is secured, whether by purchase or otherwise. "Thus, when plaintiff's property was seized and sold by the defendant [a sheriff], and was repurchased by the plaintiff from one who bought it in at the sheriff's sale, it was held that the measure of damages was the amount paid to repurchase the property." Id. The point is directly decided by the court of civil appeals of Texas in Field v. Munster, 32 S. W. 417, where the subject is fully discussed, and the above and numerous other authorities cited. The decision was affirmed on writ of error by the supreme court of Texas (Munster v. Fields, 33 S. W. 852), the court citing as additional authorities Kline v. McCandless, 139 Pa. St. 223, 20 Atl. 1045; Fields v. Williams (Ala.) 8 South. 808. The provisions of section 3336, Civ. Code, are to be understood as applying only to cases where the property is not returned or recovered, not as abolishing the rule that the recovery of the property is to be considered in mitigation of damages. In such cases the rule is as stated in section 3333, Id.

With regard to the question of diligence on the part of the defendant, I have more difficulty in coming to a conclusion. "The presumption is that the discretion [of the lower court] has been properly exercised." Heintz v. Cooper, 104 Cal. 670, 38 Pac. 512. But here the new fact was of such a character that it might have remained undiscovered by the defendant even after the most extraordinary diligence; nor was there anything in the circumstances of the case to put the defendant on inquiry (104 Cal. 671, 38 Pac. 512), unless it was the statement of the witness Hon that he had seen the harvester on the ranch of the plaintiff's intestate subsequent to the sheriff's sale. But a statement of this kind, made by a witness on the trial, might, under the circumstances of the case, very well escape the notice even of diligent counsel; for the fact-though known to the plaintiff and his attorneys-was suppressed by them, or at least not referred to in the pleadings, and the plaintiff himself as witness, though sworn to tell the whole truth, said nothing about it. This conduct, whether designed to have such effect or otherwise, would naturally tend to mislead the defendant, and the plaintiff cannot complain if it in fact had such effect.

The case has evidently been tried on a wrong theory, and a new trial should be had. On the new trial the whole amount paid by the plaintiff's intestate on the purchase from C. F. Blewett should be apportioned between the property in controversy and the other property according to relative value; and the defendant should be charged only with the amount apportioned to the former, with legal interest from the date of sale, and any special damages, if any, that may be proved. I advise that the judgment and order appealed from be reversed, and the cause remanded for new trial.

We concur: GRAY, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and the cause remanded for new trial.

(131 Cal. 73)

MULCAHEY et al. v. DOW et al.

(S. F. 1,719.)

(Supreme Court of California. Dec. 21, 1900.) INVOLUNTARY TRUSTEE-FRAUD-DECREE OF

DISTRIBUTION-EVIDENCE.

1. Civ. Code, § 2224, providing that "one who * * * is gains a thing by fraud

an involuntary trustee of the thing gained for the benefit of the person who would otherwise have gained it," if covering property gained by a judicial decree, applies only where the fraud is such as would justify a court of equity in setting aside the decree.

2. A proceeding to secure a decree of distribution being one in rem, the decree therein is binding on one who did not appear, though he had constructive notice only under the statute. 3. A decree of distribution finding the wife of intestate the only heir, and distributing the entire estate to her, cannot be successfully attacked for fraud by general evidence tending in an unsatisfactory way to show merely that several years before her husband's death she knew of the existence of persons who were heirs of his, and that she told the attorney who prepared the petition for letters of administration that her husband had no relatives. Van Dyke, J., dissenting.

In bank. Appeal from superior court, city and county of San Francisco; James M. Troutt, Judge.

Action by Margaret Mulcahey and others Judgagainst Hezekiah Dow and others. ment for defendants, and plaintiffs appeal. Affirmed.

Myrick & Deering, for appellants. H. H. Reid, W. H. Bodfish, Beatty & Beatty, and A. Ruef, for respondents.

GAROUTTE, J. Arthur Waters died intestate in the city of San Francisco, leaving a wife, Elizabeth, here, and a sister and nephews in other states. Administration was had upon his estate, and in due time, and after due notice, a decree of distribution was entered, which found that the wife, Elizabeth, was the only heir of her husband, and all of his estate was thereupon distributed to her. Subsequently she died, and these defendants are her successors in interest. Plaintiffs- a sister of Arthur Waters, deceased, and a certain nephew and niece-brought this action, claiming to be his heirs at law, and asserting that the wife, Elizabeth, under the decree of distribution, held their respective shares of the property as an involuntary trustee. They were nonsuited, and judgment went against them. The sufficiency of the evidence to support the judgment will be the material matter considered upon this appeal.

As a legal foundation upon which to rest their claims, plaintiffs rely upon section 2224 of the Civil Code, which says: "One who gains a thing by fraud, accident, mistake, un

*

*

*

due influence, or other wrongful act, is an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it." For present purposes it will be conceded that this section, in its terms, is broad enough to apply to judgments of courts adjudicating property rights; and here fraud upon the part of the wife, Elizabeth, in securing a judg ment, is relied upon to support a recovery. In cases of this character, in order to substantiate the charge of fraud, evidence must be produced which is fully satisfactory to the judicial mind. The rule is clearly stated in Wickersham v. Comerford, 104 Cal. 495, 38 Pac. 101, where this court said: "It was necessary for the plaintiff to establish by clear and indubitable proof, to the satisfaction of the superior court, that the order setting apart the homestead had been obtained through some fraud practiced upon that court by the defendant. She cannot be charged with fraud, or any fraudulent imposition upon the court, for merely failing to state in her petition any facts tending to show that the petition ought not to be granted, unless it is made to appear that she knew the import of these facts, and that they were willfully suppressed by her with the intention of deceiving the court, and thereby inducing it to grant her petition." Again, fraud must be shown which is extrinsic and collateral to the cause. It is held in Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 27 Pac. 537, 13 L. R. A. 336, that neither perjury nor subornation of perjury constitute a fraud which will support a cause of action to set aside a judgment based thereon. In Fealey v. Fealey, 104 Cal. 354, 38 Pac. 49, this court said: "The fraud which is set forth as the basis of the plaintiff's cause of action relates to the alleged falsity of defendant's statement made in her petition for the order setting aside the homestead, and again repeated in her testimony upon the hearing of such petition, concerning the nature of the title to the land set apart to her as a homestead; but the question of title thus presented and sought to be litigated in this action was necessarily involved in the proceeding to set apart the homestead, and the order or judgment of the court therein was a determination that the allegation of defendant's petition in regard to the nature of the title to the land so set apart was true, and that her testimony relating to the same matter given upon the trial of that proceeding was also true.

* Under these circumstances that judgment is conclusive upon the plaintiff, and she cannot be permitted to bring into litigation the same matters therein involved, and settled by that judgment." Lynch v. Rooney, 112 Cal. 279, 44 Pac. 565, is similar to the case at bar, save that the ground there relied upon for equitable relief was not fraud, but mistake. In that case it was held that the decree of distribution was final and conclusive upon all questions of heirship.

The aforesaid section of the Civil Code relating to involuntary trustees places 'stake and fraud in the same category, and, if the reasoning in Lynch v. Rooney, be sound, the same reasoning must control here.

In speaking of decrees of distribution, section 1666 of the Code of Civil Procedure reads: "In the order or decree the court must name the persons and the proportions or parts to which each shall be entitled. *** Such order or decree is conclusive as to the rights of heirs, legatees or devisees, subject only to be reversed, set aside or modified on appeal." The all-important question upon the hearing of a petition for a decree of distribution of the estate of an intestate is, who are the heirs entitled to take the estate? The identity of the heirs being determined, the proportion of each is not a difficult question to decide, for the law itself fixes those proportions; and, if the question of heirship is not settled by the decree of distribution, then nothing is settled by it, and the whole proceeding is a vain and useless thing. And this section of the Code declares in terms that the decree, subject to appeal, is conclusive as to the rights of heirs, legatees, and devisees. Hence it must be the rule that, conceding section 2224 is broad enough to cover property gained by a judicial decree, still it only applies to cases where the fraud is such as would justify a court of equity in setting aside a judgment. We here have a judicial decree that these plaintiffs are not heirs at law of Arthur Waters, deceased,-a decree that has never been assailed, and which, by the very terms of the section quoted, has become final and conclusive. It seems idle to say that the validity of the decree is recognized by the plaintiffs, and that they rely upon its validity in seeking relief. They are only entitled to the relief sought by showing circumstances in the procurement of the decree itself which would justify a court of equity in setting it aside for fraud. If those circumstances are not shown, they secure no relief. They must attack and overthrow the finding of fact in the decree as to the heirship of the wife, Elizabeth,-a finding expressly placed there by direct authority of the statute, in order that they may show themselves heirs at law of the deceased, Arthur Waters. It therefore seems inevitable that, in order to secure the relief here sought, they must go behind the decree, and falsify the important finding of fact upon which it is based. In view of the decision in Pico v. Cohn, supra, and other cases cited, if these plaintiffs had appeared in person at the hearing upon the petition for distribution, and had litigated the question of heirship, and lost their cause, certainly that decree, aside from the question of extrinsic and collateral fraud, would have forever foreclosed them from bringing an action of this character. But now the point is made that plaintiffs only had constructive notice of the hearing, and for that reason a different rule of law applies

to them. The case of Dunlap v. Steere, 92 Cal. 344, 28 Pac. 563, 16 L. R. A. 361, and the authorities cited in that decision, are relied upon to support this contention; but that the rule there declared ever applied to a proceeding in rem we gravely doubt. A proceeding to secure a decree of distribution is essentially a proceeding in the nature of one in rem. It has none of the characteristics of a proceeding in personam, as was the case of Dunlap v. Steere, supra. In Hill Co. v. Lawler, 116 Cal. 359, 48 Pac. 323, this court, speaking through Mr. Justice Harrison, said: "The distribution of the estate includes the determination of the persons who, by law, are entitled thereto, and also the proportions or parts to which each of these persons is entitled. * * * By giving the notice directed by the statute, the entire world is called before the court, and the court acquires jurisdiction over all persons for the purpose of determining their right to any portion of the estate; and every person who may assert any rights or interest therein is required to present his claim to the court for its determination. Whether he appear and present his claim, or fail to appear, the action of the court is equally conclusive upon him, 'subject only to be reversed, set aside, or modified on appeal.' The decree is as binding upon him if he fail to appear and present his claim, as if his claim after presentation had been disallowed by the court." In view of this clear and forcible language, emanating from the court in bank, it would seem that the plaintiffs' claim entirely dissolves, to the extent, at least, of the principle of law invoked in Dunlap v. Steere, supra.

The nonsuit was properly granted on the evidence. There was no extrinsic or collateral fraud. Fraud must plainly appear from the evidence, and here it does not appear at all. There is some general evidence tending in an unsatisfactory way to show that Elizabeth Waters knew of the existence of these plaintiffs several years prior to the death of her husband. There is also some evidence showing that she told W. H. Metson, an attorney at law, who prepared the petition for letters of administration in behalf of Grant and Pennell, petitioners for letters, that her husband had no relatives; and this is all the evidence of fraud that we can find in the record. The showing made is too weak to stand alone. It would not support a judgment if one rested upon it. The fact that Elizabeth Waters did not inform these relatives, living in different states, of the death of her husband, is not material here. No legal duty devolved upon her to furnish them with that information. There is nothing to indicate that she acted in bad faith at any stage of the administration, or made the statements to Metson with the purpose or design of defrauding anybody, or imposing upon the court. There is no evidence showing that she knew these plaintiffs were entitled to any part of the estate as heirs at law of her husband.

There is no evidence showing that the decree of distribution, wherein it is found as a fact that she was the only heir, was based upon her testimony, or upon any testimony induced by her to be given before the court. If this decree was based upon the testimony of Grant, one of the administrators, as claimed by plaintiffs, there is no evidence but that his knowledge or information upon the subject came from his friend, Arthur Waters, during his lifetime, or from some source other than that of Elizabeth Waters. And, if all of these things had appeared by the evidence. then whether or not they constituted extrinsic fraud would still be an open question. Tried by the test laid down in Wickersham v. Comerford, the nonsuit was properly granted. The errors of law relied upon are unsubstantial. For the foregoing reasons, the judgment and order are affirmed.

We concur: MCFARLAND, J.; HENSHAW, J.; TEMPLE, J.; HARRISON, J.

VAN DYKE, J. I dissent. The purpose of the proceeding is not to disturb this action of the probate court at all. That court had jurisdiction of the matter in question, and upon the testimony and showing before it the decree of distribution could not well have been different from the one entered. The question here is whether a party who has succeeded in obtaining a thing through fraud can be compelled to yield it to whom it properly belongs, and who would not have been deprived of it excepting through such fraud. Our Code lays down the general rule in such cases in the following language: "One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained for the benefit of the person who would otherwise have had it." Civ. Code, § 2224. It is alleged in the complaint that the plaintiffs were prevented from appearing and presenting their claims by the fraudulent conduct of Elizabeth Waters, who willfully and intentionally represented to the court that she was the sole and only heir, when she knew the plaintiffs were also heirs of the deceased husband, and entitled to a share of his estate. In Story's Equity Jurisprudence it is said: "In general, it may be stated that in all cases where, by accident, or mistake, or fraud, or otherwise, a party has an unfair advantage in proceedings in a court of law, which must necessarily make that court an instrument of injustice, and it is therefore against conscience that he should use that advantage, a court of equity will interfere and restrain him from using the advantage which he has thus improperly gained." Story, Eq. Jur. § 885. To the same effect the rule is stated in Pom. Eq Jur. § 1053; Moore v. Crawford, 130 U. S. 128, 9 Sup. Ct. 447, 32 L. Ed. 878. In Wickersham v. Comerford, 96 Cal. 439, 31 Pac. 360,

it was claimed by defendant, as here, that the facts stated in the complaint did not constitute fraud of which the plaintiff was entitled to complain. The justice, in writing the opinion in that case, says: "The complaint charges a willful suppression of a material truth, and a suggestion of a falsehood by defendant, with intent to deceive and mislead the court, to the prejudice of the creditors of the estate, and avers that such suppression and suggestion had the intended effect, to the injury of the plaintiff, who was one of such creditors. I think this constitut ed fraud." In Wingerter v. Wingerter, 71 Cal. 105, 11 Pac. 853, the defendant had been the administrator upon the estate of his deceased brother, who died in Los Angeles county. The plaintiff was the son of that deceased brother, but resided in the state of Missouri. The defendant, as such administrator, induced the plaintiff, as heir of his deceased father, through false representations, to convey to him (the defendant) his interest in the estate, and afterwards procured the interest to be distributed to him by the probate court. Held, that the defendant was an involuntary trustee for the plaintiff of the property so fraudulently obtained, and that the plaintiff was entitled to the relief sought, to wit, the recovery of the property. See, also, Lataillade v. Orena, 91 Cal. 576, 27 Pac. 924; Dunlap v. Steere, 92 Cal. 347, 28 Pac. 563, 16. L. R. A. 361; Bergin v. Haight, 99 Cal. 52-56, 33 Pac. 760; Curtis v. Schell (Cal.) 61 Pac. 951,-where the question is fully discussed. The complaint in this case states a cause of action entitling the plaintiffs to the relief asked, and the evidence at least tended to support the material allegations of the complaint. This was sufficient to prevent a nonsuit. De Ro v. Cordes, 4 Cal. 117; Cravens v. Dewey, 13 Cal. 40; McKee v. Greene, 31 Cal. 418.

A board of education, by resolution, adopted a different system of penmanship than the one then in use, without giving the notice required by Pol. Code, § 1874, subd. 3, providing that at least 60 days' notice of any proposed change must be given by publication in a newspaper published in the county, stating the change proposed, that bids for furnishing books to replace them will be received, and when and where such bids will be opened. Held, that the resolution, and contract for supplying books made pursuant thereto, were void.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge. Action by J. C. Greene against the board of education of the city and county of San 63 P.-11

Francisco and others. From a judgment in favor of plaintiff and an order denying a new trial, Ginn & Co. appeal. Reversed.

Sheffield S. Sanborn (Wm. B. Bosley, of counsel), for appellants. John H. Dickinson, for respondent J. C. Greene. H. H. Hindry, for respondent H. S. Crocker Co. Franklin K. Lane, for respondent board of education.

COOPER, C. This action was brought by plaintiff, as a citizen and taxpayer, to enjoin the defendants, who are the members of and compose the board of education of the city and county of San Francisco, from using, or causing to be used, until four years after the 9th day of June, 1897, the textbooks of the Shaylor system of vertical round-hand penmanship, upon the ground that said text-books have not been legally adopted by the board. The appellants, Ginn & Co., a co-partnership doing business in the state of Massachusetts, were allowed to and did intervene. In their complaint in intervention they alleged that they, as publishers of the said Shaylor system, entered into a contract with defendant board on the 30th day of June, 1899, by which they agreed to supply the public schools of the said city and county with the text-books of said Shaylor system. The case was tried before the court, and findings filed, upon which judgment was entered for plaintiff as prayed for. Appellants made a motion for a new trial, which was denied, and this appeal is 'from the judgment and from the order denying the motion. It is conceded that in June, 1899, the defendant board passed a resolution regular in form, and, after proper notice as required by statute, adopting as a uniform series of text-books the Shaylor system, and entered into a contract with appellants, whereby they were to furnish at stated prices the copybooks of the Shaylor system to the pupils in the public schools of the city and county of San Francisco. The resolution of the board and the said contract with appellants were valid and legal if the board had power to make them, and this depends upon whether or not the board had, in the month of June, 1897, legally adopted the text-books of the California system of vertical penmanIf ship published by H. S. Crocker & Co. the California system was legally adopted in June, 1897, the board had no power to change the text-books so adopted until four years from the date of adoption. Pol. Code, § 1874, subd. 1. The main question, therefore, in the case is as to the validity of a resolution passed by the board June 9, 1897, adopting the California system of vertical penmanship. It is provided in Pol. Code, § 1874, subd. 3: "At least sixty days' notice of any proposed change in text books must be given by publication in a newspaper of general circulation, published in the county, if there be one, in which such change is to be made. If there be no newspaper published in the county, then such publication shall be made in

any newspaper having a general circulation in the county. A copy of the newspaper containing such publication, with such notice marked, must, immediately after the first publication thereof, be by the secretary of the board transmitted to the state board of education, and the same, when received, must be filed by the secretary of said state board. Said notice shall state what text books it is proposed to change; that sealed bids or proposals will be received by the board for furnishing books to replace them; the place where and the day and hour when all bids or proposals will be opened, and that the board reserves the right to reject any and all bids or proposals. Said notice shall be published in such newspaper as often as the same shall be issued after the first publication thereof." It is admitted that the board did not comply with the above subdivision of said section, prior to the resolution of June 9, 1897, in regard to the publication of the notice therein required; neither did the board, at any time, comply with the section as to the contract with said H. S. Crocker & Company by publishing any notice prior to making the same. The resolution and contract, as to the California vertical system of text-books, were therefore in excess of the jurisdiction of the board and void. The board, being an inferior tribunal or body, possesses such powers, and such only, as are given it by the statute. The law has prescribed the course to be pursued and the things to be done in order to effect a change in the text-books of the public schools, and the board must follow its mandates. The statute must be substantially followed. If the board could dispense with one of the material requirements of the statute, it could dispense with others, and thus be left with no guide except its absolute will. The board is the agent of the public, and intrusted with the duty of carrying out the mandates of the law in the matter of adopting textbooks for the use of the children of the public schools. The evident object of section 1874 is that all parties may have a fair hearing before the board, and that the best textbooks may be obtained at the lowest price. The section requires the bids to be publicly opened, and accompanied by sample copies of the books proposed to be furnished. further provides that no change shall be made except in the months of May or June of the year in which the change is made, and that any books adopted as a uniform series of text-books must be continued in use for not less than four years. The law formerly required six months' notice of any proposed change in text-books, and this court held in People v. State Board of Education, 49 Cal. 685, that the board could not make the change without giving the notice. In the opinion it is said: "The authority of the board to effect the change was thereby made dependent upon the giving of the prescribed notice, and its exercise was forbidden except after such notice first given."

It

The respondents claim that the provisions of the section do not apply, because it does not appear that the attempted change was made as to books "that were in use as a part of a uniform series of books," and that the change refers to a change of a part of a uniform series. We do not think such a narrow construction should be given the statute. Its plain mandate is, "notice of any proposed change in text-books."

It appears from the uncontradicted evidence of the superintendent of the public schools of the city and county of San Francisco that in June, 1897, the Spencerian system was in use in the schools, and that it was the only system in use that was ever brought to his attention, but that they had been experimenting with the vertical system. But if it be conceded that on the 9th day of June, 1897, the Spencerian system and the California system of vertical penmanship were each in use in the public schools, the order adopting the California system would exclude the Spencerian system. This was certainly a change in the text-boks in use in the public schools. We do not think the language of the statute applies only to a change of text-books that had been legally adopted. If the Spencerian system was in use in the public schools, whether by legal adoption or by the silent acquiescence of teachers and pupils, the board could not change the textbooks so in use without publication as required by the Code. As the plaintiff cannot maintain this action unless the order of the board of June 9, 1897, was valid and is still in force, and as it has been shown to be void, it is not necessary to pass upon the question as to whether or not the plaintiff, as a taxpayer, can maintain the action. We advise that the judgment and order be reversed.

We concur: CHIPMAN, C.; HAYNES, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are reversed.

(131 Cal. 162)

BOVARD v. DICKENSON. (Sac. 760.) (Supreme Court of California. Dec. 28, 1900.)

BILLS AND NOTES ASSIGNMENT BY EXECUTRIX-EVIDENCE-FOREIGN LAWS

-PRESUMPTION.

1. Where plaintiff claimed to be the assignee of the note sued on, and the assignment was denied, the burden was on plaintiff to prove it. 2. When plaintiff, suing on a note as the assignee, relied on an assignment executed by an executrix in Missouri, and there was no evidence that such assignment was authorized by any court having jurisdiction of the estate, and no evidence as to the laws of Missouri, there could be no recovery, since the Missouri law would be presumed to be the same as Code Civ. Proc. $$ 1517, 1524, declaring that a chose in action belonging to an estate may not be sold save under order of the superior court.

Commissioners' decision. Department 2. Appeal from superior court, San Joaquin county; Edward I. Jones, Judge.