special proceeding, and what will answer in one case will answer equally well in the other. But counsel seem to claim that there may be delays in commencing an action owing to the absence or unwillingness of relatives or inattention on the part of the board of supervisors. We do not think it ought to be assumed that the board of supervisors, being advised of their duty and power in the premises, would neglect to interpose in a proper case, but allowing that they would, and that there were no relatives willing to act, there would be nothing to prevent the society for the prevention of cruelty to children, or any other charitable organization or private person, from applying to the proper court to be appointed guardian ad litem, so as to commence the action in the name of the child. And, if the case was of such pressing exigency as to justify the extreme course resorted to in this and other instances of taking the child from its parents without any legal warrant, but with a view to legal proceedings, such a course would be as appropriately followed by an action as by a special proceeding.

There is no reason, therefore, for ignoring the statute in these matters. Indeed, the minor would enjoy a much more ample measure of protection in the civil action provided for in section 203 of the Civil Code than under a mere petition for guardianship; for in that proceeding the superior court acts under a statute which confers no power to issue an injunction against the offending parent pendente lite, as may be done by the chancellor. (See cases cited by Pomeroy, supra, and Schuler's Domestic Relations, sec. 249.)

To take this case as an illustration: What would have become of the infant child during the nine days intervening the filing of the petition and the day appointed for the hearing if her protection had depended upon the statutory provisions relating to the appointment of guardians, and her parents had been wicked and depraved enough to subject her to the contamination and outrage that counsel have instanced as occurring in

other cases? She must have been left during that interval of time in the power of her parents, and that would have sufficed for her ruin if the courts and the law are as impotent as the argument supposes. But, in truth, they are not. To protect a child from immediate danger the law will justify the same measures as were taken in this case, and if the parent seeks to regain her custody by habeas corpus a court will not put her back in his power when it appears that her welfare would be imperiled by so doing, especially when proceedings have been commenced or are about to be commenced, to determine the parental right; and upon commencement of the action the court, as has been shown, could see that she was protected pendente lite.

It remains to be noted that section 203 of the Civil Code does not in itself provide for the appointment of a guardian, or even infer the necessity of such appointment in all cases covered by it. It provides a method of establishing parental unfitness arising out of parental misconduct, and for a judgment freeing the child from the parental dominion, as well as a judgment enforcing the duty of support and education. When in such an action the abuse of authority is established, and a judgment has been given freeing the child from parental authority, a case is then presented in which it may be necessary or convenient to appoint a guardian of the child's person. But, when a child has living parents (or a living parent), in whose custody he is, and who are otherwise fit, the superior court has no authority, in a summary proceeding, to take him away from his natural guardians upon the ground that they have forfeited their rights by their misconduct, unless such forfeiture has been established by a judgment in the action provided for in section 203 of the Civil Code.

Counsel have cited many provisions of the Civil Code and Code of Civil Procedure which they contend are inconsistent with the construction here given to section 203. There is nothing in any of these objections, and I shall not review them in detail, but I will notice the one

upon which counsel seem to rely with the greatest confidence. Subdivision 3 of section 246 of the Civil Code reads as follows: "Of two persons equally entitled to the custody in other respects preference is to be given as follows: 1. To a parent; 2. To one who was indicated by the wishes of a deceased parent; 3. To one who already stands in the position of the trustee of a fund to be applied to the child's support; 4. To a relative."

It is contended that on the construction here given to section 203 no room is left for the operation of a provision which assumes that there may be two persons equally entitled to the custody of a minor in other respects, and one of them a parent. It is not difficult to suppose a great variety of cases to which this section would apply without trenching upon the operation of section 203. Suppose a guardian of the person of a minor child to have been appointed because its only living parent was insane, or had been convicted of a felony, or was a fugitive from the state, or was an habitual drunkard, or was living in adultery, and suppose that the parent had recovered his reason, had been pardoned, had returned to the state, had been cured of his drunkenness, or abandoned his scandalous mode of life. In the first case he would become entitled to the custody of his child on recovering his reason, if, in other respects, he was equally entitled with the guardian. In the other cases, although adjudged guilty of parental misconduct, and his natural right gone, he might still claim the guardianship by appointment in preference to a stranger no better qualified in other respects.

In all these cases, and in many others that might be supposed, there would be room for the operation of section 246, which, after all, amounts to little more than the statement of a general principle, to be applied in any possible case that might arise in which two persons equally entitled in other respects, but one of them the parent, were contending for the custody of a minor child.

It is next urged by counsel that it has become the set

tled practice in this state to forfeit the natural right of parents without an action, and two cases are cited in which this court has impliedly conceded the validity of proceedings here in question. (Matter of Get Young, 90 Cal. 77; Matter of Vance, 92 Cal. 195.) In neither of these cases was the point raised or considered that an action was necessary. In the matter of Hunt, it was argued and decided by the court in Bank, in accordance with the views here expressed. And the doctrine of that case, I am convinced, is a salutary and a necessary one. The natural right of a parent to the custody and society of his child is certainly equal in dignity and importance to any right of property, and ought not to be taken away with less deliberation than would be required if the controversy were over a cart or a horse.

[No. 18384. Department Two.-November 7, 1895.] COLLIS H. EMMONS, RESPONDENT, v. ELLA G. BARTON, APPELLANT.

ASSIGNMENT-RIGHT TO SUE FOR FRAUD-INCIDENT OF PROPERTY RIGHTS ASSIGNED. The general rule that a mere right to complain of fraud is not assignable applies only to a case where the assignment carries nothing independent of the right to sue for a fraud, and does not apply to a case where the right to sue for a fraud is merely incidental to a subsisting property right which has been assigned, and which is intrinsically susceptible of legal enforcement. ID.-ESTATES OF DECEASED PERSONS-ASSIGNMENT OF ALLOWED CLAIMS -ACTION TO SET ASIDE FRAUDULENT CONVEYANCE.-Where money claims against an estate have been allowed by the executrix, they may be assigned to one of the creditors for the purpose of suing to set aside a voluntary conveyance made by the decedent during his lifetime to his wife for the alleged purpose of hindering and defrauding his creditors. ID.-PARTIES-DUTY OF EXECUTOR-RIGHTS OF CREDITORS-CONVEYANCE TO EXECUTRIX.-Ordinarily an action to recover property fraudulently conveyed by a decedent in his lifetime should be brought by his executor or administrator, and such an action by a creditor will not lie, unless he shows that he has exhausted all means to procure such an action to be brought by the proper person; but where the alleged fraudulent grantee is the executrix, a suit in equity will lie in favor of the creditors to set aside the fraudulent conveyance.

ID. JUDGMENT-EXTENT OF RELIEF-RIGHTS OF GRANTEE-ASSETS OF ESTATE. In an action by the creditors to recover property fraudu

lently conveyed, the judgment should be that the property fraudulently conveyed, or so much thereof as is necessary, be applied to the satisfaction of their debts, and that the residue, if any, go to the grantee; and the property cannot go into the assets of the estate for any other purpose than the payment of the debts, nor can the residue go to the heir who stands in the shoes of the fraudulent grantor. ID.-EVIDENCE-DECLARATIONS OF HUSBAND TO WIFE AT TIME OF CON

VEYANCE-PRIVILEGED COMMUNICATION.-The declarations of the husband to the wife at the time of the conveyance to her of certain property, as to his purpose in making it, are privileged, and it is error to compel the wife to testify thereto; nor can the creditors or heirs of the husband waive the privilege. ID.-STATEMENTS OF HUSBAND AFTER CONVEYANCE.-Statements of the deceased husband concerning the title to the property made after the execution of the conveyance to his wife are inadmissible against the wife; and the fact that the husband was in possession of the real property conveyed at the time of the subsequent declarations does not change the rule. ID. CONVEYANCE FOR LOVE AND AFFECTION-FRAUDULENT INTENT— QUESTION OF FACT-INSUFFICIENT EVIDENCE-SOLVENCY OF GRANTOR. A conveyance made by a husband to his wife or a father to his child is valid as against creditors, although the consideration is love and affection alone, unless it is made with actual intent to defraud creditors; and the fact that it was a voluntary conveyance does not make it prima facie fraudulent; but in order to avoid such conveyance, the intent to defraud creditors must be averred and proved as a question of fact; and where there is no evidence before the jury to show the insolvency of the grantor at the time of the grant, or any fraudulent intent on his part, but, on the other hand, the evidence tends to show that he then had other property apart from that conveyed to the wife sufficient to pay all debts which he then owed, the evidence is insufficient to justify a finding of intent to defraud creditors.

APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. M. K. HARRIS, Judge.

The facts are stated in the opinion of the court.

L. L. Cory, for Appellant.

An assignment of a bare right to file a bill in equity for a fraud committed on the assignor will be held void as contrary to sound public policy. (Cross v. Sacramento Sav. Bank, 66 Cal. 462; Sanborn v. Doe, 92 Cal. 152; 27 Am..St. Rep. 101, and note; Whitney v. Kelley, 94 Cal. 146; 28 Am. St. Rep. 106; Francisco v. Aguirre, 94 Cal. 180; Marshall v. Means, 12 Ga. 61; 56 Am. Dec.