Did you pretend to keep any account of the money you gave them? A. No, sir. I think sometimes they told me for so long a time they had had so much money. Q. Did you make any different arrangements with this daughter to what you had with your older daughter? A. My recollection is that she came in and talked with me sometimes, but I do not recollect what it was. I was not very particular."

The plaintiff testified that both her father and uncle agreed to pay her for housekeeping, though it does not appear that her uncle was a member of the family. But there is no evidence that her uncle so agreed until about the time of the sale in March, 1893. As to this he testified as follows:

"About the month of March, 1893, myself and my brother made a sale of the personal property to the plaintiff, who is my niece and my brother's daughter. We made that sale for services that were rendered in keeping house for a goodly number of years. My brother and I were partners in business in the railroading business in Oakland. I think plaintiff's services commenced two or three years after her mother's death. At the time we made the agreement we let her have the ranch and the personal property, and we gave her notes at the same time for seven thousand five hundred dollars, in payment of the services she had rendered, and in full of those services-I think for about thirteen years' services. We sold her all our right, title, and interest in the 'Clay ranch,' and the personal property on the ranch. We owned a two-thirds' interest and Mrs. Given owned the other one-third. When we made the deed we delivered it to Mr. Teichman, the agent of plaintiff, at Hopland. That was at the time the sale of the personal property went into effect. Plaintiff asked me to continue on the ranch, and my answer was, 'I would stop for a time.' There was no agreement at that time about our wages, but there was afterward. I knew very well that after my brother's wife died that the children had to be paid from the very start-1

mean the plaintiff and her older sister. I do not know that we have agreed with her as to the rate of wages. We have put her off, and have never paid her for her services. It was all the time implied that she was to receive pay. I cannot say when was the first time that we had a talk with plaintiff about settling with her. It must have been about the commencement of the year 1893. At the time the deed was made my brother and I had talked over the matter, but I do not know whether we had talked with plaintiff about it or not. I cannot say when was the first time I talked with her about it. I think I had a talk with her before Mr. Teichman came up to take possession of the property, but I don't know."

It thus appears by her uncle's estimate that plaintiff was allowed, in addition to her personal expenses, board, and schooling, one thousand dollars a year from the time she was about twelve years of age; for she testified at the trial that she was then (February 15, 1894, eleven months after the sale), only twenty-six years of age. But she estimated the value of her services at only thirty dollars per month after she was eighteen years of age, and at only five dollars a month before.

It clearly appears from the evidence that the alleged sale was not accompanied by an immediate delivery of the property, as required by section 3440 of the Civil Code. On this point there is no conflict of evidence. The plaintiff, her father, her uncle, and Mr. Teichman, all testified that the sale of the personal property was made on March 14, 1893, at the same time the deed of the ranch was executed, and that the Howe brothers were then in actual possession of both the real and personal property; and also that there was no attempt to deliver to plaintiff the personal property until about two weeks after the sale. It follows that the sale is conclusively presumed to be fraudulent and void against Phoebe Blair, who is admitted to have been a creditor of Montgomery Howe at the time of the sale; and consequently, the finding that plaintiff was the owner of the property by virtue of that sale is not justi

fied by the evidence. (Cahoon v. Marshall, 25 Cal. 201; Bell v. McClellan, 67 Cal. 283; Newell v. Desmond, 63 Cal. 243; Bunting v. Saltz, 84 Cal. 168; Etchepare v. Aguirre, 91 Cal. 288; 25 Am. St. Rep. 180; Murphy v. Mulgrew, 102 Cal. 547; 41 Am. St. Rep. 200.)

The only attempted answer by respondent's counsel to this view of the case is, that at the time of the sale Mrs. Given was a tenant in common of one-third of the property; that, upon the sale of the other two-thirds to plaintiff, Mrs. Given's possession became plaintiff's possession by construction of law, and that such constructive possession of plaintiff satisfied the requirement of immediate delivery. As authority for this counsel cites Freeman on Cotenancy, section 167, which cites and seems to rest upon Brown v. Graham, 24 Ill. 630, alone. But the Illinois case is not in point. The decision in that case is fully expressed in the syllabus as follows: "The possession of one of several tenants in common of personal property which is incapable of division is constructive possession of all. And when a tenant in common, not in possession, sells his interest the possession of another tenant in common becomes the constructive possession of the purchaser."

And this was held in that case to satisfy the statute of frauds.

Conceding, for all purposes of this appeal, that a constructive possession thus acquired would satisfy section 3440 of our Civil Code, which, in view of the decisions of this court in Newell v. Desmond, supra, and Bunting v. Saltz, supra, seems extremely doubtful, still the Illinois case is not applicable, for the reason that the Howe brothers were in actual possession at the time they sold to plaintiff, and there is no evidence that Mrs. Given was ever in actual possession. (Brown v. O'Neal, 95 Cal. 262; 29 Am. St. Rep. 111.)

The evidence shows that a portion of the property in question was produce of the ranch during 1893, after the sale, and, therefore, not the identical property sold,

the value of which is shown to be $627.61; and it is claimed that respondent is entitled to recover this sum, even though the sale of the personal property should be held void.

If the conveyance of the ranch was not void against creditors on the ground of actual fraud, I think this point well taken. While the evidence tends to prove that the conveyance of the ranch was actually fraudulent, as having been made to delay or defeat creditors of the vendors, it cannot be held that there was not such a conflict of evidence on this issue as to justify the finding of the court.

Should it be found on a new trial, however, that the conveyance of land was intended by the vendors to defraud their creditors and that plaintiff did not purchase in good faith for a valuable consideration, and without notice of the intended fraud, then such conveyance should be held void as against all persons who were creditors of the vendors at the date of the conveyance; and, in that case, the produce of the land during 1893, under the circumstances of this case, should be held subject to the execution by virtue of which the defendant took it.

The answer contains no allegation of fraud, actual or constructive; nor was such allegation necessary; for since there was no indication in the complaint that plaintiff claimed title by sale from her father and uncle, the defendant was not bound to anticipate that she would do so. (Grum v. Barney, 55 Cal. 254.) But now that defendant has notice of the nature of plaintiff's alleged title it may be questionable whether he should expressly plead the fraud on which he relies for his defense before the new trial.

I think the judgment and order should be reversed and the cause remanded for a new trial, with leave to defendant to amend his answer if so advised.

HAYNES, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion, the judgment and order are reversed and the cause remanded for a new trial, with leave to defendant to amend his answer if so advised.

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

[No. 21176. In Bank.-April 5, 1895.]

EX PARTE GEORGE W. TYLER, ON HABEAS CORPUS.

ATTORNEY AT LAW-VIOLATION OF DUTY-DISBARMENT-RES ADJUDICATA.—A judgment of the supreme court that an attorney has been guilty of a violation of his duty as attorney and counselor, and of his oath of office as such, is a judicial determination of that fact, by reason of which the court is estopped from subsequently investigating the sufficiency or legal effect of the proofs to establish the charge; and a subsequent denial of a motion to modify the judgment is also a conclusive determination that the court did not exceed its authority in rendering the judgment.

ID. RELATION OF OFFENSE TO OFFICE OF ATTORNEY-PREVIOUS CONVICTION, WHEN AND WHEN NOT NECESSARY-POWER OF COURT——— DISCRETION.-When an attorney has violated the laws of the state in a matter distinct from his professional conduct, and not by virtue of his office as an attorney, courts will not entertain any proceedings for his disbarment until after he has been convicted of the offense charged; but when he is charged with violation of his professional obligations, either to his client or to the court, it is no defense to a proceeding for his suspension or disbarment that the same transactions may render him liable to a criminal prosecution, and the court has power to strike his name from the roll of attorneys, and this power is not suspended until after his previous conviction of crime, although the court may in its discretion withhold the exercise of the power, as the facts of any particular case may suggest would be appropriate.

[D. CONSTRUCTION OF CODE.-Under subdivision 1 of section 287 of the Code of Civil Procedure the conviction of an attorney of felony or misdemeanor involving moral turpitude is ground for his disbarment, whether such offense was committed in his private capacity or by virtue of his professional relation; but there is no limitation upor the power of the court for the removal or suspension of an attorney who has been guilty of any violation of the oath taken by him, or of his duties as an attorney under subdivision 2 of section 287, and it is immaterial whether evidence offered in support of charges under said second subdivision would have sustained an indictment or not. ID. STATUTE OF LIMITATIONS--VIOLATION OF PROFESSIONAL DUTIES-BAR OF CIVIL OR CRIMINAL PROCEEDING IMMATERIAL.-The court being authorized to entertain charges against an attorney of violating his pro