to the nature of the title to the land so set apart was true, and that her testimony relating to the same matter given upon the trial of that proceeding was also true. The plaintiff had notice of the pendency of that proceeding, and no fraud was practiced upon her by which she was prevented from appearing therein and contesting the allegation of defendant's petition, and showing that the testimony given by her was unworthy of credit. Under these circumstances, that judgment is conclusive upon the plaintiff, and she cannot be permitted to bring into litigation the same matters therein involved and settled by that judgment. The case made by the complaint here falls exactly within the rule declared in U. S. v. Throckmorton, 98 U. S. 61; In re Griffith's Estate, 84 Cal. 113, 23 Pac. 528, and 24 Pac. 381; and Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, and 27 Pac. 537. In the first of these cases it was said by Mr. Justice Miller, in delivering the opinion of the court, that "the acts for which a court of equity will on account of fraud set aside or annul a judgment between the same parties, rendered by a court of competent jurisdiction, have relation to fraud extrinsic or collateral to the matter tried by the first court, and not to a fraud in a matter upon which the decree was rendered." And in Pico v. Cohn the question was very carefully considered, and this court announced the same rule, saying: "The reason of this rule is that there must be an end to litigation; and when the parties have once submitted a matter, or have had an opportunity of submitting it, for investigation and determination, and when they have exhausted every means of reviewing such determination in the same proceeding, it must be regarded as final and conclusive, unless it can be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy. ** * Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is that a final judgment cannot be annulled merely because it can be shown to have been based on perjured testimony; for, if this could be done once, it could be done again and again, ad infinitum." These cases are, we think, conclusive of the one now before us. So far as concerns the question here presented, there is no difference in principle in the nature of the judgments under review in the above-cited cases and the order here sought to be annulled. The order setting apart the homestead to defendant (no homestead having been declared during the lifetime of the deceased) operated to vest in the defendant a title to the land so set apart (Estate of Boland, 43 Cal. 640; Estate of Moore, 96 Cal. 522, 31 Pac. 584); and such order was in the nature of a judgment in rem (Kearney v. Kearney, 72 Cal. 591, 15

Pac. 769); and, the court having jurisdiction to pronounce it, it is conclusive upon plaintiff and all persons interested in the estate, and can only be successfully attacked in equity upon the same grounds upon which a judgment in personam may be annulled.

The conclusion we have reached in this case is not at all in conflict with Wickersham v. Comerford, 96 Cal. 433, 31 Pac. 358. The action in that case was brought by a creditor of the deceased to annul the order of the probate court setting apart a homestead to the widow of the deceased, the complaint alleging, in substance, that, prior to the death of deceased, he and his wife entered into a written agreement for a separation and division of the community property, and that such agreement was completely performed, and that deceased and his wife were at the time of his death living separate and apart, in accordance with the terms of said agreement. Under this state of facts, the widow was not entitled to a homestead out of the estate of her deceased husband (Estate of Noah, 73 Cal. 583, 15 Pac. 287); but the complaint in that action further alleged that in the petition which the widow filed, asking the court to set apart such homestead for her use, she did not disclose the fact of the existence of the agreement made between herself and husband for a separation, and that she and the deceased were not living together as husband and wife at the time of his death. It was held in that case that this omission, relating, as it did, to a material fact which ought to have been brought to the attention of the court, and submitted to its judgment, was such a fraudulent concealment as would justify a court of equity in annulling the order setting apart the homestead; but it is clear that the fraud which was made the basis of the action and judgment in that case was extrinsic to the judgment or order annulled. In the original proceeding for a homestead under review in that case the court did not even indirectly pass upon the question of the existence or non-existence of the agreement for separation, and that matter, not being before the court, was not concluded by the judgment or order in that proceeding; but, as we have seen, the direct question sought to be litigated here, viz. whether the land set apart to defendant as a homestead was or was not community property, was put in issue in the homestead proceeding, resulting in the order here assailed; and the court, up on the evidence submitted to it at the time of making that order, found the fact adversely to the plaintiff's present contention, and this marks the important distinction between the present and the case of Wickersham v. Comerford. Nor can the case of Bergin v. Haight, 99 Cal. 52, 33 Pac. 760, be regarded as an authority sustaining the complaint in this action. There the court expressly held that there was "nothing upon the face of the proceedings to indicate a

fraudulent collusion between the administrator and his attorney," and that "there was no opportunity to determine any issue of fraud in the probate court." This being so, it was necessarily held that the fraud alleged and found in that action was extrinsic and collateral to the questions determined by the probate court when it confirmed the sale of the land in controversy there. The case of Dunlap v. Steere, 92 Cal. 344, 28 Pac. 563, comes nearer supporting the contention of plaintiff, and yet does not do so. In that case the plaintiff was only constructively served with summons, and had no actual notice of the pendency of the action in which the judgment there annulled was given; and referring to the rule above quoted from U. S. v. Throckmorton, 98 U. S. 61, to the effect that a judgment will not be set aside for false testimony given in relation to a matter upon which the judgment was rendered, it was held that such rule was only applicable "where the former judgment was the result of a trial between the parties, or where the one against whom the judgment was rendered had actual notice of the pendency of the action, and neglected to submit his proofs." It is alleged in the complaint here that the plaintiff was an incompetent person when the order sought to be annulled was made, and so it may be said that in one sense she had no personal knowledge of its pendency or comprehension of the matters involved in that proceeding; but it also appears from the complaint that her general guardian did have such knowledge, and, as the law devolved upon him the duty of protecting her rights in that proceeding, the case is not within the reason of the rule declared in Dunlap v. Steere. The plaintiff did have all the notice which it was possible for her to have, and had the full benefit of all the safeguards which the law deemed necessary for her protection in that proceeding, or which the law deems necessary for the protection of any incompetent person from unjust or fraudulent judgments.

Judgment reversed, with directions to the superior court to sustain the demurrer to the complaint.

We concur: HARRISON, J.; VAN FLEET, J.

(104 Cal. 400)

Ex parte FREDERICKS. (Supreme Court of California. Oct. 5, 1894.) APPEAL IN CAPITAL CASE-EFFECT ON SENTENCE.

Pen. Code, § 1243, provides that an appeal to the supreme court from a conviction in a capital case stays the execution of judgment. Held, that the warden of the state prison need not, on such an appeal by the prisoner, deliver him to the sheriff of the county where he was tried.

In bank.

Application for a writ of habeas corpus by William Fredericks to secure his release

from the custody of W. E. Hale, warden of the state prison. Denied.

G. E. Coldwell, for petitioner. Atty. Gen. Hart, for respondent.

PER CURIAM. This is a petition for a writ of habeas corpus. The petitioner, having been convicted of murder in the first degree, was, on the 7th of May, 1894, sentenced to be hanged at the San Quentin prison, and on the same day a warrant was delivered to the sheriff, in obedience to which he immediately delivered the petitioner to the warden of said prison, by whom he is still detained. On the 23d of May, 1894, the petitioner appealed to this court from the judgment of conviction and the order denying his motion for a new trial. Afterwards a certified copy of his notice of appeal was served on the warden, with a demand for the return of the prisoner to the custody of the sheriff, which was refused. The imprison

ment of the petitioner is not unlawful. It is true that by section 1243 of the Penal Code it is provided that an appeal to the supreme court from a judgment of conviction stays the execution of the judgment in all capital cases. But the intention of the legislature in adopting this provision was merely to prevent the infliction of the death penalty pending the appeal, and it has not acquired any different meaning or effect since or by reason of the change of the law by which in capital cases the prisoner is confined in the state prison pending the execution of the sentence of death. Even if this imprisonment is to be regarded as a part of the penalty, it stands upon the same grounds as other judgments of imprisonment. It is not stayed without a certificate of probable cause for the appeal, and no such certificate has been granted in this case. Writ denied.

(104 Cal. 402)

SHAIN v. SRESOVICH. (No. 15.274.) (Supreme Court of California. Oct. 5, 1894.) LIMITATION OF ACTIONS-RELIEF ON THE GROUND OF MISTAKE.

1. Under Code Civ. Proc. § 338, subd. 4, allowing three years within which to bring an action on the ground of mistake, and providing that the cause of action shall not be deemed to have accrued until the discovery of the mistake by the aggrieved party, a merchant, more than three years after the settlement of an account, cannot recover an overpayment caused by a mistake of his bookkeeper, which he might have discovered at any time on investigation.

2. The fact that the person receiving the overpayment knew of the mistake at the time is immaterial.

In bank. Appeal from superior court, city and county of San Francisco; Eugene R. Garber, Judge.

Action by Shain, assignee of a claim of J. Ivancovich & Co., against Sresovich, to recover an overpayment made to defendant

Vincent Neale, for appellant. Naphtaly, Freidenrich & Ackerman, for respondent.

HARRISON, J. In 1886, J. Ivancovich & Co., plaintiff's assignors, had a joint venture with the defendant in the importation and sale of some oranges; and on the 1st of July of that year they presented to the defendant a statement and account of the transactions relating to the venture, showing that they were indebted to him in the sum of $2,063.51, and paid him that sum of money. These accounts were kept by the plaintiff's assignors in one of their firm books, in which were also placed an account of importation of oranges by themselves on their own account. The statement of the account which was given to the defendant was prepared by the bookkeeper of Ivancovich & Co., who had been in their employ for many years, and who continued to remain as their bookkeeper for several years thereafter, and who was a competent bookkeeper, and entitled to full confidence for carefulness and accuracy. About the end of the year 1886 the book in which these accounts had been entered was stored away by the firm, and was not again examined until the latter part of 1890. In February, 1891, the firm made an examination of this book, and found that the account rendered to the defendant was erroneous, and that, owing to a mistake therein, they had paid him $630.25 too much. Thereupon they assigned the claim to the plaintiff herein, who brought this action May 5, 1891, to recover the amount of said former payment, alleging in his complaint the foregoing facts. The court below found that the cause of action was barred by the statute of limitations, and gave judgment for the defendant. The plaintiff has appealed upon the judgment roll, without any statement or bill of exceptions.

It is contended by the appellant that he has a right to maintain the action by virtue of section 338, Code Civ. Proc., subdivision 4 of which allows three years within which to bring "an action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake." Fraud and mistake are, by the above provisions of the statute, placed in the same category, and the rules applicable to the one must govern the other. Although the provision with reference to fraud, or one similar thereto, is found in the statute of nearly if not all of the states, we are not aware that a similar provision with reference to "mistake" exists in any of the states. The rule is well established that the means of knowledge is equivalent to

opportunity of knowing the facts constituting the fraud of which he complains cannot be supine and inactive, and afterwards allege a want of knowledge that arose by reason of his own laches or negligence. Wood v. Carpenter, 101 U. S. 135; Ware v. Galveston City Co., 146 U. S. 115, 13 Sup. Ct. 33. The question has usually arisen in determining whether the facts alleged in the complaint are sufficient to show due diligence, or to take the case out of the statute of limitations, but the same rule is to be applied to the facts as found after a trial.

Applying the above rule to the present case, we are of the opinion that the plaintiff's assignors had, at all times after the payment to the defendant, such means of information with reference to the account between them and him, and of the mistake in the payment, that their failure to avail themselves of it charged them with the same result as though they had actual knowledge thereof. The accounts were kept under their supervision, or by their bookkeeper. The statement was made out by him. The book in which the account was kept, and from which the statement was presumably made, was retained by them, and was afterwards used by them, in which to place their own individual transactions, and was afterwards stored away by them. It is not claimed that the defendant ever saw the book, or took any part in the preparation of the statement, or that he sustained any relation to them which entitled them to rely upon any statement of his, or that he made any statement or did any act which induced them to make the payment. Under these circumstances they are not entitled to claim that the "discovery" of the mistake was within three years of the commencement of the action. If they could maintain the action under these circumstances, there is no limit to the time in which it might be commenced. It would be a new proposition in mercantile life, as well as in law, if we should hold that if a merchant, many years after he had retired from business, on looking over his account books through curiosity, should find that his bookkeeper had made a mistake in the account of one of his customers, he could recover from the customer for the merchandise that had been omitted from his account through such mistake, or get back from him the money which he had paid upon a settlement with him. "Statutes of limitation are vital to the welfare of society, and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose, by giving security and stability to human affairs. Important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit

The finding of the court that the defendant knew of the mistake and overpayment at or near the time the account was rendered, but never informed the firm thereof, does not add to the strength of the plaintiff's claim. It is not a finding that the payment was made to him with the knowledge on his part that it was a mistake, or that he contributed to the mistake; and, even if it had been, he had the right to rely upon the statute of limitations, if an action therefor was not brought within three years after Ivancovich knew, or had the means of knowing, of the mistake. The judgment is affirmed.

We concur: DE HAVEN, J.; FITZGERALD, J.; MCFARLAND, J.; GAROUT

TE, J.

(104 Cal. 395)

WATKINS v. WILHOIT et al. (No. 18,167.) (Supreme Court of California. Oct. 5, 1894.) ASSIGNMENT FOR BENEFIT of CreditORS-VALIDITY.

An assignment of real and personal property for the benefit of creditors, which is recorded in a miscellaneous book of records, is valid as to creditors, though it might be avoided by a bona fide purchaser of the land for failure to record it in the deeds record.

In bank. Appeal from superior court, San Joaquin county; Ansel Smith, Judge.

Action by C. G. Watkins against R. E. Wilhoit and others to subject land to the payment of a judgment. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed. For commissioners' decision, see

35 Pac. 646.

John B. Hall, for appellant. F. T. Baldwin, P. S. Wilkes, and J. C. Campbell, for respondents.

BEATTY, C. J. This action is of the nature of a creditors' bill in equity to subject property in the hands or under the control of the defendants Wilhoit and Langford to the payment of a judgment at law against defendant Bryant in favor of the plaintiff. A demurrer to the complaint having been sustained, and the plaintiff having declined to amend his complaint, judgment passed for defendants. The plaintiff has appealed from the judgment upon the judgment roll, containing a bill of exceptions showing that the demurrer was sustained on the grounds "that the complaint does not state facts sufficient to constitute a cause of action, and that the action is barred by this statute of limitations."

The complaint shows that on June 2, 1890, the plaintiff recovered a judgment against Bryant for the sum of $2,342.60 on a promissory note made by the latter to the former on January 17, 1885, and that no part of the judgment has been paid. That before and on February 16, 1886, said Bryant was indebt

then, and ever since has been, insolvent, though he was then the owner of considerable real and personal property in the county of San Joaquin, where he resided. That on said 16th day of February, 1886, he executed to defendants Wilhoit and Langford and one Charles Bamert a deed purporting to convey to them all his real and personal property, except such as was exempt from execution, in trust for the benefit of all his creditors, without preference to any, except as provided by law, "to sell and dispose of said real estate and personal property, and to collect the said book accounts and choses in action, using a reasonable discretion as to the times and modes of selling and disposing of said estate as it respects making sales for cash or on credit, at public auction or by private contract or sale, with the right to compound for the said book accounts and choses in action, taking a part for the whole where and when the trustees deem and decree it expedient so to do;" then, after applying the proceeds to the payment of his debts according to law, to pay the surplus, if any, to him, Bryant. This instrument, with an inventory of the property thereby assigned attached thereto and made a part thereof, and the written acceptance of the trust by Wilhoit and Langford, are fully set out in the complaint. It is next alleged that said instrument has never been recorded in the office of the county recorder of said county in any book of records therein of grants, deeds or transfers of real estate, or in any book kept in said office for the recordation of conveyances or mortgages of either real or personal property, or otherwise or elsewhere recorded in said office, save and except that the instrument was, on the 16th day of February, 1886, transcribed into a book kept in said office, labeled "Book G, Miscellaneous." That within 30 days after the date of said instrument, pursuant to an order of a judge of the superior court, Wilhoit, Langford, and Bamert executed a bond with sureties for the faithful discharge of the trust as required by section 3467 of the Civil Code, and thereupon took possession of all the property described in said instrument, claiming title thereto as assignees. The complaint contains other allegations material to the cause of action, but not material to the points to be decided here.

The plaintiff contends that on the facts alleged the assignment of Bryant to Wilhoit and others was vold as to him and other nonconsenting creditors, and his principal point is that it was void because it was never properly recorded. The argument is that since the assignment embraced real property it was subject to the provisions of article 4 of the chapter on recording transfers (Civ. Code, 88 1213-1217, 3466); and that, never having been transcribed by the recorder into the proper book of records, in compliance with the provisions of chapter 4, it remained

A

totally void as to all nonconsenting creditors. But conceding, for the purposes of this case, everything for which the plaintiff contends, as to the futility of filing a conveyance in the recorder's office, where such filing is not followed up by transcription into the proper book of records in due time, his conclusion that this assignment was void as to nonconsenting creditors does not follow. The whole object of article 4 of the chapter on recording transfers is to prescribe the effect of recording or failing to record upon subsequent purchasers or mortgagees. An assignment of real property for the benefit of creditors ought to be subject to these provisions as much as any other transfer of real property, because it as much within the policy of the statute as any other transfer of such property. Subsequent purchasers and mortgagees are entitled to the same notice in one case as in the other, and have a right to rely on the same means of knowledge as to the true state of the title when parting with value on the faith of the apparent ownership. But with respect to creditors of the assignor who do not part with anything the case is totally different, and they are not within the policy of these provisions. transfer may be valid as to them although void as to subsequent purchasers in good faith and for value. To determine the validity of an assignment as to creditors, we look to the title "On Assignments for the Benefit of Creditors" (Civ. Code, § 3449 et seq.). Such assignments must be acknowledged or proved and certified like transfers of real property, and they must be recorded (section 3458); not, however, as prescribed in chapter 4, supra, but in accordance with sections 3463, 3464, of the Civil Code, neither of which, by its letter or spirit, requires transcription into any book of records in order to effect a complete transfer of the property to the assignee as against creditors. The object of recording, so far as they are concerned, seems to be to make the assignment public and irrevocable, and when that object is accomplished the creditors are fully protected. All are placed upon an equal footing. So far as creditors are concerned, the law is satisfied if the assignment is recorded in the county where the debtor resides, but to be effective against subsequent purchasers or mortgagees it must (under chapter 4, supra) be recorded in every county where any of the real property is situated, and it must be so recorded as to give them constructive notice. To determine what will give such constructive notice we look to section 1213 et seq., Civ. Code, but to determine what is recording without reference to the question of notice to subsequent purchasers we look to section 1170, Id. "An instrument is deemed to be recorded when, being duly acknowledged or proved and certified, it is deposited in the recorder's office with the proper officer for record." The complaint shows that this section was fully complied with. The assignment was recorded,

and became binding and irrevocable as to the assignor and all creditors. True, it was subject to chapter 4 of the article on transfers, and if it was not recorded as that chapter requires it may be questioned by a subsequent purchaser or mortgagee; but the plaintiff in this case is not in that position.

The other objections to the assignment do not appear to merit particular discussion. The assignment was valid and effective, and the judgment of the superior court is affirmed.

We concur: MCFARLAND, J.; FITZGERALD, J.; GAROUTTE, J.; VAN FLEET, J.

LITTLEHEAD v. WILHOIT et al. (No. 18,168.) TULLY v. SAME. (No. 18,169.) DUFFY v. SAME. (No. 18,170.) (Supreme Court of California. Oct. 5, 1894.) In bank. Appeal from superior court, San Joaquin county; Ansel Smith, Judge.

Three actions by S. S. Littlehead, John Tully, and Ann Duffy, respectively, against R. È. Wilhoit and others. Demurrers to the complaints were sustained, and the respective plaintiffs appealed. Judgments affirmed.

John B. Hall, for appellants. F. T. Baldwin, P. S. Wilkes, and J. C. Campbell, for respondents.

PER CURIAM. Upon the authority of Watkins v. Wilhoit (No. 18,167; this day decided) 38 Pac. 53, it is ordered that the judgment in each of the above-entitled causes be, and the same is hereby, affirmed.

(4 Cal. Unrep. 865) (No. 19,329.)

DOW v. NASON et al. (Supreme Court of California. Oct. 4, 1894.) PROMISSORY NOTE - PAYMENT BY PAYEE-EFFECT ON MAKER'S LIABILITY.

The payee of a note, in order to be able to have it discounted, induced another person to indorse it. An extension note, which was signed by the surety, but not by the maker, was paid, for the benefit of the surety, by the payee of the original note; and both notes were marked "Paid," and delivered to him. Held, that such payment did not extinguish the original maker's liability, as it was not by a mere volunteer.

In bank.

On petition for a rehearing. Denied. For opinion on appeal, see 37 Pac. 656.

BEATTY, C. J. In his petition for a rehearing, counsel for appellant complains that his position has been misunderstood, and his points left undecided. As the opinion of the department is extremely brief, it will not be improper for me to state somewhat more fully the grounds upon which I concur in the order denying a rehearing. There is perhaps a slight verbal inaccuracy in that part of the opinion which states that the principal point in the case is whether the notes of H. W. Nason were paid. The ques tion is rather whether they were so paid as