zeppa mine, or that she furnished the money with which he purchased the two-thirds interest in the Mazeppa mine, or any portion of the purchase price for the Junietta mine, or that the same was purchased for her use and benefit, or that he ever admitted or acknowledged that he held the same in trust for her. Upon these findings the court rendered judgment in favor of the defendants, and that the plaintiff take nothing by her action. Plaintiff afterwards asked the court to vacate the said judgment and enter judgment upon the findings in her favor. This motion was denied, as was also a motion by her for a new trial. The appeals herein are from these two orders, and also from the judgment.

As at the time of the plaintiff's marriage to Harris he had a wife living in Georgia, the plaintiff never became his wife, and their respective rights to the property in question, flowing from the subsequent dealings and transactions between them, are to be measured without reference to the rights and obligations of husband and wife. The plaintiff does not, in her complaint, claim the property to be hers by virtue of having been the wife of Harris, but upon the ground that it was held by him in trust for her. The ground upon which she relies for this claim is that the Gem mine was her separate property, and that the purchases by Harris of the Junietta mine and the two-thirds interest in the Mazeppa mine were made with moneys which were taken by him from that mine, and that he purchased the same at her direction and request. She claims that the finding of the court to the contrary is not sustained by the evidence. In support of this claim she sought to show that Harris was without any means of his own, and that whatever property he acquired was the result of his working the Gem mine. The testimony before the court did not, however, require it to hold that Harris had no money other than the proceeds of his working the Gem mine, or that what he took from that mine created any relation to the plaintiff other than that of debtor therefor. The plaintiff testified that when they were married she asked him to take care of her property, and see that everything was taken care of, and that she allowed him to work the mine and hire men, and that she had no agreement with him. It does not appear that prior to 1877 the mine yielded anything beyond the cost of the labor therefor. Nor is there any evidence of any specific amount of gold that was taken from the mine by Harris. The evidence shows that, although Harris worked the Gem mine from the time of their marriage, in 1873, no great amount of gold was taken therefrom for several years, and it was shown that Harris during this time was engaged in prospecting and working other mines, as well as dealing in mining properties. In 1880 a mill was put upon the mine, and during a few years thereafter a large amount of gold was taken there

from. Much discussion is given in the briefs to the proposition that a resulting trust was created in the plaintiff from the purchase by Harris from Dixon and Rodgers of their interest in the Mazeppa mine. We find it unnecessary to enter upon an examination of this question, inasmuch as the plaintiff, by the agreement of March 26, 1892, conveyed to Harris all her claim to any and all property other than the Gem mine "owned or claimed" by him, or which he might thereafter acquire. The finding of the court that the Mazeppa mine was included in this conveyance is sustained by the evidence. The entire title to the mine was at that time in Harris by virtue of the patent, and, in the absence of testimony to the contrary, it must be assumed that he claimed that it was his own. At the time the plaintiff signed this agreement she did not assert any claim to it, and in reply to a question from her at that time Harris said that he could get a living out of that mine, and he immediately afterwards went to the mine and lived there. It does not appear that the plaintiff at any time during the life of Harris made any further claim to this mine. After the plaintiff had executed the agreement, and while Harris was still living apart from her, she assented to his borrowing $500 from her sons, and advised them to accept from him a mortgage upon the Mazeppa mine. The rule is well settled that one who would claim the ownership of property of which the legal title stands of record in another, or that the same is held by such person in trust for the one so claiming, must establish such claim by evidence that is clear, satisfactory, and convincing. Woodside v. Hewel, 109 Cal. 481, 42 Pac. 152; Plass v. Plass, 122 Cal. 3, 54 Pac. 372. Whether the evidence in any particular case is of this character must be determined by the trial court, and its determination thereon will be accepted by this court as conclusive. In the present case the superior court held that the evidence before it is not sufficient to sustain this claim of the plaintiff, and we are not at liberty to say that the evidence required a different conclusion.

The court did not err in permitting the witness Rooney to testify respecting the transaction of March 26, 1892. At that time he was acting as the attorney for both parties, and in such a case the rule prohibiting an attorney from testifying as to the communications of his client is inapplicable. In re Bauer's Estate, 79 Cal. 304, 21 Pac. 759; Murphy v. Waterhouse, 113 Cal. 467, 45 Pac. 866, 54 Am. St. Rep. 365; Hurlburt v. Hurlburt, 128 N. Y. 420, 28 N. E. 651, 26 Am. St. Rep. 482. The objection of the appellant to the ruling of the court admitting in evidence her answer in the contest upon the probate of the will cannot be considered. At the time the ruling was made it did not appear that there had been an amended answer filed. No motion was afterwards made

TRUSTS-ACTION TO RECOVER DEPOSIT-EVIDENCE-VARIANCE-PLEADINGS-AMENDMENT-LIMITATION.

1. Where a complaint alleges that plaintiff deposited money with defendant, to be loaned by the latter, and its appropriation by defendant, and his refusal to account therefor. and defendant pleads a general denial and a counterclaim alleging an account current, closed by an account stated, showing a balance in his favor, and asks judgment for such balance, it is error, as not being within the issues, to allow plaintiff to give evidence that defendant sold and retained the proceeds of land to which he held the legal title in trust for plaintiff, and misrepresented the price received for other lands belonging to plaintiff, though the proceeds of the sale of such lands is the deposit in controversy.

2. When such evidence is erroneously admitted over defendant's objection, it is error to refuse to allow defendant to plead the statute of limitations by way of amendment to his auswer, as the complaint does not show any fraud or mistake, and plaintiff cannot avoid the statute of limitations by alleging a trust, and then proving a cause based on fraud.

Commissioners' decision. Department 2. Appeal from superior court, Humboldt county; G. W. Hunter, Judge.

Action by John Nichols against A. W. Randall. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

S. M. Buck (C. W. Wheeler, of counsel), for appellant. Sevier & Selvage, for respondent.

COOPER, C. The amended complaint alleges that on April 1, 1883, the plaintiff deposited with defendant $35,000, to be loaned by defendant for plaintiff, and that defendant guarantied plaintiff 9 per cent. per annum interest upon said money, compounded annually; that defendant did not loan said money, but used the same in his own business; that in April, 1897, the defendant repudiated his trust in regard to said moneys, refused to account to plaintiff therefor, and ever since has refused to pay plaintiff the said sum, or any part thereof. Judgment is prayed for said $35,000, and $20,000 interest alleged to be due thereon. Defendant answered, and, after denying the allegations of the complaint, alleged by way of counterclaim that between the years 1875 and 1896 there was an open, mutual, and current account between plaintiff and defendant, and that in December, 1896, said account was stated and agreed upon, and by it plaintiff was found to be indebted to the defendant in the sum of $3,739.03, which sum has not

been paid. Also, in a separate count, defendant, by way of counterclaim, alleged that between the years 1875 and 1896 defendant loaned and advanced to plaintiff many thousands of dollars, all of which has been repaid by plaintiff to defendant, except the sum of $3,739.03, which amount remains due and unpaid. Judgment is prayed in the answer for said sum. The case, upon these pleadings, was tried before a jury, and a verdict rendered in favor of plaintiff for $21,632. Subsequently, on motion for a new trial, the court reduced the amount to $12.000, which seems to have been consented to by plaintiff. The court then made an order denying the defendant's motion for a new trial, from which order this appeal is taken.

The main contention of defendant is that the court erred in the admission of evidence showing a case entirely different from that alleged in the complaint. This is the only point that need be considered. The complaint sought to charge defendant upon a special contract in regard to a deposit of $35,000. The plaintiff testified that he left the money that he sold his timber land for in 1882 with defendant. "He told me if I would leave the money with him it should net me nine per cent. Think this was in April, 1883. It was left with him under that agreement." It appears, without conflict, that about December, 1882, defendant sold to one Russ a tract of about 3,300 acres of timber land, part of it being land of plaintiff, and part of it land of defendant; that he gave plaintiff credit on his books for 1,400 acres at $20 per acre, amounting to $28,000; that statements of plaintiff's account were given to him at different times, containing such credit entry. It is sufficient here to say that the money alleged to have been deposited with defendant was the proceeds of the timber land sold by defendant to Russ in 1882. The plaintiff sought to prove, and introduced evidence tending to prove, that, of the land sold, 280 acres stood on the records in the name of defendant, but was held in trust for plaintiff, and that, instead of 1,400 acres, plaintiff should have credit for 1,680 acres, and that the land brought $25 per acre, instead of $20. The difference in the amount of land, 280 acres, and the difference in price for the whole, $5 per acre, were the important points by virtue of which the plaintiff sought to make out his case against defendant. That a fraud was committed upon plaintiff in 1882, 16 years prior to the commencement of this action, by reason of the concealing of the real price per acre, and by reason of plaintiff being entitled to the proceeds of 280 acres of land held by defendant in trust for plaintiff, was attempted to be established by parol evidence upon a complaint on a special contract, that contains not even a suggestion as to fraud or mistake. The defendant objected at every opportunity, and insisted that the evidence was not competent under the pleadings. After the plaintiff's counsel had stated

able as a general rule. The indebitatus assumpsit count states that the defendant was or is indebted to the plaintiff in a certain sum of money for (stating generally the consideration), and that, being so indebted, the defendant promised to pay plaintiff the said sum of money on request. 1 Chit. Pl. p. 352.

The contract set forth in this case is a special contract by which it is alleged the money was deposited "to be loaned by defendant"; that in April, 1897, "the said defendant repudiated his said trust in regard to said moneys." While it is a rule of pleading that the plaintiff may in many cases recover on the common count, when there is a special agreement, yet it is not the rule that he may recover upon pleading the special agreement, the same as if he had pleaded the common count. If plaintiff in this case had set forth that defendant was indebted to him for moneys had and received by defendant for plaintiff's use from the sale of lands belonging to plaintiff, from the years 1882 up to the year 1898, the defendant would have had some kind of notice of the nature of the claim, and could have prepared his answer accordingly. Plaintiff will not be allowed to set forth a special contract in the nature of a trust, so as to avoid the statute of limitations, and then, when the real nature of his case is disclosed, object, and prevent defendant from pleading the statute. While this would be a very ingenious way of avoiding the statute, it does not commend itself to us as a proper rule for the courts to adopt. Statutes of limitation have become rules of property. They are vital to the welfare of society, and are favored in law. "They are found and approved in all systems of enlightened jurisprudence. They promote repose, by giving security and stability to human affairs. Important public policy lies at their foundation. They stimulate to activity and prevent negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary." Wood v. Carpenter, 101 U. S. 139, 25 L. Ed. 807; Shain v. Sresovich, 104 Cal. 406, 38 Pac. 51.

It is not necessary to express our views upon the evidence.

The order should be reversed.

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

PER CURIAM. For the reasons given in the foregoing opinion, the order is reversed.

(136 Cal. 49

HARP v. HARP. (Sac. 977.) (Supreme Court of California. May 28, 1902.) DEED

WHEN A MORTGAGE DECLARATIONS OF GRANTEE SUFFICIENCY-ADMISSIBILITY

-WITNESSES-COMPETENCY-APPEAL.

1. Declarations by a father, both before and after receiving a conveyance of land from his son, that it was intended as security merely, were sufficient to sustain a finding that the conveyance was so intended, though the suit

to have it so declared was brought after the father's death, where the declarations were sworn to by members of the family whose interest it would be to have the conveyance found absolute.

2. In an action brought against the administrator of a deceased father to have an absolute deed executed to the father by his sou declared to be a mortgage, where the administrator objected to the son's testifying to the agreement with his father, he could not afterwards assert that judgment for plaintiff should be reversed because the son failed to so testify.

3. Though an absolute deed, intended as such, cannot be changed into a mortgage by the subsequent oral declarations of the grantee, his subsequent declarations are admissible to show that at the time the deed was made it was intended merely as security.

4. Children and other relatives of a decedent were competent to testify to declarations made by him in their presence to the effect that a conveyance made to him by one of his sons was intended as a mortgage.

5. Under Code Civ. Proc. § 1853, providing that the declarations of a decedent, having sufficient knowledge of the subject, against his pecuniary interest, are also admissible against his successor in interest, declarations of a deceased father to the effect that a conveyance made to him by one of his sons was intended as security are admissible against the father's administrator.

6. Where, after witness' answer to a certain question had been given, objection was made, and after some discussion, the first question and answer not being stricken out, the question was again put, and objection sustained, there was no reversible error, as the supreme court could not say but that the question was excluded as mere repetition.

Commissioners' decision. Department 2. Appeal from superior court, Stanislaus county; Wm. O. Minor, Judge.

Action by J. D. Harp against T. J. Harp, administrator of T. D. Harp, deceased. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed

L. J. Maddux, for appellant. W. H. Hatton, for appellee.

CHIPMAN, C. Action to have a deed declared to be a mortgage, and that defendant reconvey on full payment of the debt and cost of conveyance. Certain special questions were submitted to a jury, and were answered favorably to plaintiff; and upon the verdict, and findings of the court, plaintiff had judgment, from which, and from the order denying his motion for a new trial. defendant appeals.

Defendant is administrator of the estate of J. D. Harp, deceased, who in his lifetime was plaintiff's father. It appears that having reached the age of 70 years, and wishing to free himself from the care of managing all his property, deceased deeded most of his land, in separate parcels, to his six children, reserving a portion for his wife at his death. This was about October, 1894. Plaintiff subsequently became indebted to his father in the sum of $1,500, and on October 19, 1896, conveyed his share of the land to his father, who died May 22, 1900.

The jury found that the said deed was made under an agreement between the parties that it should be held as security for the payment of what plaintiff owed his father at the time, and that his father agreed to reconvey the land to plaintiff on payment to him of $1,500; that the deed was not an absolute conveyance; and that it was not the intention of the parties that the indebtedness of plaintiff to his father should be satisfied by the deed. The court adopted the findings of the jury, and made full findings of fact on all the issues in favor of plaintiff. The evidence as to the transaction was oral, and consisted entirely of declarations of the deceased made shortly before plaintiff conveyed the land to his father, and declarations made at different times after the deed was delivered prior to his death. These declarations were made to his children and to other relatives.

1. Appellant contends that where there is no direct proof of the terms of the agreement, and the case rests entirely on declarations of one of the parties, testified to after his death, a court is not warranted in setting aside a deed absolute on its face. It is true that uncorroborated declarations, brought out after the death of the party making them, should be received with caution, and are under some circumstances, if not under all, weak and of dubious force; still, where admissible at all, they become evidence in the case, and we cannot say they should be entirely ignored or rejected❘ in reaching a verdict or judgment. In this

case the fact that the declarations were sworn to by members of the family, whose interest, apparently, was in keeping the land in the estate as an asset in which they would share, together with the circumstances under which the witnesses testified that the declarations were made, tend very much to soften the rule, or at least to make its application less rigid. The evidence is suf- ficient to support the findings.

2. But it is claimed by appellant that the declarations were inadmissible, and he objected to their introduction at the trial. Appellant also emphasizes the fact that plaintiff testified in his own behalf, and did not testify as to the agreement,-either as to its terms, or as to the circumstances under which it was made. As to this latter point, to which much attention is devoted, the record shows that when plaintiff was on the witness stand his counsel read to him a question intended to draw out the facts as to the agreement, but cautioned the witness not to answer until defendant's counsel had an opportunity to object, which he promptly did on the ground that it was immaterial and incompetent. Counsel for plaintiff stated. if objected to, he would not insist on it, as he thought the witness could not testify as to what occurred between him and his father prior to the latter's death. Defendant's counsel did not withdraw the objection, but seemed to con

cur in this view of the law. Whether the testimony was admissible under section 1880, Code Civ. Proc., need not be decided. Suffice it to say that defendant's counsel cannot now be heard to claim that the judgment should be reversed because plaintiff failed to testify as to the facts and circumstances of the agreement.

3. Appellant contends that the proof must not only be clear and indisputable, but "the transaction must be governed by the minds of the parties at that time, and not afterwards," and that a deed absolute in form cannot be changed into a mortgage by subsequent oral declarations; citing Mahoney v. Bostwick, 96 Cal. 53, 30 Pac. 1020, 31 Am. St. Rep. 192; Sherman v. Sandell, 106 Cal. 373, 39 Pac. 797; Sheehan v. Sullivan, 126 Cal. 189, 58 Pac. 543. This may be conceded. But the declarations here related to the state of mind of the parties when the deed was made. The subsequent declarations were not to show a subsequent intent, but the intent when the deed was made. It is not the case of attempting to change what was at first intended to be a deed absolute into a mortgage by subsequent oral declarations. That the declarations could be proved by the witnesses who testified to them we think is beyond question. The declarations were against interest and admissible. Code Civ. Proc. § 1853; Ross v. Brusie, 64 Cal. 245, 30 Pac. 811; Wormouth v. Johnson, 58 Cal. 621.

4. Defendant was a witness in his own behalf, and was asked if his father, deceased, "ever put that land up for sale." The witness answered: "Yes, sir; he told me to sell it." There was an objection made to the question after the answer had been given, and upon some discussion the question was again put, and the objection was sustained. The first question and answer were not stricken out, and defendant had the benefit of the testimony. We cannot say but that the court excluded the question because it was a repetition of the one answered.

The judgment and order should be affirmed.

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

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

TEMPLE, J. I concur in the judgment. It is objected that there was no proof of the terms of the parol contract by which the deed absolute on its face is converted into a mortgage. But admissions against interest made by the deceased, if satisfactorily proved, and sufficiently definite and clear as to its terms, would suffice. Admissions were proven, which, with proof of the amount of the indebtedness, show well enough the terms of the contract. I do not agree that because the plaintiff offered to prove such fact by incompetent evidence,-his own testimony,-and defendant objected to that testimony, he is.