J. H. Seawell, for Respondent.

The truth concerning material facts, in order to work an estoppel, must be unknown to the party claiming the benefit of the estoppel. (2 Pomeroy's Equity Jurisprudence, 264; Bigelow on Estoppel, 520; Herman on Estoppel, sec. 957; Bispham's Principles of Equity, 288; Exum v. Cogdell, 74 N. C. 139; Estis v. Jackson, 111 N. C. 145; 32 Am. St. Rep. 784.) The doctrine of estoppel does not apply to an administrator, nor will his title be affected by any estoppel that does not rest on equities against the estate. (Gilkey v. Hamilton, 22 Mich. 283.) There was no valid ratification by the plaintiff of the sale by Edmunds, as the plaintiff, as executrix, had no power to confer authority for such sale. (Civ. Code, sec. 2312; McCracken v. San Francisco, 16 Cal. 591; Zottman v. San Francisco, 20 Cal. 97; 81 Am. Dec. 96; People v. Swift, 31 Cal. 28.) The plaintiff is entitled to the property, and it is her duty to take possession of it for the purpose of paying expenses of the last sickness, funeral expenses, expenses of administration, and for the support of the family of the deceased. (Code Civ. Proc., secs. 1205, 1452, 1467, 1581, 1643, 1646; Civ. Code, secs. 1359, 1373; Jahns v. Nolting, 29 Cal. 508; Schouler on Executors and Administrators, pars. 269, 421, 423.)

HAYNES, C.-Upon the first trial of this case the defendant had judgment, and the plaintiff appealed, and the judgment was reversed by this court. (See Krumdick v. White, 92 Cal. 143.) After the reversal a new trial was had, which resulted in findings and judgment for the plaintiff, and defendant appeals therefrom, and from an order denying his motion for a new trial.

The action is in claim and delivery to recover possession of certain personal property, with damages for its detention.

William Krumdick died February 13, 1887. On January 4, 1887, during his last illness, he executed a certain instrument in writing to F. J. Edmunds concerning the property here in question, under which Edmunds

sold the property, consisting of horses and wagons, to the defendant in April, 1887, after the death of Krumdick; and this instrument, it is contended by appellant, empowered Edmunds to confer a good title to the property by the sale.

Upon the former appeal a construction was given to that instrument. It was there said: "The instrument was one which constituted Edmunds the agent of Krumdick, while disabled, to carry on his business as a hauler of freights, and to do all acts in that behalf which Krumdick could. But it did not vest any interest in Edmunds to the subject matter of the agency confided and intrusted to him, and at Krumdick's death the power of Edmunds to sell ceased as to White, who had notice of Krumdick's death before the former purchased the property."

This must be taken as the law of the case, and, unless new facts appear requiring a different construction, is conclusive of the correctness of the judgment.

It is urged that a paper intended to be signed by Krumdick's creditors, and which accompanied the instrument given to Edmunds, was not before this court upon the former appeal, and that the agreement intended to be signed by the creditors, and which was afterward signed by some of them, requires a different construction of the principal instrument from that given upon the former appeal.

Appellant is mistaken. It is true this creditors' agreement is not mentioned in the opinion, but it was printed. in the transcript immediately following the instrument creating the agency of Edmunds, and must have been considered. If, however, the question were open, there is nothing in the creditors' agreement inconsistent with or requiring a different construction of the instrument given to Edmunds.

If Edmunds' power or authority to sell the property terminated with Krumdick's death, as was conclusively settled upon the former appeal, the authorities cited by

appellant upon the subject of trusts can have no application now, and need not be noticed.

It is also contended that the plaintiff is estopped from asserting a claim to the property in controversy.

The evidence discloses the fact that the purchase money paid by defendant for the property was distributed by Edmunds among those creditors of Krumdick who presented their claims to him; that among others Mrs. Krumdick's attorney presented her claim for three hundred dollars, and that she received her pro rata share of the proceeds, amounting to one hundred and twentyfour dollars, and appellant contends that because thereof she is estopped from asserting that Edmunds had no power to sell the property and distribute the proceeds.

But the evidence further shows that the defendant, the purchaser of the property, knew the terms of the instrument under which Edmunds sold the property, and also knew of Krumdick's death; and, if he was mistaken as to its legal effect, the plaintiff is not responsible for his error; and appellant expressly testified that plaintiff did nothing to influence him in any way, that he consulted an attorney, and acted upon the instrument alone. The facts concerning the power of Edmunds to sell being known, and not having been misled by the plaintiff, there is no room for an estoppel upon those facts. If the receipt by her, as a creditor, of her prorata share of the money paid by the defendant for the property had any effect, it must have been by way of ratification; and appellant claims that it so operated. But this contention cannot be sustained. If Edmunds was not authorized to sell the property after Krumdick's death, as was settled upon the former appeal, the property belonged to his estate and was assets to be administered by the executrix. Section 2312 of the Civil Code provides: "A ratification is not valid unless, at the time of ratifying the act done, the principal has power to confer authority for such an act"; and section 2313 of the Civil Code provides: "No unauthorized act can be

made valid, retroactively, to the prejudice of third persons without their consent."

It is hardly necessary to say that the plaintiff, whether as executrix or legatee, could not have authorized a sale of the property by Edmunds to the defendant, and therefore could not ratify such sale; and, besides, it appears from the evidence that neither the expenses of the last sickness of the deceased nor the funeral expenses had been paid, and these are preferred claims; and such ratification would operate to the prejudice of that class of the creditors of the estate, if no other.

The only errors assigned are that certain of the find ings are not justified by the evidence, and, as the supposed insufficiency depends upon the questions discussed, the judgment and order appealed from should be affirmed.

SEARLS, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

MCFARLAND, J., HENSHAW, J., TEMPLE, J.

[No. 15957. Department Two.-April 4, 1895.] MELOCENE W. EICHHOFF, BY HER GUARDIAN AD LITEM, ETC., APPELLANT, v. MAGDALENA EICHHOFF ET AL., RESPONDENTS.

ACTION TO SET ASIDE DECREE ANNULLING MARRIAGE-SERVICE OF SUMMONS-PRESUMPTION-BURDEN OF PROOF.-In an action to set aside a decree annulling a marriage, upon the ground that the defendant in the action annulling the marriage was not served with summons, and had no notice of the suit, and never appeared therein, and that the judgment was procured by the fraudulent practice of the plaintiff in the action, the mere production of the judgment-roll, showing that a summons was issued, but containing no proof of service, and no memorandum of default, and no appearance for the defendant except by a guardian ad litem appointed by the court, and no recital in the record to the effect that summons had been served, does not raise a presumption that there was no jurisdiction of the court over the person of the defend.

ant against whom the judgment was rendered; but the presumption is to the contrary, that the court did have jurisdiction of the person of the defendant, and this presumption must be overcome by proof, the burden of which is cast on the plaintiff in the action to annul the decree, that summons had not in fact been served in the former action.

ID.-DIRECT ATTACK UPON JUDGMENT-INDIRECT

ATTACK-EQUIT

ABLE SUIT.-It is only upon a direct attack by appeal from a judgment by default that there is no presumption in favor of the existence of any fact essential to the jurisdiction of the court over the defendant; but, when an action is brought in a court of equity to set aside a judgment at law, the attack, although not collateral, is always indirect, and such an attack does not question or dispute the effect of the judgment as an adjudication, but seeks to be relieved from its operation upon equitable grounds.

APPEAL from a judgment of the Superior Court of Marin County.

The facts are stated in the opinion of the court.

J. J. Paulsell, and Kile & Plummer, for Appellant.

An action to set aside a judgment for want of summons, or failure to obtain jurisdiction, is a direct attack upon the judgment and can be maintained. (Wilson v. Hawthorne, 14 Col. 530; 20 Am. St. Rep. 290, and notes; Great West Min. Co. v. Woodmas etc. Min. Co., 12 Col. 46; 13 Am. St. Rep. 210; Magin v. Lamb, 43 Minn. 80; 19 Am. St. Rep. 216; Baker v. O'Riordan, 65 Cal. 371; People v. Harrison, 84 Cal. 608, 609; note to Taylor v. Lewis, 19 Am. Dec. 138; Sanford v. Head, 5 Cal. 297; Bibend v. Kreutz, 20 Cal. 113; Kibbe v. Benson, 17 Wall. 624; Harnish v. Bramer, 71 Cal. 156.) No answer or demurrer was filed or appearance made by the defendant in the divorce case, and hence the proof of service of summons should have been clear and explicit before the court was authorized to proceed with the trial of the cause. (Reinhart v. Lugo, 86 Cal. 399; 21 Am. St. Rep. 52; Lyons v. Cunningham, 66 Cal. 43; Barney v. Vigoureaux, 75 Cal. 376; Sichler v. Look, 93 Cal. 607; Keybers v. McComber, 67 Cal. 397; Gray v. Hawes, 8 Cal. 569.) The entire record, as well as the summons in the divorce case, is silent on the question of service of process, and, being a direct attack, no presumptions can be indulged in now. In a direct attack the jurisdiction