liability was admitted to exist. This is widely different from saying that the property is liable for debts which are not community debts, that is, for debts contracted after the dissolution of the community. The statement quoted was not necessary to the decision, and seems rather vague. It is to be observed, however, that what the court was speaking of was the power to convey, and that what it said of this power was, that it was the same "in its nature" as before the dissolution of the community. It was not said that this power was the same in extent as before the dissolution, and it is impossible that the court should have meant this; for that would be to say that the children's interests could be taken for non-community debts, or in other words, that the power of the husband was unrestrained. We do not regard the case as conflicting with the views above expressed.

In Packard v. Arellanes, supra, the court said that the debts for which the property was liable to be taken included all debts of the community contracted for the common benefit, "whether by the deceased or by the survivor." This remark was not necessary to the decision, which was merely that no probate administration upon the estate of the wife was necessary. There can be little doubt that such expenditures as are necessary to preserve the property in statu quo may be made by the surviving husband, and would be allowed upon a settlement of his accounts. But the case here is manifestly not of that character.

The interests of the children, therefore, were not bound for the debt contracted after the dissolution of the community, and there is no equity in imposing a condition as to such debt.

(c) We do not see why the rents and profits of the shares of these two children should not be set off against the amount of the condition imposed upon them. This does not refer to the rents and profits received by James Johnston, Sen. The defendant here is not James Johnston, Sen., and cannot be charged with rents and profits which it did not receive. But after it went into possession under the sheriff's sale, it received the rents and profits of all the land except a small portion in possession of the plaintiffs. It had no right to the rents and profits of the plaintiff's share, and should be charged therewith. It is probably true that the parties (being tenants in common) could not be made to account to each other in an independent action. But in imposing a condition, the court

must take into consideration all the circumstances in order to arrive at the justice of the case.

The other positions do not require special notice.

We therefore advise that the cause be remanded, with directions to the court below to find, from such additional evidence as may be introduced, the value of the rents and profits of the entire property since the defendant has been in possession, and also the value of the rents and profits since said time, of the portion in possession of the said two plaintiffs, and after deducting the latter amount from the former, to set off two sixths of the remainder against the amount of the condition imposed upon said plaintiffs; that in all other respects the judgment and order appealed from be affirmed; the said two plaintiffs to recover their costs of appeal.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the cause is remanded, with directions to the court below to find, from such additional evidence as may be introduced, the value of the rents and profits of the entire property since the defendant has been in possession, and also the value of the rents and profits since said time, of the portion in possession of the said two plaintiffs, and after deducting the latter amount from the former, to set off two sixths of the remainder against the amount of the condition imposed upon said plaintiffs; and in all other respects the judgment and order appealed from be affirmed; the said two plaintiffs to recover their costs of appeal.

CIRCUMSTANCES UNDER WHICH JUDGMENT MAY BE IMPEACHED COLLATERALLY: Sidensparker v. Sidensparker, 52 Me. 481; 83 Am. Dec. 527; Clark v. Thompson, 47 Ill. 25; 95 Am. Dec. 457, and note 461; Ferguson v. Crawford, 70 N. Y. 253; 26 Am. Rep. 589; McAnear v. Epperson, 54 Tex. 220; 38 Am. Rep. 625; Chicago etc. R. R. Co. v. Summers, 113 Ind. 10; 3 Am. St. Rep. 616. JUDGMENT CANNOT BE COLLATERALLY IMPEACHED BY PARTY on the ground that it is erroneous merely: Indiana etc. R. R. Co. v. Allen, 113 Ind. 308; 3 Am St. Rep. 650, note 654.

JUDGMENTS CANNOT BE ATTACKED COLLATERALLY for mere irregularities: Mitchell v. Atem, 37 Kan. 33; 1 Am. St. Rep. 231; Ketchum v. White, 72 Iowa, 193; Kleyla v. Haskett, 112 Ind. 515; and judgments which are not void, but only voidable, cannot be attacked collaterally: Dore v. Dougherty, 72 Cal. 232; and judgments rendered in accordance with requirements of law are valid till set aside by a direct proceeding for that purpose: Hurlbut v. Thomas, 55 Conn. 181; 3 Am. St. Rep. 43; nor can judgments be collaterally attacked on ground that they are erroneous merely: Blair v. Wolfe, 72 Iowa, 246; so that the rule seems to be that judgments cannot be attacked collat

erally unless absolutely void: Chicago etc. R. R. Co. v. Summers, 113 Ind. 10; 3 Am. St. Rep. 615; Dillard v. Central Virginia Iron Co., 82 Va. 734; Dollarhide v. Parks, 92 Mo. 178; Applegate v. Dowell, 15 Or. 513; Berry v. King, 15 Id. 165; Reynolds v. Stockton, 43 N. J. Eq. 211; 3 Am. St. Rep. 305.

HUSBAND MAY, AFTER WIFE'S DEATH, CARRY INTO EFFECT CONTRACTS RESPECTING THEIR COMMUNITY PROPERTY, entered into by himself alone or jointly with the wife before her death: Brewer v. Wall, 23 Tex. 585; 76 Am. Dec. 76. And where husband and wife are seised of land by entireties, and husband survives wife, sheriff's sale of such land upon judgment against the husband will discharge a mortgage executed by husband and wife after the entry of the judgment: Fleck v. Zillhaver, 117 Pa. St. 213.

[IN BANK.]

QUINN V. DRESBACH.

[75 CALIFORNIA, 159.]

ONE WILL BE BOUND BY ASSUMED AGENCY, IF HE FAILS TO REPUDIATE IT AFTER HE IS CHARGED WITH NOTICE that an agent employed by him in the commencement of a transaction is continuing to act in the matter in some way, justifying the inference that he is continuing to act in the same capacity in which he commenced.

WANT OF POSSESSION OF NOTE IS NOT CONCLUSIVE AGAINST AUTHORITY OF ONE TO COLLECT IT, as the agent of another, although it is a circumstance to be considered.

ACTION by Isaac Quinn to enjoin a sale by defendants under a deed of trust given to secure the payment of a promissory note. The facts are stated in the opinion.

J. C. Ball, Add. C. Hinkson, Jo. Craig, and J. W. Armstrong, for the appellant.

A. Morgenthal, for the respondents.

HAYNE, C. Action to enjoin a sale by defendants under a deed of trust given to secure the payment of a promissory note. The plaintiff paid the amount of the note to one Treadwell, who appropriated the money to his own use, and the question is, whether Treadwell was the agent of the payee.

Treadwell was not the actual agent of the payee in the matter. It is true that the plaintiff testifies that he was instructed by the payee to pay to Treadwell. But the payee denies this, and in view of the rule in cases of a substantial conflict in the evidence, it must be assumed that there was no actual agency. Then was there an ostensible agency?

The facts as shown by uncontradicted evidence are as follows: The land which is the subject of the deed of trust was sold by the defendant Haneke to the plaintiff. The plaintiff

gave his promissory note for eight hundred dollars, and assumed the payment of an outstanding indebtedness secured upon the property. Neither of these obligations having been met, the defendant Haneke placed the matter in the hands of Treadwell, who was an attorney at law residing in Yolo County, where the property is situated, and where the plaintiff resided. The result of Treadwell's operations was the advance by Haneke of money to pay off the outstanding indebtedness, and the taking of a new note from plaintiff covering the amount of the former note and the amount advanced by Haneke. So far, there is no kind of doubt but that Treadwell was the agent of Haneke for the collection of the principal and interest of the first note. This agency, however, terminated with the giving of the second note. This note was by its terms payable at the Bank of California in San Francisco; and the note was given to the bank for collection. The plaintiff seems to have known of this fact. He fell into the habit, however, of paying his interest to Treadwell, who assumed still to be the agent of Haneke. At least six payments of interest were made in this way. Treadwell sent the money to the bank, and the receipts therefor were forwarded to him, and by him delivered to the plaintiff. On some occasions, however, the plaintiff sent the interest to the bank through one R. W. Pendergast, who had no connection with Treadwell. Not only was interest paid to Treadwell, as above stated, but on one occasion a part payment of the principal was made to him. This payment was sent by Treadwell to the bank with the following letter:

"WOODLAND, Dec. 24, 1881. "THOMAS BROWN, Esq., Cashier Bank of California:

"Herewith I send you check for $437.50 on the part of Isaac Quinn, being $400 principal and $37.50 interest on note favor of Carl Haneke. I also send receipt of tax of Carl Haneke on mortgage given to secure said note, amounting to $36, which was paid by Mr. Quinn. This makes up the amount of $73.50 interest due December 27th. Please acknowledge receipt. Yours,

"W. B. TREADWELL." This payment of the principal was properly credited on the

note.

There can be no doubt but that the plaintiff believed in good faith that Treadwell remained the agent of Haneke for the collection of the principal and interest after the giving of the

second note. And this belief was justified by the conduct of Haneke. Plaintiff had made one payment of principal to Treadwell, and this payment had not been repudiated by Haneke, but was credited upon the note. Ostensible authority may be conferred by the recognition of a single act of the agent, if sufficiently unequivocal: Wilcox v. Chicago, M., & St. P. R'y Co., 24 Minn. 270.

He

It was negligence in Haneke to have allowed the plaintiff to act under the belief that Treadwell was authorized to receive the money. Haneke was chargeable with knowledge that Treadwell continued to act in some way in the matter. was chargeable with this knowledge, because the bank knew it, and the bank was his agent for the collection of the debt: See Bierce v. Red Bluff Hotel Co., 31 Cal. 166. Now, if Haneke knew that Treadwell was continuing to act in the matter at all, the only inference which he was entitled to draw, and the one which he ought to have drawn, was that he was continuing to act as he had commenced, viz., as his (Haneke's) agent. It was not a natural inference that Treadwell had changed his position in the matter, and was acting for the other side. The presumption was that he was assuming to act for Haneke, and we think that this was what nine out of ten business men would have thought. This being the case, Haneke ought to have repudiated the assumed agency, and not have suffered the matter to stand as it did.

The Civil Code provides that "ostensible authority is such as a principal intentionally or by want of ordinary care causes or allows a third person to believe the agent to possess": Civ. Code, sec. 2319.

And this is the embodiment of a well-established principle of the common law, which has been called "the foundation of the law of agency": 1 Parsons on Contracts, *44; Kasson v. Noltner, 43 Wis. 650.

Nor does the fact that the note was not in the possession of Treadwell change the result. The want of possession of the note is a circumstance to be considered in determining the question of authority, but is not conclusive. The fact that the bank held the note for collection would not prevent the owner from collecting it himself: Flanagan v. Brown, 70 Cal. 257.

The circumstance that Haneke had assigned the note to his daughter, and that it was owned by her at the time of the final payment to Treadwell, is not material, because the trans