Frank's property so assessed was put by description in the petition. There is no evidence that Frank knew of this until a subsequent period, when a second petition for letters of administration was drawn up.

If the second petition, which omitted all the property of Frank S. Duff and that claimed by Robert P. Duff, was filed as a substitute for the first, was not the first petition inadmissible, within the rule declared in Mecham v. McKay, 37 Cal. 154, and followed in Ponce v. McElvy, 51 Cal. 223? As it does not appear that the second petition took the place of the first, the question does not arise here, and we do not determine it. It does not appear that any letters were granted or obtained on this petition.

As the petition was not signed by Frank Duff personally, and it does not appear that the facts were inserted with his knowledge or under his direction and with his sanction, we are of opinion, on the authorities above cited, that the court erred in admitting it as evidence. It is well settled that, an error against the appellant being shown, injury to him is presumed, and that it devolves upon the respondent to show that no injury has in fact been done. Ponce v. McElvy, 51 Cal. 223. On an examination of the record we are not satisfied that no injury was done to the defendants by admitting this paper in evidence.

The statements as to R. P. Duff's property in the petition offered are entirely irrelevant as to any issue proffered by Frank Duff, and are not admissible against Robert P. Duff. There is no such joinder of interest between Frank and Robert Duff as will make any admissions of Frank binding on Robert Duff. If not admissible against the former, they are not against the latter. The statements are not admissible as declarations of a co-conspirator, as they do not appear to be in furtherance of any common design, or made in the execution of such design. They were in no sense any part of the res gesta.

The judgment roll in the case of William R. Duff v. James T. Ryan and James R. Duff was offered in evidence by plaintiffs. It was objected to by defendants as irrelevant. This objection was overruled, and defendants excepted. The action of Duff v. Ryan was brought to recover a claim for $11,017 77, assigned by Richard Duff to the plaintiff in that action. Plaintiff recovered judgment on the thirty-first of August, 1885, for $11,572.39. It does not appear that anything was ever paid on the judgment to William R. Duff. We cannot see how this evidence was relevant to any issue in the case. If William R. had collected anything on it, it might be relevant as evidence that he had means, and was able to purchase the property in question here, but the judgment roll alone was irrelevant, and should have been ruled out. Such evidence might have misled the jury, and for that reason should not have been admitted. While we might not reverse the judgment on account of the admission of this document, on a subsequent trial it should not be admitted without further evidence which would show its relevancy. We cannot see on what ground the paper marked "copy of R. P. Duff's statement" was admissible. Conceding that it was sufficiently proved that it was a copy of an original paper signed by R. P. Duff, still the admissions, if any, contained in it (and it was offered to prove those admissions) were made for the purpose of submitting to arbitration some matters of difference between the heirs of Richard Duff and R. P. Duff, and were doubtless made for the purpose of dispensing with proofs of the facts admitted. An admission for that purpose cannot be offered in this action, any more than an admission in one action, made for the purpose of dispensing with proof otherwise required, can be offered in another action which is not allowed. The court acts on such admission on the trial of the action, to use the language of Mr. Greenleaf, "not as truth in the abstract, but as a formula for the solution of the particular problem before it,-namely, the case in judgment,—without injury to the general administration of justice." 4 Greenl. Ev. § 206.

It is urged that section 338, subd. 4, Code Civil Proc., does not apply to an action like this, which, though founded in fraud, is but an action to recover real property. In support of this point, attention is called to the fact that the heading to the chapter of which the above section is a part, is in these words: "The time of commencing actions other than for the recovery of real property," and that the first section (335) in the chapter is as follows: "The periods prescribed for the commencement of actions other than for the recov ery of real property are as follows." And it is further said that this is really an action to recover real property; referring to Oakland v. Carpentier, 13 Cal. 552, where it was said of a like provision in section 17 of the then statute: "We think that this provision has no relation to an equitable proceeding to set aside a fraudulent deed of real estate, when the effect of it is to restore the possession of the premises to the defrauded party. In such a case, the action is substantially an action for the recovery of real estate. Indeed, it is literally."

Granting that this action is of the character above stated, the result would be that there is not now, and never has been, any statute of limitations in this state in regard to actions for relief on the ground of fraud in relation to real property, and we would then be compelled to fall back on the rules of equity as a part of the common law governing actions for relief on the ground of fraud in the sale and purchase of real property. These rules are substantially the same as those which have been adopted and enforced in regard to the subdivision and section above mentioned. See Boyd v. Blankman, 29 Cal. 46, 47; 2 Pom. Eq. Jur. § 917, and cases cited in note 3.

It may be remarked that the section and subdivision of the statute under consideration has in many cases been applied to actions for relief on the ground of fraud in purchases of real property. See Boyd v. Blankman, supra; Moore v. Moore, 56 Cal. 90; People v. Blankenship, 52 Cal. 619. In the case last cited this section and subdivision were held applicable to an action brought by the state to cancel a patent alleged to have been procured by fraud. But, in the view above taken, it is immaterial whether the section and subdivision apply or not.

The complaint states facts sufficient to constitute a cause of action. Its allegations are substantially as follows: That in 1863 W. R. Duff was the owner of the property involved herein; that in August, 1863, he executed to Richard Duff a letter of attorney, by which he authorized Richard, inter alia, to sell and convey for the constituent the property referred to; that, immediately after the execution of this letter, William R. Duff departed from this state, and never returned to it; that subsequently, during a period extending from the fifth day of July, 1866, to the third day of April, 1872, Richard Duff, assuming to act for his principal under the letter, by deeds purporting to be executed under it, conveyed to defendant, Robert P. Duff, certain of the property aforesaid; that prior to the seventh of July, 1867, Richard, acting under the letter of attorney, by deeds purporting to be executed under it, conveyed to the defendant Frank S. Duff certain portions of the property aforesaid; that between the first day of November, 1867, and the first of January, 1880, Robert P. Duff conveyed to Frank certain of the parcels of the land in controversy; that between the sixth day of July, 1867, and the commencement of the action, Frank conveyed to Robert certain parcels of the land in suit; that the deeds above mentioned, executed by Richard to Robert and Frank, were "without any consideration of any kind given or agreed to be given to William R. Duff, or any person for the use and benefit of William," and that the deeds executed by Robert to Frank, and by Frank to Robert, were without any valuable consideration, and neither of them were purchasers for value; and that Robert and Frank, when these last-mentioned lands were conveyed to them, respectively, had full knowledge of all the matters hereinbefore alleged; and that the conveyances executed by Richard as attorney were made with the intent and purpose of defrauding William, and that they had been

accepted by Robert and Frank acting in collusion with the attorney, Richard, with the intent to defraud William; that, during a period of seven years preceding the commencement of this action, defendants had received the rents and profits of the land, to the amount of $1,000 per annum; that William R. Duff died intestate, leaving the plaintiffs surviving him, Julia K. Duff, his widow, and Agnes, a minor, only child of the said Julia and William; that William devised his property to his wife, Julia; and Agnes, born after her father's death, is entitled to share because not mentioned in the will. The complaint further alleges the proper appointment of William L. Duff as guardian ad litem of Agnes; that Julia Duff had no knowledge or information of the aforementioned conveyances, and the acts stated in relation to them, and their fraudulent character, until an intimation was made to her in a letter received by her from Mrs. Louisa Wilson, sister of the defendants, on or about the twentieth of April, 1879, in consequence of which she was led to make inquiry concerning the property owned by William R. Duff in the county of Humboldt; that she has made discovery of the aforementioned acts of Richard and the defendants since April, 1879.

We are of opinion that the complaint sets forth a case of concealed fraud. It is averred that William was ignorant of the conveyances during his whole life. Let it be observed that there is no allegation that the deeds were recorded. So, conceding, as contended, that William was bound to look at the records of the county of Humboldt, it does not appear that they would have given him any information.

But a relation of trust and confidence existed here between Richard Duff and William. The former was the attorney of the latter, and under such circumstances it is the duty of the attorney to keep his constituent informed of all sales and conveyances that he has make of the property to which his agency extends. “An agent must use ordinary diligence to keep his principal informed of his acts in the course of his agency." Civil Code, § 2020. This has always been the rule governing the relation of principal and agent. It does not appear that anything had occurred to put William on inquiry.

It must also be observed that William was absent from the state while the transactions above referred to occurred, having left the state immediately after the execution of the letter of attorney, and remained absent during the remainder of his life. Under these circumstances, we think the averment that William was ignorant of the conveyances, and had no knowledge or information that the conveyances had been executed by his attorney, is sufficient. See Buckner v. Calcote, 28 Miss. 597, and cases there cited. His wife and child were also absent, and we do not see why the same rule does not apply to them, though the agency terminated on the death of Richard. William lived about five months after Richard's death, but we do not see that his failure to come to California during this period, and look after his property, when he might have ascertained what had been done, puts him in fault. The averments show reasonable and proper diligence on the part of plaintiff Julia K. Duff. The other plaintiff was an infant of tender years, and no negligence, under the circumstances appearing in the complaint, can be attributed to her.

But it may be urged that the grantees in the deeds executed by Richard Duff under the letter of attorney could act upon the presumption that Richard had kept William informed of all his acts, and of his conveyances to the defendants. On this point we are of opinion that, conceding the fraud and collusion attributed to the defendants by the allegations of the complaint, (which must be conceded on this demurrer,) they must stand on the fact as it is, that no such information was given to the principal by his agent and attorney. We think the complaint sufficient.

It is further urged that this is an action in equity, and a court of equity has no jurisdiction, because it appears that the remedy at law, to recover possession by ejectment, is complete and adequate, for the reason that the con

veyances to the defendants under the letter of attorney, as they were made without consideration, were utterly void, and they constitute no defense to an action of ejectment; and we are referred, to sustain this contention, to Dupont v. Wertheman, 10 Cal. 354, and Mott v. Smith, 16 Cal. 533. In the case of Dupont v. Wertheman, where there was a recovery in ejectment, the above rule was declared. But the complaint sets forth a case of fraud, and of fraud according to the principles laid down in People v. Houghtaling, 7 Cal. 348, of which a court of equity had jurisdiction. In that case an action in equity was sustained for a specific fund of money declared to be a trust fund, though the action for money had and received could have been maintained for the money, and the recovery would have been the same in the latter action as in the former. We do not think we would be justified in holding that a court of equity would have no jurisdiction.

The jurisdiction in equity in matters of fraud is very broad; and, although it has been held in various of the states that the jurisdiction in equity will not be exercised when the remedy at law is certain, complete, and adequate, still the jurisdiction is not denied. Upon the facts alleged in the complaint, showing that there has been a great lapse of time since the conveyances assailed herein were executed, from which it might well be inferred that the statute of limitations would be invoked as a defense, we must hold the contention not maintainable.

For the errors above pointed out the case must go back for a new trial. As the issues of fact will have to be tried again, we refrain from saying anything on the point that they were not sustained by the evidence. But we think it proper to remark that the first finding is not as definite as it should be. It states that "upon August 4, 1863, William R. Duff was the owner of the legal title of the lands," etc. It should be found that he was the owner of the lands; and as facts are averred in the answer from which it would seem that the purchase of most, if not all, of the land in suit was made, and the purchase money paid by others, who caused the conveyance of the legal title to be made to William R. Duff, by which a resulting trust in favor of the parties paying the money was created, we think there should be a finding on the issue so made. The mere finding that William R. Duff did not acquire the legal title in trust for other persons is not sufficient.

The ninth finding is not sufficient. It states that William R. Duff, in his life-time, had no actual knowledge or information of any deeds, etc. The finding should be that he had no knowledge or information of any kind on the subject, if the evidence establishes the fact that he had no knowledge or information of any circumstances to put him on inquiry as to the deeds, etc. As the finding now stands, there is an implication that circumstances were known to William R. which should have stimulated him to inquiry.

The thirteenth finding is a finding of evidence, not of the fact that the property mentioned in it was held in trust as stated in it. The finding should be that the property referred to in the letter was held in trust in the manner and proportions mentioned in the letter.

If the court finds that the cause of action is not barred by the statute of limitations, it should so find, and not merely facts from which it may be inferred. This court is not authorized to infer facts from facts found. That is the province of the trial court. On the facts found this court determines questions of law arising on them, not facts by inference from facts found. We intend to say that, in addition to the facts found on the issue joined in regard to the defense of the statute of limitations, the court below should have found whether the cause of action was barred by the statute or not. The judgment and order are reversed, and the cause remanded for a new trial. So ordered.

We concur:

MYRICK, J.; SHARPSTEIN, J.; MCKINSTRY, J.; MCKEE, J.

NOTE.

STATUTE OF LIMITATIONS-FRAUD. The statute of limitations does not commence to run, against an action based on fraud, until the discovery of the fraud. Traer v. Clews, 6 Sup. Ct. Rep. 155; S. C. 10 N. W. Rep. 838; Rosenthal v. Walker, 4 Sup. Ct. Rep. 382; McAlpine v. Hedges, 21 Fed. Rep. 689; Dicken v. Hays, (Pa.) 7 Atl. Rep. 58; Hughes v. First Nat. Bank, (Pa.) 1 Atl. Rep. 417; Vigus v. O'Bannon, (Ill.) 8 N. E. Rep. 778; O'Dell v. Rogers, (Wis.) 30 N. W. Rep. 229; Tompkins v. Hollister, (Mich.) 27 N. W. Rep. 651; O'Dell v. Burnham, (Wis.) 21 N. W. Rep. 635; Perry v. Wade, (Kan.) 2 Pac. Rep. 787.

In Kentucky no action for relief from fraud can be brought after the lapse of 10 years from the perpetration of the fraud. King v. Graham, 1 S. W. Rep. 822; Dorsey v. Phillips, Id. 667. In Missouri the statute begins to run at the time of the discovery, within 10 years, of the facts. Leavenworth Co. v. Chicago, R. I. & P. Ry. Co., 18 Fed. Rep. 209.

The question of knowledge or discovery of the fraud is one of fact. Rosenthal v. Walker, 4 Sup. Ct. Rep. 382; Johnson v. Powers, 13 Fed. Rep. 315; Barlow v. Arnold, 6 Fed. Rep. 351.

See, also, Kirby v. Lake Shore & M. S. R. Co., 14 Fed. Rep. 261.

(36 Kan. 129)

RUSH, Adm'x, etc., v. MISSOURI PAC. RY. Co.

(Supreme Court of Kansas. January 7, 1887.)

1. NEGLIGENCE-QUESTION FOR JURY-RAILROAD COMPANY-BLOCKING RAILS.

A railway company, in the construction of its railway, did not use any blocking or other protection between the main rails of its tracks and the guard rails. Whether this was negligence or not in the abstract, and whether the question is one of fact for the jury or one of law for the court, not decided.1

2. SAME-INJURY TO EMPLOYE

But where a railway is so constructed, and a competent railroad man is employed to work in one of the company's yards as yard switchman, and in such yard there are many switches and about 20 guard rails, and the employe voluntarily and without complaint does switching in such yard every day for about two and one-half months, when he steps between the main rail and the guard rail of one of the company's railway tracks, and because thereof receives injury, held, that the condition of the railway tracks and the danger must have been known to the employe, and therefore that he assumed the risk; that he waived any negligence that might otherwise be imputable to the railway company; that, as between the railway company and himself, the railway company cannot be charged with culpable negligence, for the reason that one party cannot be guilty of culpable negligence as towards another party unless the first party is guilty of some breach of duty as towards the other party; and that all these questions, as presented in this case, are questions of law for the court, and not questions of fact for the jury. (Syllabus by the Court.)

Error from Bourbon county.

McClure & Austin and J. D. McCleverty, for plaintiff in error. David Kelso and Blair & Perry, for defendant in error.

VALENTINE, J. This was an action brought in the district court of Bourbon county, Kansas, under section 422 of the Civil Code, by Mary A. Rush, administratrix of the estate of Michael O'Connor, deceased, to recover damages against the Missouri Pacific Railway Company for wrongfully and negligently causing the death of the deceased. The damages sought to be recovered are claimed for the benefit of Michael O'Connor, Sr., the father and next of kin to the deceased. The deceased had been in the employment of the defendant railway company, as yard switchman, at Fort Scott, Kansas, for

As to when negligence is a question of law, and when of fact, see Dwyer v. New York, L. E. & W. Ry. Co., (N. J.) 7 Atl. Rep. 417; Pottstown Iron Co. v. Fanning, (Pa.) 6 Atl. Rep. 578; Delaware & H. C. Co. v. Webster, Id. 841; Pittsburgh, O. & E. L. Ry. Co. v. Kane, Id. 845; Moynihan v. Whidden, (Mass.) 9 N. E. Rep. —; Chicago & E. I. R. Co. v. O'Connor, (Ill.) 9 N. E. Rep. 263; Barbo v. Bassett, (Minn.) 29 N. W. Rep. 198, and note; Lane v. Central Iowa R. Co., (Iowa,) 29 N. W. Rep. 419; Burns v. Chicago, M. & St. P. Ry. Co., (Iowa,) 30 N. W. Rep. 25, and note; City of Plattsmouth v. Mitchell, (Neb.) 29 N. W. Rep. 593, and note; Nichols v. Chesapeake, O. & S. W. R. Co., (Ky.) 2 S. W. Rep. 181.