a defect in the title to the property homstead-, ting up the fraud practiced by Kemp as a deed, occasioned by the transfer of that property in fraud of creditors, that the homestead may be successfully attacked on the ground of fraud. The cases of Shinn v. Macpherson, supra, and Riddell v. Shirley, 5 Cal. 488, are opposed to this contention. In neither of these cases was there a transfer of the homesteaded property. In the former case money obtained by the peculations of one member of the firm from the firm assets was invested in the homesteaded property. In the latter case, personalty was sold by the debtor and the proceeds used to pay off a mortgage on the homestead. In both of these cases the rights of the creditors were declared paramount to those of the owner of the homestead. [4] Plaintiff insists that no equity, however great and meritorious, which is not established by a judgment of a court of equity, can be used as a defense in an application for an injunction to restrain an execution sale of an exempted homestead. In this behalf plaintiff insists that it was necessary for the defendant to first establish his claim in equity against the property, and that he was not at liberty to obtain a judgment at law, and then, when hampered in the execution of the judgment by an application for an injunction, set up an equitable defense. In this behalf plaintiff insists that Shinn v. Macpherson, and other cases in which a homestead was attacked because of fraud, were suits in equity brought directly for the purpose of having a lien adjudged upon the premises. Obviously, the fact that this was the procedure followed in one case, or in a series of cases does not compel the conclusion that the procedure followed was the only permissible procedure. It may be noted that in Bishop v. Hubbard, 23 Cal. 514, 83 Am. Dec. 132, the same procedure was followed as that followed by the defendants in the instant case. Plaintiff likewise instances, in support of this contention, the fact that a vendor's lien must be established by a judgment of a court of equity before it becomes a subsisting lien. The fact that a vendor's lien must be established by a court of equity does not, we think, compel the conclusion that all equitable rights, before they may be availed of as a defense, must be first established by a decree in equity. The fact that the defendant, Enemark, proceeded at law to secure a money judgment against John D. Kemp based upon Kemp's promissory note, does not, we think, deprive defendant of the right of set fense to this action. It is to be remembered that the doctrine of the election of remedies is generally regarded as being an application of the law of estoppel. No elements of estoppel are present in the instant case which would make it inequitable or unjust to allow the defendant to set up his equitable defense. Crittenden v. St. Hill, 34 Cal. App. 107, 166 P. 1016. The defendant is not attempting, after having exhausted his legal remedy, to come into court and maintain a right of action founded upon a theory inconsistent with that which formed the basis of his former action. He is merely setting up, as an equitable defense to an equitable action, the facts surrounding the fraudulent procurement of the money in question. necessity existed for the establishment by the defendant of the fraud of Kemp in the procurement of said money, until the filing by the plaintiff of her action to enjoin the sale of the property. Plaintiff cannot force the defendant to come into a court of equity to protect his rights secured by a judgment in a court of law and at the same time prevent the defendant from setting up an equitable defense upon the theory that the defendant had already elected to prosecute his action at law. No [5] The defendant in this action is not precluded by the fact that he is not the defrauded party, but is an assignee, from setting up the defense of fraud upon the theory that a cause of action for fraud and deceit is not assignable. The assignment of the note by the Bank of San Jose to the defendant Enemark carried with it such right as the bank had growing out of any fraud in the transaction. It was the assignment of a definite property right, and carried with it the right to set up that fraud, and to enforce all the rights incident to the property transferred which the original owner would have had. A bare right to sue in equity for fraud separate and distinct from a property right is not assignable, but where the right to sue for a fraud is merely incidental to a subsisting substantial property right which has been assigned, and which is itself intrinsically susceptible of legal enforcement, the assignment carries with it the right to set up the fraud. Emmons v. Barton, 109 Cal. 662, 42 P. 303. The judgment is affirmed. We concur: MYERS, C. J.; LAWLOR, J.; RICHARDS, J.; WASTE, J.; SEAWELL, J.; SHENK, J. (230 P.) In re RANDALL'S ESTATE. (S. F. 10966.) (Supreme Court of California. Nov. 5, 1924.) 1. Appeal and error 1079 - Counsel must show by argument and citation of authorities that claimed error exists. Counsel must show by argument and citation of authorities that claimed error exists, otherwise contention will be deemed abandoned. 2. Executors and administrators 471-Statute requiring notice of settlement of final account does not require notice to specify court room in which hearing will be held. Code Civ. Proc. §§ 1633, 1634, requiring notice of settlement of final account of executor or administrator does not require notice to specify courtroom in which hearing will be held. 3. Executors and administrafors ~510(3)— Persons not prejudiced by irregularity in notice of hearing of final settlement, could not complain of such irregularity. Persons who were not prejudiced by an irregularity in notice of a hearing of final settlement.of an executrix's account pursuant to Code Civ. Proc. §§ 1633, 1634, could not complain of such irregularity. 4. Executors and administrators 510(7)— Record held affirmatively to show account of former administratrix was not final. MYERS, C. J. These appeals are from decrees of the superior court in probate, settling a final account of Anne Bates Randall, Record held affirmatively to show account as executrix, and ordering final distribution of former administratrix with will annexed of said estate. The record upon appeal is was not final, but that it was a first account presented in a printed transcript which in current. cludes a bill of exceptions, and in addition 5. Executors and administrators 504 (5)-thereto copies of various documents which Pleadings objecting to settlement of final ac- were filed in the court below in the course of count of executrix held properly stricken as irrelevant. Pleadings objecting to settlement of final account of executrix, which alleged testator's domicile in another state, and enumerated his next of kin, and substance and effect of laws of such state as to property rights between husband and wife, as to heirship, succession, wills, probate thereof, and effect of judgments in probate, held properly stricken as irrele vant. 6. Appeal and error 926 (5)-Appellants complaining of deprivation of opportunity of offering evidence in support of objections to final distribution must show error. Where appellants complained of being deprived of opportunity to offer proof in support of pleaded objections to petition for final distribution of estate, but record did not show that they offered evidence in support of their objections, or that the court excluded evidence if it was offered, appellate court must assume either that appellants offered no such evidence or, if they did, that same was received and considered by the court; since it is incumbent upon appellants to show error. 7. Appeal and error 907 (2)-When appellate court must conclude evidence sustains findings, and that trial court committed no error in receiving it, stated. Where bill of exceptions contains no evidence and shows no rulings on admission of evi administration of said estate. Some of these documents were properly included in the transcript as forming part of what may properly be deemed the judgment roll for the purposes of a record upon appeal in a probate proceeding. Others of them have no proper place in the transcript and should not have been included therein. As to one of these in particular, which occupies 100 pages of the printed transcript, no possible justification or excuse for its inclusion therein is apparent. [1] Appellants' first point upon appeal is presented in their brief in the following man ner: "One of the grounds, sufficient of itself to render invalid and void both of the decrees appealed from, is the plainly appearing failure to give notice to the world at large, prescribed by sections 1633 and 1634 of the Code of Civil Procedure of California. All that failure to give such requisite jurisdictional notice, so plainly appears in the record, that the writer hereof cannot think it of any actual importance further to point it out here. But we here particularly call attention to the language of the bill of exceptions on folios 527 to 533 of the transcript, and also to folios 534 to 538, inclusive." Nothing further by way of explanation or elucidation of this point is to be found in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes their brief. We would be entirely justified, therefore, in passing it without further consideration. Appellate courts cannot be expected to assume the task of searching the record for the purpose of discovering errors not pointed out by counsel. It is the duty of counsel, by argument and the citation of authorities, to show that the claimed error exists. "Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned." 2 Cal. Juris. p. 732. [2, 3] We have, however, examined the record herein and find therefrom that a day for the settlement of said account was duly appointed, and notices of the hearing thereof posted by the clerk in full compliance with all of the requirements of sections 1633 and 1634, Code of Civil Procedure; that affidavit of such posting was duly made and filed by the clerk; that upon the hearing the notice and proof of service thereof were duly received in evidence without any objection being made by appellants, and that the trial court found in accordance with said evidence and recited in its decree: "Proof having been made to the satisfaction of the court that notice of the settlement of said account and of the hearing of said petition for final distribution had been duly given in the manner and for the time required by law. that designated in the notice, or that the proceeding was presided over by a judge not regularly assigned to that department. It thus affirmatively appears that appellants were in nowise prejudiced by this irregularity, if such it may be termed. [4] Appellants' second point is thus stated in their brief: "Another ground of the absence of jurisdiction of the subject-matter by the court below, is the limited scope of the probate jurisdiction of the subject-matter, and the fact that the account of Florence E. Philbrook as administratrix with the will annexed, filed February 23, 1916, was the final account of that entire adsaid administration of said estate, a stage had ministration; * showing, that in the been reached as early as March 6, 1916, precluding any further probate administration therein, by the said Anne Bates Randall. " the transcript discloses that it is not and does not purport to be a final account, but is clearly and unmistakably a first account current. It further appears from the transcript herein, that Mrs. Philbrook was first appointed administratrix with the will annexed of this estate, and thereafter the court revoked her letters of administration, and appointed Mrs. Anne Bates Randall executrix thereof. This was done in April, 1917, so that it affirmatively appears from the record that there is no basis for the contention that the administration of this estate was closed in March, 1916. Appellants insist that we must take judicial notice of the records of this court in the matter of other appeals which have been before this court in connection with the administration of this estate. If we could properly do so, the information thus obtained would serve but to confirm what is here stated. Estate of Randall, 177 Cal. 363, 170 P. 835; 188 Cal. 329, 205 P. 118. Appellants' next point is thus stated in their brief: A reference to the account referred to in these appellants of all and of any and every "The wrongful denial by the court below to hearing and right of a hearing.” Further examining the portion of the transcript referred to, we observe that the notice of hearing designated "the courtroom of department No. 4 of the above-entitled court in the courthouse in the city of Oakland in said county" as the place of hearing. The hearing was in fact held in the courtroom of department 8 of said court in said courthouse before the judge regularly assigned to department 8, but who sat and presided on this occasion as judge of department 4 of said court. The two courtrooms were on different floors of said courthouse. We are thus permitted to guess, although they have not so stated, that appellants are of the opinion that these circumstances operated to deprive the court of jurisdiction to proceed with the hearing. If this be appellants' contention, we are satisfied it possesses no merit. The statute does not require the notice of hear-ord which indicates or tends to indicate that ing to specify the courtroom in which it will be heard. Code Civ. Proc. §§ 1633, 1634. It may be conceded, however, that if a party entitled to and desirous of participating in such a hearing should be misled by such a notice to the extent that he was thereby prevented from attending the hearing, it might constitute an error or irregularity justifying > reversal of the decree, but no such situation obtains here. It affirmatively appears from the record herein that the appellants did actually attend the hearing and actively participated therein, without making any obJection either to the circumstance that the hearing was held in a courtroom other than Under this heading, appellants make no pretense of pointing out anything in the rec they were denied any hearing or right of hearing at any time or in any respect. The record shows affirmatively that there was a hearing had pursuant to due notice, and that appellants appeared thereat and actively par ticipated therein. [5] Appellants next complain of the action of the trial court in striking out a portion of one of their pleadings herein. They filed in the court below a document entitled "Objections and Statements Contesting the Final Account of Anne Bates Randall as Executrix of the Will of said Decedent." At the hear ing respondents moved to strike out portions thereof, which motion was by the court (230 P.) granted in part. The motion was made up-, strike was directed solely at the "Objections on the ground, among others, that the speci- and Statements Contesting the Final Acfied parts of appellant's objections were count." The order of the court was that, sham and irrelevant, scandalous, abusive, "there is hereby stricken from said 'Objecdisrespectful, and contemptuous. It should tions and Statements Contesting the Final suffice to say that all of the portions which Account of said Anne Bates Randall as Exthe record shows to have been stricken out ecutrix of the Will of said Decedent' those were wholly irrelevant to the question of the portions thereof. * * There is no settlement of the final account of the ex- showing in the record that appellants offered ecutrix. Some portions thereof, in addition to any evidence to prove those allegations, or being irrelevant, were scandalous, abusive, that the court excluded any such evidence. disrespectful and contemptuous. The court It is incumbent upon appellants to show ermight have been justified in striking out the ror of the court below, and in the absence entire pleading because of the inclusion there- of any such showing we must assume eiin of such scandalous and irrelevant matter, ther that appellants offered no such evidence, but it did not do so. The portion so stricken or that if they did so offer it the same was out alleged that the testator was during his received and considered by the court. entire lifetime and at his death domiciled in the state of Maine. It purported to enumerate his next of kin and their relationship to him. It alleged the substance and effect of the laws of Maine as to property rights between husband and wife, as to heirship, succession, the law of wills, the probate there of, and the effect of judgments in probate. It alleged some of the provisions of the will of the testator herein, and alleged that by reason thereof and of the provision of the laws of Maine, Florence E. Philbrook became the owner of all the estate and property left by the said testator except two specific legacies given by his said will. These allegations might have been relevant in an answer or opposition to the petition for distri- cillary administration in California of this bution, but we are unable to conceive of any estate is all personal property. Mr. Wharton, relevancy thereof to the matter of the set-in his Conflict of Laws (3d Ed.) p. 1357, § tlement of the account of the executrix, nor have appellants pointed out any such relevancy in their brief. The scandalous and abusive matter contained therein has no possible relevance even to the petition for dis tribution. [6] In addition to the objections to the final account above referred to, appellants filed in the court below a general demurrer to respondent's petition for distribution and alSO an "Answer, Counterclaim, and CrossPetition" thereto. In the latter document they allege: "These said defendants, for their denial of any right of said Anne Bates Randall to the whole or any part of the property claimed by her by her said petition, and for stating their own title and right to all the said property, here adopt, and make a part hereof, section 2 of their said objections hereto annexed." Section 2 of said objections was the portion thereof stricken out by order of the court. It seems to be appellants' theory that the order striking out this portion of their objections to the settlement of the account had also the effect of striking it out from their answer to the petition for distribution, and thus deprived them of an opportunity to offer proof of those allegations. We find nothing in the record indicating that it was intended to have this effect. The motion to Appellants seemingly feel that they have been wronged because of the fact that the trial court in construing the will herein adopted the same construction which had been placed thereon by the Supreme Judicial Court of the State of Maine, the place of the testator's domicile. Philbrook v. Randall, 114 Me. 397, 96 A. 725. Appellants assert that: "It is the settled law that, in every such case, no judgment or decree of the state of Maine, construing or interpreting the will, or any part thereof, can lawfully be given or allowed any, even the least, effect." The cases cited by them do not support this assertion. The property involved in the an *The courts of testator's * 599b, says: by the terms of his will was to devise and | R. Pearson; and ejectment by Nettie R. [7] The bill of exceptions herein contains no portion of the evidence received, or the evidence offered, and shows none of the rulings of the court upon the admission of evidence. We must conclude, therefore, that the evidence fully sustains the findings, and that the court committed no error in receiving the same. We find no error in the record, and the decrees appealed from are therefore affirmed. [8] It having come to the attention of the court that Horace W. Philbrook, one of the appellants herein, has died since the submission of this cause for decision, it is ordered that this judgment be filed nunc pro tunc as of the date of submission, to wit, October 7, 1924. 2 Cal. Juris. p. 974. We concur: LAWLOR, J.; SHENK, J.; WASTE, J.; LENNON, J.; SEAWELL, J. SHREEVES et ux. v. PEARSON. PEARSON v. SHREEVES et ux. (L. A. 7240.) (Supreme Court of California. Nov. 1, 1924.) 1. Escrows 8(1) When escrow holder agent of both parties stated. When papers, moneys, or other articles are delivered to escrow holder to be held by him in that capacity and to be distributed to respective parties on performance of terms, he is, prior to performance of conditions, agent of both parties. 2. Escrows 9-When dual agency of escrow holder changes to agency for each party stated. Whenever conditions attending escrow have been so far performed that transaction which called escrow into being becomes complete, nature of dual agency of escrow holder changes to agency not for both but for each party in respect to those things placed in escrow to which each has become entitled. 8. Escrows 9-Escrow holder at time of his defalcation held not agent for vendor with respect to payment on price. Requirements of escrow held not performed so as to render escrow holder at time of his defalcation agent for vendor with respect to payment by purchasers on price. Af Kennicott & Williams, of Los Angeles, for appellants. Henry M. Lee and Walter L. Mann, both of Los Angeles, for respondent. RICHARDS, J. These two cases were consolidated for the purposes of trial and have been presented together in the transcript and briefs upon appeal. In the first of these cases William D. Shreeves and Grace Shreeves, his wife, brought suit against Nettie R. Pearson for the specific performance of an agreement for the purresulted in a judgment in favor of the de chase and sale of certain premises, which fendant. In the second of these cases said Nettie R. Pearson sued William D. Shreeves and wife in ejectment for the same premises, and recovered judgment in her favor ousting said defendants from said premises. The same questions are involved in both appeals. The facts are practically undis puted and are briefly these: In the early part of the year 1921, Nettie R. Pearson listed with one H. B. Eshleman, a real estate broker doing business under the name of H. B. Eshleman Realty Company, certain real property constituting her home for sale. Thereafter said Eshleman, through one of this salesmen, showed the property to the Shreeves, who on January 17, 1921, signed a so-called "sales deposit receipt," which purported to be in duplicate, and one of which Nettie Pearson also signed. These duplicates, however, did not agree in their wording, certain erasures and interlineations appearing in one copy which did not appear in the other. Two days later the Shreeves signed another "sales deposit receipt" which recites the receipt by H. B. Eshleman Realty Company of $100 from W. D. Shreeves as deposit and part payment on account of the purchase of the property which said purchaser agreed to buy for the sum of $5,800, payable as follows: $2,400 cash upon the execution and delivery of a good and sufficient deed conveying the property to W. D. Shreeves, together with a guarantee certificate of title of an acceptable title company showing an unincumbered title, subject to a mortgage for $1.600 then being placed on said property, and a trust deed for $1,800 securing the balance of the purchase price. Time was made the es Appeal from Superior Court, Los Angeles sence of the agreement. If the price and County; Russ Avery, Judge. terms were accepted within five days from Action for specific performance by Wil- date by the owner, the owner should have liam D. Shreeves and wife against Nettie a reasonable time to bring down the certifi H |