The respondents' judgment was reversed in this court and sent back for a new trial, and upon a second trial thereof, judgment in their favor was again rendered by the court below. Upon their second judgment they caused execution to issue, and placed the same in the hands of the sheriff, who was about to enforce the same by a sale of the property in controversy, and this action was brought to enjoin further proceedings under said judgment. The court below has found the facts facts as stated above, and found, affirmatively, that there was no actual fraud on the part of Turrill, Hall, Sherwood, and the appellant, or either of them, in the transaction with reference to the purchase of the property and the foreclosure and sale thereof, and judgment was rendered in favor of the plaintiff, that he was the owner of the property in controversy, and enjoining further proceedings under the judgment of the respondents. A motion for a new trial was made by the respondents and granted, and this appeal is from the order granting a new trial.

There is no controversy between the parties as to the material facts. The sole question presented is, whether the transaction between the appellant Turrill, Hall, and Sherwood was a fraud upon the respondents or not. Conceding, for the purposes of respondents' case, that it was the actual intention of these parties to cut off the subsequent lien of respondents by a foreclosure of the mortgage, we confess our inability to see how any injury could have resulted to them by reason of the agree

It is conceded that and prior to the atThe mortgage must

ment and the foreclosure and sale. the mortgage lien was a valid one, tachment lien of the respondents. therefore have been satisfied before the property could have been made available in satisfaction of their debt. The court found that the property was not worth more than the sum of thirty-seven thousand five hundred dollars, the amount actually paid by the appellant. By the agreement the holders of subsequent liens covering this

and other property of Turrill were actually benefited to the extent of seven thousand five hundred dollars by the stipulation that upon foreclosure a credit should be given on the mortgage of forty-five thousand dollars, when the value of this piece of land and the amourt actually paid for it was thirty-seven thousand five hundred dollars. Nor did this agreement in any way prever competition at the sale, as it was expressly provided that in case any one else should bid more than forty-five thousand dollars for the property, said last-named sum should be paid to the appellant, and he should reconvey the property to Turrill. Thus it was to the interest of Hall and Sherwood, as well as to all of the lien-holders, to make this piece of property bring as much as possible, that other pieces of property owned by Turrill and covered by the liens might be relieved of the burdens resting upon them to that extent. We are unable to see any wrong in this transaction on the part of the appellant. He could not have been expected to pay the full value of the property, and take it subject to the whole of Sherwood's mortgage, as well as subsequent liens, which were far in excess of its value. He had a perfect right to secure himself against such a result by the agreement that the money advanced by him should be applied upon a foreclosure of the mortgage, which would give him a title free from encumbrance; and so long as he paid full value for the property, he was guilty of no wrong, and his acts could injure no one.

The only part of the transaction which apparently needs explanation is the provision that while only thirtyseven thousand five hundred dollars was paid, a credit of forty-five thousand dollars was to be given upon a foreclosure and sale, but this is easily explainable. It is evident that Sherwood and Hall were anxious to realize thirty-seven thousand five hundred dollars on the property. It appears in evidence that they had been offering it for thirty-five thousand dollars. The appellant

could not well afford to pay his money, and run the risk of some one else becoming the purchaser at the foreclosure sale without some consideration. Therefore, it was agreed that in consideration of his advancement of the money he was to receive, in case some one else became the purchaser, the amount paid by him and seven thousand five hundred dollars in addition, and in order to prevent some one else becoming the purchaser for a less sum. Sherwood and Hall agreed to bid the sum of fortyfive thousand dollars on the property. In either event the agreement was a positive benefit instead of an injury to subsequent lien-holders.

We have carefully examined the opinion of the learned judge of the court below, upon the ruling granting the new trial. He concludes that the findings of facts were not sustained by the evidence in some particulars which seem to us to be wholly immaterial. Conceding that such findings were not sustained by the evidence, the conclusion of law should have been the same.

It is contended that the deed from Turrill to appellant recited that the appellant took the property subject to the encumbrances, and therefore he could not avail himself of the contract of Sherwood and Hall to relieve himself of any of the liens. But conceding the fact, the conclusion does not follow. It clearly appears that the sale of the property was made in order to realize as much as possible on this one tract of the encumbered property. The appellant agreed to pay, and did pay, on the express agreement that the property was to be sold on foreclosure, and that he was to have the benefit of the title to be obtained by such foreclosure and sale. In other words, the effect of the agreement was, that he should advance the money, but it was to be a payment on the foreclosure sale of the property. Again, it is urged that Turrill was not a party to the agreement for the foreclosure of the mortgage, and application of the money as therein provided. But Terrill is not complaining,

and the fact that he was not a party to the contract cannot affect the rights of the appellant. Beside, it clearly appears from the evidence that Turrill practically surrendered the property to the mortgagee for the purpose of having it disposed of for the satisfaction of the debt, or as much of it as could be realized from the sale of the property. The sale was negotiated by Hall. Turrill conveyed to the appellant for the sole purpose of carrying out the plan by which the sum of thirty-seven thousand five hundred dollars was to be realized and applied to the indebtedness upon the terms agreed upon. As the property sold for its full value, this was all subsequent lien-holders had a right to ask.

Taking this view of the transaction, we are clear that the court below was right in its first conclusion, and that it was error to grant a new trial.

We do not overlook the rule that on an appeal from an order granting a new trial every intendment is in favor of the order of the court, but where the question presented is purely one of law, and this court is satisfied that an error has been committed, the rule is not applicable.

The order appealed from is reversed.

PATERSON, J., and BEATTY, C. J., concurred.

[No. 11567. Department One.-July 1, 1889.] MICHAEL FEENEY, RESPONDENT, v. JAMES HOWARD, APPELLANT.

STATUTE OF FRAUDS-DEED-PAROL AGREEMENT.-A deed cannot be avoided by evidence of a parol agreement to hold in trust unless the case falls within some recognized exception to operation of the statute of frauds.

ID. ACTUAL FRAUD-PLEADING.-A fraudulent intent is one of the facts constituting actual fraud, and must be alleged. The mere

failure to perform an agreement made in good faith is not of itself fraud. CONSTRUCTIVE FRAUD-FIDUCIARY RELATION-PLEADING.-In order to make a case of constructive fraud, arising out of the violation of a fiduciary relation, the plaintiff must allege the existence of such relation. RESULTING TRUST-RECITAL OF CONSIDERATION.-If the old rule that a trust results to the grantor where no consideration is expressed in a deed or proved aliunde still prevails in this state, it does not apply where the deed recites a consideration. Such a recital cannot be contradicted for the purpose of defeating the operation of the deed or raising a resulting trust.

PART PERFORMANCE.-Acts which the deed gives the grantee a right to do, and which are done under the deed, do not make a case of part performance of an oral agreement for a trust.

STATUTE OF FRAUDS-PLEADING BY Defendant.-If the plaintiff relies upon a contract within the statute of frauds, a denial of the contract is sufficient to raise the question of its validity under the statute.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.

The facts are stated in the opinion.

R. Percy Wright, for Appellant.

Parol evidence was inadmissible to establish the express trust alleged in the complaint. (Sturtevant v. Sturtevant, 20 N. Y. 39; 75 Am. Dec. 371; Wolf v. Corby, 30 Md. 356; Patton v. Beecher, 62 Ala. 579; Dean v. Dean, 6 Conn. 284; Walker v. Locke, 5 Cush. 90; Leman v. Whitley, 4 Russ. 425; Code Civ. Proc., sec. 1971.) Parol evidence was inadmissible to contradict the recitals in the deeds, for the purpose of establishing a trust, or for