tire case, in our opinion, sufficiently supports the trial court's finding.

The judgment and order appealed from are affirmed.

Kerrigan, J., and Beasly, J., pro tem., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 4, 1918.

[Civ. No. 2109. Second Appellate District.-February 4, 1918.] VINCENT BISSIG, Respondent, v. JOHNSTON ORGAN AND PIANO MANUFACTURING COMPANY (a Cor poration), Appellant.

PROMISSORY NOTE-PLEADING AMENDMENT OF ANSWER.-Where, in an action on a promissory note, the answer sufficiently denied the consideration but insufficiently denied the execution of the note, application for leave to file an amended answer made pending motion for judgment on the pleadings should have been permitted.

APPEAL from a judgment of the Superior Court of Los Angeles County. Fred H. Taft, Judge.

The facts are stated in the opinion of the court.

Frank Bryant, for Appellant.

Carter, Kirby & Henderson, for Respondent.

CONREY, P. J.-The defendant appeals from a judgment which was rendered pursuant to an order granting a motion for judgment on the pleadings. The complaint, which was' verified, alleged that on the seventeenth day of September,' 1913, defendant was indebted to plaintiff in the sum of one thousand dollars, and that as evidence of said indebtedness defendant executed and delivered to plaintiff on that day the described note. The answer contains an evasive and insufficient denial of the exccution of the note, and we will assume

that the note was executed and delivered as alleged. But the answer does specifically and in sufficient terms deny that on September 17, 1913, or at any time, the defendant was indebted to the plaintiff in the sum of one thousand dollars, or at all.

If the complaint had alleged the execution of the note without specifying the fact of pre-existing indebtedness and without stating that the note was given as evidence of such indebtedness, we think that defendant's denial that it was indebted to the plaintiff would have raised no issue, for it would have been merely a denial of a conclusion of law and would not have been equivalent to an assertion that the note was given without consideration. But the allegations of the complaint relied upon such pre-existing indebtedness as constituting the sole consideration for the execution of the note. The defendant was entitled to meet the case as alleged. By denying the existence of the indebtedness and by denying that the note was executed as evidence of such indebtedness, the issue tendered by the plaintiff was accepted. In this condition of the pleadings the plaintiff was not entitled to judgment without proof that the only claimed consideration for the note did in fact exist.

While the motion for judgment on the pleadings was pending, the defendant moved for leave to file an amended answer which, as offered, was undoubtedly sufficient to raise issues upon which a trial would have been necessary. Under the circumstances this amendment should have been permitted. The judgment is reversed.

James, J., and Works, J., pro tem., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 4, 1918, and the following opinion then rendered thereon:

THE COURT.-In denying the application for a hearing in this court after decision by the district court of appeal of the second appellate district, we deem it proper to say that we do so on the ground last stated in the opinion, viz., that the trial court erred in refusing to allow an amended answer to be filed. This being a case within the appellate jurisdic

tion of the district court of appeal, as declared by the constitution, the rules expressed by us in such cases as Rauer's Law etc. Co. v. Berthiaume, 21 Cal. App. 675, [132 Pac. 833], govern.

[Civ. No. 1788. Third Appellate District.-February 4, 1918.] MARY FICKES et al., Appellants, v. W. S. BAKER et al., as Executors, etc., Respondents.

REFORMATION OF DEED-VOLUNTARY CONVEYANCE.-A voluntary conveyance will not be reformed so as to include land not referred to or conveyed therein unless all the parties interested in said land consent thereto.

ID. REFORMATION AFTER DEATH OF GRANTOR-OMITTED LAND-RIGHTS OF HEIR NOT AFFECTED BY.-A voluntary conveyance reformed after the death of the grantor so as to include land omitted therefrom is not binding on an heir, so as to preclude him from asserting and maintaining his heirship by the method pointed out in section 1664 of the Code of Civil Procedure.

LD. CONSENT OF STATE.-A voluntary conveyance cannot be reformed after the death of the grantor so as to include land omitted therefrom, without the consent of the state, even though there be no heirs, since the state has a contingent interest in the estate of one dying intestate.

ID. CONSENT OF EXECUTOR-LACK OF AUTHORITY.-An executor of a will has no authority to consent to the reformation of a voluntary conveyance after the death of the grantor, so as to include land omitted therefrom.

APPEAL from a judgment of the Superior Court of Yolo County. Malcolm C. Glenn, Judge Presiding.

The facts are stated in the opinion of the court.

E. E. Gaddis, and L. Ernest Phillips, for Appellants.

A. G. Bailey, for Respondents.

BURNETT, J.-The action was brought for the reformation of a deed executed by the testator in his lifetime. It was found by the court that at the time of his death the de36 Cal. App.-9

ceased was the owner and in the possession of property described as lot No. 6 in block No. 10, in the town of Winters, county of Yolo, that he made no disposition of it by his will; that on the thirty-first day of July, 1912, said Cradwick executed a certain deed of conveyance to the plaintiffs, granting a certain lot of land contiguous to the parcel here in controversy; that "said deed was by its express terms made, executed, and delivered by the grantor therein John Cradwick, for and in consideration of the love and affection which he had and bore unto the grantees therein named, and also for the better maintenance, support, protection, and livelihood of the grantees therein named, and said consideration was the sole consideration for the execution of said deed"; that said grantees were not blood relatives of deceased "and so far as known, at the date of trial said deceased had no heirs at law; that prior to the time said deed was drafted said John Cradwick directed the scrivener to include in the said deed the said lot No. 6, in block 10, but said scrivener failed and neglected to do so; that at the time said deed to said lot No. 7 and a portion of said lot 8 was executed and delivered nothing was said by any of said parties or by said scrivener in reference to the omission of said lot 6 from said decd."

It is further found "That W. S. Baker and W. P. Womack, executors of the last will and testament of said John Cradwick, deceased, in open court at the trial of the issues involved in this proceeding consented to the granting of a decree directing them to amend and reform the deed hereinbefore described, so as to include lot 6 in block 10, in said town of Winters." The court concluded from the foregoing facts that the plaintiff's were not entitled to a reformation of said deed, and therefore directed judgment in favor of defendants for their costs. The appeal is from such judgment.

It is to be observed that there is no express finding that at the time of the execution of said deed the grantor intended to convey said lot, but the cause has been treated here by both parties as though such intention existed and we shall so consider it.

It is quite apparent that the judgment of the lower court must be affirmed. This follows from the rule recognized by all the authorities that a voluntary conveyance will not be reformed so as to include land not referred to or conveyed therein unless all the partics interested in said land consent

thereto. The rule and the reason underlying it are clearly stated in Enos v. Stewart, 138 Cal. 112, [70 Pac. 1005], from which we quote: "A court of equity interferes to correct a mistake in a written instrument only in furtherance of justice and to prevent fraud or some injustice. In this case, by refusing to correct the deed no fraud nor injustice is done to appellant. She has lost nothing because she paid no consideration for the deed. She has been deprived of nothing the law would otherwise give her. It is true the intention of the grantor is not carried out, but it would have been equally true if an attempt had been made to make a will and it had been defective in a vital part. The court could not reform a will nor make it so that it would comply with the law. In this case the defendant intended to convey the property but she did not do so."

In Smith v. Smith, 80 Ark. 458, [10 Ann. Cas. 522, 97 S. W. 439], it was held that the deed was not sufficient to convey the eighty-two and one-half acres of land defectively described; that it was a voluntary conveyance without a valuable consideration to support it, and that equity would not reform said deed, citing a long number of authorities. This case was affirmed in Johnson v. Austen, 86 Ark. 446, [111 S. W. 455], wherein it was held: "In the absence of evidence of fraud or undue influence a deed of gift from a wife to her husband cannot be reformed without the consent of all parties."

By the supreme court of Michigan, in Tuthill v. Katz, 174 Mich. 217, [140 N. W. 519], it was declared to be "a wellestablished rule that a court of equity will refuse its aid to rectify a mistake in a conveyance that is voluntary and without consideration unless all the parties consent.

In Willey v. Hodge, 104 Wis. 81, [76 Am. St. Rep. 852, 80 N. W. 75], it was declared: "There can be no doubt of the intention of the father to convey this tract of land to the plaintiff. His deed, however, fails to describe it. The rule is quite familiar that a defective deed may be treated in equity as an agreement to convey and performance enforced. But the rule is equally well understood that when it appears that the deed was voluntary, equity will not carry it into effect or reform it." But we forbear further citation, as we are referred to no contrary decisions.