as attorney in fact for Beta Gade, for a nominal consideration sold and conveyed the property to himself and wife. On June 3, 1881, Beta and her husband made and delivered to plaintiffs a deed of the property, which was absolute in form, and on the same day Helbing and wife executed to plaintiffs a similar instrument. A few days later, plaintiffs and the Helbings exchanged documents acknowledging that plaintiffs held the property in trust for two purposes; viz., "to secure them against any loss which they might sustain by reason of their having become sureties on the bond above referred to, and to secure to plaintiff Wright rayment for professional services which he had rendered, and should thereafter render, in certain proceedings." Plaintiff Wright did not prove what, if any, fees were due to him for services rendered. One of the bonds has been exonerated, and it does not appear that any liability has accrued on the other.

The basis of the defendant's claim of title is quite as uncertain as the plaintiffs'. The judgment under which he purchased the property at execution sale on June 9, 1884, was entered November 11, 1881. Under that purchase he took whatever right, title, and interest the Helbings had in the property at the date of the judgment. Helbing's deed of July 28, 1880, to himself and wife, is void. The power of attorney did not authorize him to give away the property, or to convey it to himself for a nominal consideration. His act was a fraud on the principal, and the conveyance is a nullity: Code Civ. Proc., sec. 2306; Dupont v. Wertheman, 10 Cal. 368; Randall v. Duff, 79 Cal. 115. It is true, the evidence tends to show that Helbing was the real owner of the property, and that the conveyances were made to mislead somebody, probably creditors. He received but a few hundred dollars for two three-story houses. Soon after the houses were built, the Helbings went into possession of the property, and have ever since occupied the same. The plaintiffs promised to reconvey to the Helbings, not to Beta. The Helbings then filed a homestead declaration on the property. They were heavily in debt. There are many circumstances connected with the transaction tending to show an attempt on the part of all parties to conceal the identity of the real owner. But the defendant himself offered a lease from Beta Gade to Mary Hensler, dated March 1, 1878, by the terms of which the premises were leased to the latter for a term of five years. He also offered in evidence the power of attorney from Beta Gade

to Helbing, and the deed executed by the latter to himself and wife, insisting that the latter was not void. The defendant. could not thus affirm title in Beta Gade in support of his own title, and deny it in answer to plaintiffs' claim of title under the same source; he could not do so consistently, at least. If Beta was the owner of the property, the title passed to the plaintiffs herein by her deed of June 3, 1881, several months prior to the entry of the judgment against the Helbings. But as stated before, it is impossible to tell, from the evidence offered by the respective parties, what is the basis of the claim of either. The most that plaintiffs can claim, under the evidence introduced by them, is a lien for the value of services rendered by the plaintiff Wright, and for any liability which may have accrued on the bond which has not been exonerated. If Helbing was the beneficial owner at the time defendant purchased at execution sale, the latter took all his right, title, and interest, and is entitled to have the same adjudged to him. To do this it will be necessary for the defendant to amend his cross-complaint so as to state the facts more fully, as fully as they are required in a bill in equity: Kreichbaum v. Melton, 49 Cal. 50; Brodrib v. Brodrib, 56 Cal. 563.

Plaintiffs offered to prove that Mrs. Helbing had declared a homestead on the property June 29, 1880, but the evidence was excluded. We do not think the court erred in its ruling. The fact that the Helbings claimed a homestead could not aid the plaintiffs as against the defendant. The Helbings had, by their failure to answer defendant's cross-complaint, waived, as against the defendant, any claim under the homestead declaration, and their conveyance to the plaintiffs did not give to the latter any homestead right in the property.

Appellants contend that the demurrer to the cross-complaint ought to have been sustained; that a cross-complaint is improper in actions of this kind. In support of this contention they cite Wilson v. Madison, 55 Cal. 8. All that case decides is, that where the relief demanded by defendant can be had upon the denials and averments of his answer, a crosscomplaint is unnecessary. But there may be cases in which full relief cannot be given the defendant upon answer, and as in ejectment, a cross-complaint in such cases is recognized as a proper pleading, so that the whole controversy may be settled in one action, so here we see no objection to a cross-complaint upon the allegations of which, supported by proof, the

defendant may take from plaintiff that which he would recover in equity; viz., the legal title. Section 442 of the Code of Civil Procedure provides that "whenever the defendant seeks affirmative relief against any party, relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a crosscomplaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint."

Here the affirmative relief which the defendant is seeking certainly affects the property to which the action relates, and we think that the cross-complaint was a proper pleading. The plaintiffs claim the whole title. They could not maintain the action by showing simply a lien without possession or right of possession. But if the court denied their prayer because they showed at most only a lien, the validity of the lien could be determined in another action. Why not allow the defendant, upon proper averments in his cross-complaint, to test in this action the validity of the lien claimed by plaintiffs? In other states it is held that cross-complaints in these actions are proper pleadings: Ludlow v. Ludlow, 109 Ind. 199, and cases cited; Venable v. Dutch, 37 Kan. 515; 1 Am. St. Rep. 260; Allen v. Tritch, 5 Col. 228; Greenwalt v. Duncan, 16 Fed. Rep. 612.

But it is claimed that if it be conceded that a cross-complaint is a proper pleading in actions of this nature, new parties cannot be brought in by it. Whether this could be done under the old chancery practice is a question upon which the authorities are not agreed; but our code system is much broader and more liberal in this regard. The defendant is not, under our practice, confined in his cross-complaint to matters charged in the complaint. Thus in ejectment, as stated before, he may plead matters purely equitable, and secure equitable relief. Besides this, our statute provides that "when a complete determination of the controversy cannot be had without the presence of other parties, the court must order them brought in ": Code Civ. Proc., sec. 339. A complete determination of this controversy, if the allegations of the defendant and the findings of the court are correct, could not be had without making the Helbings parties. The plaintiffs appeared to be and claimed to be the owners in fee. The

Helbings were in possession. The defendant was entitled to the possession if the Helbings owned the property when the judgment was entered. A trial between the plaintiffs and defendant would have settled only half of the controversy, and it would have become the duty of the court, we think, when the facts appeared in evidence, to order the Helbings brought in as parties to the action: O'Connor v. Irvine, 74 Cal. 443. In other states it is held that in a proper case third parties may be brought in to answer the defendant's cross-complaint: Allen v. Tritch, 5 Col. 228; Bunce v. Bunce, 59 Iowa, 534. Appellants rely upon the case of Harriso v. McCormick, 69 Cal. 618. In that case there was no necessity for a cross-complaint; the claim was for damages, purely a counterclaim, -in which case, of course, the demand "must be one existing in favor of defendant and against a plaintiff, between whom a several judgment might be had in the action": Code Civ. Proc., sec. 438.

In this case a cross-complaint is proper to determine the question as to the validity of plaintiff's lien. If the obligations of the bond have ceased, and no money is due Wright for professional services, the defendant is entitled to have those facts determined, and to receive whatever affirmative relief he may prove himself in equity entitled to. If the Helbings claim a homestead upon the property, it is proper that they should be given an opportunity to present the same, so that the rights of all parties interested, or claiming an interest, may be settled in one suit.

The record shows that the summons issued on the crosscomplaint was duly served on the Helbings, but is silent as to whether any appearance was made by them. We presume, of course, that no answer was filed; but if they failed to appear and demur or answer within the time allowed by law, their default therefor ought to have been entered, and a memorandum of such default indorsed on the cross-complaint: Code Civ. Proc., sec. 670.

The judgment is reversed, and the cause is remanded for a new trial, with directions to the court below to permit the parties to amend their pleadings in any respect consistent with the nature of the action.

AGENCY-VALIDITY OF AGENT'S ACTS DONE FOR HIS OWN BENEFIT. An agent's acts are invalid, wherein he makes a profit out of his principal: Disbrow v. Secor, 58 Conn. 35; Smith v. Mosely, 74 Tex. 631. An agent to sell realty cannot sell to his wife without the consent of his principal: Tyler

v. Sanborn, 128 Пl. 136; 15 Am. St. Rep. 97, and note; and he must account to his principal for the highest price attainable: Kramer v. Winslow, 130 Pa. St. 484; 17 Am. St. Rep. 782, and note. An agent cannot bind his principal by a contract made with himself: Williams v. Journal P. Co., 43 Minn. 537; Third Nat. Bank v. Marine L. Co., 44 Minn. 65. Yet such contracts made with the knowledge and consent of the principal may be valid: Frantz v. Jacob, 88 Ky. 525; Miller v. Root, 77 Iowa, 545. The possession of an agent is the possession of the principal: Duncan v. Able, 99 Mo. 189.

CHANCERY PRACTICE-CROSS-BILL - NEW PARTIES. -New parties who were not parties to an original bill may be brought in by cross-bill: Hurd v. Case, 32 Ill. 45; 83 Am. Dec. 249, and note 253, 254.

IN RE MCMANUS.

[87 CALIFORNIA, 292.]

EXECUTION, EXEMPTION OF PRoperty from. - Statutes exempting prop erty from forced sale should be liberally construed.

EXECUTION, EXEMPTION OF PROPERTY FROM. -The safe of a jeweler, necessary and useful in conducting his business, and without which he cannot conduct it to any profitable end, is exempt from execution as an implement of an artisan necessary to carry on his trade.

George A. Rankin, and Blackstock and Shepherd, for the appellants.

Barnes and Selby, for the respondent.

BELCHER, C. C. The respondent, L. M. McManus, was engaged in the business of a jeweler and watch-repairer, and while so engaged was adjudged to be an insolvent debtor. He owned and used in his business a jeweler's safe, which the court, against the objections of certain creditors, set apart to him as property exempt from execution.

The objecting creditors and the assignee of the estate appeal from the order, and contend that it was not authorized by law, and should therefore be reversed.

At the hearing, the respondent was called as a witness, and "testified, in substance, that he was a jeweler and watchrepairer, and is engaged in that trade or business as a means of support for himself and family, and that without the use of said safe said business cannot be prosecuted by him to any profitable end; that it is a necessary and useful article in conducting said business; that without the use of said safe his customers would not leave their jewelry and watches with him to be repaired." Another witness was also called, and testified: "That he is a practical watch-maker and jeweler; that a safe similar to the one mentioned is an article with