land so set apart was true, and that her testimony relating to the same matter given upon the trial of that proceeding was also true. The plaintiff had notice of the pendency of that proceeding, and no fraud was practiced upon her by which she was prevented from appearing therein and contesting the allegation of defendant's petition, or showing that the testimony given by her was unworthy of credit. Under these circumstances that judgment is conclusive upon the plaintiff, and she cannot be permitted to bring into litigation the same matters therein involved and settled by that judgment. The case made by the complaint here falls exactly within the rule declared in United States v. Throckmorton, 98 U. S. 61; Griffith's Estate, 84 Cal. 113; and Pico v. Cohn, 91 Cal. 129; 25 Am. St. Rep. 159.

In the first of these cases it was said by Mr. Justice Miller, in delivering the opinion of the court, that "the acts for which a court of equity will on account of fraud set aside or annul a judgment between the same parties, rendered by a court of competent jurisdiction, have relation to fraud extrinsic or collateral to the matter tried by the first court, and not to a fraud in a matter upon which the decree was rendered." And in Pico v. Cohn, 91 Cal. 129, 25 Am. St. Rep. 159, the question was very carefully considered, and this court announced the same rule, saying: "The reason of this rule is that there must be an end to litigation, and when parties. have once submitted a matter, or have had an opportunity 360 of submitting it for investigation and determination, and when they have exhausted every means of reviewing such determination in the same proceeding, it must be regarded as final and conclusive, unless it can be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy. . . . . Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is that a final judgment cannot be annulled merely because it can be shown to have been based on perjured testimony; for if this could be done once it could be done again and again, ad infinitum."

These cases are, we think, conclusive of the one now before us. So far as concerns the question here presented there is no difference in principle in the nature of the judgments under review in the above-cited cases and the order here

sought to be annulled. The order setting apart the homestead to defendant (no homestead having been declared during the lifetime of the deceased) operated to vest in the defendant a title to the land so set apart: Estate of Boland, 43 Cal. 640; Estate of Moore, 96 Cal. 522; and such order was in the nature of a judgment in rem: Kearney v. Kearney, 72 Cal. 591; and the court, having jurisdiction to pronounce it, it is conclusive upon plaintiff and all persons interested in the estate, and can only be successfully attacked in equity upon the same grounds upon which a judgment in personam may be annulled.

The conclusion we have reached in this case is not at all in conflict with Wickersham v. Comerford, 96 Cal. 433. The action in that case was brought by a creditor of the deceased to annul the order of the probate court setting apart a homestead to the widow of the deceased, the complaint alleging in substance that prior to the death of deceased he and his wife entered into a written agreement for a separation and division of the community property, and that such agreement was completely 361 performed, and that deceased and his wife were at the time of his death living separate and apart, in accordance with the terms of said agreement. Under this state of facts the widow was not entitled to a homestead out of the estate of her deceased husband: Estate of Noah, 73 Cal. 583; 2 Am. St. Rep. 829. But the complaint in that action further alleged that in the petition which the widow filed, asking the court to set apart such homestead for her use, she "willfully suppressed and concealed from the court" the fact of the existence of the agreement made between herself and husband for a separation, and that she and the deceased were not living together as husband and wife at the time of his death, and that such concealment was made for the purpose of deceiving the court. It was held in that case that this omission being willful, and relating as it did to a material fact which ought to have been brought to the attention of the court and submitted to its judgment, was such a fraudulent concealment as would justify a court of equity in annulling the order setting apart the homestead; but it is clear that the fraud which was made the basis of the action and judgment in that case was extrinsic to the judgment or order annulled. In the original proceeding for a homestead under review in that case the court did not even indirectly pass upon the question of the existence or nonexistence of the agreement

Bor separation, and that matter not being before the court, was not concluded by the judgment or order in that proceeding; but, as we have seen, the direct question sought to be litigated here, viz., whether the land set apart to defendant as a homestead was or was not community property, was put in issue in the homestead proceeding, resulting in the order here assailed; and the court, upon the evidence submitted to it at the time of making that order, found the fact adversely to the plaintiff's present contention, and this marks the important distinction between the present and the case of Wickersham v. Comerford, 96 Cal. 433.

Nor can the case of Bergin v. Haight, 99 Cal. 52, be 363 regarded as an authority sustaining the complaint in this action. There the court expressly held that there was "nothing upon the face of the proceedings to indicate a fraudulent collusion between the administrator and his attorney," and that "there was no opportunity to determine any issue of fraud in the probate court." This being so, it was neces sarily held that the fraud alleged and found in that action was extrinsic and collateral to the questions determined by the probate court when it confirmed the sale of the land in controversy there.

The case of Dunlap v. Steere, 92 Cal. 344, 27 Am. St. Rep. 143, comes nearer supporting the contention of plaintiff, and yet does not do so. In that case the plaintiff was only constructively served with summons, and had no actual notice of the pendency of the action in which the judgment there annulled was given, and, referring to the rule above quoted from United States v. Throckmorton, 98 U. S. 61, to the effect that a judgment will not be set aside for false testimony given in relation to a matter upon which the judgment was rendered, it was held that such rule was only applicable "where the former judgment was the result of a trial between the parties, or where the one against whom the judgment was rendered had actual notice of the pendency of the action, and neglected to submit his proofs." It is alleged in the complaint here that the plaintiff was an incompetent person when the order sought to be annulled was made, and so it may be said that in one sense she had no personal knowledge of its pendency or comprehension of the matters involved in that proceeding; but it also appears from the complaint that her general guardian did have such knowl-. edge, and, as the law devolved upon him the duty of protect

ing her rights in that proceeding, the case is not within the reason of the rule declared in Dunlap v. Steere, 92 Cal. 344; 27 Am. St. Rep. 143. The plaintiff did have all the notice which it was possible for her to have, and had the full benefit of all the safeguards which the law deemed necessary for her protection in that proceeding, or which the law deems necessary for the protection of any incompetent person from unjust or fraudulent judgments.

Judgment reversed, with directions to the superior court te sustain the demurrer to the complaint.

HARRISON, J., and VAN FLEET, J., concurred.

RELIEF IN EQUITY FROM JUDGMENT AT LAW.-To entitle a party to relief in equity on the ground of fraud from a judgment entered against him he must establish "that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy": See monographie note to Oliver v. Pray, 19 Am. Dec. 603, on the power of equity to relieve against a judgment at law; Pico v. Cohn, 91 Cal. 129; 25 Ain. St. Rep. 159, and note.

The question as to what constitutes fraud or imposition upon the court in a petition by a widow to have set apart to her a homestead out of the prop erty of her deceased husband was considered in Wickersham v. Comerford 104 Cal. 494. This was an action to vacate and annul an order setting apart such a homestead to Mrs. Comerford. The trial court found that the allegations in the petition of Mrs. Comerford for the homestead were not fraudulent, and that the court was not induced to make the order by reason of any false or fraudulent representations therein contained, or by any concealment of facts from it by her or by any one on her behalf. This finding was challenged by the appellant as not supported by the evidence, but the supreme court held that the evidence before the trial court justified the finding and said, per Harrison, J.: “It was necessary for the plaintiff to establish by clear and indubitable proof, to the satisfaction of the superior court, that the order setting apart the homestead had been obtained through some fraud practiced upon that court by the defendant. It was not suffi cient to show that she had made the application under an erroneous view o her rights in the premises, or that upon the facts presented in her petition, or at the hearing, the court had mistaken the law applicable thereto. She cannot be charged with fraud or any fraudulent imposition upon the court for merely failing to state in her petition any facts tending to show that the petition ought not to be granted, unless it is made to appear that she knew the import of these facts, and that they were willfully suppressed by her with the intention of deceiving the court and thereby inducing it to grant the petition. Tested by these rules the plaintiff failed to establish his right to the relief sought. It was shown that after the death of her husband Mrs. Comerford was advised by her attorney that she was entitled to have the property set apart to her as a homestead, and the petition therefor wa prepared by him and signed by her and presented to the court. It is not claimed that this advice was not given in good faith, or that the facts set forth in the petition are not correctly stated; and the most that can be said is that the attorney was mistaken in his views of the law. It is claimed,

however, that the petitioner 'concealed' from the court the fact that 'articles of separation' had been entered into between her and her husband, under which they had divided their property, and were living separate and apart from each other. It was not shown, however, that the legal effect of these articles of separation upon her right to a homestead out of the estate of her husband was ever called to the notice of the petitioner, or that she was advised in reference thereto, or that she had any purpose or motive in omitting to make mention thereof in her petition or at the hearing; and she cannot be charged with 'concealing' them from the court by her mere silence in reference to their existence. She is not to be charged with a fraudulent concealment of any fact unless she was under some obligation to disclose it, and the mere omission to make mention of the fact, in the absence of any knowledge or notice on her part that it was requisite to make such mention, falls far short of fraud." The judgment against the plaintiff was affirmed.

WICKERSHAM v. JOHNSTON.

[104 CALIFORNIA, 407.]

LAW OF FOREIGN COUNTRY.-The foreign law, as to questions raised in the courts of this state, must be assumed, in the absence of any evidence tending to show what that law is, to be the same there as here. This rule applies to England, as well as to sister states of the American union. FOREIGN LAW MUST BE PLEADED AND PROVED.-A foreign law is a matter of fact, which the courts of this country cannot be presumed to be acquainted with, or to have judicial knowledge of. Therefore it must be pleaded and proved.

EXECUTORS AND ADMINISTRATORS-NEGOTIABLE INSTRUMENTS.-The executors of the estate of a deceased person have no authority to sell and transfer notes belonging to the deceased. They are assets of the estate which can be sold only under and by order of the probate court. EXECUTORS AND ADMINISTRATORS-SALE OF CHOSES IN ACTION. -Under the statute choses in action are to be sold in the same manner as other personal property. EVIDENCE-JUDICIAL RECORDS-PROOF OF PROBATE OF FOREIGN WILL, HOW MADE TO BE EFFECTUAL. —A foreign judicial record of the probate of a will may be proved by a copy thereof, attested and certified as provided by statute, and is admissible in evidence, though, in the absence of proof of the foreign procedure being different from that of our own courts, it would be insufficient to support a right claimed under the will, unless an exemplified copy of the pleadings, petitions, or proceedings leading up to the order of admitting the will to probate and giving jurisdiction to make it is also introduced to make the record complete.

STATUTES-CONSTRUCTION-MEANING OF "ATTESTATION"-PROOF OF FOREIGN JUDICIAL RECORDS-EVIDENCE.-Section 1906 of the Code of Civil Procedure of California, providing how the judicial record of a foreign court may be proved refers to exemplified copies of an original record, and not to the original record itself. The word "copy" is included in the word "attestation" used in that section, and which is used in its secondary or technical sense, to denote the certification by the keeper of a record of the verity of a copy.