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desire what is said above to be understood with reference to the precise facts of the case before us, viz., where the homestead is upon the separate property of the survivor. We neither express nor intimate any opinion as to what would be the rule where the homestead is upon the separate property of the decedent, or upon the community property.

The positions as to the power of the court to grant a rehearing, and the sufficiency of the order granting it, do not require special notice.

We therefore advise that the judgment and order appealed from be reversed, and the cause remanded for a new trial.

FOOTE, C., concurred.

BELCHER, C. C., took no part in this opinion.

The COURT. For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded for a new trial.

Rehearing denied.

PARTNERSHIP WHEN AND FOR WHAT GROUNDS ACTIONS MAY BE MAIN. TAINED BETWEEN PARTNERS: See extended note to Course v. Prince, 12 Am. Dec. 649-651. Partner may sue his copartner before settlement for destruction, conversion, or injury to property used in the partnership business: Newby v. Harrell, 99 N. C. 149; 6 Am. St. Rep. 503, and note 509. A partner may sue his copartner for injuries to the firm business through dishonest practices: Boughner v. Black, 83 Ky. 521; 4 Am. St. Rep. 174, and note 178.

MARRIED WOMEN - ACKNOWLEDGMENTS, SUFFICIENCY OF, IN GENERAL: See extended note to Hughes v. Lane, 50 Am. Dec. 444. Acknowledgment of deeds in general: See extended note to Livingston v. Kettelle, 41 Id. 168–

184.

FORECLOSURE OF MORTGAGE. - Where there is surety for debt secured by mortgage, the creditor has an election, of which he cannot be deprived, whether he shall proceed in equity upon his mortgage, or at law against the debtor or surety: Cullum v. Emanuel, 1 Ala. 23; 34 Am. Dec. 757. After a complainant in a foreclosure suit has elected to pursue his remedy in the chancery court by a sale of the mortgaged property, he has submitted his claims to the equitable remedy, and if his application for an execution to collect the reported deficiency on such sale is refused, he cannot proceed by suit at law for its collection: Shields v. Riopelle, 63 Mich. 458.

SURETIES DISCHARGED BY INDULGENCE TO PRINCIPAL: See note to N. H. Savings Bank v. Colcord, 41 Am. Dec. 685, and cases therein cited; Martin v. Pope, 6 Ala. 532; 41 Am. Dec. 66; Johnson v. Planters' Bank, 4 Smedes & M. 165; 43 Am. Dec. 480, and note; Price v. Dime Savings Bank, 124 Ill. 317; 7 Am. St. Rep. 367, and note; First National Bank v. Gerke, 68 Md. 449; 6 Am. St. Rep. 453, and extended note 458-460. A surety is not discharged by creditor's failure to present claim to the administrator of the

deceased principal within the time prescribed by law; for the sureties may, in such a case, compel the presentment of the claim in due time, and thus preserve their recourse against the estate: Johnson v. Planters' Bank, 4 Smedes M. 165; 43 Am. Dec. 480. As a general rule, the contract of suretyship is an original undertaking, and the surety is bound therein to the fall extent of the liability of the principal: Philadelphia etc. R. R. Co. v. Knight, 124 Pa. St. 58.

CIRCUMSTANCES WHICH DISCHARGE A SURETY, AS DECIDED BY RECENT CASES. It is well settled that an agreement between a creditor and the principal debtor to extend the time of payment for a definite period discharges the surety, when such agreement is made without his consent, even though it may redound to the surety's benefit: Stuart v. Lancaster, 84 Va. 772. Any agreement under which the time for principal's performance is enlarged or extended, without the surety's consent, releases such surety: Burson v. Andes, 83 Id. 445; but a surety on a note who makes a payment thereon after maturity, and indorses thereon an extension of time at an increased rate of interest, does not thereby make himself liable as a principal debtor, when such indorsement was made at the instance and request of the principal debtor: Hayward v. Fullerton, 75 Iowa, 371; compare Legrand v. Rizey, 83 Va. 862.

PLEDGE BY WIFE FOR DEBT OF HUSBAND. - When a man and wife jointly make a note in satisfaction of a debt of the former, barred by the statute of limitations, and the wife pledges a note, payable to her, as security therefor, she cannot withdraw such pledge, except in like manner and under the same circumstances as her husband might do so; and the pledgee may enforce the note so pledged to the full amount of the joint note, although such joint note is not founded upon a sufficient consideration: Enochs v. Newton 65 Mich. 86.

[IN BANK.]

CARLTON V. WILLIAMS.

[77 CALIFORNIA, 89.]

ACKNOWLEDGMENT REQUIRED TO LEASE EXECUTED BY MARRIED WOMAN ACCEPTANCE OF RENT WILL NOT VALIDATE INSTRUMENT. - Lease executed by a married woman must be acknowledged, in California, in order to be valid; and the fact that she accepts rent does not validate an unacknowledged lease, but at most creates a tenancy terminable by proper notice.

ACTION of ejectment. Section 1093 of the Civil Code of California provides that "no estate in the real property of a married woman passes by any grant purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her" in a manner prescribed.

Collier and Mulford, for the appellant.

Hunsaker and Britt, for the respondent.

HAYNE, C. Action of ejectment. The defendant claims the right to the possession under a lease. The lease was from a married woman, and was not acknowledged. The argument is, that a lease by a married woman is not one of the instruments which are required to be acknowledged. We see no merit whatever in the argument.

The fact that rent was accepted did not validate the lease, but at most created a tenancy terminable by proper notice; and it was so terminated.

The indings are sufficient.

We therefore advise that the judgment be affirmed, with fifty dollars damages.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment is affirmed, with fifty dollars damages.

ACKNOWLEDGMENT BY MARRIED WOMAN: See extended note to Livingston v. Kettelle, 41 Am. Dec. 179, 180. A married woman's contracts are absolutely void, unless executed in conformity to the statute: Scott v. Battle, 85 N. C. 184; 39 Am. Rep. 694; Bressler v. Kent, 61 Ill. 426; 14 Am. Rep. 67; Love v. Watkins, 40 Cal. 547; 6 Am. Rep. 624; Maclay v. Love, 25 Cal. 367; 85 Am. Dec. 133; Dankel v. Hunter, 61 Pa. St. 382; 100 Am. Dec. 651; Grapengether v. Fejervary, 9 Iowa, 163; 74 Am. Dec. 336; Morrison v. Wilson, 13 Cal. 494; 73 Am. Dec. 593; Mason v. Brock, 12 Ill. 273; 52 Am. Dec. 490; James v. Fisk, 9 Smedes & M. 144; 47 Am. Dec. 111; Watson v. Bailey, 1 Binn. 470; 2 Am. Dec. 462; Evans v. Commonwealth, 4 Serg. & R. 272; 8 Am. Dec. 711; Watson v. Mercer, 6 Serg. & R. 49; 9 Am. Dec. 411; Chase's Case, 1 Bland, 206; 17 Am. Dec. 277; Barnett v. Shackleford, 6 J. J. Marsh. 532; 22 Am. Dec. 100; Carn v. Haisley, 22 Fla. 317; Warren v. Jones, 69 Tex. 462; Williams v. Cudd, 26 S. C. 213; 4 Am. St. Rep. 714, and note 718.

[IN BANK.] PEEK V. PEEK.

[77 CALIFORNIA, 106.]

STATUTE OF FRAUDS - MARRIAGE DOES NOT CONSTITUTE PART PERFORM

ANCE. — Marriage is not of itself a part performance of a verbal agreement to convey real property, in consideration of the marriage, sufficient to take the case out of the statute of frauds. STATUTE OF FRAUDS - POSSESSION WHEN PART PERFORMANCE. - Possession does not constitute a part performance of a verbal agreement by a husband to convey real property to the wife, in consideration of the contemplated marriage, sufficient to take the case out of the statute of frauds, where the wife simply resides upon the property with her husband.

STATUTE OF FRAUDS-VERBAL AGREEMENT TO CONVEY REAL PROPERTY EXECUTED IN EQUITY ON ACCOUNT OF FRAUD — VOLUNTEER WITHOUT NOTICE. - Equity will enforce a verbal agreement by a husband to convey real property to the wife, in consideration of the contemplated marriage, where the marriage is brought about, without the execution of the conveyance, by means of the husband's fraudulent representations; and the agreement may be enforced against a child of the husband by a former marriage, to whom the husband conveys the property without consideration, notwithstanding the child was innocent of the fraud.

DEED

DEBT DUE FROM GUARDIAN TO WARD, WHEN NOT A CONSIDERATION. - Money which a father owes his child as guardian does not constitute a consideration for a deed from the father to the child, so as to make the child a purchaser for value, and not a volunteer, in the absence of any consent by the child or sanction by the probate court to such an application of the debt.

DEED - MORAL OBLIGATION DOES NOT CONSTITUTE VALUABLE CONSIDERATION. Promise by a father to the mother on her death-bed that their child should have certain property creates a mere moral obligation, and does not constitute a valuable consideration for a deed of the property from the father to the child.

RESULTING TRUST IN FAVOR OF ONE WHO ADVANCES PART OF PURCHASE PRICE INTEREST OF HEIR IS NOT CONSIDERATION FOR Deed of ENTIRE TRACT. Trust results to a mother who furnishes a portion of the purchase price of land, the title to which is taken in the name of the father, to an extent corresponding to the proportion of the price furnished by her, and the child can claim as her heir; but the child's interest as heir is not a consideration for a deed of the entire property from the father to the child.

ACTION of ejectment. The facts are stated in the opinion.

Rowell and Rowell, Harris and Allen, and Wells, Van Dyke, and Lee, for the appellant.

II. C. Rolf, for the respondent.

HAYNE, C. Ejectment, with a cross-complaint by defendant praying for a conveyance of the legal title. The facts are as follows: One L. R. Peek orally promised the defendant that if she would marry him he would, on or before the marriage, convey to her the property in controversy. She relied upon this promise, and married him "for no other reason or consideration."

The conveyance was not made. He put it off by excuses and protestations, and on the morning of the marriage, without the knowledge of defendant, conveyed the property to his son by a former marriage, who was then a boy about ten years old. The marriage with defendant did not prove a happy one, and after a year's residence upon the property, Peek deserted the defendant, and the son, Lee Peek, brought the present ac

tion to recover possession of the property. The court below gave judgment for the plaintiff, and the defendant appeals.

The foundation of the defendant's claim being the promise of L. R. Peek, the first question to be considered is whether such promise was of any validity. It is clear that it was within the statute of frauds. But it is contended that there was such part performance and fraud as would induce a court of equity to give relief, notwithstanding the statute.

We think that if the actual fraud of L. R. Peek be left out of view, there was no such part performance as would take the case out of the statute. There may undoubtedly be cases of a part performance of oral antenuptial agreements sufficient to warrant their enforcement in equity: See Neale v. Neale, 9 Wall. 1. But it seems to be generally agreed that the marriage alone does not amount to such part performance: See Atherly on Marriage, 90; Browne on Statute of Frauds, 4th ed., sec. 459; Henry v. Henry, 27 Ohio St. 121. With reference to this subject, Story says: "The subsequent marriage is not deemed a part performance, taking the case out of the statute, contrary to the rule which prevails in other cases of contract. In this respect it is always treated as a peculiar case standing on its own grounds": 1 Story's Eq. Jur., sec. 768. Nor does the fact that the defendant resided with her husband upon the property make any difference. The reason assigned for holding possession to be part performance is, that unless validity be given to the agreement the vendee would be a trespasser. But it is manifest that this reason would not apply where the vendor was the husband, and the vendee the wife, living with him upon the property. The possession which is referred to by the cases which hold it to be sufficient part performance is a possession exclusive of the vendor: Browne on Statute of Frauds, 4th ed., sec. 474.

But the fact that the marriage was brought about by the actual fraud of L. R. Peek seems to us to make a difference. There can be little doubt upon the record that there was actual fraud on his part. He denies that he made any promise to convey the property in controversy. But the court finds that he did make it, and taking this to be the fact, we think that the defendant's account, as to the time of the promise and of the reason she married him without the conveyance, must be accepted as the true one. According to her testimony, the promise was repeated up to the time of the marriage, and she was induced to have the ceremony performed before the con

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