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these: In the month of November, 1904, the defendant, William Crane Spencer, borrowed the sum of three thousand dollars from Elizabeth Cullen, giving his promissory note therefor. In the month of December of the same year he received the additional sum of seven thousand dollars, which he was to invest for her. Mrs. Cullen died in the year 1906, and the defendant, Thos. E. Curran, was appointed her administrator with the will annexed, and in that capacity brought an action against William Crane Spencer to recover both the money he had borrowed and the sum which had been intrusted to him. In that action judgment was rendered in favor of the administrator for the sum of $10,946.46, with interest and costs, on March 22, 1908. A transcript of this judgment was recorded in the county of Placer on the sixth day of April, 1908, and it then became a lien upon whatever interest said Spencer then had in the property lying in said county and being the subject of the present action.

In the meantime, and in the early part of the year 1907, William Crane Spencer had gone to Paris, France, and there and during that year had executed his note and mortgage for the sum of twenty-one thousand dollars covering the Placer County property to Edward C. Goldner, plaintiff in this action, who was a half-brother of Spencer, and a resident of Paris. The mortgage was recorded in the county of Placer on March 16, 1908, prior to the recordation there of the transcript of the judgment obtained by Curran. The present action to foreclose said mortgage was commenced in the month of September, 1909, in the county of Placer. The defendant Curran appeared in said action and set up the issue of fraud in the transaction between the plaintiff Goldner and William Crane Spencer, invalidating said note and mortgage, or at least subordinating the same to the Curran judgment. The trial court found upon this issue in Curran's favor, but upon appeal to the supreme court this finding was held to be unsupported by sufficient evidence and the judgment was reversed. The case is reported in Goldner v. Spencer, 163 Cal. 317, [125 Pac. 347]. The cause was then transferred to the city and county of San Francisco for a second trial, and from the judgment therein rendered in the plaintiff's favor, and from the order denying a new trial, the defendant Curran prosecutes this appeal.

The first contention made by the appellant Curran is that the evidence is insufficient to sustain the judgment against his contention upon the issue of fraud. It is conceded, however, that the trial court upon the second trial of the cause had before it practically the same evidence which was before the trial court of Placer County upon the first trial of the cause, and also before the supreme court upon the first appeal. This being so, we are bound by the views expressed by the supreme court as to the weight, sufficiency, and effect of this evidence upon the former appeal, and, as we have seen, the supreme court has held such evidence insufficient to sustain the issue tendered by the defendant Curran as to the fraudulent character of the transaction between the plaintiff Edward C. Goldner and William Crane Spencer. No further comment upon this phase of the present appeal is necessary than merely to call attention to the language of the supreme court upon the former appeal. (Goldner v. Spencer, 163 Cal. 317, [125 Pac. 347].)

The next contention of the appellant is that the court in its findings upon the second trial of the cause committed an error in finding that a certain small, irregular portion of the premises in question amounting to less than one-third of an acre, and separated from the balance of the tract by a turn in the county road, had been released from the operation and effect of the Goldner mortgage, when in fact there was no evidence of such release. The injury which the defendant Curran claims to have suffered from this alleged error is that, having sold the interest of said Spencer in the entire tract upon an execution issued upon the Curran judgment, and having become the purchaser thereof by said sale, he has thereby become entitled to be a redemptioner of the property to be sold under the decree of foreclosure and sale in the present action, and that since the court has erroneously found that this small fraction of an acre has been released from the effect of said mortgage and sale, his burden as a redemptioner has been thereby increased as to the balance of the property. While the record appears to be wanting in the evidence of the release of this small piece of land sufficient to sustain this particular finding of the court, it does appear that the court has expressly found that this fraction of an acre of land is of practically no value. There is enough evidence in the record to sustain this finding, and this being so, the court's

error in finding the fact of its release from the effect of the Goldner mortgage and sale was an error without injury to the appellant, and was therefore not sufficiently material to justify a reversal of the case.

There are no other material contentions of the appellant upon this appeal which are not disposed of in the decision of the former appeal.

Judgment and order affirmed.

Lennon, P. J., and Richards, J., 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 August 25, 1916.

[Civ. No. 1754. First Appellate District.-June 28, 1916.] LOUISA R. FREITAS, Respondent, v. MANUEL F. FREITAS, JR., et al., Appellants.

LIFE INSURANCE-ACTION BETWEEN CONFLICTING CLAIMANTS-PAYMENT INTO COURT-PLEADING.-Where, in an action between conflicting claimants to the amount called for in a policy of life insurance, the insurer does not defend the action but deposits the money in court subject to a determination of such conflicting claims, it becomes immaterial as to whether the complaint states a cause of action against such insurer.

ID.-ACTION ON POLICY-RIGHTS UNDER ANTENUPTIAL AGREEMENT— SUFFICIENCY OF COMPLAINT.-The complaint in such an action is sufficient as between the conflicting claimants, where it is alleged that the plaintiff was induced to marry the insured by an antenuptial agreement, wherein he promised the plaintiff that if she would marry him he would make her the beneficiary of the policy, and that upon his marriage with the intent of performing his agreement he caused the plaintiff to be named as beneficiary and delivered the policy to her, and thereafter secured possession thereof and without her knowledge or consent substituted the defendants as beneficiaries.

ID. ANTENUPTIAL AGREEMENT-REDUCTION TO WRITING-NONESSENTIAL AVERMENT PRESUMPTION.-The complaint in such an action is not subject to general demurrer for failure to allege that the

antenuptial agreement was reduced to writing, as such agreement, as a matter of pleading, will be presumed to be in writing. ID.-EXECUTION OF ANTENUPTIAL AGREEMENT WRITING NOT ESSENTIAL. Such an antenuptial agreement is not required to be in writing where the same became fully executed by the act of the insured in procuring his wife to be designated as the beneficiary of the policy.

ID. STATUTE OF FRAUDS-EXECUTED ORAL AGREEMENT.-The statute of frauds has no application to executed oral agreements.

APPEAL from a judgment of the Superior Court of Alameda County. Wm. H. Waste, Judge.

The facts are stated in the opinion of the court.

Louis B. Diavila, and Jos. P. Lucey, for Appellants.

Rose & Silverstein, for Respondent.

THE COURT.-The plaintiff in this case is the widow of Manuel T. Freitas, deceased. The defendants, Manuel F. Freitas, Jr., Mary Freitas Lopez, Francisco Freitas, and Anna Freitas Nula are the children of said deceased by a former marriage. The defendant Unica Portugueza de Estada da California is a beneficiary corporation. The complaint in substance alleged, and the trial court in effect found, that the plaintiff was induced to marry Manuel T. Freitas, since deceased, by an antenuptial agreement, wherein he promised the plaintiff that if she would marry him he would make her the beneficiary of a policy of life insurance in the sum of one thousand dollars which he then held and which had been issued to him by the corporation defendant. Upon his marriage to the plaintiff Freitas, with the intent and purpose of performing his antenuptial promise, caused the plaintiff to be named as the beneficiary in the policy of insurance, and thereupon delivered the same to her. Subsequently he secured possession of the policy and, without the consent or knowledge of the plaintiff, caused the children above mentioned to be substituted as beneficiaries, and they were the beneficiaries named in the policy at the time of his death.

The corporation defendant did not defend against the action, but deposited in court the amount called for in the policy subject to a determination of the conflicting claims of the plaintiff and the other defendants.

31 Cal. App.-2

Judgment was rendered for the plaintiff, from which the individual defendants alone have appealed.

The demurrer of these last-named defendants to the complaint was rightly overruled. Having paid the fund in controversy into court, the corporation defendant in effect waived any defense it might have had against either or both of the conflicting claimants; and being apparently satisfied with the lower court's adjudication of the controversy, it is of no consequence whether or not the complaint stated a cause of action against the corporation. (Jory v. Supreme Council etc., 105 Cal. 20, [45 Am. St. Rep. 17, 26 L. R. A. 733, 38 Pac. 524]; Adams v. Grand Lodge, 105 Cal. 321, [45 Am. St. Rep. 45, 38 Pac. 914]; Hoeft v. Supreme Lodge, 113 Cal. 91, [33 L. R. A. 174, 45 Pac. 185]; Supreme Council v. Murphy, 65 N. J. Eq. 60, [55 Atl. 507, 509].)

The complaint as between the plaintiff and the appealing defendants stated a cause of action. The case of Gagossian v. Arakelian, 9 Cal. App. 571, [99 Pac. 1113], has no application to the facts of the present case. Here the cause of action relied upon proceeded upon the theory that the plaintiff had acquired an equitable right to the sum secured by the policy of insurance which the insured could not defeat by any act of his, and which the individual defendants as mere voluntary beneficiaries possessing no equities could not deny. That such a right may be acquired under the facts pleaded here, and will when established receive recognition and protection at the hands of a court of equity, is settled in this state. (Adams v. Grand Lodge, supra; Jory v. Supreme Council, supra.)

The complaint states a cause of action notwithstanding the fact that the antenuptial agreement pleaded was not alleged to have been reduced to writing as required by section 1624 of the Civil Code, and section 1973 of the Code of Civil Procedure. As a matter of pleading, the agreement was presumed to be in writing.

The evidence supports the findings, and the findings support the judgment. While the evidence shows, and the court in effect found, that the antenuptial agreement was not expressed in writing, nevertheless the evidence further shows, and the court found, that in keeping with his agreement and the consideration of the plaintiff's marriage to him, Freitas, the insured, procured her to be designated as the beneficiary

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