worth v. Thompson, 98 Mass. 77, 93 Am. Dec. 137; Cuddy v. Horn, 46 Mich. 596, 10 N. W. 32, 41 Am. Rep. 178; Slater v. Mersereau, 64 N. Y. 138; Brown v. Coxe Bros. & Co. (C. C.) 75 Fed. 689; Flaherty v. Northern Pac. Ry. Co. (Minn.) 40 N. W. 160, 1 L. R. A. 680, 12 Am. St. Rep. 654; Village of Carterville v. Cook, 16 Am. St. Rep. 250, notes; Gulf, Colo. & Santa Fé Ry. Co. v. Bell, 8 Am. Neg. Rep. 159, 164, notes. In Smith v. Rines, supra, Mr. Justice Story says with reference to actions of this character: "Nothing is more clear, than the right of the plaintiff to bring an action of this sort against all the wrongdoers, or against any one or more of them, at his election. There is no principle, upon which the defendant has a right, in any courts of justice, to say, that the action shall be several, and not joint; and thus to take away the right of election, which the plaintiff has by law, to make it joint." And in Pirie v. Tvedt, supra, Mr. Chief Justice Waite says: "A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way." Judge Seaman says in Brown v. Coxe Bros. & Co., supra, that the creation of a joint liability in tort does not depend upon proof that the same act of wrongdoing was participated in by both tort-feasors and that they were in concert and had a common intent or were engaged in a joint undertaking: "But the rule under which parties become jointly liable as tort-feasors extends beyond acts or omissions which are designedly co-operative, and beyond any relation between the wrongdoers. If their acts of negligence, however separate and distinct in themselves, are concurrent in producing the injury, their liability is joint as well as several. Each becomes liable because of his neglect of duty, and they are jointly liable for the single injury inflicted because the acts or omissions of both have contributed to it." Smith v. Day, 39 Or. 531, 64 Pac. 812, 65 Pac. 1055, is not in conflict with this doctrine. In that case the defendants were acting independently of each other, without concert or common purpose, and the injury was not due to their concurring negligence, although it may have been a common result to which the act of each contributed. To make tort-feasors liable jointly there must be some sort of community in the wrongdoing, and the injury must be in some way due to their joint work, but it is not necessary that they be acting together or in concert if their concurring negligence occasions the injury. "Where the negligence of two or more persons directly concurs to produce an injury to another," holds the Supreme Court of Illinois in Con. Ice Machine Co. v. Keifer, supra, "although one may have undertaken one part of the particular work and another another part, and the negligence occurs in the performance of each of the several parts of the work which directly contri

butes to produce the injury, all will be 11able."

We are of the opinion, therefore, that the action can be maintained against the lumber company and the steamship company jointly. In such action a plaintiff may recover, if at all, against both or either of the defendants as the proof may warrant. Thompkins v. Clay St. Ry. Co., 66 Cal. 163, 4 Pac. 1165; Winslow v. Newlan, 45 Ill. 145; Carpenter v. Lee and Lowe, 5 Yerg. (Tenn.) 265.

It is contended that the deceased assumed the increased risk due to the condition of the barge at the time he went to work thereon, but there is no proof that he was conscious of the danger, or had knowledge of the fact. The judgment is reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with' this opinion.

Questions not presented to the court below in the proper way, nor to this court by assignment of error, are not the subjects of review by this court.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2968-2982.] 3. TRUSTS-FOLLOWING TRUST FUNDS-EQUITABLE REMEDY.

The equitable remedy given a cestui que trust to follow trust funds into property, in which they may have been fraudulently invested by his trustee, is not taken away by statutory provisions affording a remedy by attachment or garnishment; but the legal and equitable remedies are to be considered concurrent. 4. SAME.

Nor is such equitable remedy defeated by the fact that the cestui que trust might sue the trustee and his bondsmen and enforce his claim by levy; the rule being well settled that the defrauded party has his option either to hold the trustee personally liable. or to follow his money into the property in which it has been reinvested.

[Ed. Note. For cases in point, see vol. 47, Cent. Dig. Trusts, § 516.] 5. SAME.

Nor is the remedy of the defrauded cestui que trust to realize out of such property purchased with his funds affected by the fact that the agreement between the trustee and the owner of such property which led up to the diversion of such funds was an illegal one; the cestui que trust having been no party to such agreement.

(Syllabus by the Court.)

Appeal from District Court, Bernalillo County; before Justice Benjamin S. Baker. Action by Elias Chaves and Emilia Chaves de Armijo against Ben Myer and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

William B. Childers, for appellants. Summers Burkhart, for appellees.

POPE, J. This is a suit brought by the appellees, Elias Chaves and wife, alleging in their complaint substantially as follows: That on November 17, 1902, plaintiffs recovered a judgment in the district court of Bernalillo county against the defendant Myer, Individually and as administrator of the estate of Rafael Armijo, deceased, for the sum of $2,207.58, upon which judgment on November 28, 1902, execution was issued with return of nulla bona dated January 27, 1903. A certified copy of the judgment is attached to the complaint. The complaint, after alleging that the defendant Myer is insolvent, avers that the judgment was for the distributive share of the estate of the said Rafael Armijo to which plaintiffs are entitled. It is further alleged that on March 6, 1900, the defendants Maria A. de Lucero and J. Blas Lucero, her husband, executed and delivered to the defendant Myer a mortgage upon certain real estate in Bernalillo county, which mortgage was duly recorded March 7, 1900. A copy of the mortgage is attached to the complaint. An inspection of this shows that it runs to Myer personally, and upon the following conditions: "V. hereas the said parties of the first part (Maria A. de Lucero and J. Blas Lucero) have received of the said party of the second part (B. Myer) two thousand and eight dollars, said sum having been paid to the said second party in his capacity of administrator de bonis non of the estate of Rafael Armijo, dec., to which said estate said sum of two thousand and eight dollars is belonging: Now, therefore, if within the time of limitation under the laws of the territory of New Mexico, regulating the administration of estates and the liability of administrators, no claim or demand shall be made against Ben Myer as administrator of said estate nor any proceedings be entered against him, then this Indenture shall be null and void and of no effect, otherwise to remain in full force." It is further alleged that at the time of the execution and delivery of this mortgage Myer, as administrator of the Armijo estate, had in his hands the sum of $2,008 which “in equity and good conscience belonged" to plaintiffs, and which they were entitled to receive from said defendant as their distributive share of sald estate, which said Myer and said J. Blas Lucero well knew; but that the said J. Blas Lucero, contriving to defraud plaintiffs out of said sum of money, caused said mortgage to be executed and delivered to the said Myer to induce him, and did thereby induce him, to procure from the probate court of Bernalillo county an order authorizing him to pay over to the said J. Blas Lucero the said sum of $2.008, and to pay to him, the said Lucero, under said order the said sum of money. It is further alleged that, while by the terms of said mortgage it is condition

ed as aforesaid, it was in truth and in fact executed for the purpose of securing the payment of any judgment which these plaintiffs might obtain against said Myer for the distributive share of said estate, and for no other purpose, except as above stated to induce Myer to turn over to said Lucero the above named sum in his hands as administrator and to enable the said Lucero to get possession of the same. It is further alleged that said order allowing the payment of said sum on said mortgage was obtained without notice to plaintiffs, although Myer and Lucero well knew that plaintiffs were claiming said sum, and that thereafter plaintiffs appealed from said order of the probate court to the distric court, when said order was vacated and set aside and the judgment of November 17, 1902, above referred to, was entered. The complaint also alleges that plaintiffs have requested Myer to bring suit to foreclose said mortgage, but that he has refused so to do, and complainants pray that said mortgage be foreclosed to satisfy said judgment of $2,207.58. To this complaint the defendant Myer answered, in effect admitting all of its allegations. The defendants Lucero demurred upon the ground, first, that said complaint does not state a cause of action against defendants; and, second, upon the ground that these defendants are not necessary or proper parties to the action. The court overruled the demurrer; and, the Luceros electing to stand thereon, judgment was entered granting the relief prayed. Whereupon the last-named defendants prosecute their appeal to this court.

The assignments of error and the briefs and arguments point out a number of respects in which, it is alleged, the complaint fails to state a cause of action. It is urged, first, that there is no sufficient allegation that the sum of money advanced by Myer to Lucero belonged to the plaintiffs, and that there could not be any such allegation, for the reason that no particular sum could belong to any designated legatee in advance of a final settlement of the Armijo estate. We are of opinion, however, that the allegation that the sum held by Myer as administrator, and subsequently loaned to the Luceros, "in equity and good conscience" belonged to plaintiffs, and that they "were entitled to receive [it] from said defendant as their distributive share of said estate" sufficiently alleged ownership, expecially when taken in connection with the recital and finding in the judgment attached to and made a part of the complaint to the effect that "the said Ben Myer as such administrator has settled all claims against said estate except those of said appellants" (Elias Chaves and wife, the plaintiffs herein). It is further contended that the amount paid over to the Luceros was a part of the $2,207.58 which the judgment recites belongs as a matter of fact to the Luceros as their part of the Armijo estate. We find nothing in the record to sustain this view. On the con

trary, it is clearly averred that the sum here in controversy was a fund belonging to the plaintiffs by reason of the fact that all other claims, both in the nature of debts and bequests, had been paid.

It is said, further, however, that, conceding the liability of the defendant J. Blas Lucero, no such liability exists against the wife, Maria A. Lucero; there being no allegation that she knew of or participated In the fraud. No such point was apparently made in the court below, however. The only grounds of demurrer there urged were, first, that the complaint "does not state a cause of action against defendants"; and, second, "defendants are not necessary or proper parties to the action." As was said in Crabtree v. Segrist, 3 N. M. (Gild.) 500, 6 Pac. 203: "It does not appear that either of these points was raised or insisted upon at the trial, and we are therefore of opinion that they cannot be presented and urged before us. The general rule that only such assignments of error can be presented to the appellate court as were brought to the attention of the trial judge, so as to permit of their correction by him, is strengthened In this territory by the statutory provision that no exceptions shall be taken in an appeal to any proceeding in the district court, except such as shall have been expressly decided in that court.'" But, independent of this consideration, it is clearly averred that Mrs. Lucero joined in the note and mortgage made to Myer in exchange for plaintiffs' legacy. She admits in her mortgage that the whole amount was paid to her and to her husband, and that the same belonged, when received by them, to the Armijo estate. Under the other facts averred in the case this sum was wrongfully paid to and received by both, and no reason occurs to us why the lien given to secure the repayment of this amount should not be foreclosed as against both. It is further to be noted that the complaint does not ask nor does the decree award a general judgment against either, but is confined to a provision for the sale of the property mortgaged.

It is also urged that the suit cannot be maintained because an adequate remedy existed at law, in that the plaintiffs could have sued out garnishment upon the Luceros and thus have held the amount loaned them to respond to the judgment secured. We are unable to concur in this view. The suit here brought is for the purpose of impressing a trust upon the mortgage security taken by Myer in exchange for plaintiff's money, and is designed to realize the amount by foreclosure of the lien. The character of the action is one peculiarly of equity cognizance as a part of the original chancery jurisdiction. The remedy by attachment or garnishment or both is not a common-law one, but rests upon statute. It is well settled that the fact that statute may have given an additional remedy does not oust the courts of

*

pre-existing Inherent equity furisdiction affording the same result, in the absence of words in the statute prohibitive of such concurrent jurisdiction. Thus in 1 Pomeroy's Eq. Juris. § 276, it is said: "There is still another principle affecting the equitable jurisdiction which remains to be considered in all its relations, namely, whenever a court of equity, as a part of its inherent powers, had jurisdiction to interfere and grant relief in any particular case or under any condition of facts and circumstances such jurisdiction is not, in general, lost, or abridged, or affected, because the courts of law may have subsequently acquired a jurisdiction to grant either the same or different relief in the same kind of cases, and under the same facts or circumstances. * In other words, the exclusive jurisdiction to grant purely equitable reliefs, as well as the concurrent jurisdiction to confer legal reliefs, is still preserved, although the common-law courts may have obtained authority to award their remedies to the same parties upon the same facts." And in section 278, among the classes of cases instanced in which this principle has been applied, are "suits to recover a fund impressed with a trust or where a trust relation in view of equity exists 'between the parties where the plaintiff might recover the same sum by an action of assumpsit for money had and received or like legal action"; and also section 280, where it is said that "a statute authorizing a garnishment by a proceeding at law, does not take away nor abridge the equity jurisdiction to enforce an equitable attachment or sequestration by suit under the same circumstances." We are of opinion, however, that the remedy by garnishment would fall very far short of being equally plain, adequate, and complete with that of foreclo sure. The one would be to seek a judgment against the Luceros upon the incoming of their answer, to be followed by an effort to find unincumbered property out of which such judgment might be realized, while the other gives the direct remedy of foreclosure upon property already subject to a lien. We consider this point, therefore, as entirely untenable.

It is further urged that the amount for which judgment was rendered was excessive, in that it could at most have been only for the amount of the trust fund diverted, whereas judgment was rendered foreclosing the lien to pay the entire amount of the judgment secured. We do not find it necessary to decide this question, for the reason that the assignments of error raise no point as to the amount of the judgment. It has been distinctly held by this court that it will not consider questions not raised by the assignment of errors. Maxwell v. Tufts, 8 N. M. 401, 45 Pac. 979, 33 L. R. A. 854; Lamy v. Lamy, 4 N. M. (Gild.) 29, 12 Pac. 650.

It is further urged that the form of mort

gage is purely a personal security to Myer, that it could be enforced only by him, and the plaintiffs' redress was by a suit against Myer and his bondsmen. We do not consider this position well founded. The theory upon which the action was brought was that Myer, a trustee, had invested the trust funds in another form of property, to wit, a real estate mortgage, which latter he was holding in his own name in disregard and defiance of his trust. A court of equity will not permit an administrator under such circumstances to dictate terms. He cannot divert trust funds and say to the defrauded cestui que trust: "Your only remedy is to sue me and secure the satisfaction of your claim by levy, if perchance, I still have the property purchased with your money." On the contrary, the ancient equitable principle is that the cestui que trust under such circumstances has the option either to hold the trustee personally liable or to follow his money into the property which the trustee has in violation of his trust secured. In Oliver v. Piatt, 3 How. 401, 11 L. Ed. 622, it was said by the court, speaking through Mr. Justice Story: "It is a clearly established principle in that [equity] jurisprudence that whenever the trustee has been guilty of a breach of the trust, and has transferred the property, by sale or otherwise, to any third person, the cestui que trust has a full right to follow such property into the hands of such third person, unless he stands in the predicament of a bona fide purchaser, for a valuable consideration without notice, and, if the trustee has invested the trust property or its proceeds in any other property into which it can be distinctly traced, the cestui que trust has his election either to follow the same into the new investment or to hold the trustee personally liable for the breach of trust."

The general principle is thus stated in 2 Pom. Eq. Juris. § 1051: "A constructive trust arises whenever another's property has been wrongfully appropriated and converted into a different form. If the person having money or any kind of property belonging to another in his hands wrongfully uses it for the purchase of lands, taking the title in his own name, or if a trustee or other fiduciary person wrongfully converts the trust fund into a different species of property, taking to himself the title, or if an agent or bailee wrongfully disposes of his principal's securities, and with the proceeds purchases other securities in his own name, in these and all similar cases equity impresses a constructive trust upon the new form or species of property, not only while it is in the hands of the original wrongdoer, but as long as it can be followed and identified in whosesoever hands it may come, except in those of a bona fide purchaser for value and without notice; and the court will enforce the constructive trust for the benefit of the beneficial owner or original cestui que trust who has thus been defrauded." And in 2 Story Equity Juris

prudence, § 1258, it is said: "The general próposition, which is maintained at law and in equity upon this subject, is that if any property, in its original state and form, is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust or give the agent or trustee converting it, or those who represent him in right (not being bona fide purchasers for valuable consideration without notice). any more valid claim in respect to it than they, respectively, had before such change. An abuse of a trust can confer no rights on the party abusing it or on those who claim in privity with him. This principle is fully recognized at law in all cases where it is susceptible of being brought out as a ground of action or of defense in a suit at law. courts of equity it is adopted with a universality of application."

In

It is further urged that under the terms of the mortgage default had not occurred justifying a foreclosure. The condition of the mortgage, whether viewed from the standpoint of the actual language used, or as illumined by the allegation that said mortgage was executed "for the purpose of securing the payment of any judgment which plaintiffs might obtain against Myer for their distributive share of the estate, and for no other purpose," was satisfied by the allegations of the complaint, which show that a claim had been against Myer, as administrator, the propriety and seasonableness of which had been established, prior to the bringing of this suit, by a judgment of the district court.

Finally it is argued, and with special emphasis, that upon the allegation of the complaint the mortgage is void as against public policy, and cannot be enforced. It is urged that the allegation to the effect that the mortgage was given to induce the administrator to procure from the probate court an order allowing him to pay over to Lucero the amount in hand belonging to appellees is tantamount to an allegation of a conspiracy to embezzle that sum of money in the hands of the administrator and to defraud appedlees out of their interest in the estate, and that a court of equity will leave the transaction where it finds it and will refuse to grant any relief, even to the innocent defrauded owner of the fund misappropriated. We are unable to acquiesce in this view. Considering first the character of the agreement between Myer and Lucero, we incline to the opinion that the allegations of the complaint, when fairly construed, are simply to the ef-' fect that before the defendant Myer would loan to Lucero the fund in his hands belonging to appellees he exacted from the Luceros the mortgage in question; and, having secured it, he thereupon procured an order of the probate court permitting such loan. Whatever may be said of the transaction as a usurpation of power by the administrator, we believe there would be little difficulty in holding that it fell short of being such an

agreement as upon principles of public policy would be debarred from enforcement, even by Myer himself. But, however this may be, we are unable to subscribe to the view that, where by fraud between two parties there is effected the substitution of a mortgage for cash belonging to an innocent third party, the latter is debarred from realizing on such security, which is practically his. It would be using the law as a means of fraud, rather than of its prevention, to hold that the funds of a person in the hands of a trustee may be converted by a corrupt agreement between the trustee and a third party, and yet the cestui que trust be absolutely remediless to realize on the security, simply because the agreement to which he was in no sense a party, and for which he may have been in no sense to blame, was corrupt. Bereft of his property by the fraud of others, and deprived of his right to reclaim it or its equivalent because they, not he, had been dishonest, he would, indeed, have reason to say that the law was a mere sham, and that the courts were without efficiency to redress private wrongs. We have not overlooked the numerous authorities cited by appellants to the effect that the law will not lend its aid to the enforcement of an immoral agreement or one in contravention of public policy, and from this rule of law there can be no dissent. The extent to which the cases go is, however, to enforce the rule against the parties to the wrong, not against the innocent victim of it. We find no support in the authorities nor in morals for the contention that one may wrong another, and then set up the wrong as a defense, when called to account.

The judgment of the lower court is affirmed.

An attorney at law cannot transfer to another, without the consent of his client, an executory agreement, whereby he undertakes to supply professional services and ability.

[Ed. Note.-For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 151.] 2. BILLS AND NOTES-DEFENSES-EVIDENCE.

In the case at bar, irrespective of the statute (section 3021, Comp. Laws 1897, which provides that in a suit by or against the heirs, executors, administrators, or assigns of a deceased person, an opposite party shall not obtain a judgment on his own evidence, in respect to any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence), the defendants have not proved by a preponderance of the evidence that the note sued on was not to

become due and payable until all the suits were finally disposed of.

(Syllabus by the Court.)

Appeal from District Court, Valencia County; before Justice Ira A. Abbott.

Action by Florence P. Johnston, administratrix, against Roman L. Baca and others. Decree for plaintiff, and defendants appeal. Affirmed.

This suit was originally brought by Florence P. Johnston, as administratrix of George W. Johnston, deceased, and as administratrix de bonis non of the estate of Thom. as A. Finical, also deceased, against Roman L. Baca and the other defendants. The action was based upon a promissory note for $2,500, dated April 16, 1900, payable on or before one year after date, and bearing interest at the rate of 12 per cent. per annum from maturity until paid, with 10 per cent. additional on amount unpaid, if placed for collection in the hands of an attorney. The note was payable to Johnston and Finical, and was signed by all of the defendants, who to secure its payment executed and delivered a mortgage on certain real estate. The complaint was in the usual form and demanded judgment for the amount due on the note and for a foreclosure. The defendants, in an amended answer filed by them, admitted the execution and delivery of the note and mortgage, and alleged that the consideration therefor was for legal services to be rendered in the district court and Supreme Court in three certain cases; that afterwards Finical died and Johnston retired from the practice of law; and that they were compelled to employ one E. W. Dobson to represent them in the three cases under an agreement, as they allege, to pay him what his services were reasonably worth. Appellants also aver that there was a verbal understanding with Johnston and Finical that the note was not to become due until afer the legal services were completed. In the reply plaintiff admitted that the note was given on account of legal services rendered or to be rendered, and that Finical died in February, 1901, and that Johnston afterwards became ill and retired from practice, but denied all of the other affirmative matters set up in the answer, denying specifically that there was a failure of consideration, or that the defendants employed E. W. Dobson, Esq., as their attorney in the cases, and alleged that Johnston, as surviving member of the firm of Johnston & Finical, employed said Dobson to perform the services which their late firm agreed to attend to as consideration for said note and mortgage, and that said Dobson had performed them, with the knowledge and acquiescence of the defendants, and that said services were reasonably worth the amount specified in the promissory note. A copy of the agreement between Johnston and Dobson was attached to and made a part of the complaint, and shows that Dobson and