as well as guardian of John A. Collins, who is under the age of 21 years. and her children a sufficient quantity of the mortgaged land, or land in some other part of the county of Santa Clara, in or near to San Jose, to an amount in value of not less than $2,000, to be secured and conveyed as a homestead for said Cymantha O. Collins and her children, and for their use and benefit. This has not been done. Lemuel P. | Collins died intestate on the 27th day of May, 1879, leaving as heirs Cymantha O. Collins, his wife, and the plaintiffs herein, their children, all then infants, and two daughters by a former marriage. On or about July 12, 1879, Salvin P. Collins, the mortgagee, procured one John T. Bury to be appointed administrator of the estate of Lemuel P. Collins, deceased, and with the fraudulent intent of avoiding his said agreement in regard to a conveyance of the value of $2,000, and without the knowledge of plaintiffs, who were infants, falsely represented to the administrator that there was no defense to his mortgage, and thereupon brought an action to foreclose said mortgage. It is further charged that with like fraudulent intent he procured one Charles F. Wilcox, an attorney at law, to be appointed and to appear as an attorney for the infant plaintiffs herein, and for their brother, now deceased, to whom he made like declarations, and the administrator and attorney, believing the representations to be true, made no defense to an action which said Salvin P. Collins brought to foreclose his mortgage, and judgment of foreclosure was entered in favor of plaintiff and against the infant children, who, it is to be inferred, were, but who are not directly stated to have been, made defendants in the action. On the 17th day of February, 1880, an order of sale issued in the foreclosure proceedings, under which the mortgaged premises were sold on the 15th day of March, 1880, and purchased by Salvin P. Collins, the mortgagee, for the amount found due him under his judgment of foreclosure, who received a certificate of sale, and thereafter, and on the 20th day of September, 1880, a deed of the premises. Plaintiffs knew nothing of the foreclosure proceedings, and had no opportunity to redeem from the foreclosure sale, or to enforce the agreement made by Salvin P. Collins. Said Salvin P. Collins, upon receiving a sheriff's deed, entered into possession of the premises, and he and his successors in interest have received, since that date, the rents and profits thereof. Salvin P. Collins departed this life August 28, 1884, leaving a last will, whereby the premises in question were devised to his wife, and such proceedings were had that in September, 1885, the property was distributed to his widow, who has intermarried with Emerson W. Scott, and they are husband and wife, and the defendants in this action. One of the children of Lemuel P. Collins and Cymantha O. Collins, L. P. Collins, died under age, and said Cymantha has been duly appointed his administratrix, | but regard the agreement, if a valid one, as The whole question of the sufficiency of the amended complaint must turn upon the rights acquired by plaintiffs under the agreement made at and immediately before the execution and delivery of the mortgage. A homestead having been declared upon the community property prior to the execution of the mortgage, when Lemuel P. Collins, the husband of Cymantha O. Collins, died, on the 27th day of May, 1879, the homestead became the sole property of his surviving wife. Civil Code, § 1265; Sanders v. Russell, 86 Cal. 119, 24 Pac. 852; Mawson v. Mawson, 50 Cal. 539; Estate of Headen, 52 Cal. 295; Gagliardo v. Dumont, 54 Cal. 496; Herrold v. Reen, 58 Cal. 443; Rich v. Tubbs, 41 Cal. 34; Watson v. His Creditors, 58 Cal. 556. These remarks are indulged for the purpose of showing that the plaintiff's here acquired no interest in the property in question by succession as the heirs at law of their deceased father, and can only rely upon the agreement in support of their cause of action. This agreement may be succinctly stated thus: In consideration of Cymantha O. Collins executing with her husband a mortgage upon their homestead, Salvin P. Collins, the mortgagee, promised them and their children that, in the event of an action to foreclose and sell the mortgaged premises, he would set aside and convey to Cymantha and her children, land of the value of $2,000, either out of the mortgaged premises, or elsewhere in the county, in or near San Jose, as and for a homestead. There is no suggestion that this agreement was incorporated in or made any part of the mortgage. It was not a promise whereby a lien was created upon the mortgaged premises, for the reason, among others, that it was not a promise to convey a portion of the mortgaged premises. but left it optional to convey such portion, or other land, at the option of the promisor. It was a promise to other parties than those included in the mortgage; an agreement for the benefit of the mother and her children. It was a personal promise to plaintiffs and their mother, having no relation to the mortgage, except that the execution of the latter constituted the consideration for it. If the offer to convey was a part of the negotiations leading up to the execution of the mortgage, and a part of the mortgage contract, then we must presume it was all merged in the written mortgage as executed, and that that instrument contains the final determination of the parties. But this theory is not in accord with the allegations of the complaint or the contention of appellant. That contention is that the agreement was separate and distinct from the mortgage, but constituted a defense to it which, by the fraudulent representations of the mortgagee, they were prevented from setting up in the foreclosure proceedings. We cannot concur in this view, giving to the plaintiffs, upon its breach, a right to an action at law. Their right was not to defeat a foreclosure, but to have a conveyance of land of the value of at least $2,000. This right was not a condition precedent to the mortgagee's right to a foreclosure, but a right to enforce which they had a plain, speedy, and adequate remedy at law. As heirs at law of the mortgagor, Lemuel P. Collins, these plaintiffs were not necessary parties to the action to foreclose, (Bayly v. Muehe, 65 Cal. 345, 3 Pac. 467, and 4 Pac. 486; Monterey Co. v. Cushing, 83 Cal. 507, 23 Pac. 700;) and whether or not they were made parties defendant in that action is of no moment. To entitle a defendant to relief against a judgment or decree on the ground of fraud, it must appear that he had a good defense on the merits, and that such defense has been lost to him without fault on his part. Freem. Judgm. (4th Ed.) § 486; People v. Rains, 23 Cal. 128; Harnish v. Bramer, 71 Cal. 155, 11 Pac. 888; Gregory v. Ford, 14 Cal. 139; Gibbons v. Scott, 15 Cal. 285; Logan v. Hillegas, 16 Cal. 201. If we are correct in our conclusion that the agreement on the part of the mortgagee to convey land to plaintiffs and their mother was an independent contract, then the facts, as stated in the complaint, showed no fraud upon the part of the mortgagee in representing to the administrator and to the attorney of plaintiff's that there was no defense to the action to foreclose. On the contrary, we think he formed and stated a correct conclusion, and, treated as advice, it was sound and salutary. Treated as a bill to redeem, the complaint cannot be sustained. 1. As the title to the homestead vested in the mother of the plaintiffs upon the death of their father, no equity of redemption vested in them. 2. The statutory right to redeem was in the administrator or the mother, or in both, and was restricted to the six months provided by the statute. Code Civil Proc. § 702. The cases of Hall v. Arnott, 80 Cal. 348, 22 Pac. 200, Warder v. Enslen, 73 Cal. 291, 14 Pac. 874, and Raynor v. Drew, 72 Cal. 311, 13 Pac. 866, cited by appellant, were all cases in which no foreclosure had been had, and hence cases in which there was no statutory bar to the action. No doubt, an action to redeem a mortgage of real property, with or without an account of the rents and profits, may be brought by the mortgagor or those claiming under him against the mortgagee or those claiming under him, unless he or they have continuously maintained an adverse possession of the mortgaged premises for five years after breach of some condition of the mortgage, as contended by appellants. Code Civil Proc. § 346; De Cazara v. Orena, 80 Cal. 132, 22 Pac. 74. This section of the Code applies, however, to cases in which there has been no foreclosure of the mortgage and equity of redemption; and where, as in the present case, there has been a fore closure valid against the interests of the infant plaintiffs (if any they had) by making the administrator of the estate, during the pendency of administration proceedings, a party defendant, no such right remains after the expiration of six months from the sale under the foreclosure proceedings, except in those cases in which some fraud has intervened, rendering the decree and sale thereunder voidable. The original complaint in the cause is set out in the record, and is referred to by counsel for appellants in his brief. It was superseded by the amended complaint, upon which the judgment appealed from was rendered, and thenceforth filled no office as a pleading. As evidence of the date at which suit is brought, and for a few other purposes, such a pleading may sometimes be properly used. Gilman v. Cosgrove, 22 Cal. 357; Barber v. Reynolds, 33 Cal. 497; Kelly v. McKibben, 54 Cal. 192; Kentfield v. Hayes, 57 Cal. 409; Johnson v. Powers, 65 Cal. 179, 3 Pac. 625. The judgment appealed from should be affirmed. An instrument executed by testator's widow recited that in consideration of $50,000, the amount of her legacy, paid her by one of the heirs, she conveyed to him all her interest in testator's estate; that such instrument was a conveyance of her interest both as legatee and as widow or heir if the will were revoked. Held not to bar her right to a probate homestead, as a widow's right to probate homestead is not an interest in land, and consequently was not embraced in the conveyance. Commissioners' decision. Department 2. Appeal from superior court, Humboldt county; G. W. Hunter, Judge. Settlement of the estate of John Vance, deceased. Phoebe A. Vance applied for an admeasurement to her of a probate homestead in decedent's land, and from an order granting the application the executors of decedent's will appeal. Affirmed. E. W. Wilson, for appellants. A. J. Monroe, for respondent. TEMPLE, C. This appeal is from an order setting apart a probate homestead to the widow of deceased. John Vance died testate, leaving a widow and two sons, issue of a former marriage. There were no minor children. The will was duly admitted to probate, but, subsequently, S. A. Vance, one of the sons of the testator, inaugurated a contest, and asked that the probate be revoked. The value of the estate exceeded $1,000,000. The will gave the widow $50,000 in cash, but no further interest in the estate. The grounds of the contest do not appear, nor what part, if any, the widow took in it. Apparently she would have been greatly benefited by having the will defeated. However, while the contest was pending, S. A. Vance paid her $50,000, the amount of her legacy, and took from her an instrument in writing, as follows: "This indenture, made and entered into this 16th day of June, 1892, witnesseth that I, Phoebe A. Vance, the widow of John Vance, deceased, for and in consideration of the sum of fifty thousand dollars, gold coin, to me in hand paid by Silas Albert Vance, the receipt of which sum is hereby acknowledged, do hereby grant, bargain, sell, assign, transfer, and convey unto the said Silas Albert Vance, his heirs and assigns, all my right, title, claim, and interest of every kind and nature of, in, and to the real and personal property belonging to the estate of said John Vance, deceased. This is a conveyance of all my right, title, claim, and interest of, in, and to the said estate of said John Vance, deceased, both as a legatee under the last will and testament of said John Vance, deceased, and as a conveyance of all my right, title, claim, and interest of, in, and to said estate of said John Vance, deceased, as the widow and heir at law of said John Vance, deceased, in the event of the last will and testament of said John Vance, deceased, being set aside by the decree of a court of competent jurisdiction. In witness whereof, I have hereunto set my hand and seal the day and year first above written." At the same time both sons of testator, who were beneficiaries under the will, executed to her the following: "In the superior court of the county of Humboldt, state of California. In the matter of the estate of John Vance, deceased. We, and each of us, hereby consent and agree that the family allowance heretofore made by said court to Phoebe A. Vance, widow of said decedent, shall continue during such time as the court may direct and order, it being understood that the conveyance this day made by Mrs. Phoebe A. Vance to Silas Albert Vance of her interest in the estate of John Vance, deceased, shall not affect her right to said family allowance. Edgar H. Vance. S. Albert Vance. June 16, 1892." The contest seems to have been dismissed soon after, for it appears that the executors paid S. A. Vance the $50,000. The executors then applied to the court to have the allowance to the widow revoked, on the ground that she had then no interest in the estate and no longer needed it. Partly in response-apparently to this application-she applied to have the exempt property set apart to her, and to have a probate homestead set apart for her use. The court refused to discontinue the allowance, and proceeded to admeasure to her a probate homestead, which, it is found, is worth not to exceed $5,000. It is now contended that the instrument executed by the widow should prevent her from obtaining a probate homestead, as by that she conveyed the right to S. A. Vance, or waived it for a valuable consideration, and is estopped from claiming a homestead. Whether there was a sufficient consideration to support a conveyance by the widow of her interest in the estate beyond her right to the legacy, which virtually was paid, need not be considered. She received for it only what she was entitled to under the will; and though she conveyed it to S. A. Vance, the record shows that E. H. Vance also participated in the transaction. It would, indeed, be no very violent conclusion to suppose that the $50,000 paid her by S. A. Vance was the same money received by S. A. Vance from the estate; but that is not material. The first part of the instrument executed by her is sufficient in form to convey her interest in the land, if she had any. But she had no interest whatever, unless her right to have a probate homestead admeasured to her constituted an interest in the estate. In Estate of Moore, 57 Cal. 437, it was expressly decided that this right did not constitute an interest in the land. Had the will been set aside, she would have been the owner of a one-third interest. The instrument is to be construed in view of all the facts. The learned judge of the probate court held that the general language in the first part of the instrument is limited and qualified by what follows, which seems designed solely to define what her interest in the estate was. I think this construction correct. In consideration of the payment of the legacy by S. A. Vance, she assigned to him her right to receive it from the estate; and to make it more secure she conveyed to him her right as heir in case the legacy should fall by the revocation of the will. As the will was not revoked, she has conveyed no interest in the estate. If this transaction had been with one who had no interest in the estate, the deed, if it be one, could have had no further effect. As the transaction was really with her stepsons, who took all the residue of the estate, and as she had no claim save as legatee, the purpose of the transaction is unmistakable. I think, therefore, it is not necessary to decide whether a widow who has conveyed the estate of her husband after his death by a deed of bargain and sale, there being no minor children, can afterwards claim and have admeasured to her a probate homestead. I advise that the order be affirmed. We concur: VANCLIEF, C.; SEARLS, C. PER CURIAM. For the reasons given in the foregoing opinion, the order is affirmed. (100 Cal. 429) HENKE v. EUREKA ENDOWMENT ASS'N 1. Where a complaint alleges that defendant is a corporation organized for the purpose of paying its members periodical installment endowments; that plaintiff became a member, and received a certificate entitling her to rights of membership, and participation in the endowment fund to the extent of $6,000, to be paid at 10 stated periods, etc; that defendant thereupon executed a certain contract in writing, whereby it promised and agreed to pay plaintiff, on a certain date, $600, and that no part of said sum has been paid,-a demurrer on the ground of ambiguity is properly overruled, as it is clear that the cause of action is based on the written contract to pay, and the previous allegations are but inducements to the contract. 2. As Civil Code, § 1614, provides that a written instrument is presumptive evidence of a consideration, a special averment of a consideration is not necessary, where the complaint in an action on a contract states that it is in writing; and it is immaterial that the contract is set out according to its legal effect only, and not in haec verba. Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco. Action by Christena Henke against the Eureka Endowment Association of California. From a judgment for plaintiff, defendant appeals. Affirmed. Taylor & Craig, for appellant. Sullivan & Sullivan, for respondent. SEARLS, C. The respondent, Christena Henke, brought this action to recover $600. The complaint avers, in substance, that the defendant is a corporation organized and having for its object the payment to its members of certain sums of money at stated times, as periodical installment endowments; that on the 8th day of February, 1889, plaintiff became a member of said corporation defendant, and received from it, duly executed, etc., an endowment certificate by which she became and still is entitled to all the rights and privileges of membership, and to participate in the endowment fund in the amount of $6,000, to be paid at 10 stated periods, computed according to the maturity table of the constitution of defendant, in 10 respective amounts, not to exceed $600 each; that defendant thereupon duly executed a certain contract in writing, whereby it promised and agreed to pay plaintiff, on the 2d day of January, 1892, the sum of $600; that no part of said sum has been paid. Wherefore, plaintiff asks judgment for $600 and costs of suit. Defendant demurred to the complaint upon the grounds: (1) That it did not state facts sufficient to constitute a cause of action. (2) That the complaint is ambiguous, in that it cannot be determined whether plaintiff seeks to recover by virtue of the endowment certificate of February 8, 1889, or by virtue of the contract. (3) That it is unintelligible, in that it does not allege any consideration for v.34P.no.14-69 the contract to pay plaintiff $600. (4) That the complaint is uncertain, because it cannot be determined therefrom (a) whether there is any mutuality rendering the alleged promise binding; (b) whether plaintiff ever performed the, or any, act or acts on her part necessary to perfect a cause of action upon the contract; (c) whether, according to the maturity table of the constitution of defendant, a right of action upon the promise of defendant had accrued to plaintiff. The demurrer was overruled by the court, and leave given defendant to answer. No answer was filed, and judgment was in due time entered in favor of plaintiff for $600 and costs, from which judgment defendant appeals. The case comes up on the judgment roll, and the only question made is upon the propriety of the order of the court below in overruling the demurrer. The first contention of appellant is that no consideration is alleged in the complaint for the execution by defendant of the agreement upon which a recovery is sought. Section 1614 of the Civil Code provides that "a written instrument is presumptive evidence of a consideration." It is a familiar rule of pleading under our code system that every fact which a plaintiff will be called upon to prove at the trial must be averred in his complaint. It is equally a rule that presumptions of law should not, or at least need not, be stated. When the plaintiff averred in her complaint that the defendant executed a contract in writing, wherein it promised, at a given date, to pay her a certain sum of money, she stated facts from which the law presumed a consideration; hence, it was unnecessary to aver it specially. A like presumption was indulged as to sealed instruments and negotiable paper long before the adoption of our Code, and as to such instruments and paper no special averment of a consideration was necessary. McCarty v. Beach, 10 Cal. 462; Wills v. Kempt, 17 Cal. 99. Counsel for appellant admit the force of section 1614 of the Civil Code, but contend that it only applies in those cases where the contract is set out haec verba. We do not so understand it. The practice of setting out copies of papers upon which actions were founded in the declaration did not prevail at common law, the practice being to plead an instrument according to its legal effect. Chitty, in his work on Pleadings, declares it is not necessary to aver a consideration in those cases where the law implies it, and gives a form of declaration upon a bill of exchange, in which the bill is set out according to its legal effect, and in which no consideration is averred. Bliss, in his work on Code Pleadings, after stating the rule that a consideration should be averred, except in cases where, at common law, the instrument, such as deeds and negotiable promissory notes, imported a consideration, proceeds to state the exception which prevails in those states where by statute a different rule has been established, and, after quoting section 1614 of our Civil Code, adds: "Thus the pleader is relieved of the necessity of averring consideration, leaving the want of it to be set up as a defense, when authoriz ed by statute." Bliss, Code Pl. §§ 268, 269. The necessity of pleading a consideration for the contract is obviated by the fact that it is in writing, and not by the mode of pleading it. The cases of Douglass v. Davie, 2 McCord, 218, and Goddard v. Fulton, 21 Cal. 437, cited by appellant, are not in point. It is quite apparent from the complaint that the cause of action is based upon the written contract to pay, and that the allegations of membership by plaintiff in the defendant corporation, issuing to her an endowment certificate, and her right as a member to participate in the endowment fund, etc., are but inducements to the contract upon which she counts, and do not render the complaint ambiguous, uncertain, or unintelligible. That most, if not all, of this matter, is redundant, and might have been stricken out as such, under section 453, Code Civil Proc., is highly probable, but is not a cause for demurrer. The other objections are without merit. The judgment appealed from should be affirmed. We concur: VANCLIEF, C.; HAYNES, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment appealed from is affirmed. (14 Mont. 1) FINKELSTEIN v. FINKELSTEIN. (Supreme Court of Montana. Jan. 2, 1894.) ALIMONY PENDENTE LITE-AMOUNT OF ALLOW ANCE. 1. In a divorce case, wherein plaintiff alleged that she was defendant's lawful wife by a marriage in Russia, defendant denied the validity of the marriage, but admitted longcontinued cohabitation, and the birth of four children. Defendant also charged plaintiff with adultery, and alleged that he had obtained a Mosaic divorce from her. Held, that there was sufficient prima facie proof of marriage to entitle plaintiff to alimony pendente lite. 2. Where it appears that defendant is conducting a large tailoring business, though in another's name, an allowance of $30 per month as temporary alimony and $50 as counsel fee is not unreasonable. Appeal from district court, Lewis and Clarke county; Horace R. Buck, Judge. Action by Eva Finkelstein against Max Finkelstein for divorce. From an allowance of alimony pendente lite, defendant appeals. Affirmed. McConnell, Clayberg & Gunn, for appellant. F. E. Stranahan, for respondent. DE WITT, J. This is an action for a divorce and alimony, and to set aside an al leged fraudulent conveyance of property by defendant, in order that plaintiff may realize alimony from such property. Defendant appeals from an order of the district court awarding plaintiff alimony pendente lite and counsel fees. We refer to the case of In re Finkelstein, (Mont.) 34 Pac. 847, for a statement of some of the facts. The appellant contends, on several grounds, that the order for alimony and counsel fees should be reversed. The first which we will examine is that it does not sufficiently appear, as counsel urges, that the respondent is the wife of said appellant. The plaintiff's motion for alimony and counsel fees was made upon the complaint and affidavits. The plaintiff alleges in her complaint that she and the defendant were married at Pultusk, in Russian Poland, December 27, 1870, and thereby became, and ever since have been, and now are, husband and wife. She further alleges that at divers times between the last-mentioned date and the commencement of this action the defendant has been guilty of adultery with one Sarah Eisbert, alias Sarah Jones, alias Sarah Finkelstein, a person with whom defendant purports to have intermarried in the year 1883. The plaintiff further alleges that there are living issue of her marriage with the defendant,-five children, ranging from 21 years of age to 12 years. She further alleges that she is in indigent circumstances, dependent upon her labor for the support of herself and children, and that she is in ill health, and has no property whatever. Her daughter Esther, 21 years of age, makes an affidavit, in which she says that ever since she can remember, with the exception of periodical desertions of her mother by her father, he, the defendant, has lived and cohabited with her mother as his wife, and has acknowledged and introduced her to the world at large as such. This daughter further sets forth the indigent circumstances of her mother. In opposition to the motion the de fendant filed his own affidavit. He alleges that the relation of husband and wife has never existed between him and the plaintiff. He alleges that about the time that plaintiff says the marriage took place he and plaintiff appeared before a third person, who was not a magistrate, rabbi, priest, or minister, or any person authorized by the laws of Russia to perform a marriage ceremony, and that this third person presumed to pronounce plaintiff and defendant husband and wife. He further says that when this cere mony took place he was 16 years of age, and that there was a law in Russia in force that no male person under the age of 21 years was allowed to marry, and that any such attempted marriage was absolutely void and invalid for all purposes. Of course, one of the essential facts to plaintiff's cause of action is that she is the wife of defendant. If that fact is not present, plaintiff has no case. But on the hearing of |