the intention of delivering the deed to Mr. | herself, as grantor, to him, as grantee, and Weir, and then, if he died first, to destroy went to an intimate friend, a notary in San it. Upon her return from San Diego Miss Hammond testifies that Mrs. Weir said: "Uncle Merrill has the paper that I brought back from San Diego with me, and he is looking it over now, and I hope that it is all right, for it is the first time that I ever executed anything of the sort alone." Miss Hammond saw her uncle looking over the paper. He folded it up, put it in his pocket, and, in answer to Mrs. Weir's question if it was all right, said: "Nan, you did just as I told you. It is all right." Mrs. Weir told Miss Hammond that she had executed the deed, and that the paper which Mr. Weir had and was reading was that deed. The deed was not placed of record, but possession of it was retained by Mr. Weir, and it was probably placed by him in the tin box which was the receptacle of his private papers and other cherished personal effects. The deed was not found after his death, but the evidence leaves no doubt but that Mrs. Weir in furtherance of the understanding between herself and her husband took it from his papers after his death and destroyed it, thus leaving the record title to the property still in herself. The method and plan of the Weirs to avoid probate in the event that either of them should die is thus outlined in the testimony of their confidential friend Mr. Mouser: "He (Mr. Weir) said that he intended to keep control of the ownership of his property so long as he lived. He only wanted this instrument (referring to a bill of sale) so that his wife, in case that he died first, might be in condition to claim the property, and make such disposition of it as they had mutually agreed upon. He further stated in the same conversation that he did not propose to have his property in shape that, in case of her death before his, he would have to go through court and probate to get it back. He proposed to keep control of it while he lived. He said that he proposed to keep it himself as long as he lived, and keep control of it and the interest of it as long as he lived. He did not propose to have to go into probate court to get back his own property." Appellant, however, earnestly contends that there was a failure of evidence to show a delivery by Mrs. Weir to her husband of the deed with an intent to divest herself of her dominion and control over the property beyond power of recall, or immediately to vest him with title to it. [3] Whether the delivery of an instrument has actually been made or not is a question of fact. The finding in this case is that the delivery was so made If that finding receives substantial support from the evidence, our inquiry here is at an end. What that evidence does disclose, epitomized, is this: That Mrs. Weir took a deed drawn by her Diego, for the purpose of acknowledging it before him. She did acknowledge it, and she was instructed by the notary that, in order to vest title in her husband, it would be necessary for her to deliver the deed to him. She was further told that the deed, if delivered, would vest title in him without the need of recordation, but if so delivered and not recorded, and her husband died first, she could destroy the deed, and “nobody would be injured by it, and the record title would stand in her name." Mrs. Weir with this knowledge comes back to her husband with the instrument and gives it to him. She desires to know if she has correctly obeyed his instructions, and is informed that she has done so. Mr. Weir retains possession of the deed, does not place it of record, and upon his death it is destroyed by his wife. In support of the contention of nondelivery, appellant relies on Kenney v. Parks, 125 Cal. 146, 57 Pac. 772: Id., 137 Cal. 527. 70 Pac. 556, and Elliott v. Murray, 225 Ill. 107, 80 N. E. 77. In Kenney v. Parks, the court found that an intent to deliver and thus presently to vest title was absent for several reasons: (1) That both parties believed that the deeds could have no effect to transfer title until recorded; (2) that the deeds "were placed in the possession of her husband upon the understanding that they were to have effect only and upon the contingency of her death before that of her husband." In Elliott v. Murray there was a like situation. Says the Supreme Court of Illinois: "The deed was made, not with the intention that it should immediately take effect and pass title to said farm, but that it should only take effect in case he survived his wife, and, in the event that his wife should survive him, it was never to take effect, but was to be destroyed. * * * We think it clear that the parties to this deed intended it to operate as a will, and that the possession of the deed by the grantee did not have the effect to vest the title to said farm in him." In the case at bar, however, no such mistake of fact or misunderstanding of the law is disclosed. [4] The wife was correctly informed that the delivery by her of the deed to her husband would immediately vest title to the property in him; that, if the husband should die while her deed to him remained unrecorded, she could by destroying the deed destroy all evidence of the transfer of title, and the record title to the property would thus stand in her name, and "nobody would be injured by it." It was under these circumstances that the delivery was made. It was a delivery designed to effect a present transfer of title. There is not here even shown the not uncommon mistake of suppos livery at the date of the conveyance, or de title and vest the same in her." In Tyler v. Currier, 147 Cal. 31, 81 Pac. 319, the wife executed a deed in favor of her husband, the defendant, and afterwards died. The plaintiff, an heir at law of the wife, sued to have the deed annulled on the ground, among others, that it was not delivered in the lifetime of the wife. It was shown that the deed had been placed in the possession of the husband. He gave testimony that he had not recorded the deed "for fear that he might die first," and that his "idea was that if it was not recorded his wife could destroy the deed and revest herself with the title." Upon this evidence the plaintiff insisted, as here, that the delivery was not made with intent to pass title, but this court said: "There is no merit in this contention. The fact that respondent had the erroneous notion that if he should die before his wife, and that after his death she should get possession of the deed and destroy it, the title would revest in her, has no pertinency to the issue of the delivery of the deed." instrument title would revest. It was the In Dimmick v. Dimmick, 95 Cal. 323, 30 typical case above adverted to whereby by Pac. 547, the controversy was over the effect the destruction of evidence, namely, the un- of a deed delivered by a husband to the recorded deed, and by the suppression of wife. This court said: "Conceding he beother evidence, namely, by the silence of the lieved that, if she should die first, he could wife, title would apparently stand of record conceal or destroy the deed and thereby rein the wife, and, as under such circumstanc- vest the title in himself, still such fact does es an innocent purchaser would be protect- not militate against the sufficiency of the deed, therefore, "nobody would be injured." [5] But, as has been said, such transac-stroy his clear intention to part with the tions as this which are in their essence frauds upon the law, and may operate to work great wrong upon creditors and other parties in interest, when subjected to analysis before a court of law will be given only their legal force and value without consideration of the innocence of the design or the absence of an actual fraudulent intent. Kenney v. Parks rests, and must rest, for the soundness of its decision upon the elements of fraud and upon the mutual mistake of the parties whereby neither believed that even a delivered deed operated to transfer title until recordation, a mutual mistake which conclusively established the absence of an intent to create a present and a new vestiture of title. Elliott v. Murray is in conflict with our own uniform rule of decision. Thus in Mowry v. Heney, 86 Cal. 471, 25 Pac. 17, the trial court found that the intent of the grantor was that the deed should not take effect at all except in case of her death, and that in such case it should operate in lieu of a will and take effect after her death, and, further, that it was executed "to avoid an administration of her estate in the event of her death and for no other purpose," the very facts and circumstances which, to the minds of the supreme court of Illinois, established nondelivery. Yet by this court in bank it was said: "Here was an absolute deed to the property, delivered to the grantee. Its legal effect was to vest in the plaintiff the title to the prop erty, free from any conditions. The effect of the finding, if upheld, is to vary the terms of the deed and render it one upon condition, and defeat its operation by parol proof on the part of the grantor that it should have an effect different from that apparent on its face. This cannot be done. Mr. Devlin, in his work on Deeds, says: 'Whether a deed passes a title or not must be determined by its legal effect. If it has been executed and delivered, its effect is determined by its language. When so executed and delivered, its legal effect as to the passing of the title is not altered by the fact that one objection to the transaction was to save the expense and trouble of administration upon the grantor's estate after his death. And, where a grantor executed a deed for this purpose to his wife, the fact that she placed the deed after delivery where her husband, equally with herself, could have access to it, does not change its legal effect as a conveyance.' Devlin on Deeds, § 284." Thus it is plain that, even if Mrs. Weir had mistakenly supposed that by the destruction of her deed to her husband after its delivery she could reinvest herself with title, nevertheless, her mistake could not be permitted to impair the legal effect of such delivery. But this case is weaker than those cited, in that it is made to appear that Mrs. Weir was not laboring under any mistake, that she was correctly informed as to the law, and thus knew that the destruction of the deed would only accomplish an apparent re-establishment in her of the title. [6] Some consequence is attached by appellant to the declaration of a witness that in 1894 he heard a statement by Mr. Weir to Mrs. Weir to the effect "that he was transferring his property in her name in order to protect himself against the liabilities that might occur in the banks in the East." The only significance that could pertain to this testimony is that it was designed to show that the deed taken by Mrs. Weir to the property at the instance of her husband was so taken in fraud of the rights of eastern creditors. But no such defense was pleaded, and it is well settled that when fraud is relied on as an element of defense and invoked as conferring a right against the plaintiff it must be alleged. Frink v. Roe, 70 Cal. 297, 11 Pac. 820; Wetherly v. Straus, 93 Cal. 283, 28 Pac. 1045. Moreover, the deed by which Mrs. Weir obtained title to the property here that it was community property. No useful in controversy was made seven years after. purpose, we think, would be subserved by This property could not have been in the treating the items separately. Under the cirmind of Mr. Weir as a part of the property cumstances shown the presumption of the which he proposed to transfer to avoid lia-law is that it was community property. Fenbilities, and there being no proof in the case nell v. Drinkhouse, 131 Cal. 447, 63 Pac. 734, even that the liabilities existed, much less 82 Am. St. Rep. 361; Freese v. Hibernia, etc., that they continued, there can be no possible Society, 139 Cal. 394, 73 Pac. 172; Bashore ground for saying that Mr. Weir's business v. Parker, 146 Cal. 525, 80 Pac. 707. The transactions years after were influenced by facts of compelling force in support of the their suppositive existence. finding are those above adverted to; that the property was acquired by the spouses dur [7] Reliance is placed upon certain deathbed declarations of Mr. Weir to the effecting coverture, and not by gift, devise, or dethat it was unnecessary that he should make a will, that his wife had everything, and that he had given or had left everything to his wife. Suffice it to say that these were but expressions of the belief of Mr. Weir as to what he had done or accomplished and could exercise no controlling influence in determining what in fact he had or had not done or accomplished. scent; that Mr. Weir attended to all business and maintained to the end the absolute dominion and control of the property in all its phases; that his wife was utterly ignorant of, and unversed in business, so that she did not know the difference between a deed and a mortgage and a promissory note; that, when a promissory note would be taken in the name of Mrs. Weir as payee, the money which the note represented was community money, Mr. Weir would retain the possession of the note, would receive the money on account of it, and indorse the payments in his own hand. In January, 1903, Mr. Weir made and acknowledged before Mr. Mouser an instrument purporting to be a bill of sale to his wife of all the personal property owned by him at the date of the instrument, or which he might thereafter acquire. The circumstances attending the making of this bill of sale were testified to by Mr. Mouser, and his testimony has been pre It is urged that the court erred in overruling defendant's objection to the admission of the notarial record of Notary Mouser, which record, it will be remembered, showed his acknowledgment to the deed by Mrs. Weir to her husband; and also that the court erred in admitting the parol evidence of Mr. Mouser touching the contents of the deed. It is not here contended, as, of course, it could not successfully be, that the evidence was not admissible to show the terms and nature of a written instrument admitted or proved to have been lost or destroyed, but it is said that there is no evidence in the rec-viously quoted. The paper was given by Mrs. ord to identify the "paper" which Miss Hammond testified was handed by Mrs. Weir to her husband on her return from San Diego with the deed of conveyance. But the evidence is abundant to show that she went to San Diego with such a deed, that she executed such a deed before Mr. Mouser, that she told her (the witness) that she had executed the deed, and that that was the paper, "that" referring to the paper which she had handed to her husband which he read, approved and placed in his pocket. It is further in evidence that after the death of her husband she stated that she had destroyed her deed to him. The evidence was, therefore, clearly admissible. Weir to the defendant with other papers after Mr. Weir's death. There is no evidence of a delivery of the paper to Mrs. Weir in the lifetime of her husband, and there is the strongest inferential evidence that it was not delivered. This evidence is found both in the testimony of Mr. Mouser and from the fact that Mr. Weir after its execution retained full and complete dominion and control over all his personal property down to the very day of his death. It is apparent that this bill of sale was meant to aid in effectuating the plan of the Weirs whereby upon the death of either the other might succeed to all the property without probate. [8] Case numbered 52,999. The personal But it was no part of that plan that Mr. property in controversy in this case consist- Weir should ever actually part with title, ed of stock in mining companies, water com- dominion and control of any of his property. panies, industrial companies, and banks, cerIt was still to remain community property tain bonds of the United States government, and the evidences and indicia of a change promissory notes, household furniture and of ownership were not real, but were feigned moneys in bank; also $880 in gold coin found to aid the result sought to be accomplished. secreted in the cellar of the Weirs' residence In the case of the land, the evidence is strong after the death of both spouses. Of the and convincing that Mrs. Weir delivered the stock some of it was issued to M. A. Weir deed which transferred the title to her husand bore his general indorsement. Other band. In the case of the personal property, shares were issued to Nancy A. Weir and it is equally strong that the husband did not bore her general indorsement. The prom-deliver the bill of sale nor any part of the issory notes for the most part were made personal property, nor in any way surrender payable to the "order of M. A. Weir or Nan- the full rights of dominion and control over thorized to exercise. The rulings of the court in admitting and rejecting evidence were sound and without prejudice to the appellant. The judgments and orders appealed from are therefore affirmed. We concur: LORIGAN, J.; MELVIN, J. (159 Cal. 663) MOUSNIER v. SUPERIOR COURT OF AL- (Supreme Court of California. April 7, 1911.) Under the express provisions of Code Civ. Proc. 1616, an order of court directing a payment of attorney's fees by an executor or administrator out of the estate of the decedent whose will is offered for probate is an order directing the payment of a claim against the estate, and is appealable. [Ed. Note. For other cases, see Prohibition, Cent. Dig. §§ 4-19; Dec. Dig. § 3.*] In Bank. Application by Elise Mousnier, administratrix, for a writ of prohibition against the Superior Court of Alameda County, and F. B. Ogden, Judge thereof. denied. Writ whom an accounting was asked, and who made no claim of title or ownership to the land, was denying the defendant's motion for a new trial not entitled to notice of appeal from an order of the issue of ownership, as under Code Civ. Proc. $579, the court may in its discretion render judgment against one or more defendants, leaving the action to proceed against the others. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 415.*] 3. APPEAL AND ERROR (§ 394*)—UNDERTAKING -SEVERAL JUDGMENTS. A single undertaking on appeal is sufficient to confer jurisdiction on the Supreme Court to review a judgment and an order denying a new trial. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 394.*] 4. WITNESSES (§ 198*)-EVIDENCE (§ 215*)— PRIVILEGED COMMUNICATION. A letter from an attorney of record in response to a motion for writ of assistance' saying that he forwarded the motion to his client with advice that there was no defense to the motion, is admissible as an admission of the attorney of record, and is not a privileged communication. [Ed. Note.-For other cases, see Witnesses, Dec. Dig. § 198;* Evidence, Cent. Dig. §§ 754759; Dec. Dig. § 215.*] Department 2. Appeal from Superior Court, Santa Barbara County; S. E. Crow, Judge. Action by John S. Bell and another against R. B. Tappan and E. K. Taylor, for peti- George Staacke and others. From a judgment for defendants, plaintiffs appeal. Affirmed. tioner. Sullivan & Sullivan and Theo. J. Roche, PER CURIAM. The application for a writ of prohibition is denied. In explanation, we take this occasion to say that if the superior for appellants. T. Z. Blakeman, for respond ents. HENSHAW, J. This is an appeal by John S. Bell and his wife, Kate M. Bell, from an order made by the superior court of the county of Santa Barbara, directing the issu court should make an order directing the payment of attorney's fees incurred by the proponent of the will of Therese Berthol, payable out of the assets of the estate, it would be an order directing the payment of a claim against said estate, and, under sub-ance of a writ of assistance to dispossess apdivision 3 of section 963 or under section 1616 of the Code of Civil Procedure, it would be an appealable order. The applicant has therefore an adequate remedy by appeal, and prohibition is unnec essary. (159 Cal. 193) BELL et al. v. STAACKE et al. (L. A. 2,530.) (Supreme Court of California. Jan. 9, 1911.) 1. CONTINUANCE (§ 1*)-SEVERAL DEFENDANTS -CONTINUANCE AS TO PART. Under Code Civ. Proc. § 579, providing that, in an action against several defendants, the court may render judgment against one or more of them, leaving the action to proceed against the others, the court may continue the hearing of an accounting by the foreman of a ranch who made no claim of title or ownership to the land in an action to dispossess persons in possession of the land, and may proceed with the case against the other defendants. pellants of about twenty acres of land, upon which is a residence and outbuildings connected therewith. It is one phase of protracted litigation between the parties, the full history of which will be found in Bell v. Staacke, 137 Cal. 307, 70 Pac. 171; Bell v. Staacke, 141 Cal. 186, 74 Pac. 774; Bell v. Staacke, 148 Cal. 404, 83 Pac. 245; Bell v. Staacke, 151 Cal. 544, 91 Pac. 322. Louis Jones was made a party defendant to the litigation. He was foreman in charge of the 10,000-acre ranch of which the 20 acres here in controversy is a part, and was called upon for an accounting of his stewardship. He answered, declaring the nature of his employment, that he had managed the ranch, made leases, collected rents, and expressed his willingness and desire to account. At the commencement of the first trial (Bell v. Staacke, 141 Cal. 186, 74 Pac. 774) plaintiff moved for a continuance on the ground that the defendant Louis Jones 2. APPEAL AND ERROR (§ 415*)-MOTION FOR was absent, and not represented. The deNEW TRIAL-SEVERAL DEFENDANTS-NOTICE fendants Staacke and Teresa Bell, as adOF APPEAL. In an action to dispossess persons occupy- ministratrix, requested that the case be coning a ranch, the foreman of the ranch, against tinued as to defendant Louis Jones, and that For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes [Ed. Note. For other cases, see Continuance, Dec. Dig. § 1.*] He the trial proceed as between the other par- | their motion for a new trial this court was ties. The court so ordered, and this was without jurisdiction to entertain the appeal done. The first trial resulted in a judgment and to render the judgment which, in fact, in favor of the plaintiff for the 10,000 acres, it did render in the 141 Cal., 74 Pac. Necdirecting the defendants to convey the same essarily this, in turn, is founded upon the to plaintiff's grantees free from any claim | contention that Louis Jones was such an or lien of the estate of Thomas Bell. A judg- essential party to the controversy that this ment in favor of the administratrix on the court could do nothing with the appeal from cross-complaint in the sum of $51,120.15 was the order denying the new trial unless jurisgiven against Bell personally, but it was de- diction over him had been attained by servclared not to be a lien upon the realty. ice. But Louis Jones had been but the foreStaacke and the administratrix appealed man and to that extent custodian of the from the order denying their motion for a property and the collector of its rents. new trial upon all issues except those relat- made no claim to any title or ownership or ing to the indebtedness of John S. Bell to interest therein and stood in the position of Thomas Bell deceased; in other words, as a mere stakeholder, willing and anxious to to all issues excepting the finding that plain- render his account and to pay over any montiff John S. Bell was indebted to the estate ey found due to the person whom the court of Thomas Bell in the sum of $51,120.15. should designate. The trial as to him was On that appeal this court reversed the order continued, and properly continued, under sec denying a new trial except as to the issues tion 579, Code Civ. Proc., which provides relating to the indebtedness of John S. Bell that in an action against several defendants to Thomas Bell. Bell v. Staacke, 141 Cal. the court may, in its discretion, render judg203, 74 Pac. 774. Upon the new trial the ment against one or more of them, leaving cross-complaint of the defendants was dis- the action to proceed against the others missed as to the defendant Louis Jones, and whenever a several judgment is proper. The the trial of the action between the plaintiff court therefore had ample authority to do and the defendant Jones was continued. The as it did-continue the hearing so far as trial resulted in findings and decree in favor Jones' account was concerned, and proceed of the administratrix on her cross-complaint to a trial of the issues between the principal to the effect that a lien existed in favor of parties litigant. It was not necessary, therethe administratrix upon the land in question fore, that Jones should have been served for the full amount of the debt of plaintiff with a notice of appeal, and nothing which John S. Bell to Thomas Bell, deceased, that was decided upon the appeal could or did Staacke held the title to the land in trust, affect in any way any of Jones' rights. first, as security for the payment of the indebtedness; and, second, in trust for the use and benefit of John S. Bell, the plaintiff. The judgment further decreed that the defendants have and recover of the plaintiff their costs. The plaintiff appealed from the judgment and the appeal was dismissed. Bell v. Staacke, 148 Cal. 404, 83 Pac. 245. He also appealed from the order denying his motion for a new trial and the order was affirmed. Bell v. Staacke, 151 Cal. 544, 91 Pac. 322. The land in controversy was sold under the last judgment and purchased by the administratrix Teresa Bell, the respondent herein. In due course she received a commissioner's deed of conveyance. John S. Bell and Kate M. Bell, his wife, having refused to deliver possession of the land in controversy after demand properly made, or to recognize in any way the title so purchased by the administratrix, the latter finally moved for a writ of assistance, and from the order of court directing its issuance this appeal is taken. The principal contention of the defense upon this appeal is that the judgment of the superior court of Santa Barbara county made and given upon the first trial in July, 1901, was and is a final and conclusive determination of the rights of all the parties hereto. This is based upon the argument that because of the failure to serve Louis Jones It is next contended that defendants undertaking on the appeal reported in 141 Cal., 74 Pac., was insufficient to confer jurisdiction upon this court to entertain and decide it, in that after reciting the appeal from the judgment and from the order the single undertaking declared that appelants would pay damages awarded against them on the appeal or on a dismissal thereof, not exceeding $300. This precise point upon this precise undertaking was passed upon and decided by this court adversely to appellants' contention in Bell v. Staacke, 137 Cal. 307, 70 Pac. 171. It is in legal effect exactly the undertaking considered and held sufficient also in Granger v. Robinson, 114 Cal. 631, 46 Pac. 604, and Buchner v. Malloy, 152 Cal. 486, 92 Pac. 1029. Mr. Thomas has been acting as attorney for plaintiffs and notice of the motion for a writ of assistance was served upon him. In response, he wrote to the attorney for the moving party (respondent herein), saying that he had "forwarded the notice to Mr. Bell at Las Alamos, with my statement that there was no defense to the motion, and suggested that perhaps the most you people wanted was them to sign a written agreement of title of the Bell estate to the land referred to in the notice. I gave this advice months ago to Mr. and Mrs. Bell." It is contended that it was error to admit in evidence |