attorney's fees. Thereafter, on February 29, 1892, the mortgaged property was sold by the sheriff of the county under and by virtue of said judgment. "That these plaintiffs relied upon said promise and agreement of the said defendant, and, so relying and believing that said defendant would keep and perform the same, these plaintiffs, and both of them, failed to appear or answer in said foreclosure suit though made parties thereto, and permitted their defaults to be entered therein; and thereafter, so relying and believing in said promise of defendant, they abstained from being present at said sale, or taking any step whatsoever to obtain a purchaser for said property, so that their interests in said judgment might be protected and exonerated; and these plaintiffs, and both of them, furthermore did, by reason of their reliance upon said promise of defendant, refrain from making or causing to be made any bid at said sale, although at that time they were fully able to purchase said property for the amount of said judgment, and thereby to protect themselves against said judgment." Notwithstanding his said promise, and in violation thereof, the defendant failed to purchase the property at said sale for the amount of said judgment, but instead thereof purchased the same for the sum of $4,200. From this sum were deducted the sheriff's commissions and expenses in mak ing the sale, leaving $4,195.95, which was credited upon the judgment; and thereafter, on the same day, in violation of his said agreement, the defendant caused a personal judgment to be docketed in said cause against these plaintiffs, and each of them, for the sum of $918.43, which personal judgment has since remained and still is in full force and effect against them. Defendant has refused to cancel said judgment so far as these plaintiffs as concerned, and now threatens to take out an execution against them, and to satisfy the same by the sale of other property belonging to them, to their great and irreparable detriment and harm. No demurrer to the complaint was interposed. Defendant answered, denying that he made the promise or agreement set out in the complaint, admitting that he caused a deficiency judgment for $918.43 to be docketed in the said action on February 29, 1892, and that the judgment so docketed has been and still is in full force and effect against the plaintiffs, but denying that the same was docketed in violation of any such promise or agreement as is alleged in the complaint, or in violation of any promise or agreement of defendant with plaintiffs, or either of them, or with any one else. At the trial it was proved, without objection, that the plaintiff Ella M. Heim purchased the mortgaged property from the defendant for the sum of $5,500, and that the terms of the purchase were $600 cash, one note for $500, due on or before January 1, 1889, and one note for $4,400, due on or before January 1, 1893; both notes draw

ing interest at 6 per cent. per annum, payable monthly in advance, and secured by a mortgage on the property executed by her and her husband. The plaintiffs then sought to prove the agreement as alleged, and that they relied and acted upon it, and therefore did not appear in the foreclosure suit, the improvements placed upon the property during the time Mrs. Heim owned it, and its value at the time of the foreclosure, and that but for the agreement they or one of them would have been present at the sale, and bid in the property for the purpose of protecting themselves. This evidence was all objected to by defendant, upon the ground, among others, that the complaint did not state facts sufficient to constitute a cause of action, and the objections were sustained, the plaintiffs reserving exceptions. No further evidence was offered by the plaintiffs, and the cause was then submitted on their behalf. Thereupon counsel for defendant moved for a nonsuit, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and the plaintiffs had not proved anything that would entitle them to recover. The motion was granted, and from the judgment and an order denying their motion for a new trial the plaintiffs appeal.

The question, then, is, did the complaint state a cause of action? If it did, the court erred in excluding the offered evidence and in granting the nonsuit. It is claimed for respondent that the complaint was insufficient, because the agreement set up was without any consideration and void. Section 1605 of the Civil Code provides: "Any benefit conferred, or agreed to be conferred, upon the promisor by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise." Under this provision, if, as alleged, the plaintiffs, in reliance upon the defendant's agreement, allowed their defaults to be entered and refrained from being present and bidding at the sale, thus surrendering their legal rights, a benefit was conferred upon the defendant, and a prejudice suffered by them, which, in our opinion, constituted a good and sufficient consideration for his promise to purchase the property for the full amount of his judgment, and that no deficiency judgment should be entered against them. See Montgomery v. Gibbs, 40 Iowa, 652.

It is also claimed that the complaint was insufficient for the following reasons: (1) Because the effect of the agreement set out was to alter the terms of the note and mortgage, which, under section 1698 of the Civil Code, could only be done by a contract in writing, or by an executed oral agreement; (2) because the direct effect of the agreement was to prevent bidding at the execution sale, and it was therefore against public policy and

void. We are unable to see how either of these points can be sustained. The agreement did not in any way alter the terms of the note or mortgage. It simply, as in Montgomery v. Gibbs, supra, obligated the defendant to limit his remedy to the property sold. Nor did it prevent bidding at the sale, but only required the defendant to bid for the property the full amount of his judgment.

It is further claimed that the complaint was defective because it contained no allegation that defendant made the agreement with intent to deceive or mislead the plaintiffs, or with any fraudulent intent whatever, but shows that the agreement was made before the foreclosure suit was commenced, and that plaintiffs had an opportunity to appear therein, and neglected to do so, and that they lost their rights, if any they had, under the agreement, by reason of their own negligence. We do not perceive that it can make any difference whether the agreement was made before or after the suit was commenced. It was evidently made in view of the suit, and its purpose was to save the plaintiffs from the trouble and expense of appearing in the case, and being present and bidding at the sale; and, being made, plaintiffs had a right to rely upon it, and to expect the defendant to carry it out in good faith, and were guilty of no negligence in doing so. If, however, the allegations are true, the defendant's failure to carry it out constituted an actionable fraud or wrong, which entitled the injured parties to relief.

Finally, it is claimed that the complaint was insufficient, because it does not appear therefrom that the plaintiffs had any defense to the foreclosure suit, or that they could have prevented the entry of the deficiency judgment, or that the land mortgaged was worth more than the sum for which defendant bid it in, or that plaintiffs could have procured any one to bid more, or that they would have bid more themselves if present at the sale, and hence that there is no showing that plaintiffs had been damaged. The complaint avers that the plaintiffs relied upon the promise and agreement of the defendant, and, so relying and believing that he would keep and perform the same, they "failed to appear or answer" in the foreclosure suit, and that thereafter, so relying and believing in said promise, "they abstained from being present at said sale, or taking any steps whatsoever to obtain a purchaser for said property," and, "furthermore, did, by reason of their reliance upon said promise of defendant, refrain from making or causing to be made any bid at said sale, although at the time they were fully able to purchase said property for the amount of said judgment, and thereby to protect themselves against said judgment." The fair import of this language, it seems to us, is that, but for the agreement of defendant, plaintiffs would have appeared and answered in the suit, and would have been present and bid for the property

at the sale, or would have procured some one else to do so. The language, of course, is somewhat ambiguous and uncertain, but, as no demurrer was interposed, that ground of objection was waived. That the plaintiffs were damaged by their failure to appear and answer in the foreclosure suit, and to be present and have an opportunity to bid at the sale, is clearly shown, inferentially at least. After the mortgage was executed, they sold the property, and the grantees assumed the payment of the mortgage debt. As between themselves, the grantees thereupon became the primary debtors, while the mortgagors occupied the relation of sureties, responsible to the mortgagee alone. Wilts. Mortg. Forec. § 223. Both the purchasers and the mortgagors were proper parties to the action to foreclose, and the plaintiff therein was entitled to have the deficiency judgment entered against the former. Pellier v. Gillespie, 67 Cal. 582, 8 Pac. 185. It would seem, therefore, that the mortgagors would have been entitled, if present, to claim and insist, for their own protection, that such judgment should be entered against the purchasers as well as against themselves. And that the property was worth more than $4,200, the price bid by defendant, may be assumed from the fact that the plaintiffs were able and willing to purchase the same for the amount of the judgment. We conclude, therefore, that, in the absence of a special demurrer, the complaint was sufficient, and the objection that it did not state facts sufficient to constitute a cause of action should not have been sustained. The law applicable to the case is very clearly stated by Mr. Freeman in his work on Judgments (section 492, 4th Ed.), as follows: "It has frequently happened that one of the parties litigant has failed to present his claim or defense because he relied upon some agreement or understanding between himself and his adversary which, if observed, rendered such presentation unnecessary. And with more than occasional frequency, if we may judge from the reports, these agreements have been designed to lull a party into security and inactivity in order that some unconscionable advantage could be taken of him. In all such cases courts of equity, when asked to do so, have invariably restored the injured party to his rights under the agreement, and have wrested from his opponent all those fruits he had hoped to harvest and enjoy through fraud and duplicity. Where A was sued upon a note and mortgage, and the plaintiff, for a valuable consideration, released him from personal liability, but took judgment in violation of his contract, and issued execution thereon, such execution was restrained on the ground 'it was against conscience for the mortgagee to retain his advantage;'" citing Hibbard v. Eastman, 47 N. H. 507. "It makes no difference that the agreement is void because made on Sunday, or was oral, when the rules of the court required all stipulations to be in writ

*

**

1. An alleged sale of personal property to a daughter of the vendor in payment for her services, no delivery of the property being made until two weeks after the sale, is conclusively presumed to be fraudulent as against creditors of the vendor..

2. When a joint tenant sells his interest in the property, and retains possession thereof, and there is no evidence that the other joint tenant has actual possession, no presumption of constructive possession by the purchaser arises which will take the place of the actual delivery of the property required by Civ. Code. § 3440.

3. In an action by one who had purchased certain personalty and the realty on which it was being used, against the sheriff, who afterwards sold the personalty under an execution Issued on a judgment against the vendor, the evidence showed that a part of the property so sold by the sheriff was the produce of the realty after its purchase by the plaintiff. Held, that though the sale of the personalty was void as to creditors of the vendor, there being no immediate delivery thereof, plaintiff was entitled to recover for the produce of the realty after its purchase, upon proving that the purchase was in good faith and for a valuable consideration, and not otherwise.

4. The answer of a sheriff in an action against him to recover for property sold on an execution issued on a judgment against plaintiff's vendor need not allege that the sale to the plaintiff was fraudulent, when the complaint makes no claim of title based on such sale.

Commissioners' decision. Department 2. Appeal from superior court, Mendocino county; R. McGarvey, Judge.

Action by Elizabeth A. Howe against J. R. Johnson. Judgment for plaintiff, and defendant appeals. Reversed.

J. A. Cooper and J. M. Mannon, for appellant. T. L. Carothers and G. A. Sturtevant, for respondent.

VANCLIEF, C. Action of the nature of the common-law action of trover to recover damages for an alleged wrongful taking and conversion of personal property. At the time of the alleged taking, the defendant was

sheriff of Mendocino county, and in his answer alleges that he was justified in taking the property, by virtue of an execution issued to him on a judgment against Montgomery Howe (plaintiff's father) in favor of Phoebe Blair, and denies that plaintiff was the owner of the property so taken, or entitled to the possession thereof. The cause was tried by the court, whose judgment was in favor of plaintiff for the sum of $1,512, with interest and costs. Defendant appeals from the judgment, and from an order denying his motion for a new trial.

The plaintiff claimed title to the property by an alleged sale thereof from her father, Montgomery Howe. Appellant makes the point that the sale was fraudulent and void as against the creditors of Montgomery Howe, because not accompanied by an Immediate delivery, and followed by an ac tual and continued change of possession of the property, and that the finding to the contrary by the court is not justified by the evidence. The property in question consists of one-third undivided part of certain farming utensils, farm produce, and live stock, situate at the time of the alleged sale to plaintiff on a farm in Mendocino county, known as the "Clay Ranch." On March 14, 1893, the ranch and all said personal property thereon were owned in equal parts by Montgomery Howe, Samuel Howe, and Mrs. Given. On that day, Montgomery Howe and Samuel Howe (brothers) conveyed by deed all their interests in the ranch, and verbally sold all their interests in said personal property, to the plaintiff. At the time of the sale the plaintiff was at her father's residence in Oakland, where she also resided, and the business of the sale on her part was transacted on the Clay ranch by her agent, Frank Teichman, to whom she was then engaged to marry. Teichman did not receive possession of either the ranch or the personal property at the time of the sale, though the Howe brothers were then in ac tual possession of both, and were working on the ranch and using the personal property. Immediately after the execution of the deed for the land, Teichman recorded it in Mendocino county, and returned to Oakland, whence he had been sent by plaintiff, and there delivered the deed to her. The only consideration for the deed for the land and the sale of the personal property was the personal services of plaintiff in keeping house for her father, as to which she testified as follows: "I made the contract with my father for wages when I was thirteen. The woman he had working left, and I told him I would do the work if he would pay me. During the first year he paid me sometimes three dollars, sometimes four dollars, not the full amount. I kept no memorandum of it. Could not tell how much he paid me. He bought my clothes and boarded me. I was to receive five dollars a month for a time. Occasionally he gave me as much as five dollars per month. This continued until I was eighteen. When

I was eighteen I was to get more. No sum was stipulated, but a different contract was made. My father said: 'When I am able I will pay you.' At the time the ranch and personal property were conveyed to me, the value fixed was a little over five thousand dollars,-about five thousand five hundred dollars. There was an agreement made to pay me so much a year for the time that I had worked,-one thousand dollars a year. The ranch was valued at five thousand five hundred dollars. My uncle had been on the ranch in charge of the personal property since February, 1891, and my father since July, 1891, but father was there only a portion of the time. I was in Oakland when the deed was made. My father and uncle were both upon the ranch, in charge of the property." She testified further that, "besides the deed to the ranch and personal property, my father gave me a note for seven thousand five hundred dollars. That made thirteen thousand dollars,-a note for $7,500 and $5,500 worth of property. That was the way I accepted it at the time." And also testified as follows: "It was in the agreement when I took the ranch and personal property from my father and uncle that they should stay and help me out for a time. I did not understand farming. They agreed to stay on the place and help me out. That was the contract. My uncle, Samuel Howe, was to receive fifty dollars per month, and my father was to receive fifty dollars per month. They continued to work on the place, and I afterwards paid them their wages. They were both busily engaged on the ranch, and it was a part of the agreement with them that they should have such employment. Under this agreement, I purchased a two-thirds interest in this personal property and in the ranch. Mrs. Given owned the other undivided one-third interest." Between the day of the sale (March 14th) and April 1st, —that is, from 10 to 17 days after the sale, -plaintiff again sent Mr. Teichman to the ranch as her agent, with written instructions to take possession for her of the personal property and the ranch, which he assumed to do by remaining on the ranch directing the work, and doing a part of it, until about June 1st, when he went to Oakland, and brought plaintiff to the ranch; and thereafter, until the personal property was levied upon by the sheriff, he and plaintiff formally directed the work, kept the books, employed and paid the help, bought supplies, and sold whatever of the property that was sold. But during all that time the Howe brothers lived and worked on the ranch the same as before Teichman took possession. As to this Samuel Howe testified: "After Mr. Teichman came there, my brother and I worked on the ranch just the same as we did before, except that after Mr. Teichman came up we had a boss. Previous to that I was boss. After that I was the servant. * * Sometimes my views were asked about running the place, but I had no

authority." The testimony of plaintiff and Samuel Howe was fully corroborated by Montgomery Howe, but none of them could remember any definite agreement between the father and daughter as to what wages he was to pay her for her services, or how much he had paid her before the sale in question. No accounts were ever kept between them. He testified: "My wife died in 1876. Some time after my wife died, my housekeeper talked of going away. The plaintiff and my eldest daughter came into the office, and they said they would do the work and it should not cost any more than it did to hire housekeepers. I told them all right.

* They were to receive pay, but how much we agreed to pay them I do not remember now. I suppose we intended to pay them what it was reasonably worth. They did the work ever since that time. My oldest daughter is now dead. She has been dead some six or seven years. After plaintiff became of age, I had a conversation with her. I do not remember how much I was to pay. I do not remember that we set any definite price. I cannot tell how long after she became eighteen years of age that her employment continued. * * I think the services were reasonably worth from fifty to one hun. dred dollars per month. * * * When my wife died, plaintiff was eight or nine years old. My family consisted of three daughters and one son and a housekeeper. The plaintiff went to school until she was eighteen, and I wished her to go to school longer. I furnished her with clothes, and sent her to school, and she kept house and worked there. Ques. 'You

say no particular arrangement was made? Ans. I do not recollect any set sum. Q. You do not recollect any particular time that you made any express bargains? A. They came to the office, and told me what they would do. They would talk to me. I would agree to it. Q. Did you pretend to keep any account of the money you gave them? A. No, sir. I think sometimes they told me for so long a time they had had so much money. Q. Did you make any different arrangements with this daughter to what you had with your older daughter? A. My recollection is that she came in and talked with me sometimes, but I do not recollect what it was. I was not very particular." The plaintiff testified that both her father and uncle agreed to pay her for housekeeping, though it does not appear that her uncle was a member of the family. But there is no evidence that her uncle so agreed until about the time of the sale in March, 1893. As to this he testified as follows: "About the month of March, 1893, myself and my brother made a sale of the personal property to the plaintiff, who is my niece and my brother's daughter. We made that sale for services that were rendered in keeping house for a goodly number of years. My brother and I were partners in business-in the railroading businessin Oakland. I think plaintiff's services com

menced two or three years after her mother's death. At the time we made the agreement we let her have the ranch and the personal property, and we gave her notes at the same time for seven thousand five hundred dollars, in payment of the services she had rendered, and in full of those services; I think for about thirteen years' services. We sold her all our right, title, and interest in the Clay ranch, and the personal property on the ranch. We owned a two-thirds interest, and Mrs. Given owned the other one-third. When we made the deed, we delivered it to Mr. Teichman, the agent of plaintiff, at Hopland. That was at the time the sale of the personal property went into effect. Plaintiff asked me to continue on the ranch, and my answer was, 'I would stop for a time.' There was no agreement at that time about our wages, but there was afterwards. * ** I knew very well that after my brother's wife died that the children had to be paid from the very start. I mean the plaintiff and her older sister. I do not know that we have agreed with her as to the rate of wages. We have put her off, and have never paid her for her services. It was all the time implied that she was to receive pay. I cannot say when was the first time that we had a talk with plaintiff about settling with her. It must have been about the commencement of the year 1893. At the time the deed was made, my brother and I had talked over the matter, but I do not know whether we had talked with plaintiff about it or not. I cannot say when was the first time I talked with her about it. I think I had a talk with her before Mr. Teichman came up to take possession of the property, but I don't know." It thus appears by her uncle's estimate that plaintiff was allowed, in addition to her personal expenses, board and schooling, $1,000 a year from the time she was about 12 years of age; for she testified at the trial that she was then (February 15, 1894, 11 months after the sale) only 26 years of age. But she estimated the value of her services at only $30 per month after she was 18 years of age, and at only $5 per month before.

It clearly appears from the evidence that the alleged sale was not accompanied by au immediate delivery of the property, as re quired by section 3440 of the Civil Code. On this point there is no conflict of evidence. The plaintiff, her father, her uncle, and Mr. Teichman all testified that the sale of the personal property was made on March 14, 1893, at the same time the deed of the ranch was executed; and that the Howe brothers were then in actual possession of both the real and personal property; and, also, that there was no attempt to deliver to plaintiff the personal property until about two weeks after the sale. It follows that the sale is conclusively presumed to be fraudulent and void against Phoebe Blair, who is admitted to have been a creditor of Montgomery Howe at the time of the sale; and consequently the finding that plaintiff

was the owner of the property by virtue of that sale is not justified by the evidence. Cahoon v. Marshall, 25 Cal. 201; Bell v. McClellan, 67 Cal. 283, 7 Pac. 699; Newell v. Desmond, 63 Cal. 243; Bunting v. Saltz, 84 Cal. 168, 24 Pac. 167; Etchepare v. Aguirre, 91 Cal. 288, 27 Pac. 668; Murphy v. Mulgrew, 102 Cal. 547, 36 Pac. 857.

The only attempted answer by respondent's counsel to this view of the case is that, at the time of the sale, Mrs. Given was a tenant in common of one-third of the property; that upon the sale of the other twothirds to plaintiff Mrs. Given's possession became plaintiff's possession, by construction of law; and that such constructive possession of plaintiff satisfied the requirement of immediate delivery. As authority for this, counsel cites Freem. Coten. § 167, which cites, and seems to rest upon, Brown v. Graham, 24 Ill. 630, alone. But the Illinois

case is not in point. The decision in that case is fully expressed in the syllabus, as follows: "The possession of one of several tenants in common of personal property which is incapable of division is constructive possession of all. And when a tenant in common, not in possession, sells his interest, the possession of another tenant in common becomes the constructive possession of the purchaser." And this was held in that case to satisfy the statute of frauds. Conceding, for all purposes of this appeal, that a constructive possession thus acquired would satisfy section 3440 of our Civil Code, which, in view of the decisions of this court in Newell v. Desmond and Bunting v. Saltz, supra, seems extremely doubtful, still the Illinois case is not applicable, for the reason that the Howe brothers were in actual possession at the time they sold to plaintiff, and there is no evidence that Mrs. Given was ever in actual possession. Brown v. O'Neal, 95 Cal. 262, 30 Pac. 538.

The evidence shows that a portion of the property in question was produce of the ranch during 1893, after the sale, and therefore not the identical property sold, the value of which is shown to be $627.61; and it is claimed that respondent is entitled to recover this sum, even though the sale of the personal property should be held void. If the conveyance of the ranch was not void against creditors on the ground of actual fraud, I think this point well taken. While the evidence tends to prove that the conveyance of the ranch was actually fraudulent, as having been made to delay or defeat creditors of the vendors, it cannot be held that there was not such a conflict of evidence on this issue as to justify the finding of the court. Should it be found on a new trial, however, that the conveyance of land was intended by the vendors to defraud their creditors, and that plaintiff did not purchase in good faith for a valuable consideration, and without notice of the intended fraud, then such conveyance should be held