We concur: BEATTY, C. J.; MCFARLAND, J.; SHARPSTEIN, J.; WORKS, J.

Fox, J., not having heard the argument, and THORNTON, J., deeming himself disqual ified, did not participate in the decision.

(82 Cal. 57)

MCRAVEN et al. o. DAMERON. (No. 12,023.)

(Supreme Court of California. Dec. 13, 1889.)

ATTORNEY AND CLIENT-CONTRACTS.

An attorney who has agreed to sue for certain land at his own expense, in consideration that

he should receive one-half of whatever interest he might recover therein, cannot, in an action for money received by him as a compromise of the suit, allege as a defense that he recovered no interest in the land.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; JOHN F FINN, Judge. James P. Dameron and Aylett R. Cotton, for appellant. William W. Porter, for respondents.

GIBSON, C. Suit against defendant for an accounting of money received by him as an attorney for plaintiffs, and to recover the same. Judginent passed for plaintiffs, from which, and an order denying a new trial, lefendant appeals.

The plaintiffs alleged, in substance, in their complaint, that the defendant, as their attorney, prosecuted two actions, in two of the late district courts in and for the city and county of San Francisco, for the recovery of a one-fifth interest in certain real estate situated in said city and county. The first was against one John Norton and about 203 others, and the second was against one David Worcester and others. That the plaintiffs were the same in both actions, and substantially so in the present suit. That, during the pendency of said actions, the defendant, as the attorney of the plaintiffs in this suit, and without their authority, in consideration of certain suins of money paid to him as such attorney by said defendants, made dismissals of said actions as to a large number of them. That plaintiffs, who reside in Mississippi, upon information and belief, allege that defendant, as their attorney, received about the sum of $8,000 on account of said dismissals. That, although often requested so to do, he has never paid the same to any of them, except the sum of $50, nor rendered any account of the amounts received by him for such dismissals. That the said acts of defendant were fraudulent, and that plaintiffs were not informed of them, or of the receipt of said money by him, until within two years before the commencement of this action.

Defendant answered by denying each and every allegation in the complaint, and adV.23P.no.1-3

mitted that he was the attorney for the plainaverred that the actions were tried as alleged, and in one of said actions judgment was rendered against the plaintiffs regarding the premises sought to be recovered, and that the defendants recovered of them their (defendants') costs and disbursements, amounting to $600 in gold coin; that upon an appeal from said judgment to the supreme court of the state it was affirmed. Defendant also admitted that he dismissed one of the actions as to divers of the defendants therein, deeming it for the best interests of said plaintiffs

so to do, and that he received from such defendants certain sums of money, amounting to about $4,000, which amount, he avers, he placed to the payment of costs of said suits, and that the said suits were expensive, and that he paid out for the cost thereof over $7,300, and that not less than $3,300 remains due on account thereof from defendants to him, no part of which has been paid; and further avers that his professional services rendered in said actions were worth the sum of $5,000, and that he has received no compensation whatever for them; that plaintiffs were well aware of all these facts, as he (the defendant) had rendered them a statement of the same; and that more than two years had elapsed since he received any money, and all claims and demands, if any ever did exist, were barred by the provisions of sections 338 and 339 of the Code of Civil Procedure. Subsequently, by a supplemental answer, defendant averred that since the commencement of this action four of the plaintiffs, viz., W. J., M. B., and R. D. Mc Raven and Emma D. Collins, died intestate, without issue, and left surviving them their brothers, D. J. and G. H. McRaven, as sole heirs of the said decedents; that after the death of all of the said decedents he obtained, for a valuable consideration, from the said D. J. and G. H. McRaven a release of all demands they then had against the defendant, as well as all demands on account of the interest in the estate of said decedents inherited by them; and that the said D. J. and G. H. McRaven, in and by the same writing, consented and agreed to the dismissal of the said action so far as it concerned their interest, including that inherited by them from said decedents; and, further, that as to said decedents said suit should be dismissed.

The cause was referred to S. W. Holladay, who found and reported that the defendant, an attorney of this court, discovered and brought to the knowledge of the plaintiffs, who were residents of Mississippi, their supposed interests in a certain tract of land in San Francisco, descended to them as heirs of one W. B. Dameron, deceased, who, at the time of his demise, was the owner of a certain undivided interest in the land referred to. That defendant believed, and represented to plaintiffs, that their recoverable interests in the land were worth at least $1,000,000. That defendant prosecuted the suits mentioned in

the complaint "under his promise, made to his said clients, in which they acquiesced, that he would, as their attorney, commence, conduct, and manage the necessary suits and litigation to recover their rights in the property, and that he would pay all expenses without recourse to them, and that for his services and expenditures he should have onehalf the land, and divide the property recovered.

Those terms were fair and reasonable." That he commenced and conducted said suits to the best of his ability and judgment, and on or before October 10, 1877, he stipulated with about 70 of the defendants in said suits, claimants of parcels of the property therein in litigation, that they should have judgments against the plaintiffs therefor; upon which judgments were accordingly entered, he receiving therefor $4,008, which he appropriated to his own use, except $50 paid to plaintiffs. That he made the said stipulations and dismissals solely on his own responsibility and volition, not fraudulently, but in the proper exercise of his discretion as attorney and sole representative here of the plaintiffs, his clients, who were all in Mississippi, the state of their residence, but without their knowledge or special consent. That "defendant never informed plaintiffs, and they did not know, either of the stipulations or of the respective amounts so received by him, nor of the total sum received by him on account of | said dismissals or stipulations for judgment against his clients in said suits, or either of them; nor has he disclosed the same at the present trial. Said stipulations are all silent as to the sum paid on them, or any of them." That the only account or statement defendant ever rendered plaintiffs was that he had paid out $7,000 for expenses, and had received $4,008, on account of said suits, which statement was not made until about October 10, 1877. That D. J. McRaven released all of his demands against defendant, as alleged in the latter's supplemental answer, but that G. H. McRaven made no release. That said released interest was one-eighth of the whole interest in this suit, and is without prejudice to whatever right or claim said D. J. may have, by succession as heir or otherwise, to the estate of his deceased co-plaintiffs, who died without issue since the commencement of this suit, viz., W. J., M. B., and R. D. McRaven and Emma D. Collins. That one W. W. Porter, the administrator of the estates of all of said decedents except R. D. McRaven, was regularly substituted as plaintiff herein in place of his intestates; ard that there is no personal representative yet appointed of said R. D. McRaven, deceased. That, of the $4,008 received, one-half ($2,004) should be allowed for defendant's compensation, and $50, paid plaintiffs, deducted, leaving $1,954 due plaintiffs, with interest thereon from November 10, 1877, to November 16, 1885,-$1,107.90; aggregating $3,061.90. From this last sum the one-eighth interest of D. J. McRaven, which he released to defendant November 16, 1885, should be deducted,

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leaving a remainder of $2,679.17, to which is added the interest thereon from November 16, 1885, to August 16, 1886, $140.65; making a total of $2,819.82 due to the plaintiffs other than said D. J. McRaven. From this total the sum of $352.48 should be deducted, it being the share that R. D. McRaven, one of the deceased plaintiffs, unrepresented, would have been entitled to; said deduction being made without prejudice to the rights of his heirs or legal representatives, and in accordance therewith. That at the trial it was expressly stipulated that the statute of limitations had no application in the suit. Upon this report, and in accordance with it, the court entered judgment for the plaintiffs. The defendant preserved, in a bill of exceptions, his exceptions to the ruling of the court denying him a trial by jury, and referring the cause to a referee, but must have properly concluded that his exceptions were not well founded, as they are not urged upon this appeal.

The principal point urged upon this appeal is that the findings are not sustained by the evidence, and that the findings that are within the issues are not sufficient to sustain the judgment. This suit, as we have seen, is to recover money received by the defendant while acting in a fiduciary capacity under a certain contract between himself and plaintiffs; and the findings complained of as not being within the issues relate to this contract. We think that the findings are within the issues tendered by the pleadings. The complaint may not be as specific with regard to the contract as it might be; but as there is sufficient in the complaint from which it may be gathered, in the absence of a special demurrer on the ground of any defect in the statement regarding the contract, it is sufficient according to a number of decisions of this court. The complaint shows that defendant was the attorney for plaintiffs in certain litigation, and that he received as the fruit thereof certain money, which he failed to deliver or account for to the plaintiffs. This, we think, is a sufficient statement of the contract, under the above rule. A statement of the contract under which the defendant received the money claimed by plaintiffs was plainly necessary to enable the court to ascertain the amount of money received for, and how much there might be due, the plaintiffs. It was therefore necessary for the referee to find upon it.

Regarding the sufficiency of the evidence to sustain the findings, we think the evidence, in connection with the admission of the defendant in his answer, viz., that he, while acting as the attorney for plaintiffs, as alleged in their complaint, received certain sums as the result of the litigation, amounting to $4,008, is amply sufficient to sustain the findings; and as the evidence consists wholly of the testimony of the defendant himself, and certain documentary evidence, no good purpose would be subserved by setting it forth.

erty under a bill of sale from Woodman to him, dated August 3, 1885. But that bill of sale purported to sell and transfer only the "right and interest" which Woodman had in any or all of the sheep; and the jury evidently found what that interest was, and its value, and gave plaintiff a verdict therefor. We see no objection to any of the other instructions. They were full; and, considering them all together, we think that they stated the law of the case very clearly and correctly, and certainly not unfairly to plaintiff. `

There are two or three points alluded to in appellant's brief about alleged errors committed in admitting evidence; but the references to the transcript are too general and vague to point out where the rulings complained of may be found. From a general examination of the transcript, we discover no material errors on this score. It was, no doubt, somewhat difficult for the jury in this case to discover the real facts; but the case was fairly put to them, and we see no reason to disturb their verdict. Judgment and order affirmed.

(Supreme Court of California. Dec. 19, 1889.) FRAUDULENT CONVEYANCES- -EVIDENCE-TRUSTS. 1. A deed by an insolvent debtor to a creditor, in consideration of a pre-existing debt and a promise by the grantee to pay a debt of the grantor to another creditor, the two debts being equal to the value of the property conveyed, is not in fraud of the rights of creditors, and especially when the grantee in fact pays the other creditor.

2. The promise by the grantee to pay the debt of another creditor does not create a trust for the benefit of creditors.

3. The grantee was absent from the state at the time the deed was signed and recorded; but it was delivered to him on his return, which was in a short time. The grantor testified that the con

sideration of the deed was $1,500; that he owed the grantee $800; and that the grantee promised to pay a debt of $688, which he owed another creditor. Held, that a finding that the deed was made in good faith, and for a valuable consideration, was supported by the evidence.

Commissioners' decision. Department 2. Appeal from superior court, Napa county; R. CROUCH, Judge.

Action by David Saunderson against William B. Broadwell and another to set aside a deed on the ground of fraud. Plaintiff appeals.

Aylett R. Cotton and W. H. H. Hart, for appellant. Ham & Hull and Spencer & Henning, for respondents.

for a valuable consideration; that it was an actual sale, without reservation, and not in trust; that said deed was not fraudulently made, and was not made or executed or recorded or received, either on the part of said W B. Broadwell, or on the part of said C. E. Broadwell, or any one else, to hinder or delay or defraud any creditor or creditors of said W. B. Broadwell." In addition to the general finding the court found specifically that the value of the property was "about $1.500," and that the consideration was a pre-existing indebtedness of the grantor to the grantee of $800, and a promise by the latter to assume and pay an indebtedness of $688 of the grantor to a third person, which indebtedness was paid by the grantee within a reasonable time.

The indebtedness of the grantor to the grantee was a valuable consideration for the conveyance. Jamison v. King, 50 Cal. 132; Schluter v. Harvey, 65 Cal. 159, 3 Pac. Rep. 659. The promise to pay the debt due from the grantor to the third person was also a valuable consideration, (Gladwin v. Garrison, 13 Cal. 232;) and especially so when this payment was in fact made.

It is argued, however, that, inasmuch as part of the consideration was a promise to pay another creditor of the grantor, the transfer must be held to have been for the purpose of creating a trust for the benefit of creditors, and that it was invalid, as such, because all the creditors were not provided for.

But we do not think that there was an attempt to create a trust for the benefit of creditors. The promise was not to pay the debt which was assumed out of the property transferred. The creditor for whose benefit the promise was made could not have fastened a trust upon the property if his debt had not been paid. The most that he could have done, in such case, would have been to bring a personal action against the grantee upon a promise for his benelit. And any creditor of the grantee could proceed to make their debts out of the property, which would not be the case if it were trust property. In other words, the transfer was absolute, and not in trust. The case of Dana v. Stanford, 10 Cal. 275, goes further than is required here; and the doctrine of that case has been several times approved. Lawrence v. Neff, 41 Cal. 569; Wood v. Franks, 67 Cal. 34, 7 Pac. Rep. 50. Doubtless, if the entire consideration of a transfer consisted of promises to pay the debts of the grantor, and it could be seen that such promises were made without any ability or intention of performance, the transaction would not be allowed to stand. But that is not the case here.

It is contended, however, that the findings above quoted are not supported by the evidence. But we think that the testimony of W. B. Broadwell is sufficient to sustain the findings. He testified, in substance, that he owed the grantee the sum above mentioned, and that he owed W. H. Broadwell the other sum referred to. It would seem that at first

the grantor "had offered the land as security," and that subsequently a sale was effected. The witness testified as follows: "The consideration for that deed from me to my brother was $1,500. That was what we named in the deed,-the consideration of that deed in settlement with my brother. The consideration was in settlement with my brother for debts due him at the time he took the deed. * * * Well, the agreement was that I should transfer the land to him in settlement of the bills I owed him, and he was to assume those that my father held against me. ** * The only agreement was that I was to make him the deed, and he was to cancel the obligation he had against me at the time, and pay those items of indebtedness that my father had against me."

The appellant lays stress upon the fact that the grantee was absent from the state at the time the deed was signed and recorded. But it was handed to him on his arrival in California, which was within a short time, and he then accepted it, and on his return to the east performed his part of the agreement.

It seems plain that the grantor intended to prefer his brother and his father to his other creditors. But the evidence must be held sufficient to sustain the finding that there was a valuable consideration for the transfer, and that it was an absolute, and not a colorable, one. Under such circumstances, a debtor has a right to give such a preference. Civil Code, § 3432. No question as to such inadequacy of consideration as to show fraud arises in this case.

It is contended that the findings are inconsistent with the answer, and with each other; but we do not see any material inconsistency. The other matters do not require special notice. We therefore advise that the judgment and order appealed from be affirmed.

On

ings to the support of his former wife. August 25, 1884, a decree of divorce was entered in favor of Josephine M. Spencer, and against petitioner herein, and the court further ordered the defendant, petitioner herein, to pay to plaintiff as permanent alimony the sum of $50 per month. The decree also awarded to the plaintiff the household furniture, silverware, and other property in the possession of defendant. The decree was afterwards modified so as to allow the plaintiff $25 a month, instead of $50. Petitioner paid the regular monthly allowance down to about the beginning of the year 1887. Since the latter date he has failed to pay anything, and for such failure and neglect was adjudged guilty of contempt of court, and sentenced to be confined in the county jail until he should pay the amount due his former wife under the decree, and order amending the same, as to alimony.

Inasmuch as it is the duty of the court in granting a decree of divorce to make such disposition of the property as is just and lawful, the presumption is here that the plaintiff, Josephine, was awarded all the property, no mention being made in the decree of any other property. Furthermore, it is apparent from the affidavit upon which the court based its order for the petitioner to show cause why he should not be punished for contempt, and from the order itself, that the petitioner was adjudged guilty of contempt solely upon the ground that he had refused or failed to appropriate a portion of his salary to the payment of the sums required by the order for alimony. The question, clean cut, is whether the court has the power to compel a divorced man to devote any portion of his present earnings to the support of the woman as to whom and himself the bonds of matrimony have been dissolved by the court, and both parties released from all the obligations thereof. If it have such power, there may be this anomalous condition of domestic affairs: A man having a wife and children to support, under the obligations of the bonds of matrimony and his duty as a parent, may be compelled to devote his daily wages that which is necessary to maintain them to the support of a woman who owes him no duty, and who may be the wife of another man. If the power is vested in the court, it is absolute, and such a state of affairs may result. If such a power as this exists, it ought to appear clearly in the letter of the law. It certainly is not the spirit of the law. When the Code commissioners framed, and the legislature adopted, the system applicable to marriage and divorce in

Franklin P. Bull, for petitioner. Dorn & Dorn, for respondent.

ing an unusually large number of grounds upon which it might be based, and placed no liinitation upon the right of either spouse after divorce to marry again. It never was intended, I think, to allow a man to marry as many times as he or his wives might have grounds for divorce, and compel him thereafter, subsequent to the dissolution of the