of the court at its court room, and engaged in the trial of a cause then pending in said department, upon the motion of the attorney for the defendant, made and signed an order dispensing with any undertaking upon said appeal, which he returned to said attorney, and it was on the same day filed with the clerk, but no record thereof was ever made in the minutes of the court. The respondent now moves to dismiss the appeal for the want of an undertaking, upon the ground that an order dispensing with an undertaking on appeal can be made only by the court, whereas the foregoing order was made by a judge, and not by the court.

A court is a tribunal presided over by one or more judges, for the exercise of such judicial power as has been conferred upon it by law. Blackstone, following Coke, defines it as "a place where justice is judicially administered," (3 Bl. Comm. 23;) but it is also essential that this place be designated by law, and that the person or persons who are authorized to administer justice be at that place for the purpose of administering justice at such times as may be also designated by law. The times fixed by law for the transaction of judicial business are called "terms," and the periods between the end of one term and the beginning of the next are called "vacations." These "terms" vary in different jurisdictions according to the statutes by which they are fixed; in some states ending at fixed dates, and in others continuing until the commencement of a succeeding term. Formerly, in England, there were four terms of court in each year, and their duration was so fixed that there were only 91 days in each year during which the courts could be in session. As the judicial business increased, it became impossible to transact it all within these periods of time, and there grew up the practice of hearing many matters "out of court" with the same effect as if heard while the court was in session; but the matters which were thus heard were only such as pertained to causes pending in court, and which were of a nature to expedite or facilitate the judicial disposition of the pending cause, to which they were merely subsidiary or collateral. At a later day the practice arose of hearing and disposing of such matters at certain hours during "term time" while the court was not in formal session, and subsequently certain hours of each day were fixed, at which one of the judges would hear these matters while the court was actually in session. The motions and orders thus made were said to be heard and disposed of "at chambers," for the reason that they were heard by the judge at his chambers, rather than in the court room, but the term "chambers" finally became extended so as to include any place, either in or out of the court room, at which a judge may hear applications or make orders while the court is not in session, in matters pending in that

Sec

court. The distinction between those matters which could be heard in court and those which could be heard at chambers arose from convenience, rather than from any other cause, but they were limited to the subsidiary and incidental steps in practice and procedure, leaving to the court the judicial determination of the issues presented by the pleadings, and which formed a part of the record. The term "court," as used in the Code of Civil Procedure, means sometimes the place where the court is held, sometimes the tribunal itself, and sometimes the individual presiding over the tribunal, and in many cases is used synonymously, as well as interchangeably, with "judge;" and whether the act is to be performed by the one or the other is generally to be determined by the character of the act, rather than by such designation. tion 166 provides that a judge "may, at chambers, grant all orders and writs which are usually granted in the first instance upon an ex parte application;" and section 1004 provides that orders made out of court may be made by the judge of the court in any part of the state. Prior to the adoption of the present constitution there were fixed terms in this state for the transaction of judicial business by the several district courts, and any act done by a court after its term had ended was void. Bates v. Gage, 40 Cal. 183. Upon the adoption of the present constitution, all terms of court were abolished, and by its provisions (article 6, § 5) the superior courts are always open, and (section 6) in San Francisco there may be as many sessions of said court at the same time as there are judges thereof; and "the judgments, orders and proceedings of any session of the superior court, held by any one or more of the judges of said courts respectively, shall be equally effectual as if all the judges of said respective courts presided at such session." Under the present constitution of this state, therefore, whenever a judge of the superior court is present at the place designated for the transaction of judicial business, and there assumes to transact such business, his acts may be considered as the acts of the court of which he is a judge.

There is no provision, either in the constitution or by statute, which requires the presence of any other officer than the judge to constitute a court, or to authorize the transaction of judicial business, nor is there any provision of law which requires all the orders of a court to be entered at length in its minutes in order that they may be effect. ive; and by section 1003, Code Civil Proc., every direction of a court or judge is an order, whether it be merely made in writing or entered in the minutes. If it is not entered it should, however, be filed, in order that it may form a part of the records in the case. The county clerk is ex officio the clerk of the superior court of his county, and his

duties are fixed by statute, and are defined in section 111 of the county government act, (St 1891, p. 322.) This statute, however, is intended to define his duties as a political officer of the state, rather than to prescribe or limit the functions or judicial powers of the court. He is not, however, by this act, required to do more than to "enter a synopsis of all orders, judgments and decrees proper to be entered, unless the court shall order them to be entered at length." By section 1052, Code Civil Proc., he is required to keep a register of actions in which he must enter the title of the action, "with brief notes under it from time to time of all papers filled and proceedings had therein." He is also required to make in the minutes of the court an entry of certain acts and transactions had or done in the presence of the court by the parties to an action, such as their oral consent to a waiver of a trial by jury, (section 631,) or of findings of fact, (section 634,) or their agreement to a reference, (section 638;) and, in case of receiving a verdict upon the trial of a cause by a jury, he is to make an entry of the time of trial, the names of the jurors and witnesses, and to set out the verdict at length, (section 628.) These, however, are matters which form a proper connection between the pleadings and the judgment, and, as they are a digression in the progress of a trial from the general course of procedure designated for obtaining a judgment upon the issues presented by the pleadings, the legislature has deemed it proper that they should be evidenced by a permanent memorandum thereof. But these entries in the minutes are evidently intended for the guidance of the court in its further action in the cause, and cease to be of value upon the entry of the judgment, for they form no part of the judgment roll, or "record" of the judicial action of the court, (section 670,) and cannot be used to impeach that record. With the exception of orders in matters of probate, (section 1704,) there is no provision in the Code of Civil Procedure which requires the clerk to enter in his minutes any order of the court made during the trial of the cause, or at any time after issue and before judgment. The final action of the court upon the issue made by the pleadings, and which is a judicial determination of that issue, is to be recorded by the clerk in the judgment book. Section 668. It is essential, however, that the action of the court be made a matter of record, in order that there may be no uncertainty as to what its action has been, and for this purpose it is customary, as well as expedient, to have its acts entered in the minutes kept by the clerk; but if the order is formally prepared and signed by the judge, and made a matter of record by filing with the clerk, the same end is attained as if it were spread at length upon the minutes of its daily transactions. As was said in Niles v. Edwards, 95 Cal. 47, 30 Pac. Rep. 134: "The action of the court

does not depend upon the entry of its orders by the clerk, but upon the fact that the orders have been made; and, whenever it is shown that an order has been made by the court, it is as effective as if it had been entered of record by the clerk." We hold, therefore, that, as the order in question was made by a judge, who at the time was at the place designated for holding court, and in the exercise of his judicial functions as a court, it was a sufficient compliance with the provisions of section 946, and the motion to dismiss the appeal is therefore denied.

1. The fact that a mortgagor was the general attorney of the mortgagee in other matters does not make the position of the mortgagor a fiduciary one, or render it anything but adverse to the mortgagor's interest, as far as the mortgage is concerned, so as to estop him to set up the statute of limitations to an action of foreclosure.

2. Under the California practice, when all the facts that defendant would be required to prove to sustain his plea of the statute of limitations appear on the face of the complaint, defendant may take advantage thereof by de murrer; but, to uphold a demurrer, the complaint must show, not that the cause of action may be barred, but that it is barred.

Commissioners' decision. Department 2. Appeal from superior court, Monterey county.

Action by Frederika Palmtag against George W. Roadhouse and Emma Roadhouse, his wife, to foreclose a mortgage. From a judgment for defendants, plaintiff appeals. Reversed.

James Hall and Cross & Hall, for appellant. S. F. Geil and John J. Wyatt, for respondents.

SEARLS, C. This is an action brought to foreclose a mortgage given by the defendants, George W. Roadhouse and wife, to secure a promissory note for $1,550 and interest, made by said defendants, Roadhouse and wife. The note and mortgage were dated March 25, 1885, and the note was payable to Frederika Palmtag, or order, one year after date. The action was commenced July 9, 1890,-as may be seen, more than four years after the maturity of the note. Defendants demurred to the complaint upon the ground, among others, that the cause of action was barred by the provisions of section 337 of the Code of Civil Procedure of the state of California. Plaintiff, in her complaint, and with an evident view to avoid the apparent bar of the statute of four years, inserted in her complaint the following statement: "That said defendant George W. Roadhouse is an attorney and counselor at

law, and engaged in the practice of law at Salinas City, Monterey county, Cal., and that plaintiff is a widow woman, residing at Watsonville, Santa Cruz county, Cal., and that the facts set forth in this paragraph have existed for several years last past. That, for about five years last past, said defendant George W. Roadhouse has been acting as the attorney and confidential agent for this plaintiff, and plaintiff always had full faith in his honesty and uprightness, and placed implicit confidence in his declarations and advice to her. That at various and sundry times between March 25, 1886, and March 25, 1890, defendant George W. Roadhouse told plaintiff and wrote to plaintiff that she need not trouble herself about that note and mortgage, (meaning the note and mortgage set out in this complaint;) that he would pay it before it outlawed, or words to that effect; and various and sundry other statements of like import, all of which statements plaintiff fully believed and relied upon. That plaintiff is a woman not conversant with business affairs and matters, and relied implicitly on the aforesaid assertions of her agent and attorney. That defendant George W. Roadhouse was at all times herein mentioned the husband and agent of defendant Emma Roadhouse, and acted in that capacity in all matters pertaining to said note and mortgage. That said defendant Emma Roadhouse, as plaintiff is informed and believes, and therefore alleges, well knew each and every fact set out in this paragraph before March 25, 1890, and agreed thereto and acquiesced therein." The demurrer was sustained by the court, and, plaintiff declining to amend, final judgment was entered in favor of defendants, from which judgment the plaintiff appeals.

The doctrine of estoppel, invoked by appellant against the defendants, cannot be maintained. It is not made to appear that George W. Roadhouse occupied any fiduciary relation to plaintiff in the matter of the note and mortgage. His position as to that transaction was adverse to the plaintiff, and the fact that he was her attorney in other matters did not alter his status in this respect; at least, it cannot be presumed to have done so, in the absence of express averments on the subject.

2. The complaint stated facts sufficient to constitute a cause for action, and the demurrer was evidently sustained upon the theory that plaintiff's cause of action was barred by the provisions of section 337 of the Code of Civil Procedure, (statute limiting actions to four years.) The attempted averment of facts in avoidance of the statute is not explicit and clear, and the complaint would have been open, perhaps, to a demurrer upon the ground that the complaint was ambiguous, unintelligible, or uncertain; but a demurrer to a cause of action, upon the ground that it is barred by the statute of limitations, can only be sustained where

Page, 62

the pleading shows it clearly open to the ob jection. To uphold a demurrer for this cause, the complaint should show, not that the cause of action may be barred, but that It is barred. Where, from the pleading, the question is left in doubt, an answer setting up the plea should be resorted to. Farris v. Merritt, 63 Cal. 118; Harmon v. Cal. 448; Smith v. Richmond, 19 Cal. 477; Barringer v. Warden, 12 Cal. 311. At common law the statute of limitations can only be interposed by plea, and could not be urged upon demurrer to the declaration, although apparent upon its face. In equity the rule was that, if all the facts which a defendant would be required to prove to sustain his plea appeared upon the face of the complaint, the defendant might take advantage of it by demurrer. We have substantially adopted the equitable mode of pleading, and with it the practice of permitting the statute of limitations to be interposed by way of de murrer in a proper case. In the present case I am of the opinion that, admitting all the facts of the complaint to be true, including those defectively pleaded, but not objected to, defendants were not entitled to judgment upon the ground that the plaintiff's complaint showed her demand to be barred by the statute of limitations. It follows that the judgment of the court below should be reversed, and the court directed to overrule the demurrer to the complaint, with leave to defendants to answer.

DUNCAN v. GRADY et al. (No. 15,471.) (Supreme Court of California. Sept. 14, 1893.) APPEAL-TAKING FOR DELAY-DAMAGES.

When it appears by the uncontradicted affidavit of respondent, on an appeal from a money judgment, that the appeal was taken merely for delay, and that there was no pretense of any defense, the court, on dismissing the appeal for failure to file a transcript, will award respondent damages for appellant's abuse of the right of appeal.

Department 2. Appeal from court, Fresno county.

superior

Action by one Duncan against W. D. Grady and others. From a judgment for plaintiff, defendants appeal. Dismissed.

W. D. Grady, for appellants. J. P. Strother, for respondent.

DE HAVEN, J. This is a motion to dis miss an appeal because of the failure of de

fendants to file a transcript within the time prescribed by rule 2 of this court, and for damages. The appeal is from a judgment rendered against defendants for the sum of $1,233.35, and was perfected by the filing of an undertaking on appeal on June 24, 1893, and no transcript on appeal has been filed in this court; and it further appears from the certificate of the clerk of the superior court, dated August 23, 1893, that the defendants have not requested him to certify to any copy of the record. Upon these facts, the appeal must be dismissed. At the time of giving notice of the motion to dismiss the appeal, the respondent also gave notice that he would ask for damages upon the ground that the appeal was taken only for delay. This notice was based upon an affidavit of respondent, a copy of which was duly served upon appellants. This affidavit of respondent states that after the rendition of the judgment appealed from "execution was duly issued in his favor for the levy and collection of the amount due by said judgment, and, after a levy by the sheriff upon sufficient property of defendants to have satisfied said judgment, defendant W. D. Grady, who was also the attorney for himself and the other defendants, C. A. Owen and R. T. Owen, proposed to this affiant to give a chattel mortgage to gain further time upon said debt; that he referred him to his (affiant's) attorney, and that said Grady told this affiant, if he did not consent to said proposition, that they would take an appeal upon the judgment, and keep him out of the money for a year, and that he (affiant) would only get seven per cent. interest upon the debt; that none of the defendants ever pretended to have any defense to the action, nor any offset to the debt or judgment; and that the only purpose of appeal in this case was for delay." This affidavit is not contradicted, and, for the purposes of this motion, the matters therein stated must be taken as confessed by the defendants. facts stated in the affidavit are such as to entitle the respondent to a judgment against defendants for damages. Buckley v. Stebbins, 2 Cal. 149. Ordinarily, the rate of interest allowed by law upon a judgment will be deemed a sufficient compensation to the judgment creditor for any delay occasioned by an appeal, and the mere fact that, in the opinion of this court, an appeal is ill advised, will not justify the imposition of damages; but when it appears, as in this case, that there has been an abuse of the right of appeal, and an attempt to wrest the law in relation thereto from its true object, and to use it for a purpose for which it was never designed, damages will be awarded. Appeal dismissed, and judgment in favor of respondent and against appellants for the sum of $100, damages and costs.

We concur:

LAND, J.

The

FITZGERALD, J.; McFAR

v.34P.no.1-8

1. Where a purchaser of land verbally agrees with another that, if the latter will loan him the purchase price, the conveyance shall be made direct to the latter as security therefor and also for future advances, the conveyance makes the lender a trustee and also a mortgagee, and he has a lien for the amount advanced for the purchase and for the subsequent advances.

2. In order to obtain a review of a ruling on the refusal of the court to allow amendment of pleadings, the request and ruling must be incorporated in the statement, or brought up by bill of exceptions.

Department 1. Appeal from superior court, Fresno county; M. K. Harris, Judge.

Action by Campbell against Freeman, administrator of A. G. Anderson, deceased, to have a conveyance declared a mortgage. Judgment for plaintiff. Defendant appeals. Affirmed.

Frank H. Short and G. C. Freeman, for appellant. Gayle & Coldwell, for respondent.

HARRISON, J. In April, 1882, A. G. Anderson, the appellant's intestate, being about to purchase a tract of land, made a verbal agreement with the plaintiff that the plaintiff should loan him $800 with which to make the purchase, and that the conveyance should be made by the vendor directly to the plaintiff, who should hold the title as security for the money so loaned, and also for all other moneys which he should thereafter loan to or advance for him, and that Anderson should take possession of the property so conveyed. In pursuance of this agreement the conveyance was made to the plaintiff, and the purchase money therefor was paid by the plaintiff to the vendor, and Anderson entered into the possession of the property, and remained in possession thereof until his death in 1889, making valuable improvements thereon. After the purchase the plaintiff loaned other sums of money to Anderson, and made payments on his account, in pursuance of the aforesaid agreement, amounting to $2,419, for which, on the 6th day of June, 1889, he executed to the plaintiff his promissory note. After this date the plaintiff made still other payments for the account of Anderson, under the said agreement, and after his death presented to his administrator a claim against his estate, properly verified, for all of the aforesaid amounts, amounting to $3,116.50, which was allowed and afterwards approved by the judge of the superior court, and filed with the clerk. The plaintiff brought this action against the administrator, alleging the agreement between himself and Anderson, and that by virtue thereof the land that had been conveyed to him was held in mortgage to secure the payment of the said indebtedness, and asking for the sale thereof, and payment of the said claim out of the

proceeds thereof. Judgment was rendered in his favor, from which the defendant has appealed; claiming that the only effect of the transaction and agreement between the plaintiff and Anderson was to create a resulting trust in favor of Anderson, by which the plaintiff held the land as security for only the amount advanced for its purchase.

The rule is familiar that when, upon a purchase of real property, the purchase money is paid by one person, and the conveyance is made to another, a resulting trust immediately arises against the person to whom the land is conveyed, in favor of the one by whom the purchase money is paid. The real purchaser of the property is considered as the owner, with the right to control the title in the hands of the grantee, and to demand a conveyance from him at any time. The same rule prevails if the money paid by the party taking the title is advanced by him as a loan to the other, and the conveyance is made to the lender for the purpose of securing the loan; but in the latter case the purchaser cannot demand the conveyance until he has paid the money advanced, and for which the land is held as security. In such a case the grantee holds a double relation to the real purchaser,-he is his trustee of the legal title to the land, and his mortgagee for the money advanced for its purchase, and, as in the case of any other mortgage which is evidenced by an absolute deed, is entitled to retain the title until the payment of the claim for which it is held as security; and he may also enforce his lien by an action of foreclosure. The conveyance is none the less a mortgage because it was conveyed to him directly by a third party, to secure his loan to the purchaser for the amount of the purchase money, than if the conveyance had been made directly to the purchaser in the first instance, and the purchaser had then made a conveyance to him, as a security for the money that he had previously borrowed with which to make the purchase. He is regarded as holding the land in trust for the protection of the purchaser; but this rule is not to be so extended as to enable the purchaser to work him an injury. Equity looks beyond the forms of a transaction, and shapes its judgments in such a way as to carry out the purposes of the parties to the agreement, and to protect each of them against any unconscionable advantage to be derived from the apparent form in which their transaction has taken place. In the present case the title to the land which the plaintiff took from the grantor was held by him in trust for Anderson. This was a trust created by operation of law; but, contemporaneously with the creation of this trust, there was impressed upon the title, by virtue of the agreepent between Anderson and the plaintiff, a hen in favor of the plaintiff for the money which he had loaned him with which to make the purchase, and also for such other moners as he should afterwards loan or ad

vance to him. It was competent for them to make such an agreement, and the agreement, when made, had the effect to render the conveyance to the plaintiff a mortgage to secure the loans advanced to Anderson. "Any interest in property which is capable of being transferred may be mortgaged," (Civil Code, § 2947;) and if the transfer is made as security for the performance of an obligation, it is, in equity, a mortgage, irre spective of the form in which it is made. A deed absolute in form may be given as a security for future advances, without any accompanying obligation in writing, on the part of the person giving the deed. Husheon v. Husheon, 71 Cal. 412, 12 Pac. Rep. 410.

We cannot consider the refusal of the court to allow the defendant to amend his answer. The statement on motion for a new trial does not show that he made such request, nor does it show any ruling of the court in reference thereto, and there is no bill of exceptions containing any action of the court thereon. The only mode in which it is brought to our attention is by certain documents printed with the transcript, but which do not purport to be authenticated, except by the affidavit of his attorney. If a review of this ruling had been desired, it should have been either incorporated into the statement, or brought here by a bill of exceptions.

The objection to the allowance of an &ttorney's fee is not well taken. The note contained an express provision for its payment, and the issue made by the answer of the defendant was limited to the amount for which it could be allowed. It appears from the statement that the evidence justified the finding by the court that this amount was reasonable.

The conclusion that we have reached makes it unnecessary to consider the motion to dismiss the appeal. The judgment and order denying a new trial are affirmed. We concur: BEATTY, C. J.; GAROUTTE, J.

1. The determination of whether the failure of a party to procure additional time to prepare a statement on which to apply for a new trial was the result of excusable neglect or mistake is within the discretion of the trial court, and its findings are conclusive.

2. The objection that the statement of the case prepared for settlement on which to move for a new trial, and the proofs in support of the objection, should be made when the proposed statement is presented for settlement by the court, rather than at the hearing of the motion.

3. Granting a new trial because the judgment is not supported by the evidence being within the discretion of the trial court, in the absence of an abuse of that discretion the order will not be disturbed on appeal.