funds of said estate. From the orders thereupon made overruling the appellant's opposition to the distribution of said estate and dismissing his said petition this appeal has been taken.

This somewhat extended statement has been deemed essential to a proper understanding of our brief discussion of the questions that we consider determinative of this appeal.

[1] Manifestly, if the judgment in the action of Steinberger v. Young et al. was in no respect in excess of the jurisdiction of the superior court rendering it, appellant's claim of right to participate in the property of the estate is foreclosed thereby. He was made a party to that action for the purpose of having his rights in regard thereto determined, issues were made thereon, and a judgment was given which in substance and effect debars him from such participation. While the judgment in this respect is perhaps not as happily expressed as it might have been, being simply a permanent injunction restraining further proceedings on the part of the administrator looking to the sale of property for the satisfaction of appellant's claim, or the payment of the claim or any part thereof out of funds or property belonging to the estate, such is its necessary effect. By the judgment his alleged right was, in effect, directly adjudged within the meaning of subdivision 2 of section 1908 of the Code of Civil Procedure, the diversion of any part of the property of the estate to the payment of his alleged claim being thereby forbidden. The effect of this judgment if accepted as a valid judgment in toto is not disputed by appellant, whose real claim is that the portion of the judgment relative to the claim of appellant was absolutely void because in excess of the jurisdiction of the court giving it, the theory, in short, being that it constituted an attempt on the part of the court to enjoin the execution of valid decrees of the superior court sitting in probate and practically nullify the same, notwithstanding that they had become final. The answer to this claim is very simple. It was not sought in Steinberger v. Young, supra, to vacate or annul the orders of the probate department of the superior court on which appellant relies for the award to him of eight thousand dollars from the funds and property of the estate of Elizabeth Ross, and no such relief could properly have been awarded the plaintiff in that action. (See Larue v. Friedman, 49 Cal. 278, 284; Sohler v. Sohler, 135 Cal. 323, [87 Am. St.

CLXXX Cal.-42

Rep. 98, 67 Pac. 282].) In so far as the action related to appellant, it was an action in equity against him on the part of the plaintiff alleging herself to be entitled to all the property of the deceased, for the purpose of foreclosing his claim to any part thereof based on orders of the probate court illegally and fraudulently obtained. If it had been that by force of such orders he had already been paid the eight thousand dollars from the funds of the estate, the relief sought would have been a decree adjudging that he held the same in trust for plaintiff because the orders under which he had obtained the same had been illegally and fraudulently obtained to the detriment of the plaintiff who was the real beneficial owner of the property. As was said in Title Ins. Co. v. California Development Co., 171 Cal. 208, [152 Pac. 557]: [2] "It is elementary that the courts of this state may in an equitable proceeding inquire whether a judgment valid on its face was obtained by fraud. Sometimes such judgment may be set aside, but even in cases where this relief cannot be had a court of equity may prevent an inequitable advantage being taken of it [the judgment] by adjudging the guilty beneficiary or his successor with notice a trustee for the defrauded party." This principle has frequently been applied with relation to probate decrees. (See Campbell-Kawananakoa v. Campbell, 152 Cal. 201, [92 Pac. 184]; Bacon v. Bacon, 150 Cal. 477, [89 Pac. 317]; Estate of Walker, 160 Cal. 547, [36 L. R. A. (N. S.) 89, 117 Pac. 510]; Sohler v. Sohler, 135 Cal. 323, [87 Am. St. Rep. 98, 67 Pac. 282].) Here the property sought to be improperly diverted had not yet come into the possession of the appellant, and consequently all the equitable relief essential in regard thereto was the decree forbidding the actual appropriation of any of the funds or property of the estate, to all of which the plaintiff was adjudged to be entitled, to the payment of any part of his, Scanlan's, claim. Such a decree rests upon the same basis as those involved in the cases just cited, and is within the well-recognized jurisdiction of a court of equity. (See Larue v. Friedman, 49 Cal. 278.) We are of the opinion that there is no force in the claim that any portion of the judgment in Steinberger v. Young was in excess of the jurisdiction of the court rendering it.

It is urged that neither the complaint nor findings in Steinberger v. Young, supra, in allegations and statement off

facts, showed anything in the way of extrinsic fraud or other matter justifying the portion of the judgment complained of. The theory appears to be that this is a matter going to the jurisdiction of the court to give such judgment. Manifestly, there is no force in this claim. Assuming appellant to be correct in his view as to pleadings and findings, the objections amount to nothing more than that the complaint in this respect failed to state a cause of action; and that the findings fail to support the judgment. [3] It is thoroughly settled in this state that the failure of a complaint to state a cause of action is not a defect going to the jurisdiction of the superior court, and that a judgment given upon such a complaint cannot be held void upon collateral attack. In this connection it is only necessary to refer to our recent decision in Gillespie v. Fender, ante, p. 202, [180 Pac. 332]. [4] Of course the same thing is true as to an objection that the findings do not support the judgment given. We are not here concerned with any question as to the correctness of the judgment given by the superior court in Steinberger v. Young, supra, except in so far as the court may have exceeded its jurisdiction, and there is no basis for holding that the judgment was in any respect in excess of the jurisdiction of the superior court. [5] Appellant's remedy for any errors committed by the trial court in the exercise of its jurisdiction was, of course, by way of appeal.

It follows from what we have said that the lower court was not in error in its conclusion that appellant was barred and estopped from asserting his claim by the judgment in Steinberger v. Young, supra.

The orders appealed from are affirmed.

Lennon, J., Shaw, J., Olney, J., Wilbur, J., Melvin, J., and Lawlor, J., concurred.

[L. A. No. 4912. Department One.-July 1, 1919.]

LOUISE N. FIGHIERA et al., Appellants, v. WILLIAM F. RADIS, Respondent.

[1] DECLARATION OF TRUST SALE OF PROPERTY- ACTION TO REDEEM-PLEADING-OWNERSHIP OF PROPERTY-ISSUE MADE BY ANSWER.-In an action against the defendant for an accounting of his proceedings under a declaration of trust and for a reconveyance of the property to the plaintiffs on payment of the amount found to be due, the question of ownership of the property was clearly put in issue by an answer alleging that the defendant was the owner of the property.

[2] ID. GENERAL FINDING OF OWNERSHIP-ABSENCE OF RECORD-SUFFICIENCY OF ANSWER-PRESUMPTION.-In an appeal on the judg ment-roll alone, the appellate court will presume from the general finding of defendant's ownership that the parties treated the answer as sufficient to raise an issue in regard thereto.

[3] ID.-NATURE OF INSTRUMENT-WHEN IMMATERIAL.-Where the instrument contains a power of sale to raise money to pay a debt, and the power has been duly exercised, it is immaterial whether such instrument is, in form, a deed of trust or a mortgage, since the sale would be valid in either alternative.

[4] ID.-POWER OF SALE-AUTHORIZATION BY MORTGAGE.-A power of sale may be conferred by a mortgage upon the mortgagee or any other person, to be exercised after a breach of the obligation for which the mortgage is security.

[5] ID.-SALE UNDER POWER IN MORTGAGE CONVEYANCE OF TITLE.—A sale under a power contained in a mortgage, if properly conducted in accordance with the power, is as effectual to convey title as would be a sale thereof under a decree of foreclosure in a regular action to foreclose the instrument as a mortgage.

APPEAL from a judgment of the Superior Court of San Bernardino County. H. T. Dewhirst, Judge. Affirmed.

The facts are stated in the opinion of the court.

Arthur C. Vaughan for Appellants.

Frank F. Oster for Respondent.

SHAW, J.-The plaintiff appeals from the judgment. The record on appeal consists of the judgment-roll alone.

On October 26, 1914, plaintiff owned a certain promissory note executed by one Woodford, to Ray Zug, for thirty thousand dollars, due January 29, 1917, and secured by a trust deed executed to the Title Guarantee & Trust Company for certain parcels of land. The land was subject to a prior mortgage for twenty-nine thousand dollars. On October 26, 1914, plaintiffs borrowed money from the defendant, in consideration of which they executed to defendant their promissory note for seven thousand dollars, payable four months after date. At that time default had been made in the interest on the thirty thousand dollar note, and plaintiff had caused the trustee to advertise the land for sale. It was agreed between the plaintiffs and defendant that the land should be sold by the trustee under the power contained in the trust deed, that defendant should purchase the lands at such sale and receive a deed therefor from the trustee as security for the note and certain other debts, and should thereupon execute a contract stating the terms on which he was to hold the same as security for the seven thousand dollar note and other debts of plaintiff. This is the transaction which gave rise to the controversy involved in this suit. The land was sold under the trust deed, the defendant became the purchaser by a deed dated November 28, 1914, and thereafter on December 1, 1914, executed the contract in question. This instrument recited the conveyance of the property to defendant and declared that he held it in trust on the terms therein stated, among which were that he should make such advances as he deemed necessary for the protection and care of the property, that such advances should be a lien on the same, that if the above-mentioned note of plaintiffs to defendant and a certain other note made by the plaintiffs to a third party were not paid, the defendant was thereupon authorized to sell the property after publishing a notice of sale for a specified time, and that out of the proceeds he should pay all his costs and advances and the two notes above mentioned and render the surplus to the plaintiff. The present action is a suit against the defendant for an accounting of his proceedings under the declaration of trust and for a reconveyance of the property to the plaintiffs on payment of the amount found to be due. In substance and effect it is an action to redeem the property from the liens secured by the declaration of trust.