law, and engaged in the practice of law at Salinas City, Monterey county, Cal., and that plaintiff is a widow woman, residing at Watsonville, Santa Cruz county, Cal., and that the facts set forth in this paragraph have existed for several years last past. That, for about five years last past, said defendant George W. Roadhouse has been acting as the attorney and confidential agent for this plaintiff, and plaintiff always had full faith in his honesty and uprightness, and placed implicit confidence in his declarations and advice to her. That at various and sundry times between March 25, 1886, and March 25, 1890, defendant George W. Roadhouse told plaintiff and wrote to plaintiff that she need not trouble herself about that note and mortgage, (meaning the note and mortgage set out in this complaint;) that he would pay it before it outlawed, or words to that effect; and various and sundry other statements of like import, all of which statements plaintiff fully believed and relied upon. That plaintiff is a woman not conversant with business affairs and matters, and relied implicitly on the aforesaid assertions of her agent and attorney. That defendant George W. Roadhouse was at all times herein mentioned the husband and agent of defendant Emma Roadhouse, and acted in that capacity in all matters pertaining to said note and mortgage. That said defendant Emma Roadhouse, as plaintiff is informed and believes, and therefore alleges, well knew each and every fact set out in this paragraph before March 25, 1890, and agreed thereto and acquiesced therein." The demurrer was sustained by the court, and, plaintiff declining to amend, final judgment was entered in favor of defendants, from which judgment the plaintiff appeals.

The doctrine of estoppel, invoked by appellant against the defendants, cannot be maintained. It is not made to appear that George W. Roadhouse occupied any fiduciary relation to plaintiff in the matter of the note and mortgage. His position as to that transaction was adverse to the plaintiff, and the fact that he was her attorney in other matters did not alter his status in this respect; at least, it cannot be presumed to have done so, in the absence of express averments on the subject.

2. The complaint stated facts sufficient to constitute a cause for action, and the demurrer was evidently sustained upon the theory that plaintiff's cause of action was barred by the provisions of section 337 of the Code of Civil Procedure, (statute limiting actions to four years.) The attempted averment of facts in avoidance of the statute is not explicit and clear, and the complaint would have been open, perhaps, to a demurrer upon the ground that the complaint was ambiguous, unintelligible, or uncertain; but a demurrer to a cause of action, upon the ground that it is barred by the statute of limitations, can only be sustained where

the pleading shows it clearly open to the objection. To uphold a demurrer for this cause, the complaint should show, not that the cause of action may be barred, but that it is barred. Where, from the pleading, the question is left in doubt, an answer setting up the plea should be resorted to. Farris v. Merritt, 63 Cal. 118; Harmon v. Page, 62 Cal. 448; Smith v. Richmond, 19 Cal. 477; Barringer v. Warden, 12 Cal. 311. At common law the statute of limitations can only be interposed by plea, and could not be urged upon demurrer to the declaration, although apparent upon its face. In equity the rule was that, if all the facts which a defendant would be required to prove to sustain his plea appeared upon the face of the complaint, the defendant might take advantage of it by demurrer. We have substantially adopted the equitable mode of pleading, and with it the practice of permitting the statute of limitations to be interposed by way of demurrer in a proper case. In the present case I am of the opinion that, admitting all the facts of the complaint to be true, including those defectively pleaded, but not objected to, defendants were not entitled to judgment upon the ground that the plaintiff's complaint showed her demand to be barred by the statute of limitations. It follows that the judgment of the court below should be reversed, and the court directed to overrule the demurrer to the complaint, with leave to defendants to answer.

We concur: BELCHER, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment of the court below is reversed, with directions to overrule the demurrer to the complaint, and with leave to defendants to answer.

(99 Cal. 552)

DUNCAN v. GRADY et al. (No. 15,471.) (Supreme Court of California. Sept. 14, 1893.) APPEAL-TAKING FOR DELAY-DAMAGES.

When it appears by the uncontradicted affidavit of respondent, on an appeal from a money judgment, that the appeal was taken merely for delay, and that there was no pretense of any defense, the court, on dismissing the appeal for failure to file a transcript, will award respondent damages for appellant's abuse of the right of appeal.

Department 2. Appeal from superior court, Fresno county.

Action by one Duncan against W. D. Grady and others. From a judgment for plaintiff, defendants appeal. Dismissed.

W. D. Grady, for appellants. J. P. Strother, for respondent.

DE HAVEN, J. This is a motion to dismiss an appeal because of the failure of de

proceeds thereof. Judgment was rendered in his favor, from which the defendant has appealed; claiming that the only effect of the transaction and agreement between the plaintiff and Anderson was to create a resulting trust in favor of Anderson, by which the plaintiff held the land as security for only the amount advanced for its purchase.

The rule is familiar that when, upon a purchase of real property, the purchase money is paid by one person, and the conveyance is made to another, a resulting trust immediately arises against the person to whom the land is conveyed, in favor of the one by whom the purchase money is paid. The real purchaser of the property is considered as the owner, with the right to control the title in the hands of the grantee, and to demand a conveyance from him at any time. The same rule prevails if the money paid by the party taking the title is advanced by him as a loan to the other, and the conveyance is made to the lender for the purpose of securing the loan; but in the latter case the purchaser cannot demand the conveyance until he has paid the money advanced, and for which the land is held as security. In such a case the grantee holds a double relation to the real purchaser,-he is his trustee of the legal title to the land, and his mortgagee for the money advanced for its purchase, and, as in the case of any other mortgage which is evidenced by an absolute deed, is entitled to retain the title until the payment of the claim for which it is held as security; and he may also enforce his lien by an action of foreclosure. The conveyance is none the less a mortgage because it was conveyed to him directly by a third party, to secure his loan to the purchaser for the amount of the purchase money, than if the conveyance had been made directly to the purchaser in the first instance, and the purchaser had then made a conveyance to him, as a security for the money that he had previously borrowed with which to make the purchase. He is regarded as holding the land in trust for the protection of the purchaser; but this rule is not to be so extended as to enable the purchaser to work him an injury. Equity looks beyond the forms of a transaction, and shapes its judgments in such a way as to carry out the purposes of the parties to the agreement, and to protect each of them against any unconscionable advantage to be derived from the apparent form in which their transaction has taken place. In the present case the title to the land which the plaintiff took from the grantor was held by him in trust for Anderson. This was a trust created by operation of law; but, contemporaneously with the creation of this trust, there was impressed upon the title, by virtue of the agreement between Anderson and the plaintiff, a lien in favor of the plaintiff for the money which he had loaned him with which to make the purchase, and also for such other moneys as he should afterwards loan or ad

vance to him. It was competent for them to make such an agreement, and the agreement, when made, had the effect to render the conveyance to the plaintiff a mortgage to secure the loans advanced to Anderson. "Any interest in property which is capable of being transferred may be mortgaged," (Civil Code, § 2947;) and if the transfer is made as security for the performance of an obligation, it is, in equity, a mortgage, irrespective of the form in which it is made. A deed absolute in form may be given as a security for future advances, without any accompanying obligation in writing, on the part of the person giving the deed. Husheon v. Husheon, 71 Cal. 412, 12 Pac. Rep. 410.

We cannot consider the refusal of the court to allow the defendant to amend his answer. The statement on motion for a new trial does not show that he made such request, nor does it show any ruling of the court in reference thereto, and there is no bill of exceptions containing any action of the court thereon. The only mode in which it is brought to our attention is by certain documents printed with the transcript, but which do not purport to be authenticated, except by the affidavit of his attorney. If a review of this ruling had been desired, it should have been either incorporated into the statement, or brought here by a bill of exceptions.

The objection to the allowance of an attorney's fee is not well taken. The note contained an express provision for its payment, and the issue made by the answer of the defendant was limited to the amount for which it could be allowed. It appears from the statement that the evidence justified the finding by the court that this amount was reasonable.

The conclusion that we have reached makes it unnecessary to consider the motion to dismiss the appeal. The judgment and order denying a new trial are affirmed.

COLE v. WILCOX. (No. 19,168.) (Supreme Court of California. Sept. 12, 1893.) APPEAL-NEW TRIAL APPLICATION-EXCUSABLE NEGLECT-DISCRETION OF COURT.

1. The determination of whether the failure of a party to procure additional time to prepare a statement on which to apply for a new trial was the result of excusable neglect or mistake is within the discretion of the trial court, and its findings are conclusive.

2. The objection that the statement of the case prepared for settlement on which to move for a new trial, and the proofs in support of the objection, should be made when the proposed statement is presented for settlement by the court, rather than at the hearing of the motion.

3. Granting a new trial because the judgment is not supported by the evidence being within the discretion of the trial court, in the absence of an abuse of that discretion the order will not be disturbed on appeal.

Department 1. Appeal from superior court, Los Angeles county; J. W. McKinley, Judge.

Action by one Cole against one Wilcox, executor. Defendant had judgment, and from an order granting a new trial he appeals. Affirmed.

Wells, Monroe & Lee and Albert M. Stephens, for appellant. A. W. Blair and W. Cole, for respondent.

HARRISON, J. This action was brought to recover damages for the alleged diversion of water from a canyon onto the plaintiff's land, through an artificial channel constructed by the defendant's testator. The cause was tried by a jury, which rendered a verdict in favor of the defendant. A motion of the plaintiff for a new trial, upon the ground, among others, that the verdict was contrary to the evidence, was granted by the court, and from this order the defendant has appealed. The plaintiff gave notice of his intention to move for a new trial March 17, 1892, and on the 21st day of March obtained from the court 10 days' time, in addition to the time allowed by law, in which to prepare and serve his proposed statement of the case. On the 29th of March he went to the court for the purpose of procuring additional time in which to prepare the statement, and the application which he made was granted, but the order that was entered by the clerk was for a stay of execution, instead of giving him further time to prepare his statement, and he did not discover this fact until about April 4th, on which day he gave notice that he would make an application to the court for further time; and on the 11th day of April, in pursuance of this application, the court made an order reciting that "it appearing to the court that, through mistake and inadvertence, the plaintiff, upon the 29th day of March, 1892, applied to this court to procure an order for a stay of execution herein for ten days from that date; that it was his intention, when he came into court, to make an application to the court for ten days' time to prepare, serve, and file affidavits and statement on motion for a new trial; and that he supposed that he had made such ap plication, and that such order had been granted, and so informed his counsel; and that, through said mistake, the time for filing said statement was by him permitted to expire, the same mistake not having been discovered until after said expiration,it is therefore ordered that the plaintiff be, and is hereby, relieved from said mistake and inadvertence, and is given two days from this date, thirteen days from the 31st day of March, 1892, to prepare and serve and file the said statement."

1. If the failure of the plaintiff to procure the additional time was the result of an excusable neglect or mistake, the court

had the power to relieve him from the effect thereof, (Stonesifer v. Kilburn, 94 Cal. 33, 29 Pac. Rep. 332;) and whether it was the result of such mistake or excusable neglect was to be determined, in the exercise of its discretion, by the court to which the application was made. The facts stated in the order must be accepted by us as having been fully shown to the court by competent evidence, and upon these facts it must be conceded that the court acted in the exercise of a wise discretion in making the order.

The

2. When the motion for a new trial came on for hearing, the defendant objected to the court hearing the same, upon the ground that the statement of the case proposed for settlement by the court was not served upon him by the plaintiff within the time allowed by law, and that the court had lost jurisdiction to settle any statement in the case, and now urges that for this reason the court erred in granting a new trial. The correctness of the court's action in granting the new trial must be determined upon the record, on which it acted upon the hearing of that motion, and is not affected by any error which it may have committed in matters not connected with such action. judge had settled and allowed the statement prior to this time, and had recited therein that it was "duly prepared and settled within due time and in the manner required by law;" and, also, that the "defendant objected to settlement of statement, upon the ground that the same was not served in time." If there were any reasons in support of this objection on the part of the defendant, the proper practice would have been to present them at that time, so that the judge could pass upon their sufficiency, and to have the objections, with the rulings of the judge thereon and any exception thereto, incorporated into the statement. A mere objection to the settlement of the statement, without pointing out the basis or the grounds of the objection, or presenting the facts upon which it was made, was not fair to either the judge or the opposite party; and, even if an exception had been taken to the ruling of the judge upon such objection, the party taking the exception would not have the right to its consideration upon appeal. When the motion for a new trial came on to be heard, the court, in its action thereon, was limited to considering the matters contained in the statement, and was not at liberty to go outside of the statement for the purpose of determining whether the new trial should be granted or refused.

3. The action of the trial court in granting a new trial, for the reason that the former verdict or decision was not support. ed by the evidence, is so much a matter of discretion that, unless it appears that there was an abuse of that discretion, this court will not interfere with its action. Although in the present case the plaintiff may have shown himself entitled only to nominal dam

ages, yet a verdict for or against him would be decisive of a right which may be available in future litigation. The order is affirmed.

We concur: GAROUTTE, J.; PATERSON, J.

EXCELSIOR PAV. CO. v. LEACH et al. (No. 19,174.)

(Supreme Court of California. Sept. 1, 1893.) STREET-PAVING CONTRACTS-REPAIRS BY CON

TRACTOR.

1. A requirement in a street-paving contract that the contractor shall keep the street in repair for five years imposes an additional burden on the property owners, and so vitiates the assessment, unless expressly authorized by statute. Brown v. Jenks, (Cal.) 32 Pac. Rep. 701, followed.

2. Testimony that the requirement of repairs did not enhance the amount of the successful bid is worthless against the objection of additional burden, since it may have enhanced other bids. Brown v. Jenks, (Cal.) 32 Pac. Rep. 701, followed.

Department 2. Appeal from superior court, San Diego county; George Puterbaugh, Judge. Action by the Excelsior Paving Company against Maggie Leach, personally and as executrix of the will of Wallace Leach, deceased, and others. From a judgment for plaintiff, defendants appeal. Reversed.

E. Parker and Haines & Ward, for appellants. Shaw & Holland and C. T. H. Palmer, for respondent.

PER CURIAM. Upon the authority of Brown v. Jenks, (Cal.; opinion filed March 27, 1893,) 32 Pac. Rep. 701, the judgment and order denying a new trial herein are reversed.

(99 Cal. 481)

TOWNSEND v. BRIGGS. (No. 14,889.) (Supreme Court of California. Sept. 5, 1893.) ASSAULT AND BATTERY-REMOVING TRESPASSERINSTRUCTIONS-EVIDENCE.

1. In an action for assault by one who was trespassing when assaulted, plaintiff testified that defendant said to him, "You get out of here, or I will pound your head with a hammer. The jury was instructed that, "before defendant would have been authorized to use force to remove plaintiff, * * he should have requested plaintiff to depart." Held, that the instruction was misleading, as it gave the jury to understand that the language used by defendant did not constitute a "request" to leave.

*

2. Defendant removed plaintiff from his shop as a trespasser for injuriously handling the machines, and, in an action for the assault, the jury was instructed that "if * plaintiff, at the time of the injury complained of, was not trying to injure defendant or his property, then any force used against plaintiff * was wrongful." Held error, as it was immaterial that plaintiff was not handling the machines at the moment the force was used.

3. In an action for personal injuries, plaintiff having adduced mortuary tables to prove his probable expectation of life, excluding evidence of his habits as to sobriety is error.

In bank. Appeal from superior court, Ventura county; B. T. Williams, Judge.

Action for personal injuries by Charles Townsend against J. S. Briggs. Plaintiff had judgment, from which, and an order denying a new trial, defendant appeals. Reversed.

Brousseau & Thomas and Blackstock & Shepherd, for appellant. Barnes & Selby and H. L. Poplin, for respondent.

MCFARLAND, J. After a consideration of this case upon a hearing in bank, we are satisfied that the judgment and order denying defendant's motion for a new trial should be reversed. This action is to recover damages for personal injuries caused by an alleged wrongful and malicious assault made by defendant upon the person of plaintiff. The jury rendered a verdict for plaintiff in the sum of $9,000, upon which judgment was entered, from which, and from an order denying his motion for a new trial, defendant appeals. The main question in the case was whether the appellant used unnecessary force in expelling the respondent from a building in the possession of appellant; and we think that certain instructions of the court to the jury were misleading and prejudicial to appellant.

The undisputed facts are these: Appellant and his partner, Leach, were in the rightful and peaceable possession of a small workshop, in which they were engaged in making and experimenting with certain machines for pitting fruits. Respondent entered the shop at a time when appellant was in an adjoining rear room, and, after speaking to a young man in the shop, immediately commenced in a rude and wrongful manner to handle two of said machines with great force, and to whirl the wheels thereof, and to operate said machines with great violence, so as to put them in great danger of being destroyed or broken. The noise of the whirling wheels attracted the attention of appellant, who came into the shop, and in a peremptory manner ordered respondent to let the machines alone, and to leave the premises. Respondent replied that he had left the machines alone, but did not proceed to leave the shop. As to the details of what then immediately occurred there is some conflict of testimony; but appellant, with an oath, told respondent that if he did not leave he would pound him on the head, and respondent replied with an oath that he would like to see him pound him on the head; and appellant then picked up a mallet, and struck respondent on the head. Respondent was staggered by the blow, but rallied, and advanced towards appellant, who struck him once or twice more. Respondent, either from the effect of one of the blows, or from slipping on fruit pits and skins on the floor, fell on the knife of one of the machines, and was thereby seriously injured. Respond