7. Trusts 43(3)-Declaration of grantor not admissible to show trust.

A declaration of a grantor, made long after the execution of a deed absolute on its face, is not admissible in evidence to show that the land was conveyed in trust for the grantor.

8. Trusts 43(3)-Declarations of grantees not admissible to prove trust.

The declarations of grantees, in a deed absolute on its face, occurring after the death of the grantor, are not competent for the purpose of proving that the land was to be held by the grantees in trust, and would be admissible only in corroboration of other evidence.

Appeal from Superior Court, Santa Clara County; W. A. Beasly, Judge.

Action by Irene M. McGehee and others against John J. Curran and others. Judgment for defendants, and plaintiffs appealed. Affirmed in the District Court of Appeal, and hearing denied in Supreme Court.

W. H. Tully, of San Francisco, and D. T.
Jenkins, of San Jose, for appellants.
Leib & Leib, L. B. Archer, and C. M. Cas-
sin, all of San Jose, for respondents.

WASTE, P. J. This is an action brought

9. Adverse possession 63 (2) - Possession by the plaintiffs, after a lapse of over 12 and payment of taxes by grantor did not di-years, to set aside, and vacate a judgment, vest grantees of title.

The fact that a grantor remained in possession of the premises up to the time of his death and used the same and paid taxes and insurance thereon did not have the effect of divesting his grantees of the title by him conveyed.

10. Judgment 461 (5)-Settlement by guardian ad litem of litigation held not in fraud of wards.

In an action to set aside a judgment, held that it was not established that plaintiffs' guardian ad litem, or their attorneys, corruptly or at all entered into a collusive agreement with adverse parties for an unconscionable abandonment of the defense of the plaintiffs in an action to quiet title when a motion for new trial was pending, having compromised the case.

11. Infants

84-Guardian ad litem may compromise in interest of ward.

After an adverse judgment, when a motion for a new trial was pending, and no newly discovered evidence or other facts were at the command of a guardian ad litem, or the ward's attorney, it was incumbent upon the guardian and the attorney to use their best endeavors in the interests of the ward, and, if in the exercise of their honest and best judgment a compromise was the best that they could do, they were justified in compromising, and the compromise could not constitute fraud which would entitle the minors to set aside the judgment.

On Hearing in the Supreme Court. 12. Judgment 423, 444- Not vacated cause of perjured testimony.

rendered in 1905 in an action to quiet title, wherein the defendants here were the plaintiffs, and these plaintiffs were the defendants. Plaintiffs also seek to establish a constructive trust in the land in their favor. It is the contention of the appellants that they did not have a just and fair trial in that action, because of the suppression of facts, and because of fraud and collusion on the part of the defendants here and the attorneys for and guardian ad litem of four of these plaintiffs, who were then minors. Demurrer to the second amended complaint was sustained, and, the plaintiffs declining to amend, judgment was entered in favor of the defendants, from which the appeal is taken.

As the litigation of which this action is but a part, had its inception 35 years ago, it is necessary for us to indulge in a somewhat extended narration of the facts, which are set out in the amended complaint. In 1884 Sarah G. Tully, who is the mother of the other plaintiffs, married John Tully, a widower now deceased and the father of defendants Mary E. Wineland, Isabella Higgins, Dorinda Tully Curran, Eleanor Tully, Joseph Tully, and Edward O. Tully. Defendant J. W. Wineland is the husband of Mary E. Wineland, defendant Maurice Higgins is the husband of Isabella Higgins, and defendant J. J. Curran is the surviving husband of Dorinda Tully Curran, now deceased, and the executor of her estate. In speakbeing of "the defendants" hereafter, we will refer to the said children of John Tully. On July 29, 1885, the said Sarah G. Tully instituted an action for divorce against her husband. A few days later he conveyed all his property, consisting of several tracts of land, and some of his personal property to his children, these defendants. Thereupon Sarah G. Tully amended her complaint, and made the grantees in said conveyances, parties defendant in the divorce action. Upon the trial being had, the court granted Mrs. Tully a decree of divorce and awarded her the custody of an infant child. The court also decreed that the conveyances from Tully to the children of his former marriage were

Judgment after a trial of controverted issues of fact will not be vacated on a claim that the issues were erroneously determined because of false or even perjured testimony.

13. Judgment 414-Not vacated by reason of fraud not affecting judgment.

If a judgment against minors could not have been reversed or set aside on appeal or by motion for a new trial, any fraudulent settlement between the ward of the minors, by which they were, prevented from appealing or moving for a new trial, did not injure them, and did not touch the judgment itself, and is not ground for vacating the judgment.

(193 P.)

fraudulent, inoperative, and void as to any interest or claim of his wife, therein or thereto. He was ordered to pay to her the sum of $50 per month for the support and maintenance of herself and the child, and the payment thereof, and of any other sum which might thereafter be awarded instead, was secured by, and declared to be a lien upon a part of the land covered by the deeds.

were threatening to dispossess her under that judgment, Mrs. Tully immediately instituted another action against the same defendants, and in which the minor children were plaintiffs, by their guardian ad litem, H. V. Morehouse. The third amended complaint in that action is attached to, and made a part of the amended complaint in this present suit. In addition to specific allegations of the facts we have narrated, it is therein averred that John Tully remained in possession and control of the land, set forth in the deeds of conveyance to the defendants, up to the time of his death, claiming the same as his own, cultivating said land and paying the taxes thereon. As the gravamen of the action it is alleged that the deed, made by John Tully to the defendants in 1884, was executed for the purpose of defeating Mrs. Tully in the divorce action, and in the assertion of her rights to maintenance for herself and offspring, and was not made in good faith, and was in fraud of creditors, of whom Mrs. Tully was one by reason of her alimony allowance. It was further alleged in that action that the second deed from John Tully to the defendants, executed in 1894, was procured by the defendants by false and fraudulent representations, at a time when said Tul

The parties to the divorce action settled their differences, and immediately after the filing and entry of the decree of divorce, Tully and his wife entered into an agreement, whereby Tully promised and agreed with Mrs. Tully that if she would remarry him, and would forego and release him and the lands he had conveyed to his children, from the lien, and the payment of permanent alimony for the support of herself and the child, he would convey to her an undivided one-third interest in all of the land theretofore deeded to these defendants. The parties thereupon remarried and lived together until John Tully died, November 26, 1894. Three more children were born to them. It was not until September 20, 1894, however, and just before his death, that John Tully, in part fulfillment of his marriage contract, executed and delivered to Mrs. Tully a grant, bargain and sale deed for one undividedly was feeble in body and mind from physical third interest in the land. A few days later, on October 12, 1894, Tully made and delivered to his children by the former marriage another deed of the same property he had conveyed to them in 1885, excepting a portion sold. This conveyance was executed in consideration of love and affection, and for the better maintenance, support, and protection of the grantees, and granted and confirmed the land, to them. From and after the death of John Tully the plaintiffs and defendants remained in joint possession of the property until August, 1905. The defendants assumed management and control thereof, and provided and cared for Mrs. Tully and her four minor children for about two years. During these years, so it is alleged, the defendants and Sarah G. Tully negotiated and consulted with a view to ascertaining what she would consider to be a fair share for Demurrer to the third amended complaint herself and the minors, in a division of the in that action was sustained, the plaintiffs deproperty. On December 5, 1896, Mrs. Tully clined to further amend, and judgment was instituted an action in ejectment, in her own entered in favor of the defendants. While behalf, against the grantees of John Tully, it does not so appear from the averments of to recover her one-third interest in the lands. the amended complaint in the present acThe grantees filed their answer, in which tion, it is a matter of record to which both they asserted themselves to be the owners appellants and respondents have referred in of the land, and denied any ownership in their briefs and arguments, that on appeal Mrs. Tully. The trial court held that the the judgment was affirmed upon two grounds: plaintiff therein could not prove the invalid- (1) That the facts stated in the complaint ity of the deeds from John Tully to the de- did not state a cause of action; and (2) that fendants, or that said defendants held said the action was barred by the statute of limland in trust for plaintiff. It admitted the itations. The court held on the facts pleaddeeds in evidence, and gave its judgment ed, which were those we have here set out, against Sarah G. Tully, and in favor of the that John Tully had neither legal nor eqdefendants. Claiming that the defendantsuitable title after his conveyance to his chil

disease, and for the purpose of defeating all rights and claims of the plaintiffs, and the effect of the deed of the one-third interest made by John Tully to Mrs. Tully, and also to defeat the claims which the minor children would have in the estate of John Tully, in case he should die intestate. The prayer of the complaint was that it be adjudged that the defendants, who are the defendants herein, had since the 1st day of August, 1884, held the land in trust for Sarah G. Tully and her minor children, who are the plaintiffs here, that Sarah G. Tully be adjudged to be the owner of an undivided one-third part, and the minor children of the plaintiff and John Tully, the other plaintiffs here, be adjudged to be the owner of an undivided four-tenths of the remaining twothirds.

(193 P.)

of all the rights of Sarah G. Tully in said "asserted that they were the absolute owners property, upon a payment to said then minor of said property, and refused to disclose the plaintiffs, John J. Tully, Jennie G. Tully, rights of the plaintiffs." The plaintiffs were Irene M. Tully, and Wilford H. Tully, of not prevented by any fraudulent contrivance the sum of $15,000, either in the form of a of the defendants from having a trial. That portion of said property or in money, and was their opportunity for presenting the also providing for the dismissal of a suit be whole matter of their alleged interest in the tween the administrator of the estate of John lands to the court for determination. In the Tully and said defendants, then pending, in- absence of any showing to the contrary, it This will be assumed that the controversy was fairvolving certain personal property. The plaintiffs did not make agreement, duly executed by all parties, was ly submitted. carried out. The $750 was paid to the guard- the judgment roll, or any part of the evidence ian ad litem and their attorneys. The mo- taken and received in the court below, a part tion for a new trial was dismissed by stipu- of their complaint. We do not know what 'lation, and the defendants turned over to the transpired there, beyond the fact that a judgminors $15,000 worth of property. No part ment was rendered in favor of these defendof it was received by Sarah G. Tully, and she ants. In what manner or form the defendreceived no property or money as a consider ants asserted that they were the absolute The terms of the owners of the property, and under what ciration for her release. agreement of settlement, which the plaintiffs cumstances they refused to disclose the rights now claim to be unjust and unfair to them, of the plaintiffs, is not made to appear. Conas securing to them only a part of what they sequently, there is nothing in the record, so would be entitled to if the trust in their far as it relates to the trial, from which it favor had been established, were not com- may be inferred that the judgment was procured by means of any extrinsic fraud, or municated to the minors; neither did they have personal knowledge of the settlement, that it would have been different or more which they always supposed was made in favorable to the plaintiffs but for the conduct of the defendants. Even though it should good faith. The compromise on their behalf was not submitted to or approved by appear that the defendants went so far as to give perjured testimony in establishing their title to the property, and in defeating the claims of the plaintiffs, the fraud was intrinsic, and would not avail the plaintiffs to set aside the judgment. "In this state it is the settled law that a judgment cannot be set aside because it is predicated upon perjured testimony, or because material evidence is concealed or suppressed." People v. Mooney, 178 Cal. 525, 530, 174 Pac. 325; Allen v. Currey, 41 Cal. 321; Pico v. Cohn, supra.

the court.

Three principal questions at once address themselves to our consideration upon the foregoing facts: (1) Was the judgment here attacked obtained by fraud, in such manner as to entitle these plaintiffs to the intervention of a court of equity to set it aside? (2) Was the compromise agreement, entered into by the parties after the rendition of the judgment, fraudulently procured? (3) Would the plaintiffs be in a more favorable position had it not been executed? Upon the answers to these questions depends the correct solution of this case.

[1, 2] That a former judgment, or decree, may be set aside, and annulled for some frauds there can be no question; but it must be a fraud extrinsic, or collateral to the questions examined and determined in the action, When parties have once submitted a matter, or have had the opportunity of submitting it, for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive, unless it can be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party has prevented a fair submission of the controversy. Pico v. Cohn, 91 Cal. 129, 133, 27 Pac. 537, 13 L. R. A. 336, 25 Am. St. Rep. 159; Steen v. March, 132 Cal. 616, 618, 64 Pac. 994; Bacon v. Bacon, 150 Cal. 477, 490-491, 89 Pac. 317. According to the averments of plaintiffs, the fraud which prevented a fair submission of their controversy lay in the fact that at the trial of the suit to quiet title the defendants

[3] If, as alleged, but not so clearly as to be established, the guardian ad litem, and the attorneys for the minors, corruptly sold out their clients' interests, and through fraud and collusion with the defendants conspired to defraud the plaintiffs, and did deprive them of their right to a new trial, and to an appeal in the quiet title action, to their prejudice, such conduct amounted to extrinsic fraud. Pico v. Cohn, supra; Rountree v. Montague, 30 Cal. App. 170, 181, 157 Pac. 623. But even in that case, before a court of equity can set aside the judgment, it must be made to appear with reasonable certainty that the judgment was wrong, or that the result would have

been different upon another trial. Davis v. Chalfant, 81 Cal. 627, 630, 22 Pac. 972; Painter v. J. B. Painter Co., 133 Cal. 129, 131, 65 Pac. 311. In the instant case it does not appear that the result would have been different, had the plaintiffs pressed their motion for a new trial, or, in the event of its being denied, had appealed to the higher court. It was incumbent upon the plaintiffs, not only to show by their complaint the facts constituting the fraud which they contend gives them the right to set aside this judg