judgment and order appealed from should be affirmed. SWAMP LANDS-PATENT TITLE OF ASSIGNEE OF CERTIFICATE--APPEAL-OBJECTIONS WAIVED. 1. The filing and approval by the surveyor general of a township plat upon which certain lands are designated as swamp and overflowed lands, pursuant to Act Cong. July 23, 1866 (14 Stat. 218), providing an additional mode for identifying such lands conveyed to the state by Act Sept. 28, 1850, operates as a determination by the United States that the lands were on the date of the latter act swamp and overflowed lands, and that the title thereto vested in the state on that date. 2. A certificate of purchase of swamp and overflowed lands, issued under Act Cal. April 21, 1858 (St. 1858, p. 198). which bound the state to issue a patent to the purchaser or the last assignee of the certificate, without placing any restriction upon the character of such assignee, constitutes a contract obligation of the state, which is not impaired as to an assignee of a purchaser whose rights to a patent accrued before the adoption of the constitution, article 17, § 3, of which forbids the grant of lands to any but citizens and actual settlers. 3. A plaintiff who makes another a party defendant, and asks affirmative relief against him, cannot urge for the first time on appeal that the matters involved could not be litigated in such action. Department 1. Appeal from superior court, Sonoma county; S. K. Dougherty, Judge. Action by McCabe against Goodwin and others to determine a conflict before the surveyor general concerning the right to purchase swamp and overflowed lands. From a finding and judgment that plaintiff was not entitled to purchase the lands, and that defendant Goodwin was the owner and entitled to a patent, plaintiff appeals. Affirmed. Ira C. Jenks and J. A. Barham, for appellant. Hudson & Sayre, for respondents. HARRISON, J. This action was brought under section 3415 of the Political Code, to determine a conflict before the surveyor general, respecting the right to purchase from the state certain swamp and overflowed lands in Lake county. August 1, 1860, certificates of purchase were issued by the registrar of the land office for different portions of the lands to Isaac P. Rice and James E. Allen, respectively, which, by proper transfers and assignments, were afterwards vested in the defendant Goodwin,— the one issued to Allen September 16, 1862, and the one issued to Rice April 30, 1869. The full amount of the purchase money and interest thereon for the lands represented by the certificate issued to Rice was paid to the state May 12, 1868, and for those represented by the certificate issued to Allen March 8, 1873. The plaintiff entered and took possession of the lands March 5, 1884, and has since been in possession thereof. At the time of so entering, Goodwin was in possession of the lands, and, upon being excluded therefrom by the plaintiff, commenced an action in ejectment against him, which is still pending in Lake county. August 1, 1890, the plaintiff made application to the surveyor general for the purchase of the lands from the state, with the knowledge that they were claimed by the defendant Goodwin under the above certificates of purchase; and at his instance the contest was transferred to the superior court of Lake county. The lands are a part of township 14 N., of range 9 W., Mt. Diablo Meridian, and the plat of the township was approved by the United States surveyor general for California August 24, 1884. On this plat the lands in question were designated and marked as swamp and overflowed lands. The court below found that the plaintiff was not entitled to purchase any portion of the lands, and that the defendant Goodwin was the owner of the aforesaid certificates of purchase issued to Allen and Rice, and was entitled to receive a patent from the state therefor. From the judgment entered thereon, the plaintiff has appealed. The grant of swamp and overflowed lands to the several states by the act of congress of September 28, 1850, was a grant in praesenti, and operated as an immediate transfer to the state of California of all the lands within its boundaries which at that date were "swamp and overflowed," within the meaning of the act. Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. 985; Tubbs v. Wilhoit, 138 U. S. 134, 11 Sup. Ct. 279, affirming 73 Cal. 61, 14 Pac. 361. The subsequent segregation of these lands from the upland is merely a designation of the boundaries of the lands thus granted, without conferring any additional title. While a patent issued therefor, or any equivalent determination by the land department of the character of the lands would have the effect to estop the United States from afterwards questioning their character, it does not confer any additional title upon the state. "The patent would be evidence of such identification, and declaratory of the title conveyed. It would establish definitely the extent and boundaries of the swamp and overflowed lands in any township, and thus render it unnecessary to resort to oral evidence on that subject." Wright v. Roseberry, supra. By the act of July 23, 1866 (14 Stat. 218), congress provided an additional mode for identifying the swamp and overflowed lands which were conveyed to the state of California by the aforesaid act of September 28, 1850. the fourth section of this act it is declared "that in all cases where township surveys have been or shall hereafter be made under authority of the United States, and the plats thereof approved, it shall be the duty of the commissioner of the general land office to certify over to the state of California, as swamp and overflowed, all the lands represented as such upon such approved plats, within one year from the passage of this act, or within one year from the return and approval of such township plats." It was held in Wright v. Roseberry, supra, that the representation of lands as swamp and overflowed upon the township plat, made by the surveyor general, was as conclusive against the United States as if they had been patented under the act of 1850, or had been certified over to the state under the provisions of section 2488 of the Revised Statutes. It follows that when the township plat, including the lands in question, was filed (August 23, 1884), it was a determination by the United States that the lands involved herein were on the 28th of September, 1850, swamp and overflowed lands, and that the title thereto vested in the state of California at the passage of that act. In As the proprietor of the lands, the state could make such disposition as it chose; and, |