No. 2,496.

#### CHESTER INGERSOLL et al., Appellant, v. JOHN TRUEBODY,Respondent.

Deed. — Recitad in. — Estoppel.—Parties to a deed are not estopped from denying collateral facts recited therein, not essential to its validity, as an operative conveyance of the estate granted.

Idem. — Husband and "Wipe. — Sepaeate Peopeetv. — Paeol Evidence.— "Where a conveyance is made to the husband, or to the wife, after tho death of her husband, under a contract of sale, made by him in his lifetime, it is competent to the wife, or any one claiming under her, to show by parol, that the consideration was paid out of her separate estate.

Idem. — A conveyance to the husband, where the consideration is paid out of the separate estate of the wife, constitutes the husband the trustee of the wife, holding the legal title for her use.

Idem. — Pbesumption op Law. — Paeol Evidence. — Where a deed to the wife recites a valuable consideration, not stated to be the separate property of the wife, the presumption of law is, that it is paid out of the common property; butthis presumption may be rebutted by parol proof that it ■ was paid out of the separate estate of the wife.

Jueob. — Misconduct op. — The mere disclosure by a juror of a verdict already agreed upon, sealed up and delivered to the clerk by the jury, is reprehensible, but in the absence of any damage caused thereby to either party to the action, or of any fraudulent conduct on the part of the juror, it is not of itself sufficient to invalidate the verdict

Evidence. — Husband and Wipe.. — Declabations op Wipe in the Pbesence op heb Husband. — The declarations of a wife made in the presence of her husband and not denied by him, in a conversation relating to her .separate property, are competent evidence in an action by the devisees of the husband, involving her title to the property.

Appeal from the Seventh District Court, County of Napa.

The facts are stated in the opinion.

*John McM. Shafter,*for Appellant.

*First*— The Court submitted the question, was Phoebe Ingersoll the beneficiary mentioned in Vallejo’s contract to convey, to the jury. This was erroneous, for the reasons that recital in the deed óf Yallejo and Slusser were conclusive, that Chester Ingersoll, and not Phoebe Ingersoll, was "such beneficiary. *(Ohatauque Oo. Banh*v. *Bisley,*4,Denio,' 480; *Brandt*v. *Klein,*17 J. R. 335; *Black*v. *Tneker,*12 Yt. 39; *White*v. *Fatten,*24 Pick. 324; *Jeskeep*v. *Shields,*4Har-*604rington, 345; *Patten*v. *Deshon,*1 Gray, 325; *Stow*v. *Wyse,*7 Conn. 214; *McDonald*y. *King,*Cose, 432; *Dyer*v. *Rich et al.,*1 Met. 180; *Jarvis*y. *Aiken et al.,*25 Yt. 635; *Denn*y. *GorneU,*3 J. Cas. 174; *Stewart*v. *Butler et al.,*2 Sergt. and Eawle, 381; *Donahue*y. *NcNulty et al.,*24 Cal. 411; *Jackson*y. *Parkhurst et al.,*9 Wend. 309; 2 Derneux, 117; 11 Ohio, 475; 6 Ham. 87; 1 Kelly, 551.)

■Under these cases it is impossible to bold that defendant is not estopped; to deny that Chester Ingersoll was the person whose name was mentioned as grantee in the contract with Yallejo; yet this question was submitted to the jury in the charge' against exception.

This was clearly erroneous.

*Second*— The jury found that the money with which the purchase was made from Yallejo was Phoebe Xngersoll’s.

We submit that the recital in the above deeds that Chester Ingersoll paid this money is an estoppel upon that question.

*Third*— There was error in admitting the statement of Chester and Phoebe Ingersoll, as to who furnished the money with which this purchase was made.

1 — The statements of Ingersoll were made- while he was making the trade at witness Grisby’s house.

2 — At Coloma.

3 — At Mormon Island.

This testimony should have been rejected. The declarations were not made upon the land as qualifying a possession or claim. These were the statements of a deceased person, whose representative these defendants are, and they were declarative of an intention of taking the title to Mr. Ingersoll only. *(Hale*v. *Hills,*8 Conn. B,. 38:) *Per Our.,*an intention to-do an act affords no proof that the intended act was done. *(Peck*v. *Brummagim,*31 Cal. 445.) Intention no evidence that the act intended was ever performed.

*Fourth*— The reception of the verdict of the jury, after if was proved that one of them had communicated the verdict to defendant’s attorney, was erroneous. (2 Graham and *605Waterman on New Trials, 571, *etpost;*3 Id 1544, 1559, and contest.)

*Fifth*— This parol evidence, for *the*purpose of showing that Phoebe Ingersoll was the true beneficiary, was erroneously admitted, for the reason that the writing signed.by Yallejo created an *express*trust in him. After this writing *he*was a trustee of the title by direct expression, holding it for Chester Ingersoll. In *Millard*v. *Hathaway*(27 Cal. 119), this Court discuss questions relating to this class of trusts, and as we construe the case, confined implied trusts (so far as concerns this case), to the instance of one man receiving a title bought with the money of another. We do not find any countenance for the idea that a vendor giving a contract to convey in writing to A, can be regarded as holding the property under an implied trust to convey to B. We think, therefore, the case is one of express trust, and parol testimony was improperly received as to the beneficiary. (Law of Trust and Trustees, Tiffany and Bullard, p. 11.)

*Hartson & Burnell,*and *Thomas T. Stoney,*for Bespon-dent.

*First*— Appellants’ counsel insists that respondent should not have been permitted to show that the land purchased by Ingersoll was by the terms of his agreement with Yallejo, to be conveyed by Yallejo to Mrs. Ingersoll, for the reason that the recitals in Yallejo’s deed were conclusive, and es-topped the defendant from denying that the conveyance was to be made to Chester Ingersoll himself.

1st. The defendant was not estopped, because the recitals were in a deed, which could not have estopped the plaintiffs, and when there is no mutuality there can be no estoppel by deed. *(Sherman*v. *Garrett,*16 Cal. 100; *Jeioetty. Harrington,*19 Wend. 475; *Averill*v. *Wilson,*4Barb. 190; *Finn*v. *Sleight,*8 Barb. 184; *Welland Canal Co.*v. *Hathaway,*8 Wend. 484; *Hempstead*v. *Easton,*33 Mo. 147.) Had the recital in the deed from Yallejo declared that the purchase had been made with Mrs. Ingersoll’s separate money, *606or tbat tbe- agreement bad provided in terms for a conveyance to her, tbe beirs of Ingersoll would not bave been estopped from showing tbat sucb recital was false.

2nd. Tbe defendant was not estopped by tbe recital because tbe plaintiffs were neither parties nor privies to tbe deed. *(Campbell*v. *Sail,*16 N. Y. 679; *Jewell*v. *Harrington,*19 Wend. 477; *Averill*v. *Wilson,*4 Barb. 190.)

3rd. If tbe plaintiffs bad been beneficiaries of a trust of which Yallejo was tbe trustee, they would not bave been bound by recitals in a deed made by Yallejo in disregard of or in hostility to their equitable rights.

4th. Tbe recital relied on was unnecessary to tbe deed, and there is no estoppel as to unessential statements in a deed. *(Osborn*v. *Endicott,*6 Cal. 149.)

5th. Tbe recital related to tbe consideration of tbe conveyance, and tbe true consideration can be inquired into for every purpose except to defeat tbe title of tbe grantee. *(Peclc*v. *Vandenburg,*30 Oal. 56-7-8, and cases cited by Justice Sawyer; *Rhine*v. *Ellen,*36 Cal. 369; *Coles*v. *Soulsby,*21 Cal. 57; *McCrea*v. *Eurmont,*16 Wend. 460.)

6th. Tbe whole recital, if any, must be taken, and in this case tbe effect of tbe first part of tbe recital is destroyed by what follows. It is of no consequence who purchased tbe land or in whose name it was bargained for if “tbe said land was purchased by tbe said Chester for tbe separate use of bis wife Phoebe.’'

Tbe rule of law is tbat “when tbe truth appears by tbe same deed or record which would otherwise work an es-toppel, tbe adverse party is not concluded from taking advantage of tbe truth.” *(Warren*v. *Leland,*2 Barb. 614.)

*Second*— If tbe estoppel bad been good and bad established, conclusively, tbat Yallejo was, by tbe agreement, to convey tbe land to Chester Ingersoll, and not to bis wife, yet, as tbe purchase money was hers, Yallejo held tbe legal title in trust for ber, as would Ingersoll, himself, bad tbe land been conveyed to him in bis lifetime, and tbe conveyance was properly made to her. Bor if tbe land was *607bought with Pboebe Ingersoll’s money, it became her separate property and "Vallejo was her trustee.

*Moore*& *Lane,*and *S. F. Lieb,*for Respondents.

Mutuality is a necessary ingredient of an estoppel; there can be no estoppel on one party unless the adverse party is equally estopped. *(Hempstead*v. *Faston,*33 Mo. 142; *Lansing*v. *Montgomery,*2 John. 382; *Sherman*v. *Garrett,*16 Cal. 100; 31 Ind. 1.)

"We submit that the infant heirs of Ingersoll would not be bound by the recitals that Vallejo and Mrs. Ingersoll might put into their deeds, and if they are not bound the defendant is not. Again these recitals are but the mere statements of what purport to be facts, wholly unnecessary to the validity of the conveyance. They are at best but mere admissions, not necessary to the conveyance, and are therefore open to controversy. It has already been held by this Court, that a deed, in so far as it is intended to pass or extinguish a right, is the conclusive evidence of the contract, and the parties are concluded by its terms, but that a deed is not conclusive evidence of the existence of facts acknowledged in the instrument, such as date, payment of the consideration, and the like. *(Rhine*v. *Ellen,*36 Cal. 363.)

All that was attempted by the defendant in this case, or allowed by the Court, was to show the true state of the transaction as to facts. No attempt was made to overthrow the instrument as a deed nor to contradict its operative portions.

The ease of *Pede*v. *Brumagvm*(31 Cal. 440), we think conclusive in favor of the proposition that recitals of this kind work no estoppel as between husband and wife, ox those claiming under them. But granting, for the sake of argument, that we are wrong as to the positions taken on the question of estoppel, we submit that under the most liberal construction of the recitals in favor of plaintiffs, they only show: *First*— that Ingersoll was the contracting party; that the conveyance was to be made to him; and, Second— *608that he paid the money. In other words, that he was but the instrument for making the contract. There is no statement as to whose money was used in making the purchase, whether the conveyance was to be made to him in trust for some one else, or directly, without any trust; and taking the whole recital together it shows that the purchase was made for the separate use of the wife. Hence we were but supporting the recitals in the deed — making the matter plain.

Ceockett J.,

delivered the opinion of the Court, Temple, J., Wallace, J., and Rhodes, C. J., concurring:

The land in controversy was granted by the Mexican Government to Yallejo, who, in 1847, entered into a written obligation to one Chester Ingersoll, wherein he bound himself to convey -the land on payment of $400. The money was subsequently paid, and, shortly thereafter, Ingersoll died in San Francisco, leaving a widow and several minor children residing there. Thereupon letters of administration on the estate were granted at San Francisco to one Brooks, a brother-in-law of the deceased. At the request of Brooks, Yallejo conveyed the land to Mrs. Ingersoll, the widow of the deceased. This deed recites that in 1847 Yal-lejo had contracted in writing to convey the land to Chester Ingersoll on the payment of $408, which was paid in Feb-rurary, 1848, by said Ingersoll; and having been assured that Ingersoll had purchased the land for the separate use of his wife, and the administrator having desired “ me to convey lands to him,” he therefore makes the conveyance to Mrs. Ingersoll. Four days thereafter Mrs. Ingersoll conveyed the land to one Slusser for $2,500, receipting in the deed that it was the same land “which was bargained by Salvador Yallejo to the late Chester Ingersoll, on the 20th day of December, 1847, and for which the said Chester In-gersoll paid on the 10th day of January, a. d. 1848, and for which a title was executed by said Salvador Yallejo to the said party of the first part on the 22d day of this present month, by the consent of A. B. Brooks, administrator of the estate of said Chester Ingersoll, upon proof that *609said lands were purchased by the said Chester Ingersoll for the separate use of his wife.”

In 1850, Slusser conveyed the land to the defendant for the sum of $5,000, and the defendant immediately entered into possession, and has ever since occupied it, claiming title under this deed. The plaintiffs are the children and devisees of said Chester Ingersoll, deceased; and the action is brought for the purpose of having the defendant adjudged to be a trustee, holding the legal title for their use, on the ground that the purchase from Vallejo was made by Chester Ingersoll for his own use and with his own money, and that Mrs. Ingersoll, Slusser and the defendant all took the title with notice of the plaintiffs5 equities.

The answer denies that the purchase was made by Inger-soll for his own use, or with his own money, but avers that it was made for the use of his wife, and was paid for with her separate funds. It also denies that Slusser, or the defendant, had any notice, actual or constructive, of the equities set up in the complaint. At the trial, special issues were submitted to a jury, and all the material positions of these issues were found for the defendant. The plaintiffs moved for a new trial, which was denied, and they have appealed from the order denying it. The errors assigned are: *First*— That the Court misdirected the jury, to the prejudice of the plaintiffs; *Second*— That incompetent evidence was admitted, against the objection of the plaintiffs. *Third*— That the verdict should have been set aside because of the misconduct of the jury; and, *Foivrth*— That the verdict is not supported by the evidence.

It appears at the trial that the written obligation from Vallejo to Ingersoll has been lost, and could not therefore, be produced; and the Court charged the jury that the recitals in the deed from Vallejo to Mrs. Ingersoll, and from the latter to Slusser, conclusively established the fact that Chester Ingersoll, and not his wife, was the beneficiary in the purchase from Vallejo, unless it was shown by the testimony, either that the purchase money paid to Vallejo was the separate estate of the wife, or that the written obli*610gation of Vallejo provided for a conveyance to bex instead of her husband; but that if the money paid to Vallejo was the jsroperty of the husband, and if the written contract required the conveyance to be made to him, then no information derived from sources outside the recitals of the deeds can avail the defendant, and the plaintiffs will be entitled to a verdict to the effect that Mrs. Ingersoll, Slusser and the defendant were not purchasers in good faith. The Court also charged the jury that an actual intent on the part of Slusser or the defendant to acquire the title in good faith cannot avail the defendant unless the money paid to Vallejo was the separate estate of -the wife, or unless the obligation of Vallejo required the deed to be made to her. The plaintiffs except to this charge on the ground, *First,*that there was no evidence tending to show that the written contract required the deed to be made to the wife; and *Second,*that the defendant is estopped to assert that fact by the recitals in the deeds. The first point is not well taken. The testimony of Grigsby, who was present at the transactions between Vallejo and Ingersoll, and of other witnesses, who testify to conversations with Ingersoll as to the title, certainly tend, in some degree, to prove that the conveyance was to be made to Mrs. Ingersoll,

Nor is the point as to the estoppel tenable,- for several reasons. Whilst the grantee in a deed will not be permitted by parol to contradict, vary or enlarge the operative words of a conveyance so as to defeat, change or modify the estate granted, he may, nevertheless, disprove collateral facts recited in the instrument, which are not essential to validity as a conveyance of the estate granted. He may do so,for the reason that the existence or non-existence of these facts does not impair the legal effect of the instrument. The title passes, whether the collateral fact exists or not. In *Rhine v. Ellen*(36 Cal. 382), we had occasion to consider carefully to whatextent the parties to a conveyance are estopped to deny collateral and immaterial facts recited therein, and I see no reason to doubt the correctness of the proposition announced in that case, to wit: that the estoppel does not extend to a recital *611of collateral facts not essential to tbe validity of tbe deed as an operative conveyance of tbe estate granted. Tbe grantor was, therefore, permitted to show that tbe consideration recited in tbe deed, and wbicb was therein acknowledged to have been paid, was not, in fact, paid; and tbe grantee was permitted to prove by parol that tbe consideration was wholly different from that stated in tbe instrument, and dependent on conditions wbicb bad not happened and might never happen. But tbe parties to a Sheriff’s deed, and ■their privies, are estopped to deny tbe existence of tbe judgment and execution recited in tbe deed; for these are essential to tbe validity of tbe instrument as a conveyance of tbe title of tbe judgment debtor. Such was tbe case of *Donahue*v. *McNulty*(24 Cal. 411), cited by tbe plaintiffs. Tbe recital in tbe Yallejo deed is but a statement of tbe considerations wbicb moved tbe grantor to make tbe conveyance, and tbe case of *Rhine*v. *Ellen, supra,*is a decision directly to tbe point — that tbe grantee may show by parol that tbe consideration was wholly different from that stated in tbe deed. But if tbe most liberal construction be given to tbe recital, it amounts only to a declaration that Chester Ingersoll made tbe payment to Yallejo, and that tbe conveyance was to have been made to him. It does not state that tbe money paid was tbe property of Inger-soll and not of bis wife. If tbe bond for a title bad run to Ingersoll, and a conveyance bad been made to him in bis lifetime by Yallejo, it would have been clearly competent for Mrs! Ingersoll, or any one claiming under her, to have shown by parol that tbe land was purchased with her money, and on proof of that fact her husband would have been her trustee, bolding tbe legal title for her use. If such proof would have been competent even after a conveyance to tbe husband, founded on precisely such an obligation as is recited in this deed, it is difficult to perceive why tbe same proof is not competent when no conveyance has been made to tbe husband.

In *Peck*v. *Brumagim*(31 Cal. 440), it was decided that if a deed to tbe wife recite a valuable consideration wbicb is *612not stated in. tbe deed to bave been tbe separate estate of tbe wife, tbe presumption of law is tbat tbe purchase money was paid out of tbe common property, and, therefore, tbe land conveyed will be presumed to be common property; but tbat this presumption may be rebutted by parol proof of tbe fact tbat tbe purchase money was paid out of tbe separate estate of tbe wife. Tbe case under consideration comes fairly within this principle. If tbe contract with Yallejo required tbe deed to be made to Chester Ingersoll, and if be paid tbe purchase money, and even if tbe conveyance bad been made to him, it would bave been competent for Mrs. Ingersoll, on tbe authority of *Peck*v. *Brumagim, supra,*to bave shown by parol tbat tbe purchase money was paid out of her separate estate, and tbat she was entitled to a conveyance of tbe legal title. If it would bave been competent for her to make this proof, even after a conveyance to her husband, it must of necessity follow tbat it is competent for her grantee to make it in support of a conveyance to her of tbe legal title. Tbe proposition is too plain to merit further' discussion. Tbe charge of tbe Court to tbe jury was more favorable to plaintiff than tbe facts justified.

Tbe verdict is also assailed on tbe ground of tbe misconduct of tbe jury. It appears tbat, on tbe adjournment of tbe Court for tbe day, tbe jury were informed by tbe Court tbat if they agreed upon a verdict during tbe recess they might seal it up and return it at tbe opening of tbe Court on tbe following day; tbat tbe verdict was agreed upon and sealed up; and on tbe following day, before tbe opening of tbe Court, one of tbe jurors informed tbe counsel of defendant what tbe verdict was. There is no proof of any fraudulent or improper motive in tbe juror or tbe counsel, or any reason to infer tbat tbe plaintiffs were in any respect injured by tbe disclosure. Tbe verdict bad already been sealed up, and was delivered, as previously agreed upon. Tbe conduct of tbe juror was certainly reprehensible, and if there bad been tbe least reason to infer tbat any damage to tbe plaintiffs bad resulted from tbe premature disclosure *613of tbe verdict^it ought to have been set aside. But in tbe absence of any showing, to that effect, or of any fraudulent conduct on the part of the juror, the mere fact of the disclosure was not, of itself, sufficient to invalidate the' verdict.

The declarations of Chester Ingersoll were clearly competent evidence against the plaintiffs, his devisees, claiming title under him; and the only declarations of Mrs. Ingersoll, put in evidence by the defendant, were portions of a conversation between herself and her husband and the witness Grigsby, when all three were present. Her declarations, made in the presence of her husband, and not denied by him, were competent evidence.

I discovered no error in the admission of any evidence offered by the defendant. Nor can we disturb the verdict on the ground that it is not supported by the evidence, in which there was a substantial conflict on all the material .issues.

Order denying the motion for a new trial affirmed.