lations, and conducted herself without regard to them. Under such circumstances, to permit her to fall back upon them, and avoid her deed on the ground that the certificate of the notary does not recite that she was examined "separate and apart" from her husband, with whom she has held no relations for more than 20 years, and who has never been in this country, seems to me to be beyond all reason. I therefore concur in the conclusion reached by the chief justice.

MCKEE, J. I dissent. Determination of an adverse claim made by the defendant to the parcels of land described in the complaint in this case was the object of the action. The adverse title asserted by the defendant is one which he claims to have derived directly from the plaintiff herself. The decision of the court below informs us that the plaintiff is, and since the year 1855 has been, a married woman, the lawful wife of one William Nickels, to whom she was married in England, and with whom she there lived and cohabited until 1863, when, it appears, she voluntarily left her husband and England, and took up with the defendant, with whom she has since lived in adulterous intercourse until 1878,-part of the time, i. e., from 1868 to 1878, in the city and county of San Francisco,-he knowing all the time that the woman was the wife of Nickels. In February, 1871, during the existence of those meretricious relations between the parties, the plaintiff purchased, with separate funds of her own, the real estate in controversy and became seized in fee of the same as her sole and separate estate; and in the year 1873 she subscribed, and delivered to the defendant, an instrument in writing, reciting that, in consideration of one dollar, she granted, bargained, sold, and conveyed to him the said property. The acknowledgment of the instrument was made in the month of September, 1873, by the plaintiff as a feme sole; and the instrument itself was not recorded until the year 1877. In August, 1878, the parties executed another instrument in writing as a release, in which, after a recital that they "have lived together and cohabited without any marriage between them, and that it is now the wish of each of said parties that the said relations existing between them should be dissolved, and forever cease and determine," it was agreed that the plaintiff "shall have, hold, and possess, free and clear of any claim or demand whatsoever" of the defendant, * all the real estate, wheresoever situate, now standing of record in her name," etc.; and the defendant "shall have, hold, and possess, free and clear of any demand whatsoever" of the

plaintiff,

66* *

all the real estate, wheresoever situate, now stand

米 *

it being the purpose and

ing of record in his name," etc.; “* intent of this instrument that the said parties shall go their several ways, each, in all things whatsoever, to live according to his or her tastes and desires," and that, "hereafter and forever," the estates and properties of either shall be entirely free, clear, and discharged of any claims and demands of the other. The instrument was acknowledged

by the plaintiff, and was certified to have been acknowledged by her in the same way that the alleged deed had been acknowledged; that is to say, as a feme sole. On these facts the court below decided that the alleged deed of August, 1873, was translative of the title of the woman to the defendant, and vested in him ownership in fee of the property.

I think the decision is against the evidence and law, because, as the conveyance of the separate estate of a married woman, the alleged deed was a nullity. A married woman, although living adulterously with another, can convey her separate real property without the consent of her husband. But the law has regulated for her, as it has done for every one capacitated to transfer property, the mode by which she may transfer her separate real property, and she cannot transfer it in any other mode than that prescribed by the law. Section 1093 of the Civil Code declares: "No estate in the real property of a married woman passes by any grant purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner provided by sections 1186 and 1191. Acknowledgment in the mode provided by law, certified to have been made according to law, is an essential element in the deed of a married woman. If it be wanting in an instrument purporting to be executed by her, the instrument is ineffectual to pass her title to her separate real property. Sections 1093 and 1187 declare that a conveyance by a married woman "has no validity until acknowledged" as required by law. There was no evidence, and there is no finding in the case, that any legal acknowledgment in fact was made by the plaintiff; nor is there any such acknowledgment certified by the officer taking it to have been made. Neither the acknowledgment nor the certificate of acknowledgment is according to the law regulating the transfers of the real property of a married woman, and the instrument upon which the defendant bases his right is as, a conveyance, wholly invalid and ineffectual to pass to him the title of the plaintiff. Bank of Healdsburg v. Bailhace, 4 Pac. Rep. 106; McLeran v. Benton, 43 Cal. 467; Leonis v. Lazzarovich, 55 Cal. 52.

But it is insisted that, as the plaintiff acted and represented herself as a feme sole, she is estopped to deny the validity of the instrument as a conveyance. That assumption is not founded in the facts of the case. There was no evidence given that she acted and represented herself as a feme sole; certainly not to the defendant, for he all along knew her true status. It is true, she concealed from the public the fact that she was the wife of Nickels; but defendant, as her paramour, was not ignorant of the fact. He knew it all along, and joined the plaintiff in promulgating the falsehood as to her marital relations with another. As particeps criminis, how, then, was the defendant deceived by any act or representation of the plaintiff? As I understand it, the doctrine of estoppel can only be invoked to preclude a party who has made a false representation knowingly, with

intent that it should be acted upon, from denying its truth as against the party to whom it was made, provided the latter was ignorant of its falsity, and, believing it to be true, acted upon it to his damage. Davis v. Davis, 26 Cal. 23. On that principle a majority of this court decided the case of Reis v. Lawrence, 63 Cal. 129. But there is in this case no feature in common with that. In that, Reis was an innocent party. In this, the defendant was not. In that, the woman acted fraudulently and upon a false representation, to the damage of Reis. In this, the woman made no false representation to the defendant. He was therefore neither deceived nor injured by any act or representation of hers. The court finds "that during all of the time from 1863 to 1880 the defendant well knew and had knowledge that plaintiff was the wife of said William Nickels; and there was no evidence, and there is no finding, that the defendant ever paid a single dollar to the plaintiff, not even the nominal consideration mentioned in the alleged deed. That being the case, the title to the property in controversy "stood of record" in the name of the plaintiff, at the commencement of the action, and, according to the agreement of the defendant, it belonged to her, "free and clear of any claim or demand" by him.

I think the judgment should be reversed.

(67 Cal. 185)

SHARON v. SHARON. (No. 9,984.)

Filed November 30, 1885.

ALIMONY-FINAL JUDGMENT-UNDERTAKING ON APPEAL.

An order in relation to payment of alimony and counsel fees is in the nature of a final judgment, and under such circumstances the statute as to undertakings to stay proceedings on a final judgment applies; and under such statute (Code Civil Proc. Cal. § 942) an undertaking for double the whole amount of alimony and counsel fees allowed is proper and sufficient. MCKEE, J., dis

sents.

In bank. Appeal from superior court, city and county of San Francisco.

O. P. Evans and W. H. L. Barnes, for appellant.

Tyler & Tyler and D. S. Terry, for respondent.

THORNTON, J. In this case, on a rehearing granted on the twentyninth of July last, a question as to the character of the undertaking required to stay proceedings in the court below on the appeal from the order in relation to alimony and counsel fees was left open to be argued. That question has been submitted for decision. We are of opinion that the undertaking filed in this case is sufficient. It is in form proper, and in amount appears to be ample in point of security to the respondent in case of affirmance of the order. It does not appear that any exception was taken to the undertaking in the court below for insufficiency in form, or in any other respect. The order herein, as said in the former opinion, is in the nature of a final judgment; and under such circumstances the statute as to the undertak

ing to stay proceedings on a final judgment applies. The statute (Code Civil. Proc. § 942) requires that the undertaking for a stay of proceedings in such case should be in double the amount named in the judgment or order. In this case, in the order in relation to alimony and counsel fees, two lump sums are mentioned, and also a sum which is required to be paid monthly. The amount in the undertaking is double the amount of the lump sums and double the amount of the monthly payments for the period of three years, assumed to be the period during which the appeal will probably be pending. The whole amount covered by the undertaking is $305,000. We think that the undertaking for such amounts is in accordance with correct construction of the statute when applied to such an order.

We find nothing in Ex parte Perkins, 18 Cal. 60, or Ex parte Cottrell, 59 Cal. 417, or Macnevin v. Macnevin, 63 Cal. 186, in conflict with our former decision in this case. In Church v. Church, (No. 9,405,) heard before department 1, there was no opinion delivered, and on what grounds the motion in that case was denied does not appear on the records of this court. Conceding that some inconsistency appears to exist from the fact that the motion in that case was denied, we think the ruling in this case is the better one, and we adhere to it. See the statement as to Church v. Church, in the opinion of this court filed on the twenty-ninth of July, 1885, 7 Pac. Rep. 635. The order originally made in this case will stand as made.

We concur: MORRISON, C. J.; Ross, J.; SHARPSTEIN, J.; MYRICK, J.

I dissent: MCKEE, J.

Mr. Justice McKINSTRY being ill, takes no part in the decision of this case.

(68 Cal. 168)

STRATTON V. GRAHAM. (No. 9,199.)

Filed December 3, 1885.

APPEAL-TIME FOR FILING UNDERTAKING.

Under section 940, Code Civ. Proc. Cal., an appeal from the superior court will not be effective unless an undertaking be filed, or a deposit of money be made in lieu thereof, within five days after the notice of appeal is served and filed, or unless the undertaking is waived by the adverse party in writing; and a deposit of money more than five days after the serving and filing of the notice of appeal is not a compliance with the statute so as to entitle the party to an appeal.

Commissioners' decision.

Department 2. Appeal from superior court, county of Napa.
Henry H. Davis, for appellant.

Joy & Ham, for respondent.

FOOTE, C. The record before us discloses this state of facts: That a notice of appeal from the judgment, and an order denying plaintiff

a new trial, was filed and served on the twenty-fifth day of July, 1883; that no undertaking on appeal was filed, nor was the same ever waived by the adverse party in writing, but that, according to the certificate of the clerk of the trial court, a sum of money in lieu thereof was deposited with him for the appellant on the thirty-first day of August, 1883,-more than five days after the notice of appeal was served and filed. Therefore, on the authority of Biagi v. Howes, 63 Cal. 384, Francis E. Stratton, claiming to appeal under section 940, Code Civil Proc., without having in effect done so, should be refused a hearing by this court.

BY THE COURT. For the reasons given in the foregoing opinion the appeal is dismissed.

(68 Cal. 169)

CLAFFEY V. HARTFORD FIRE INS. Co. (No. 9,107.

Filed December 4, 1885.

FIRE INSURANCE-BREACH OF WARRANTY-AMBIGUITY IN BILL OF SALE. In an action to recover on an insurance policy for a loss sustained by the burning of a certain barn, where the defense set up is breach of warranty on plaintiff's part in representing that the title to the property was in himself when he had no title thereto, and plaintiff, to make out his title, introduces a bill of sale as follows: "For a valuable consideration the Spring Valley Water-works grants and conveys unto John Claffey the Wolfe houses, but reserves the right to use the same until the first day of November, A. D. 1877;" and it appears on the trial that the barn insured, together with other houses, were built by a Mr. Wolfe,-the fact of the word "houses" being used in the bill of sale makes it plain that more than one house was by it conveyed to the plaintiff; and such an ambiguity existed in that instrument as warranted an explanation by parol testimony to determine whether or not the term "the Wolfe houses" included the barn in question

Commissioners' decision.

Department 2. Appeal from superior court, city and county of San Mateo.

E. A. & G. C. Lawrence, for appellant.

Gray & Haven, for respondents.

FOOTE, C. Plaintiff, Claffey, instituted this action against the defendant, on a fire insurance policy, alleging that it covered a loss he had sustained by the burning of a certain barn. The defendant's main objection to payment of the demand was a breach of warranty on the part of plaintiff, in representing that the barn was his property, when he had no title thereto. The plaintiff, as tending to show ownership of the building in dispute, introduced in evidence the following copy of a bill of sale:

"For a valuable consideration the Spring Valley Water-works grants and conveys unto John Claffey the Wolfe houses, but reserves the right to use the same until the first day of November, A. D. 1877.

"Witness the corporate name and seal of said corporation hereunto subscribed and affixed by Chas. Webb Howard, its president, in pursuance of