sustained, and that the judgment appealed from should be reversed, and so advise.

VANCLIEF, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion, the judgment appealed from is reversed.

EXECUTION-PROCEEDINGS SUPPLEMENTARY TO. — - The jurisdiction of the judge continues until all orders concerning the property of an execution debtor have been obeyed, where proceedings in aid of execution have been regularly instituted: In re Morris, 39 Kan. 28; 7 Am. St. Rep. 512, and note. Payment by the debtors of a judgment debtor, in obedience to an order made in a proceeding supplementary to execution, is a valid payment, although no notice of the proceedings is given to the judgment debtor: Gibson v. Hag. gerty, 37 N. Y. 555; 97 Am. Dec. 752, and note citing cases.

FLEMING V. FLEMING.

[95 CALIFORNIA, 430.]

DIVORCE-EXTREME CRUELTY AS GROUND FOR- HOW DETERMINED. What acts of a spouse constitute extreme cruelty within the meaning of a statute making this a ground for a divorce cannot be defined with precision, but each case is to be determined according to its own peculiar circumstances, by the court or jury keeping always in view the intelligence, apparent refinement, and delicacy of sentiment of the complaining party.

DIVORCE-GRIEVOUS MENTAL SUFFERING, WHAT IS, IS A QUESTION OF FACT.

Whether or not, in any given case, one of the spouses has inflicted upon the other grievous mental suffering, is a pure question of fact, to be deduced from all the circumstances of such case. DIVORCE FINDING RESPECTING GRIEVOUS MENTAL SUFFERING CONCLUSIVE WHEN. When a complaint by a wife, in an action for divorce on the ground of extreme cruelty, charges that the defendant attempted to have sexual intercourse with their domestic, and that his conduct re. ceived great publicity on account of a complaint having been made by the domestic before a magistrate charging the defendant with assault with intent to commit a rape upon her, and that afterwards he threatened to turn the plaintiff out upon the world penniless unless she would help him to keep the domestic from prosecuting him on the complaint, and that such conduct on the part of defendant, and the publicity given to it, caused the plaintiff grievous mental suffering, thereby greatly impairing her health, it cannot be said, as a matter of law, that such con. duct did not inflict grievous mental suffering upon her, and a finding by the court that it did is, in the absence of evidence in the record, conclusive upon appeal. DIVORCE-PRESUMPTION THAT IMPROPER ACTS OF HUSBAND WILL PRODUCE NATURAL EFFECT UPON WIFE. Where the voluntary conduct of a husband is inconsistent with marital integrity, it is conclusively presumed

that he intended the natural and ordinary effect thereof upon his wife, and the law will not condone his offense on the ground that his acts were not willfully done to annoy or vex her, and that he did not sup pose any publicity would be given to them, or that she would be told about them.

C. W. Pendleton and Thomas J. Carran, for the appellant.

John G. Rossiter, for the respondent.

PATERSON, J. This is an action for divorce on the ground of extreme cruelty. The material allegations of the complaint are as follows:

"Plaintiff further alleges that on the evening of the eleventh day of March, 1891, the plaintiff and defendant left their home in South Pasadena, in this county, for the purpose of attending a lecture in the city of Los Angeles; that they left their infant child at their said home in the care of their domestic, one Annie Peterson; that after said lecture the plaintiff and her sister went to the house of a friend in the said city of Los Angeles for the purpose of spending the night there; that the defendant returned to their said home and found the said Annie Peterson in bed and asleep; that defendant then and there entered the bed of said Annie Peterson, and attempted to have sexual intercourse with her; that he tried to persuade her that it would not be wrong for him and her to have sexual intercourse together; that he remained in bed with the said Annie Peterson for upwards of two hours before retiring to his own room; that this conduct on the part of defendant has received great publicity by reason of a complaint having been made by the said Annie Peterson before a magistrate in the city and county of Los Angeles, charging the defendant with having at said time and place assaulted her with intent to commit a rape upon her; that afterwards the said defendant came to plaintiff and threatened to turn her out upon the world penniless unless she would help him to keep the said Annie Peterson from prosecuting him on the said complaint; that this conduct on the part of the defendant, and the publicity which has been given to it, has caused plaintiff grievous mental suffering, thereby greatly impairing her health."

The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action; the demurrer was overruled; defendant offered no further defense to the action; the court, upon the proofs taken, found

the facts alleged in the complaint to be true, and judgment was entered in favor of the plaintiff, dissolving the bonds of matrimony. From this judgment the defendant has appealed, and now insists that the demurrer ought to have been sustained, because the facts alleged are insufficient to support a finding of extreme cruelty.

Our statute provides that "extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage."

Courts and elementary writers have found it impossible to define with precision what acts will constitute extreme cruelty, and it would be idle for us to review the decisions cited, because they are as variant as the language of the several statutes upon which they were founded. The habits and dispositions of different married persons vary so much that it is impossible to lay down any universal rule for the determination of what indignities should be regarded as grounds of divorce under the statute. The legislature has necessarily employed general words, and left each case to be determined according to its own peculiar circumstances, by the good sense and judg ment of courts and juries. "Whether, in any given case, there has been inflicted this 'grievous mental suffering' is a pure question of fact, to be deduced from all the circumstances of each particular case, keeping always in view the intelligence, apparent refinement, and delicacy of sentiment of the complaining party": Barnes v. Barnes, 95 Cal. 171.

We cannot, as matter of law, say that the conduct charged in the complaint did not inflict upon the plaintiff grievous mental suffering. The court below has found as a fact that it did, and it is the province of that court, and not our own, to determine the facts. The evidence is not in the record, and the finding is conclusive. We presume the court considered the character of the parties, and was guided by the statute and its sense of right and justice, and not by any chivalric sentiment, in awarding a decree to the plaintiff.

The attorneys for appellant attempt to excuse his conduct on the ground that the acts imputed to him were not willfully or deliberately done to annoy or vex the plaintiff, that he did not suppose any publicity would be given to them, or that his wife would be told about them; but the law will not condone a violation of the marriage obligation on any such ground. His conduct being voluntary, and inconsistent with marital integrity, it is conclusively presumed that he intended the natural

and ordinary effect thereof upon his wife. He, better than any one else, is supposed to know the effect a disclosure of his acts would have upon her; he took the chances of being found out, and must suffer the consequences. His threat to turn his wife out upon the world penniless, unless she assisted in saving him from a prosecution for his offense, did not indicate any contrition on his part, or that his consideration for the feelings of plaintiff would be any greater in the future than it had been in the past.

Judgment affirmed.

IN THE CASE OF Barnes v. Barnes, 95 Cal. 171, it was decided that a finding that the defendant, in an action for divorce upon the ground of extreme cruelty, inflicted grievous mental suffering upon the plaintiff, by imputing to him, in the presence of others, the grossest immorality and personal impurity, is a sufficient finding of extreme cruelty to sustain a judgment for the plaintiff, and that it is not necessary to allege or find that the charges complained of had an injurious effect upon the health of the plaintiff. The court in that case held that any unjustifiable conduct upon the part of either of the spouses which so grievously wounds the feelings of the other, or so utterly destroys the peace of mind of the other, as to seriously impair the health, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes extreme cruelty.

MARRIAGE AND DIVORCE. EXTREME CRUELTY, WHAT CONSTITUTES: See notes to McVickar v. McVickar, 19 Am. St. Rep. 433; Nye's Appeal, 12 Am. St. Rep. 877; extended note to Morris v. Morris, 73 Am. Dec. 619; extended note to Poor v. Poor, 29 Am. Dec. 674. Vulgar and profane language is not sufficient ground for granting a wife a divorce, unless there are reasonable grounds to believe her life is endangered: Davis v. Davis, 8; Ky. 32. The contrary is held in Melvin v. Melvin, 130 Pa. St. 6. When a husband fre quently called his wife opprobrious names, and charged her with infidelity, naming various men with whom he charged her with having improper intercourse, a finding of cruel and inhuman treatment is justified: Waltermire v. Waltermire, 110 N. Y. 183. There is no statutory authority which authorizes a divorce at the suit of a husband for "such indignities to his person as to render his condition intolerable and life burdensome ": Power's Appeal, 120 Pa. St. 320.

MARRIAGE AND DIVORCE. MENTAL ANGUISH AS CRUELTY: See extended note to Poor v. Poor, 29 Am. Dec. 677. In the absence of bodily vio lence by a husband, in order to entitle a wife to a divorce, she must show such cruel treatment as produced a degree of mental anguish which threatens to impair her health: Eastman v. Eastman, 75 Tex. 473; Waldron v. Waldron, 85 Cal. 251. Abuse which causes mental suffering, and produces ill health, thereby rendering cohabitation physically unsafe, is legal cruelty, and a ground for divorce: Jones v. Jones, 62 N. H. 463.

MORE V. CALKINS.

[95 CALIFORNIA, 435.]

TRUST DEED-INSTRUMENT CONVEYING LEGAL TITLE UPON TRUSTS DECLARED IS. - An instrument which conveys to the grantee the legal title to property therein described upon certain trusts, which it declares, and which confers upon him the power, in execution thereof, to sell the property thus conveyed, and transmit the legal title to his grantee, is a trust deed. CONVEYANCE-WHEN MORTgage and when a Deed of TRUST. -In determining whether a conveyance is to be treated as a mortgage or as a deed of trust, the fact that it was made directly to a creditor of the grantor, and not to a third party, is immaterial, since that question must depend upon the essential character of the instrument, as shown by its terms, and not upon whether the grantee is a creditor whose debt is to be paid out of the proceeds to arise from the execution of the trust which is declared. TRUST DEED DEATH OF GRANTOR NOT REVOCATION OF POWER OF SALE IN. - The death of the grantor does not operate as a revocation of a power of sale contained in a deed of trust, nor limit the effect of the deed, and therefore the failure to present to the administrator of the deceased the claims secured by it furnishes no ground for a court of equity to cancel the deed.

LAW OF CASE, DECISION CONSTRUING DEED IS, WHEN.

-

- Where, upon a

former appeal in a case, the supreme court, in construing a deed of trust, decided that a promise to pay to the trustee therein ten thousand dollars, besides his debt and the reasonable expenses of his administration, was without consideration, such construction becomes the law of the case, and the question of its correctness is not open to consideration upon a second appeal.

TRUST DEED. COMPENSATION FOR SERVICES OF TRUSTEE. A trustee under a trust deed is entitled, upon the close of his trust, to a reasonable compensation for his services in performing his duties as trustee under the deed, to be fixed by the court, unless the parties can agree in relation thereto, and also to be reimbursed for all expenses incurred by him.

Barclay, Wilson, and Carpenter, L. C. McKeeby, and W. H. Wilde, for the appellant.

Wright and Day, for the respondents.

DE HAVEN, J. The plaintiff is the administrator of the estate of Alexander S. More, deceased, and the prayer of the complaint filed in the action is, that a certain trust deed, executed by the deceased in his lifetime, be declared void, and that defendant Calkins be enjoined from selling the land, water-ditch, and water rights conveyed by said deed under the power which is given therein. The case was here before. The opinion upon the former appeal is reported in 85 Cal. 177, and the deed referred to is there set out in full.