notes, maturing in March, 1907, and March, 1908, respectively (being the second and third payments), were made from the proceeds of sales of some of the wife's separate property (being property owned by her before her marriage), which were on deposit in a bank to her credit. There is nothing to indicate that such payments were not made on the order of the wife herself, or that there was any agreement or understanding between the husband and wife whereby the character of any of the property as community or separate property might be affected by reason of the making of such payments from the separate property of the wife. The third note, being for the final installment of the purchase price, has not been paid.

The trial court found, in accord with the allegations of the complaint, that the property was purchased by plaintiff on or about March 6, 1906, "with the community funds of the plaintiff and his wife Annie Ives," and was community property of the husband and wife at the time of the latter's death, and therefore concluded, in view of the admitted fact as to their being no intent to make any gift to the wife and no gift in fact, that "the plaintiff is the owner in fee of the property and that defendant has no interest therein."

The real question on this appeal is whether upon the facts already stated, the finding that the purchase was made with community funds is sufficiently sustained by the evidence, by reason of the fact that the first and second notes were paid from the separate property of the wife (the money paid by plaintiff at the time of the purchase being community property), for all claims based upon the fact alone that the wife was named as a co-grantee in the deed are disposed of by the admissions shown by the pleadings, in view of the decisions of this court in Fanning v. Green, 156 Cal. 279, [104 Pac. 308], and Fulkerson v. Stiles, 156 Cal. 703, [26 L. R. A. (N. S.) 181, 105 Pac. 966], this being a controversy solely between the husband and the legal representative of the wife and the presumption declared by section 164 of the Civil Code therefore not being conclusive. (Fanning v. Green,

156 Cal. 279, [104 Pac. 308].)

As we have seen, the deed for this property was actually delivered and the legal title vested in the purchasers upon the making of the first payment, and at least as early as April 3,

1906, notes secured by mortgage on the property being taken by the grantor for the balance due. The property was then acquired. All the money paid being community property and there being nothing, in view of the admissions made by the pleadings, warranting a conclusion from the fact that the wife was named in the deed as a grantee with her husband that she took any interest therein as her separate property, the mere fact that these notes and the mortgage were executed by the wife as well as the husband does not affect the question of community or separate property. (See Flournoy v. Flournoy, 86 Cal. 286, 293, [21 Am. St. Rep. 39, 24 Pac. 1012]; Martin v. Martin, 52 Cal. 235.) The purchase having actually been consummated, the property acquired, and the legal title having vested, the property was then community property of the spouses. It cannot be disputed, we think, there where property is purchased and partly paid for with community funds and a note and mortgage on the same are given to secure the unpaid balance, the property is community property. We do not see how the status of this property as community property can be held necessarily to have been changed by the mere fact that the first two notes secured by the mortgage were paid from the separate property of the wife. Mr. Ballinger in his work on community property, in section 19, says: "The root or property source together with the time when acquired are alone looked to as the criterion to determine what property is or is not common. Property once impressed with the community character retains that impress during the existence of the community, unless alienated or exchanged," etc. (See, also, Noe v. Card, 14 Cal. 577, 606; Morgan v. Lones, 80 Cal. 317, 319, [22 Pac. 253]; Carlson v. Carlson, 10 Cal. App. 300, [101 Pac. 923].) It is, of course, settled in this state that a husband and wife may agree to transmute separate property of either into community property, or community property into separate property (see Title Insurance & Trust Co. v. Ingersoll, 153 Cal. 1, [94 Pac. 94]), but certainly no such agreement is necessarily to be inferred from the mere fact of such payments as are shown in this case. (See Carlson v. Carlson, 10 Cal. App. 300, [101 Pac. 923].) Rather is it to be presumed, nothing else appearing, that the money of the wife was advanced by her for the benefit of the community, to assist in discharging a lien on community property,

• ..

than that it was intended to give her a separate propertyinterest in the land.

In view of what has been said, it cannot be held that the findings complained of are without sufficient support in the evidence.

There is no other point material on this appeal discussed in appellant's brief.

The order denying a new trial is affirmed.

Shaw, J., and Sloss, J., concurred.

[L. A. No. 2758. Department Two.-February 3, 1912.] ST. PAUL TITLE AND TRUST COMPANY, formerly known as St. Paul Real Estate Title Insurance Company, Appellant, v. LOUIS T. STENSGAARD, alias Alton B. Hill, Respondent.

STATUTE OF LIMITATIONS-JUDGMENT OF SISTER STATE-AMENDMENT OF ANSWER. In an action on a judgment of a sister state, the court has discretion to permit the defendant to amend his plea of the statute of limitations by designating the particular subdivision of the section of the Code of Civil Procedure originally pleaded as the one upon which he relied.

ID. PLEADING STATUTE OF LIMITATIONS AGAINST JUDGMENT OF SISTER STATE. In such action, a plea of the statute of limitations, by reference to section 336 of the Code of Civil Procedure, without specifically referring to subdivision 1 thereof, is sufficient, in the absence of special demurrer to the answer, as that subdivision is the only part of that section applicable to such an action.

ID. PLEA OF STATUTE IS TO MERITS-DISCRETION.-A plea of the statuto of limitations is to the merits, and the trial court has the same discretion to permit it to be pleaded as it has to allow the pleading of any other meritorious defense.

ID. COMING TO AND LIVING IN STATE UNDER ASSUMED NAME-FRAUD ON CREDITORS.-Where such foreign judgment debtor, after the recovery of the judgment against him, came to this state and there changed his name, but did so without any intent to defraud his creditors, neither the judgment creditor's ignorance of nor his inability to discover the presence of the judgment debtor will prevent the running of the statute in the latter's favor.

ID. PLEA OF STATUTE NOT PREVENTED.-Living in this state under an assumed name will not prevent a defendant sued on a judgment recovered in another state from pleading the statute of limitations.

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Monroe, Judge.

The facts are stated in the opinion of the court.

Constan Jensen, for Appellant.

Gibson, Dunn & Crutcher, and Edward E. Bacon, for Respondent.

MELVIN, J.-Appellant sued upon a judgment for something more than five thousand dollars recovered in the state of Minnesota on May 6, 1891, against the defendant and respondent herein, under the name of Louis T. Stensgaard. The complaint in this action was filed December 1, 1909. It was alleged in the complaint that the defendant surreptitiously left the state of Minnesota within one year after the recovery of the judgment pleaded; that he concealed his whereabouts from his family and acquaintances at all times after his departure from that state; and that he changed his name to Alton B. Hill and concealed his identity and kept his place of residence a secret for the purpose of defrauding his creditors. While admitting the recovery of judgment against him as alleged in the complaint, he denied by his answer that he left Minnesota surreptitiously or that he had fraudulently concealed his identity. He pleaded the statute of limitations.

The court found that defendant lived in Minnesota with his family after the entry of the judgment against him until the year 1897; that in that year he openly departed from Minne sota; that he did not change his name until 1899; that he had not fraudulently concealed his identity for the purpose of defrauding any creditor; and that he had continuously resided in the county of Los Angeles since the year 1900, under the name of Alton B. Hill. The court found that long prior to the year 1909 the judgment had ceased to be of any effect in the state of Minnesota, and that the plaintiff's cause of action was barred by the provisions of section 336, sub

division 1, and section 361 of the Code of Civil Procedure. From the judgment against it plaintiff appeals.

In his original answer respondent pleaded the bar of section 336 of the Code of Civil Procedure, but did not specify the subdivision on which he relied. Before final submission of the cause the court permitted him to amend his pleading by designating the first subdivision of that section as the one upon which he placed special reliance. Appellant asks us to hold that the granting of permission to amend was an abuse of discretion by the trial court. We do not think so. Indeed, the original pleading of the section of the code, without special reference to the particular part of it upon which defendant depended, was sufficient, because the first subdivision is the only one that could possibly apply to the facts of this case. Hence there was no uncertainty, or, in any event, any such uncertainty as plaintiff could urge, in the absence of special demurrer to the answer. Subdivision 1 of section 336 of the Code of Civil Procedure applies to an action upon "a judgment or decree of any court of the United States or of any state within the United States." The only other subdivision relates to "an action for mesne profits of real property." It will therefore be seen that the original pleading of the statute was sufficient. (Churchill v. Woodworth, 148 Cal. 675, [113 Am. St. Rep. 324, 84 Pac. 155].) But the court in the exercise of its discretion permitted an amendment which removed all possible criticism of the plea of the statute. Such a plea is to the merits, and the court is clothed with discretion to permit the defense of the statute of limitations, just as it is given authority to allow the pleading of any other meritorious defense. (Lilly-Brackett Co. v. Sonnemann, 157 Cal. 196, [106 Pac. 715]; Trower v. City and County of San Francisco, 157 Cal. 769, [109 Pac. 617].)

We can see no escape from the court's conclusion that the cause of action was barred because not brought within the time limited by subdivision 1 of section 336 of the Code of Civil Procedure. Appellant cites Stewart v. Stewart, 152 Cal. 163, [92 Pac. 87], and Palmer v. Shaw, 16 Cal. 95, in support of the proposition that a clandestine entry into this state with intent to defraud creditors does not operate to begin the period of limitation in favor of the debtor thus secretly coming to California. But in this case the court