at the same time, and is subdivided in a very unusual manner. In December, 1880, and subsequent to the marriage of the defendants, John Smith, by grant, bargain, and sale deed, conveyed all of said lot to Esther Torrence, saving and excepting the first story of the building standing on the east 20 feet of the south 60 feet of said lot, known as "Dickinson's Saloon." Subsequently, on September 5, 1881, David Burns, by grant, bargain, and sale deed, conveyed to M. H. Torrence and his wife, Esther Torrence, the east 20 feet of the south 60 feet of said lot. Neither of these deeds contained any expression as to how the granted premises should be held by the grantees; but the first recited a consideration of $10,000 paid by Esther Torrence, and the second a consideration of $3,500 paid by M. H. and Esther Torrence. Both deeds were recorded in Yolo county long before the date of the contract with the plaintiffs above set out. There was some conflict in the evidence as to whose money paid for the property, but the court found that, of the $10,000 paid for the parcel first described, $3,200, 8-25, was of the separate property of the wife, and the balance was of the community funds. As to the second parcel, the saloon, it was found that the entire purchase price was paid out of the community funds. As a conclusion from these findings, it was held that the wife owned as her separate estate 8-25 of the hotel property, including the two upper stories over the saloon, with the furniture, busses, etc., and that the balance belonged to the community. It was found that the saloon property was worth $4,000, and the hotel property, $16,000. The husband, in support of his appeal from the order denying his motion for a new trial, assails these among other findings of the superior court; but, as they are attacked upon the ground that they are injurious to his wife, in awarding her a smaller separate interest in the property than she was rightfully entitled to, and as she has not appealed, it is doubtful if he could be heard to make the objection. At all events, it will be assumed for the present that the wife and the community owned the property in the respective proportions as found by the superior court. Such being the case, on the 6th day of January, 1886, they entered into the following written agreement with one W. M. Coward: "Woodland, January 6, 1886. W. M. Coward is hereby employed, exclusively, to sell our hotel, complete, with furniture and buss and harness, situated on the north-east corner of Main and First streets, Woodland, Cal., on or before three months from date. Price, $20,000. Cash, $Secured by mortgage on the property, Interest on deferred payments, per cent. per annum. Term of credit, Agent's commission, 2 per cent. I hereby agree to advertise the above property, and use all diligence in effecting a sale of the same. M. H. TORRENCE. ESTHER TORRENCE. W. M. CowARD." Indorsed: "Property reserved,-piano; two chairs, plush covered; one sewing

machine; one feather bed." On the following day, Coward notified them that he had made a sale of the property for $20,000 to the plaintiffs, and that he had received $500 on account of the purchase. The parties were brought together, and discussed some details as to time of giving possession, division of accruing rents, etc., whereupon plaintiffs drew up, or procured to be prepared, the contract above set out, which was left with the defendants for their examination. On the following morning, the day it bears the date, they delivered the contract to the plaintiffs, signed but not acknowledged. Mrs. Torrence was never asked by either of the plaintiffs to acknowledge her execution of the contract, and it would seem that none of the parties at that time supposed an acknowledgment was necessary in order to make it binding upon her. The $500 mentioned in the agreement was not paid to the defendants, but was retained by Coward, pending the consummation of the transfer. Within a few days after their execution of the contract the defendants manifested a disposition to repudiate it. The plaintiffs and Coward were claiming that it embraced the saloon as well as the hotel property, but the defendants claimed that they had understood and intended that the saloon should be reserved. The superior court finds that this was a mere pretense on their part, put forward as an excuse for evading performance of their contract; and we accept this conclusion, although, when the situation of the property, and the mode of its acquisition, are considered with reference to the terms of the written authority to Coward and the written contract with plaintiffs, the claim of defendants does not appear to be wholly unreasonable.

On the 1st of February, 1886, at the time stipulated, the plaintiffs made a tender to defendants of the balance of the agreed price of the property, $19,500, and demanded of them a deed conveying the entire premises, which demand the defendants, and each of them, refused. The findings are not perfectly explicit as to this demand and refusal; but we do not understand that there was any offer by plaintiffs to pay except upon the express condition that both defendants should unite in a conveyance sufficient to transfer all the interest of each of them in the entire property, viz., the whole of said lot 1, with the whole of the buildings and the personal property used in connection with the hotel. Their tender and demand having been refused, plaintiffs commenced this action. In their complaint they alleged, inter alia, that M. H. Torrence was on and prior to January 8, 1886, the owner of the whole of said lot 1. They set out the contract of that date in terms; alleged that the premises therein described were the same as said lot 1, and that Esther Torrence, although not the owner of any interest therein, was asserting some claim of interest. They prayed for a decree compelling both defendants to convey, and quieting their title as against Esther Torrence. The

be executed. Why should they have done these things if they were ignorant that she made any claim to a separate interest in the property? Evidently, they were not ignorant. They had both actual and constructive notice; and so much of the fourteenth finding as declares the contrary must be rejected in considering the appeal.

With this general statement of the facts of the case we will proceed to consider such of the assignments of error as require discussion. By the decree, the defendant M. H. Torrence is compelled to convey to the plaintiffs all of the community interest in the property as found by the court upon payment of the agreed price of $20,000, less 8-25 of the estimated value of the hotel property, less also the $500 paid at the date of the contract, and less the community interest in the estimated value of the rents and profits of the whole property from the 1st day of February, 1886, the date when, by the terms of the contract, the plaintiffs were to have possession. It is further decreed that the plaintiffs be let into possession of the property, to hold the saloon exclusively, and the hotel and personal property in common with Esther Torrence, 17-25 to them, and 8-25 to her.

The first point made by plaintiffs in support of their appeal is that the superior court erred in not finding that the whole of the property belonged to the community. We think the findings of the court on this point are not only fully sustained by the evidence, but that it would have sustained findings much more favorable to the wife. She is found to be the owner of only 8-25 of the hotel property. But the evidence shows that the price of this parcel was $10,000, paid $4,000 in cash, balance on time. Of the cash payment, she contributed out of her separate funds $3,200, and her husband only $800. In other words, she paid in cash 8-25 of the whole price, and four-fifths of the cash payment. The balance was paid out of what they jointly earned in keeping the hotel. Certainly, she owned no less proportion of the property than her cash payment bore to the whole price. Indeed, she was entitled to more. She was entitled to interest on her cash payment, and to have the amount of such interest computed as a part of her contribution to the purchase. And the court might have found, upon the testimony of the husband, that he intended to and did make his wife a gift of the whole hotel property. His testimony is to the effect that he so intended, and that the deed was made to her by his direction. There is no evidence that he was indebted to any one at the time; and, if he was free from debt, he had the right to give her the property, and could make the gift effectual by simply directing the conveyance to be made to her. Peck v. Brummagim, 31 Cal. 441; Dow v. Mining Co., Id. 653; Ingersoll v. Truebody, 40 Cal. 603; Woods v. Whitney, 42 Cal. 359; Higgins v. Higgins, 46 Cal. 263. This evidence of the defendants, to the effect that it was intended

between themselves that the wife should be sole owner of the hotel property, is the only direct evidence of their intentions, and is diametrically opposed to the contention of plaintiffs that Esther Torrence intended to contribute her $3,200 to the common stock, and that on the purchase of the hotel everything became, and continued thenceforth to be, community property. There is nothing in the case to sustain this theory.

But it is contended by plaintiffs that Esther Torrence is estopped from making any claim to the property because she did not, during the negotiations for the sale of it, distinctly inform them of the nature and extent of her interest. The argument is that a grant to a wife expressing a valuable consideration creates a presumption that the granted premises are community property; that an intending purchaser has a right to rely on this presumption, and, in the absence of express notice from the wife that she claims some definite interest, he is at liberty to infer, and act upon the inference, that she has no interest; that this is especially so when she is informed that her husband is negotiating a sale or other disposition of the property; and that if under such circumstances she keeps silence, she must not afterwards be allowed to assert her claims, however well founded. We think that, even in the strongest case that can be supposed, this is a dangerous and unnecessary doctrine. The intending purchaser of land which has been conveyed to a married woman is under no compulsion to take it and pay for it without getting her deed, properly acknowledged. He knows her husband has no title to it except through the deed purporting to convey it to her, and that he can get no clear and perfect title himself without a deed from her. If she is willing, deliberately, and with full knowledge of her rights, and of the effects and consequences of her acts, to disclaim all interest in the property, she will be willing to sign and acknowledge a deed. she is not willing to sign and acknowledge a deed, no other sort of admission should be held to bind her. The clearly expressed purpose and policy of the law is to permit no alienation of a married woman's real property except by deed acknowledged by her on examination, separate and apart from her husband, and after its contents have been fully explained to her by the officer whose sworn duty it is to see that she not only understands what she is doing, but does it without any constraint due to the presence of her husband. In place of all these safeguards for her independence and freedom of volition, the doctrine contended for would substitute the testimony of witnesses that when her husband had asserted a right to dispose of her property she had failed to contradict him. How dangerous a breach upon the policy of the law designed for the protection of married women from marital influence would be made by the establishment of such a doctrine is too obvious to require comment. And, in addition to its danger, how utterly inexpedient it

If

would be! Its only effect would be to encourage honest purchasers to rely upon uncertain and doubtful admissions in place of the certain, authentic, and secure admission of an acknowledged deed, and to encourage dishonest husbands to enter into fraudulent combinations with simulated purchasers in order to defraud their wives. In other words, the establishment of the doctrine contended for would merely tend to the multiplication of unnecessary litigation, in which fraud and perjury would often carry the day. We had better hold strictly to a law with which compliance in all cases is not only possible, but easy, and which, being observed, leaves no room for litigation in which the most easily manufactured testimony may overwhelm the right. If a purchaser cannot get a married woman's acknowledged deed for property the title of which stands in her name, let him keep his money, and wash his hands of the business.

But, aside from this view of the legal | branch of this proposition of the plaintiffs, it is to be observed that in this case it rests

upon no basis of fact. There is not a par

ticle of evidence that M. H. Torrence ever did in fact represent himself to be the sole owner, or to have the sole right of disposition, of this property, to plaintiffs or to any other person; and there was, consequently, never an occasion when his wife was called upon to contradict such an assertion. The authorization to Coward to make the sale was signed by both husband and wife. The oral negotiations that ensued with the plaintiffs were conducted by both husband and wife. The written contract prepared by plaintiffs, in terms, implied her concurrence. It was left by plaintiffs to be executed by her, and it was signed by her. There is no suggestion, from beginning to end, that M. Í. Torrence claimed, or that plaintiffs understood him to claim, a right to dispose of the property without his wife's concurrence. On the contrary, the evidence leaves no room to doubt that plaintiffs all along understood that Mrs. Torrence was claiming an interest in the property, and a voice in its disposition. For that reason, they sought to bind her by a written contract to convey; and no doubt they then thought, as their counsel still contend, that she was bound by the contract though she had not acknowledged it. Considering themselves secure of getting her deed, they did not care to inquire what her interest was, and they never did inquire. They did not intend to pay for the property without a deed from her and her husband, which they knew would operate a transfer of the whole of it, whatever the respective interests of the grantors might be.. What they relied on was not an admission by her that her husband had power to convey, but the promise of her conveyance; and they simply made the mistake of not getting her promise executed in a form to bind her. We conclude that there was no estoppel against Esther Torrence to assert her rights,

not only because the law would not raise an estoppel on the facts assumed, but because the facts assumed had no existence.

We ought not, perhaps, to leave this branch of the case without noticing the argument of counsel, repeated so often, and with such variation of statement, by which they seek to found an estoppel on a legal fiction. Every one, they say, is conclusively presumed to know the law; and, if it be the law, which they deny, that a married woman's executory contract to convey land does not bind her unless it is acknowledged, why then we must impute to Esther Torrence knowledge that the contract signed by her husband was his sole contract, and therefore she knew that it was not what its terms imported, but was an assertion by him of a right to dispose of the whole of the property without her consent, -an assertion which she indorsed, or, at least, failed to deny when she ought to have denied it. We think this is putting the legal maxim relied on to a use never intended, and to which it is wholly inadequate. All that it means is that no one can screen himself from the legal consequences of his acts or omissions by pleading ignorance of the law; and it has no sort of application to a case of this kind, where the question relates to actual knowledge, motives, and intentions.

The last proposition made by plaintiffs on their appeal is that the contract bound Mrs. Torrence to convey, notwithstanding it was not acknowledged; and in support of this proposition they make a long and very ingenious argument. They cite the provis ions of the Code, which confer upon married women the power to make contracts of all kinds, and call attention to the fact that there is no provision making an acknowledgment essential to the validity of an executory contract of a married woman to convey. But we think they give to the statute too narrow and literal a construction. The following sections of the Civil Code are referred to: "1093. No estate in the real property of a married woman passes by any grant purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed by sections 1186 and 1191." "1186. The acknowledgment of a married woman to an instrument purporting to be executed by her must not be taken unless she is made acquainted by the officer with the contents of the instrument on an examination without the hearing of her husband, nor certified unless she thereupon acknowledges to the officer that she executed the instrument, and that she does not wish to retract such execution." An executory contract to convey, if not within the precise letter of section 1093, as being a technical grant, is within its meaning, and also within the policy of the law. Such a contract, if enforceable, has

the effect of vesting the equitable estate in the vendee, leaving in the vendor the dry legal title. It is, in effect, a grant of the whole beneficial interest in the land; and, unless

never bound her. Barber v. Burrows, 51 Cal. 404. His delivery of the contract to the purchasers, if he did deliver it, can make no difference in this conclusion. He probably did not know that it was defectively executed on the part of his wife; but, if he did know that her acknowledgment was necessary, he also knew that it was the business of the purchasers to procure her acknowledgment to be taken without his presence and hear

We come next to consider the appeal of the defendant M. H. Torrence. He contends that the superior court erred in compelling him to convey his interest in the property on receipt of its proportion of the agreed price. He says that in so decreeing the court compelled him to perform a contract which he never made, or intended to make; and in this position, we think, he is sustained by the facts above stated. The case is peculiar. A husband and wife own separate, undivided interests in a house and lot, where they live and carry on a business. They agree together that they will sell the whole property for a fixed sum. Necessarily, they intend, among other things, to take up their abode in some other place, and transfer their business, if they continue in business, to some other establishment. They do not intend to separate themselves,-one to go, and the other to stay. Neither intends to sell out his interest, and leave the other a tenant in common with strangers, especially when the property, as here, consists of both realty and personalty, together with the good-will of an hotel and saloon business. That the sale shall be complete as to both must in all such cases be a highly material consideration; and certainly it cannot be inferred from the fact that the husband is willing to unite with the wife in making a complete disposition of their common property and business that he is also willing to dispose of his share of the property and business for a share of the price, leaving his wife a co-tenant with the purchasers. The effect of this decree, however, in just such a case, is to compel the husband to do what he never agreed to do, and what it cannot be supposed he would ever have been willing to consent to do. The only contract he executed, or intended to execute, was a contract, in which his wife was to join, for the conveyance of the whole property for a round sum. Until this contract was completed by the accession of his wife, there was no contract of which there could be any breach or failure to perform. As we have seen, the wife never did execute, and it never became binding upon the husband, because it

ing what was necessary to be done for their own protection. It was not his fault that she was not bound; and, as his agreement was dependent on her concurrence, he cannot be compelled to convey without first making a contract for him, and then enforcing compliance. As against the appeal of the plaintiffs, the judgment of the superior court is affirmed; but on the appeal of M. H. Torrence the judgment and order appealed from are reversed, and the cause remanded.

We concur: SHARPSTEIN, J.; MCFARLAND, J.; PATERSON, J.; THORNTON, J.; Fox, J.

Rehearing denied.

(83 Cal. 507)

MONTEREY COUNTY . CUSHING. (No. 12,535.)

(Supreme Court of California. March 31, 1890.) APPEAL-EMINENT DOMAIN.

1. A statement on appeal from an order granting a new trial showed that the notice of intention to move for a new trial set forth as ground therefor that the evidence was insufficient to justify the decision as to value. The notice of intention, which is not required by the Code of California to be presented on appeal, was by stipulation made part of the record, and did not set forth such ground. Held, that this did not overcome the presumption that the statement was correct, as an amended no tice of intention corresponding to the one shown in the statement may have been given.

2. As Code Civil Proc. Cal. 1244, providing what the complaint in proceedings in eminent do main shall contain, does not mention value or damages, the burden of proving value is on defendant, and, where there is no direct evidence of value, a finding for defendant is ground for a new trial.

3. The term "private road" as used in Pol. Code Cal. 2692, providing for "private or by roads" designates a particular kind of public road. Following Sherman v. Buick, 32 Cal. 241.

4. Proceedings in eminent domain to procure a right of way, which Pol. Code, § 2690, authorizes the supervisors of the county within which the road is to be located to institute, are properly brought in the name of the county, rather than in the name of the people.

5. Proceedings in eminent domain for a right of way over land of a decedent's estate are properly brought against the executrix within Code Civil Proc. 1582, providing that actions for the recovery of any property, or the possession thereof, may be maintained by or against executors where the same might have been maintained by or against their testators, as the word "recovery" does not here imply previous possession.

6. Proceedings in eminent domain may, on the death of the owner of the land be continued against the executrix from the stage at which they then stood.

7. Under Pol. Code, § 2690, providing that, in proceedings to acquire a right of way, the board of supervisors shall, by order, direct proceedings in eminent domain against all the land-owners