shown the marital relation and want of consideration, she falls short of making out a case of undue influence. She cannot there stop and shift the burden to defendants to prove that this confidence has not been abused. The burden is upon her to go further, and show that the husband made use of the confidence reposed in him by his wife for the purpose of obtaining an unfair advantage over her. Section 1575, Civ. Code. In determining this question, the fact that they were husband and wife when the deed was executed is to be considered as one o the facts in connection with the other facts of the case, and it has more or less weight in determining the question. The relation is one that is easily used and easily abused. As Justice Temple has said in Stiles v. Cain, supra: "The right to control her own affairs would not fiee her from what usually in fact is, and is always presumed to be, the predominating influence of her husband.'

"The want of consideration is also a fact present in this case, and, while a deed solemnly executed will not be declared void for this reason, if in fact nothing was received by the grantor, or if the consideration was so small as to 'shock the conscience,' yet the fact is one to be considered with the other facts indicative of an abuse of confidence. People make gifts, the consideration may be love and affection entertained and for their better maintenance, support, protection, and livelihood, but the deed herein was not a deed of gift. The consideration recited therein was the cold sum of $10 and was never paid. How could such a sacrifice by Mrs. Yordi benefit a dying husband? Is it possible to suggest a rational or reasonable motive on her part in dispossessing herself of her home that her husband had given her before their marriage? The unnaturalness of the transaction suggests the predominating influence. To these two facts-that is, to the fact of a confidential relation and a want of consideration-let there be supplemented the fact that she first formed her intention to make this deed during the conversation with her husband at their home, about an hour before she signed the deed. and at that time her mind was in a state of fear. Plaintiff was asked: 'Q. At the 'Q. At the time when you first formed your intention to convey this property back to Mr. Yordi. what was the state of your mind with respect to fear or absence of fear? A. I feared. I had fear. This fear must, I think, be connected with the intention to make the deed and with reference to it, and to no other subject, and is not consistent with that state of mind which should exist with reference to such a transaction. It is not in consonance with a state of mind produced by honest persuasion or by any arguments addressed to the understanding or appeals to the affection, and this state of mind formed a part of the whole transaction. Within an hour

after this intention was formed she went to her husband's store, met the notary, signed the deed, and went home. No conversation at all took place, no one was present save Mr. and Mrs. Yordi and the notary. And this brings us to the consideration of another strong circumstance usually considered in determining undue influence, namely, Mr. Yordi employed the notary and conducted the whole transaction. Our Code provides that a husband is bound to act in the highest good faith towards his wife, and may not obtain any advantage over her by the slightest misrepresentation, concealment, threat or adverse pressure of any kind. Sections 158, 2228. Civ. Code. There must be no constraint upon her or against her free will of what she is unable to refuse. Greenleaf on Ev. § 688.

"As the writers upon the subject would put it, he must deal with her at arm's length. And closely connected with this fact is the fact that Mrs. Yordi had no independent or other advice. I take it to be a well-established principle of this court that persons standing in a confidential relation towards others can not entitle themselves to hold benefits which those others may have conferred upon them. unless they can show to the satisfaction of the court that the person by whom the benefits have been conferred had competent and independent advice in conferring them. Rhodes v. Bate, L. R. 1st Ch. 257. The rule is further stated, and I think correctly, in the English note to Hugein v. Basely, 2 Lead. Cas. Eq. 595, as follows: The conduct of the party benefited must be such as to sever the connection and to place him in the same circumstances in which a mere stranger would have stood, giving him no advantage save only whatever kindness or favor may have arisen out of the connection.' As was said in a recent case:

"The wife should have had the benefit of a full, free, and private preliminary conference with a competent lawyer or business man who was employed and paid by her and in whom she had confidence and who would be devoted to her interest and hers only.' Pironi v. Corrigan, 20 Atl. 227, 47 N. J. Eq. 135.

"The relation of confidence therefore existing, the consideration mentioned in the deed being untrue, the wife receiving no pecuniary advantage by the transfer, but, on the contrary, losing her home, the husband obtaining property for nothing and soon transferring it as a gift to defendants, the fact that she formed her intention to deed in an interview with her husband, and was at the time and when she signed the deed in a mental state of fear, that Mr. Yordi employed the notary who took her acknowledgment, and the entire absence of independent advice and that freedom of marital influence which should characterize every such act—all taken together, would, under the law as I interpret it, constitute undue influence. The

facts of the case are as strong as, if not stronger, than either Dolliver v. Dolliver, 94 Cal. 643, 30 Pac. 4, and Ross v. Conway, 92 Cal. 637, 28 Pac. 785, and the Supreme Court of this state in both cases held that the facts established undue influence.

"There is evidence in the case of declarations by Mrs. Yordi to the defendants and their brothers that may tend to show fairness of the transfer, but such testimony, under our Code and the law of evidence, is not entitled to much weight, especially when contradicted. It is entitled to but little weight as against the uncontradicted facts above stated, constituting in themselves undue influence.

"Plaintiff has proved the issues by a clear preponderance of the evidence, and may prepare and present findings in accordance with this opinion. S. K. Dougherty, Judge.

"Dated March 28th, 1902."

We may here remark that, after plaintiff had conveyed the property to her husband, he held the title until shortly before his death, although he had previously deeded all his property to a corporation, the shares of which he gave his children, and plaintiff's deed to him was not recorded until the day of his death. During this interval the children of Yordi showed considerable ill feeling towards plaintiff, which would have been greatly increased had Yordi reconveyed the property to his wife. When, however, he found his life fast ebbing away, and that he was about to depart where his wife's reproaches would not reach him, he deeded to his children and they withheld the deed from record and from her knowledge until his act was beyond recall. Under the circumstances shown it is no unfair inference that Yordi obtained the deed with the secret purpose to convey title to his children and that the fact was withheld from plaintiff, leaving her to indulge her "confidence in her husband that he would give it [the property] back to her again," as she testified.

2. The deed from Yordi to plaintiff was executed and delivered on the day of their marriage. The parties to the deed are thus described: "Fred Yordi, of the county of Sonoma, state of California, the party of the first part, and Sarah Jane Yordi (wife), the party of the second part." Plaintiff was permitted to prove, over defendants' objection, and the court found, that the deed was delivered before the marriage was actually celebrated, but on the same day. It is claimed that the finding is not supported by the evidence, because the deed conclusively proved that when delivered the grantee was the grantor's wife, citing subdivision 2, § 1962, Code Civ. Proc. It seems to us that defendants were in no wise prejudiced by this testimony if it be conceded that it was error to admit it. But we do not think it was error. The question of the time of the delivery, whether before or after the mar

riage ceremony, was not material. No presumption of undue influence would have arisen in favor of the husband if the deed be regarded as having been delivered after the marriage.

3. On the direct examination Notary Lewis, who prepared the deed from plaintiff to her husband under the latter's direction, testified that Yordi instructed him to prepare a new deed similar to an old deed then handed him. Upon cross-examination defendants sought to bring out all that Yordi said to the notary at that time. Plaintiff objected unless it was limited to such parts of the conversation as related to the preparation of the deed by the notary, Lewis. The court allowed the question, with leave to plaintiff to move to strike out the answer. The witness answered that Yordi told him "that the former deed made by him to Mrs Yordi should not have been recorded, that it was recorded by mistake, and now they were going to change it. she was going to deed it back to him." The court, on plaintiff's motion, struck out that part of the answer which referred to the recording of the former deed. The ruling was correct. The answer was not cross-examination as to matters testified to by the witness in chief, was not made in plaintiff's presence. and, besides, was self-serving. Appellants claim that it helped to establish one of the issues presented by defendants' answer. It was not competent to thus prove it.

4. Upon her cross-examination by defendants plaintiff, as a witness, was asked whether at any time after she had executed the deed of November 20, 1900, to her husband, and prior to his death she had told the defendants or either of them that the property in question was hers, or that she claimed it, or owned, or had any interest in it, to all of which she answered "No." Upon the redirect, plaintiff's counsel asked her, "What was the reason for not doing so?" Defendants' objection was overruled, and the witness answered that it would cause trouble for her husband and herself; that "there would have been war" if she had made known her claim to defendants; that she "had confidence in her husband that he would give it back to me (her) again." It is urged that the court erred and should have disallowed the testimony and should have stricken it out on defendants' motion because the answers were but conclusions and opinions of the witness. But they had a direct relation to the matter brought out on the cross-examination, and were intended to remove from the mind of the court any prejudicial inference it might have drawn from the witness' answers that she had not made known her claim to defendants during her husband's last sickness. If it was material for defendants to show that plaintiff was silent as to her claim upon the property after she had deeded it to her husband, she had

a right in reply to explain why she was silent.

She

5. Upon her direct examination plaintiff was asked the following question: "State what the consideration was for this deed which you executed to your husband." answered: "No consideration." She had previously testified that she had received nothing for executing the deed. It was objected that the question called for the conclusion of the witness as to a question of law, and that, in permitting her to answer, it was equivalent to allowing her to testify that "she did not hold the said deed on November 20, 1900, upon implied or constructive trust for the benefit of her husband." It was said in Hardison v. Davis, 131 Cal. 635, 63 Pac. 1005, where the right to make a similar inquiry arose: **** Being in a position to know the ultimate fact, and appellant having the opportunity to cross-examine him (the witness), it was not improper for him to testify directly that there was no consideration." The inference which appellants say might have been drawn from the answer is highly conjectural, and we think not warranted. The court manifestly accepted the answer as referring wholly to the money consideration.

6. It is also claimed that the demurrer to the second amended complaint should have been sustained. It is contended, first, that the general demurrer should have been sustained because the complaint "alleged that said deed of November 20, 1900, was obtained partly by means of intimidation and partly by means of undue influence, but does not set out the facts constituting the alleged intimidation or duress," citing Goodwin v. Goodwin, 59 Cal. 560; second, it is contended that if not obnoxious to a general demurrer the complaint was demurrable for uncertainty. The complaint alleges the marriage relation, plaintiff's ownership of the premises as her separate property; that said Yordi, "for the purpose of causing her [plaintiff] to convey to him [her husband] the said lot of land, without consideration, intimidated plaintiff, and exerted upon her the predominating influence which he then had over her by reason of his position as her husband, and used the complete confidence which she then and at all times, until his death, reposed in him, and thereby did then and there cause her, against her will and contrary to her wishes, to make, acknowledge, execute, and deliver to him a deed of conveyance of said lot of land, without consideration"; that "plaintiff made * * * and delivered the said deed to said Fred Yordi solely by reason of his said acts and conduct, and not freely or voluntarily"; that "said deed was prepared by a scrivener selected by said Fred Yordi," and under his "personal direction"; that the property was of the value of $4,000; that plaintiff received "no pecuniary advantage in return for said deed, and said Yordi

91 P.-23

suffered no pecuniary damage therefor," and that "plaintiff had no independent advice in said transaction."

The point in objection to the complaint chiefly urged is that the particular acts constituting the alleged intimidation or undue influence or abuse of confidence are not set forth. This is not the case usually found in the reports where the instrument was exe cuted by one enfeebled mentally or bodily, and easily susceptible for that reason to the operation of undue influences. It is a case where the effect of the alleged acts must be judged from circumstances difficult of precise affirmation. While, as our Supreme Court has held, marriage of itself alone will not give rise to a presumption of undue influence in a transaction such as this, the conjugal relation still is an important fact to be considered. Intimidation on the part of plaintiff's husband is alleged and the exertion of his predominating influence over her and taking advantage of the confidence reposed in him by her, and at a time when she was called upon to act without any independent advice, all of which resulted in his obtaining title to valuable property without consideration. The complaint contains sufficient facts to constitute a cause of action. Furthermore, uncertainty is not good ground in support of a general demurrer. Ward v. Clay, 82 Cal. 502, 505, 23 Pac. 50, 227. This court will not in all cases where error has been committed by the trial court in overruling demurrers for alleged ambiguity or uncertainty order a reversal of a judgment based upon a trial of the issues made by the complaint and the answer. Prejudicial error must appear. The party must have been misled to his prejudice, or the error otherwise appear injurious and not merely abstract, before cause for complaint can be predicated of its uncertainty or ambiguity. Gassen v. Bower, 72 Cal. 555, 14 Pac. 206; Alexander v. Central L. & M. Co., 104 Cal. 532, 38 Pac. 410. The answer specifically denies the averments of the complaint, and sets forth distinctly the facts upon which defendants relied at the trial. The evidence was directed to the issues thus framed and it is manifest from the record that defendants were not misled or injured by the failure of plaintiff to allege with greater particularity the facts upon which she relied. Conceding the rule of pleading to be as claimed by appellants, we are satisfied that the substantial rights of the parties were not affected by the alleged uncertainty in the complaint.

7. The opinion of the court was filed March 29, 1902, and findings of fact and judgment entered September 16, 1902. The second amended complaint was filed July 18th, to which answer was filed September 10, 1902. On June 9, 1902, plaintiff, after due notice, moved the court for leave to file amended complaint "to conform to the proof given at

the trial thereof." This was objected to on the grounds (1) that it would raise issues of fact other than those presented by the original complaint and answer thereto; (2) that no evidence had been received outside of the issues presented by the pleadings on which the cause was tried; (3) that it would be an abuse of discretion to allow the proposed amendment. The objections were overruled and amended complaint filed. The court made an order allowing defendants 10 days to plead to the amended complaint, and findings were deferred until the coming in of defendants' answer. Subsequently plaintif confessed the demurrer with leave to file a second amended complaint to conform to the proofs at the trial which the court ordered plaintiff to file within 10 days. On July 16th plaintiff served and filed her second amended complaint to conform to the proof, and on July 25th defendants filed their demurrer thereto. This demurrer was called for hearing on September 2, 1902, on which date defendants applied for a postponement of two weeks. The court refused this request, and heard and overruled the demurrer, allowing defendants five days to answer, and on September 8th defendants answered the second amended complaint. On September 10th plaintiff gave notice that she would on September 15th move the court to sign and file the findings of fact and conclusions of law. On September 12th defendants served and filed a notice that they would on September 22d move the court to set aside the submission of the cause, and also for an order granting leave to defendants to introduce testimony in addition to that adduced at the trial and for a further order setting said cause for trial. The grounds of the motion were (1) that plaintiff's second amended complaint does not conform to the evidence; (2) that the issues presented by plaintiff's second amended complaint and defendants' answer thereto differ from the issues presented in the original complaint and defendant's answer thereto; (3) that defendants desire to and can adduce testimony, in addition to that presented at the trial, tending to support the denials and allegations in their answer to plaintiff's second amended complaint. The motion was made upon the affidavit of one of defendants' counsel and upon the papers and records in the case. On September 15th plaintiff moved the court in accordance with her notice of September 10th, and thereupon defendants moved for a continuance of the hearing of said motion until September 22d, the day noticed for the hearing of the motion mentioned in their notice of September 12th, and until after the hearing of their said motion to set aside the submission of the cause. The court denied defendants' motion for continuance and made and signed

findings on said September 15th, and final judgment was entered September 16th. On September 22d the court heard and denied defendants' motion to set aside the submission. It was said in Lee v. Murphy, 119 Cal. 364, 51 Pac. 549, 955, that, while it is unusual to find it necessary to amend the complaint after a case has been submitted, there is, under the power given by section 473 of the Code of Civil Procedure, no limitation as to the time before judgment entered when the power of the court ceases. It was also there said that this power to allow amendments in the interest of justice is uniformly held to be within the discretion of the trial court.

The only question, then, is: Did the court abuse its discretion in allowing the amendment? And this question must be answered in the negative unless the amended complaint introduced new issues substantially different from those presented by the complaint under which the evidence was submitted, and unless it appears that the rights of the defendants were prejudiced by the amendment. The evidence adduced on both sides seems to have been addressed to the issue of undue influence, and there is no showing beyond the opinion of one of the counsel for defendants, expressed in his affidavit, that, if the case were reopened, important additional evidence would be produced to rebut plaintiff's case. So far as we can see, defendants had an opportunity at the trial to rebut the evidence on which the amended complaint rests, and they seem to have availed themselves of the opportunity. If they refrained, as they say they did, from cross-examining plaintiff, when called as a witness, upon any point bearing upon the issue of undue influence, they cannot now be heard to complain. The tendency of plaintiff's testimony was obvious, and that she was not permitted to go into particulars as to what took place between her and her husband on November 20, 1900, was due to no reluctance on her part, but from a ruling of the court forbidding it. Defendants had then the opportunity they now say they de sire to cross-examine her. In their motion for a new trial neither surprise nor newly discovered evidence is made a ground. If the defendants' motion to set aside the submission of the case had no merit, it was not prejudicial error to file findings and enter judgment without waiting to hear such motion, and it appears that when, subsequently, the motion was denied no exception was taken.

We cannot discover that defendants have been deprived of any substantial right by the procedure complained of.

The judgment and order are affirmed.

We concur: BURNETT, J.; HART, J.

(32 Utah, 475)

MARIONEAUX v. CUTLER, Governor, et al. (Supreme Court of Utah. Aug. 1, 1907.)

1. JUDGES--COMPENSATION-STATUTES-CON

STRUCTION-PROVISOS.

Laws 1903, p. 71, c. 86. providing that the salaries of district judges should be fixed at $4.000 per annum, "provided" that no mileage or expenses should be allowed, was not subject to construction as though the proviso was omitted, because the contents thereof was not strictly a proper subject of a proviso: the intent of the Legislature to restrict the "salary" by cutting off mileages and expenses being apparent.

2. STATUTES-SUBJECTS-SALARY OF JUDGES.

Const. art. 8, § 20, fixed the salary of judges until otherwise provided by law at $3,000 per annum and mileage. Laws 1896, p. 364. c. 124, allowed mileage to district judges, the act being entitled, "An act to provide for fixing the salaries and compensation of state and county officers," and Laws 1903, p. 71, c. 86, entitled, "An act fixing salaries of judges of the district court," provided that their salaries should be fixed at $4,000 per annum, provided that no mileage or expenses should be allowed. Held, that such act treated the mileage as a part of the salary, and was not therefore objectionable as containing a double subject.

3. SAME TITLE,

Laws 1903, p. 71, c. 86, entitled, "An act fixing the salaries of district judges," and providing that no mileage or expenses should be allowed, was not objectionable for the reason that the subject of the act was not clearly expressed in the title.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 136.]

4. JUDGES-COMPENSATION-MILEAGE-STATUTES REPEAL BY IMPLICATION.

Laws 1903, p. 71, c. 86, entitled, "An act fixing the salaries of district judges," and fixing such salary at $4.000. and expressly providing that no mileage or expenses should be allowed, though containing no express provisions for repeal, repealed by implication Rev. St. 1898. § 2051, declaring that district judges should receive mileage at the rate of eight cents for each mile actually and necessarily traveled in the performance of their official duties.

Application of Thomas Marioneaux for a writ of mandate against John C. Cutler. Governor, and others, constituting the state board of examiners, to compel defendants to allow petitioner's claim as a district judge for mileage. Writ denied.

Thomas Marioneaux, in pro. per. Breeden, for respondents.

M. A.

FRICK, J. This is an original application to this court for a writ of mandate. The applicant, hereinafter designated "petitioner," in substance alleges that from January, 1901, to January, 1905, he was the duly qualified and acting district judge of the Fifth judicial district of this state; that between April 4, 1903. and November 18, 1904, he actually and necessarily traveled in the performance of his official duties a certain number of miles, setting forth the dates, distances, and amounts, aggregating the sum of $116.10;

that on the 21st day of August, 1905, he duly presented to John C. Cutler, Governor, M. A. Breeden, Attorney General, and C. S. Tingey, Secretary of State, constituting the state board of examiners of the state of Utah, hereinafter called "respondents," said mileage account duly verified and itemized as provided by law, for allowance; that thereafter said respondents, acting as said board, refused to audit and allow said claim, upon the sole ground that respondents were advised and believed that there was no law of this state authorizing the allowance thereof, and therefore rejected the same. The petitioner further alleges that there are sufficient funds in the state treasury to pay said claim, and that the same is justly due and payable. Upon substantially the foregoing allegations the petitioner prayed that a writ of mandate issue requiring said respondents to allow said claim and to certify the same for payment, as required by law, or to show cause why they do not do so. Upon the application and prayer aforesaid, this court issued an alternative writ of mandate, to which respondents appeared by filing both an answer and a general demurrer.

The question to be determined arises upon the demurrer alone. There is no question raised respecting the sufficiency of the facts stated, if there be any law of this state which warrants the allowance of the claim presented to respondents. Is there such a law? The answer to this question hinges upon the constitutional and statutory provisions of this state respecting the salary or compensation and mileage allowable to district judges during the period of time mentioned in the petition. To determine the question requires a review of the constitutional and statutory provisions upon the subject.

The initial step in this legislation is found in section 20 of article 8 of the Constitution of this state, which provides: "Until otherwise provided by law, the salaries of the Supreme and district judges, shall be three thousand dollars per annum, and mileage, payable quarterly out of the state treasury." The Constitution became effective January 4, 1896, and the first Legislature under the Constitution, on April 5, 1396 (Laws 1896, p. 364, c. 124), passed an act fixing the salaries of certain state and county officers, and in that act also fixed the mileage to be allowed the district judges under the following title: "An act to provide for fixing the salaries and compensation of state and county officers." This act was evidently passed to fix the salaries of the officers which were not fixed in the Constitution, and to limit the amount of mileage to be allowed to the judges. The mileage was limited to eight cents a mile, and this was done because no amount or limit had been named in the Constitution. This act, in respect to the mileage of the district judges, was carried into the