the widow may convey her right to such a homestead, and that the grantee takes as a tenant in common with the children, is in effect to say there shall be no homestead. The law consecrates the homestead to a specific purpose, and that purpose can only be accomplished by making it a home for the family. It must be held that the latter clause of section 1485 of the Code of Civil Procedure, which defines the rights of successors by purchase to homesteads, and to the right to have homesteads set apart to them, relates only to such purchasers as have succeeded to the rights of all the persons entitled to a homestead, and has no application to a case like the present, where defendant has succeeded to the right of one only of such persons. It follows that the widow's conveyance was subject to the homestead right which it was the duty of the court to set apart, and, when so consummated, the title which she had conveyed, if not defeated, was, as to the rights of defendant, at least suspended during the period of the occupancy of the property as a homestead. Whether establishing the status of the property as a homestead had the effect of defeating the title conveyed to defendant in toto, or only to hold it in abeyance, involves considerations of deep importance which are not necessary to the decision of this case, and upon which no opinion is expressed. The contention of appellant that he has not contested the right of plaintiff Mary O'Connor to possession as a tenant in common with him, cannot be, on the face of the record, maintained.

The complaint avers title in plaintiffs and ouster by defendant. The answer denies each and every material allegation of the complaint, and pleads the bar of the statute of limitations. The denial of title of a cotenant in an answer is equivalent to an ouster. Greer v. Tripp, 56 Cal. 209; Spect v. Gregg, 51 Cal. 198; Packard v. Johnson, Id. 545; Miller v. Myles, 46 Cal. 535. Furthermore, the agreed statement of facts admits as follows: "On the 15th day of March, 1890, the plaintiff, the said Maggie Phelan, on behalf of herself and said Mary O'Connor, demanded of the said defendant that they be let into possesssion of the said property first herein specifically described, and so set apart as a homestead; and the said defendant refused, and has ever since withheld the possession of said property from the plaintiff." This was abundantly sufficient evidence of ouster and refusal to deliver possession on demand. Demand and refusal of possession are not ouster, but they are such evidence as will authorize a court to find an ouster.

To the introduction of the probate proceedings in the matter of the estate of John O'Connor, deceased, purporting to show the appraisement and inventory of the estate, the order setting apart the homestead, and the decree of distribution, the defendant

objected, and the action of the court in admitting the evidence is assigned as error as follows: (1) That the appraisements (there were two) are invalid, because not verified by the administratrix as required by sec tion 1449, Code Civil Proc. (2) The appraise ment was not returned within three months, as required by section 1443, Id. (3) There is no authority for appraising one parcel of land in two parcels "for the purpose of homestead" or for any other purpose. (4) There was no authority for appointment of the last set of appraisers, unless the first appraisement was invalid. If the first appraisement is invalid, it was because of the insufficient affidavit of the administratrix, and, if this is so, the second is equally invalid, because not showing by affidavit of administratrix that all the estate was appraised, or what debts were owing by the affiant to deceased. (5) Error in admitting in evidence the decree of distribution, which is invalid for the reason that no valid appraisement or valid inventory was ever made or had, and because such de cree does not affect the title of defendant or his right to possession. So far as the infant plaintiff, Mary O'Connor, is concerned, none of these proceedings can affect her right to recover. If the probate proceedings are void, she may still, as the heir of her deceased father, recover her interest in the real property, and possession thereof, except as against the administrator. Code Civil Proc. § 1452. The affidavit of the administratrix, indorsed upon or attached to the second inventory and appraisement, is almost in the precise language of section 1449 of the Code of Civil Procedure, except that in the final sentence the last word is "decedent" instead of "affiant," thus making the affidavit read "and of all just claims of the said deceased against the said decedent" instead of “against the said affiant." This is a mere clerical error, which could not in any wise vitiate the subsequent proceedings. The object of requiring an affidavit by the administrator or executor to accompany the inventory and appraisement is, apparently, not to give any validity to the inventory as such, but to furnish evidence that it contains all the property within the knowledge and possession of the affiant; thus serving as a check upon the administrator. We have no doubt that, as a basis for action by the court in setting apart a homestead, an inventory and appraisement without any affidavit by the administrator. as provided for in section 1449, Code Civil Proc., would be quite sufficient. The classe in the Code under which the administrator is required to file an inventory and appraise ment within three months after his appointment is directory, and does not render them invalid when subsequently filed. So, too, the filing of a second inventory is of no momeat If the first is in proper form, and the second involves no additions or changes, it is mere surplusage; but it may often occur from the discovery of other property, the destruction

or loss of a portion of the property, and from various other causes, that a second or further inventory and appraisement is desirable. In all such cases the court, under the powers conferred upon it, may, we have no doubt, inform itself by means of a new or further inventory and appraisement of the true condition of the estate.

In the present instance we may well conclude the court desired a segregation of the property for homestead purposes. This was proper. The Code does not point out the steps to be pursued in setting apart a homestead where none has been declared by the husband and wife, or one of them, during the lives of the parties; and in such cases the court may adopt any suitable method of procedure conformable to the spirit of the Code. Code Civil Proc., § 187.

It was important for the court to be informed as to the value of the homestead which it was its duty under the law to set apart. It is objected that the decree setting apart the homestead is invalid, on account of the appraisement and inventory not be ing regular, and for the further reason that "it does not set the property apart to the widow and minor children, but to the family; and it does not purport to set apart for a limited period, but purports to set it apart absolutely," etc. It is only where a homestead is set apart from the separate property of the deceased that it is required to be for a limited period. Code Civil Proc. § 1468. The petition for a homestead asked that it be set apart for the widow and her two children. In the decree the language used is that the property (describing it) "is hereby set apart for the use of the family of said John O'Connor, deceased." The family of John O'Connor, deceased, is shown by the record to have consisted of the widow and two children. The term "family" is used in the chapter providing for homesteads in the sense of denoting the surviving wife and children. It relates to "the provision for the support of the family and of the homestead." Section 1464 provides that the widow or children may remain in possession of the homestead, "of all the wearing apparel of the family," etc. Section 1466 requires the court to make allowance for the maintenance of the family. Section 1468 provides that when property "is set apart to the use of the family," etc. If the estate is of less value than $1,500, and there be a widow or minor children, the court shall require parties interested to show cause why it should not be set apart for the use of the family. Section 1469. The term "family" throughout the chapter is used as synonymous with and as representing the surviving wife or husband and children, if any. When the court used the term "family" in its decree we must hold that it expresses the meaning and is used in the sense of the statute, and is therefore sufficiently explicit to describe the widow and children.

We have referred to these several objections as if they were presented on an appeal from the decree setting apart the homestead, but it must be borne in mind that this is a collateral attack upon those proceedings, and can only avail by showing such errors as render the decree not voidable, but absolutely void. Kearney v. Kearney, 72 Cal. 592, 15 Pac. Rep. 769; Gruwell v. Seybolt, 82 Cal. 10, 22 Pac. Rep. 938; Leach v. Pierce, 93 Cal. 618, 29 Pac. Rep. 235; Estate of Maxwell, 74 Cal. 385, 16 Pac. Rep. 206; Code Civil Proc. § 1908, subd. 1; 1 Freem. Judgm. § 319b. The court did not err in ruling out as immaterial and irrelevant the evidence that, after the death of her husband, Maggie O'Connor purchased with her separate funds a lot of land in the town of Pomona, and resided upon the same with her children, and declared a homestead thereon, which lot was sold under a foreclosure sale, and subsequently redeemed and sold by her before the application for a homestead herein. If, as before stated, the right to a homestead herein was one which inured to her and her children jointly, which she could not individually convey or waive, because of such joint right, then this evidence was not admissible, as the only effect of it would be to show a waiver on her part. For like reasons there is nothing in the decree of distribution, entered long after the homestead was set aside, which could have a bearing upon the action of the court in the homestead matter, or affect the rights of the plaintiffs thereunder. The possession of defendant under the agreement of April 14, 1883, was in subordination to the title of plaintiffs, and did not become adverse to plaintiffs, or either of them, until the date of the deed of September 1, 1885. This action was commenced April 11, 1890, less than five years after the execution of the deed; hence the cause of action was not barred by the statute of limitations. The judgment and order appealed from should be affirmed.

defendant should not be sold at less than its cost to plaintiff, without the consent of plaintiff's directors. Subsequently, defendant, without plaintiff's knowledge, sold a portion of the goods, and plaintiff sued for conversion. Defendant, for answer, set up the whole agreement; alleged performance on her part, and that there was due her, above the value of the property sold, a large sum; and prayed an accounting. Held, that such answer was a proper counterclaim, within Code Civil Proc. 8 438, providing that "a cause of action arising out of the same transaction" may be so set up, and the fact that plaintiff alleged no facts to show that the counterclaim arose out of the same transaction did not prevent defendant from setting out the entire transaction, and thus showing the relation of her claim thereto.

2. The action being to recover the value of the goods, and not the goods themselves, the right of defendant to assert a lien thereon was not involved, so that Civil Code, § 2910, providing that the wrongful conversion of personal property by a person holding a lien thereon extinguishes the lien, had no application, for, by its choice in its form of action, plaintiff adopted the sale, and affirmed the title thereby conveyed.

3. The trial court found that, at all times after making the agreement, defendant claimed to be the owner of the property mentioned therein, so that her making the sale was in pursuance of her construction of its terms. The court also found that she made the sale on an agreement by her vendee that he would pay the price on the debts of plaintiff for which she had become liable. Held, that the agreement itself not being free from ambiguity, and defendant having acted according to her construction of it, while, if her construction was wrong, and plaintiff suffered thereby, it had a cause of action against her, yet it could not recover damages independent of an adjustment of their respective rights under the entire agreement.

4. Where the liability of a number of defendants for conversion, if any exists, is several as well as joint, a defense set up by one that will defeat plaintiff's recovery is available for the other defendants.

In bank. Appeal from superior court, San Diego county; W. L. Pierce, Judge.

Action by the Story & Isham Commercial Company, a corporation, against Adella B. Story and others, for the alleged conversion of certain goods. Judgment was entered in favor of plaintiff, and both parties appeal. Reversed.

Mr. Works and M. S. Babcock, for plaintiff. Luce & McDonald and Sprigg & Barber, for defendant.

HARRISON, J. In February, 1891, the plaintiff, being largely indebted to Mrs. Adella B. Story, defendant, and also to other creditors, made an agreement with her as follows: "Whereas, Mrs. A. B. Story has agreed to pay all the debts existing against the Story & Isham Commercial Company on the 1st day of February, 1891, including those payable to herself; and whereas, said Story & Isham Commercial Company desires to secure said Mrs. Story for the payments made and to be made by her on account of the said debts: Now, therefore, in consideration of said agreement and the payment of said debts, the said Story & Isham Commercial

Company, pursuant to a resolution of its board of directors at a meeting thereof duly called and had, hereby agrees to pay to said Mrs. A. B. Story all sums paid or agreed to be paid by her on account of said debts, including costs and expenses, notes, attorneys' fees, and judgments, and such things as she may pay on account of said debts, and in procuring the money with which to meet the same. And, as security for the payment of said sums, the Story & Isham Commercial Company agrees to and does sell, assign, convey, and transfer to said Mrs. A. B. Story all notes, accounts, and other demands due or payable to said company, and all goods and merchandise on hand, in store or in transit, owned by it, and all other property owned by it, at law or in equity, excepting, however, that said company reserves the right to use in its business the first sums collected by it, either on sales made or demands due, not exceeding $2,000, and also reserves the real estate owned by it; but all sums realized from a sale, pledge, or mortgage thereof, not exceeding $2,000, shall be applied as a payment on the sums payable to said Mrs. A. B. Story, as above specified. Said Commercial Company shall use its best efforts to realize as soon as practicable on said de mands and merchandise, and apply the sums received therefor on the sums payable to said Mrs. A. B. Story, as herein provided. The expense of running the said company shall be divided between the old business and the new in proportion to the sales made on account of the goods hereby sold to Mrs. Story and those sold on account of transactions subsequent to February 1, 1891. The property hereby conveyed to Mrs. A. B. Story shall not be sold at less than it cost the Commer cial Company, without a direction of the board of directors of said company. Executed and delivered this 5th day of February, 1891. The Story & Isham Commercial Co. Per A. H. Isham, Vice Pres. and Mgr. Adella B. Story." At that time the plaintiff was engaged in the business of merchandising. and was owner of certain personal property, which it had in its custody, and which was included in the aforesaid agreement. On the 26th of February, 1891, Mrs. Story, without the knowledge and consent of the plaintiff, sold to the defendant Bates a portion of said personal property, who took possession there of without the consent of the plaintiff, and afterwards sold and disposed of the same. On the 2d of March, 1891, the plaintiff brought this action against the defendants for the conversion of the personal property so conveyed by Mrs. Story to the defendant Bates. The defendants, in their answer, set up the foregoing agreement, and the circumstances under which it was made, alleging performance by Mrs. Story of her part of the agreement, and that she had paid out on account of the debts of the plaintiff the sum of about $115,000, and that there was

due to her, above the value of the property which she had sold to Bates, upwards of $50,000, and prayed for an accounting, and Judgment in her favor against the plaintiff. The court finds that the cost price of the property sold by Mrs. Story to Bates was $38,550; that that was also the value of the same; that at the time when she sold the goods the plaintiff was indebted to her in the sum of $24,206; and that she had also caused debts of the plaintiff, to the amount of $5,523, to be satisfied by having its creditors accept in satisfaction of said debts certificates of deposit issued therefor by the California National Bank of San Diego. The court also found "that by an arrangement between the defendant Adella B. Story and the California National Bank the said bank, on the 26th day of February, 1891, canceled, and marked 'Paid,' notes of the plaintiff held by said bank in the sum of $15,200, and the same were thereby paid;" and also that, after the sale and taking of said property, she had paid the balance of the debts of the plaintiff, amounting, with the sum paid and amounts due her, to $113,000, a portion of which was paid out of the proceeds of the property sold by her to Bates. Upon these findings the court made its conclusions of law that the plaintiff was entitled to recover from the defendants the value of the property converted by them, with interest thereon, amounting to $40,678.79, less $29,717.54, the amount, with interest thereon, due from the plaintiff to Mrs. Story, and the amount for which she had caused its debts to be satisfied by the certificates of deposit issued by the bank, and that the plaintiff was entitled to judgment in the sum of $10,961.25, and rendered judgment accordingly. From this judgment, both parties have appealed, the plaintiff, upon the ground that the court erred in allowing any deductions from the value of the goods sold by Mrs. Story to Bates; and the defendants, on the ground that Mrs. Story should have been allowed the entire amount of her payments for the plaintiff, and should have had a judgment in her favor for the difference between that amount and the value of the goods.

It is contended by the plaintiff, in the first place, that the matters set forth in the answer do not constitute a counterclaim to the cause of action set forth in the complaint, and were not available as a defense thereto. Section 438, Code Civil Proc., provides that the counterclaim which the defendant is permitted to plead "must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action: (1) A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action." One of the definitions given by the Century Dictionary to the v.34p.no.7-43

term "transaction," is "a matter or affair, either completed or in course of completion." Mr. Pomeroy, in his treatise on Remedies and Remedial Rights, (section 774,) defines the term, as used in this section, to be "that combination of acts and events, circumstances and defaults which, viewed in one aspect, results in the plaintiff's right of action, and, viewed in another aspect, results in the defendant's right of action," and says, further: "As these two opposing rights cannot be exactly the same, it follows that there may be, and generally must be, acts, facts, events, and defaults, in the transaction as a whole, which do not enter into each cause of action, but are confined to one of them alone." See also, Bank v. Lee, 7 Abb. Pr. 372; Ritchie v. Hayward, 71 Mo. 560; Judah v. Trustees, 16 Ind. 60. Every transaction is more or less complex, consisting of various facts and acts done by the respective parties; and it frequently happens that one or more of these

acts would, if viewed by itself, be such a violation of duty as to give to the other a right of action, but the obligation thus created may be so counterbalanced by other matters growing out of the same transaction that no compensation ought to be made therefor. While the parties are carrying their agreement into execution, and mutual rights and obligations accrue by reason of the failure of either or both of them to comply strictly with its terms, neither party should have the right, so long as the agreement is in force, and is in process of execution, to recover the damage sustained by him from any breach of duty by the other, without at the same time satisfying any obligation against himself growing out of the same affair. In such a case the rights of the one are so dependent upon the rights of the other, that simple equity requires that the respective causes of action in behalf of each should be adjusted in a single suit. From an early day the tendency of judicial decisions has been to avoid circuity of action and multiplicity of suits, by permitting matters growing out of the same transaction, which might constitute an independent cause of action, to be given in evidence by way of defense; and the foregoing section of the Code of Civil Procedure is an additional legislative step in the direction of this judicial tendency. As a corollary therefrom, it follows that the form in which the plaintiff may set out his cause of action ought not to be conclusive upon the right of the defendant to set forth his counterclaim in his answer. The plaintiff is to set forth the facts which constitute his cause of action: but, if the other facts in the transaction are so connected with those set forth as to defeat their legal effect, the defendant is not precluded from setting them up by reason of the form which the plaintiff may have chosen for presenting his own side of the case. Pom. Rem. & Rem. Rights, § 772; Gordon v. Bruner, 49 Mo. 570; Brady v. Brennan, 25

Minn. 210; Bitting v. Thaxton, 72 N. C. 549; Thompson v. Kessel, 30 N. Y. 383; Chandler v. Childs, 42 Mich. 128, 3 N. W. Rep. 297. It is for the purpose of enabling the court to render a judgment by which the rights of the parties may be finally determined in the same action, rather than to compel another action, that the Code permits a defendant to set up in his answer any new matter arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim; and, if the plaintiff omits or fails to set forth in his complaint the entire transaction out of which his claim arose, the defendant may supplement this omission by setting forth in his answer the omitted facts, so that the entire transaction may be before the court. The plaintiff is not at lib

erty to select an isolated act or fact, which is only one of a series of acts or steps in the entire transaction, and insist upon a judgment on this fact alone, if the fact is so connected with others that it forms only a portion of the transaction. The transaction which was the foundation of the cause of action set forth in the complaint herein is not limited to the facts therein set forth, but inIcludes the entire series of acts and mutual conduct of the parties in the business or porceeding between them which formed the basis of their written agreement. If the plaintiff had set out in its complaint the entire transaction between it and Mrs. Story, beginning with the agreement, and the circumstances under which it was made, and giving in detail her sale of the property to Bates, that its value was $38,550, and that

the proceeds thereof had been applied by

her in payment of its debts, and also showing that in pursuance of said agreement she had paid the entire debts of the plaintiff, amounting to $113,000, it would then have appeared, upon the face of the complaint, that the plaintiff was not entitled to recover from her the value of the property sold by her, without at the same time recompensing her for the payments that she had made for its account. If, on the other hand, Mrs. Story had brought an action against the plaintiff for the amount of money paid by her under the agreement, the plaintiff would have had the right to deduct from that amount the value of the property sold by her, and it would not have lain in her mouth to say that she was a trespasser, and therefore not liable to have her tort set off against the contract of the plaintiff. But the rights of the several parties to plead a counterclaim in defense to an action by one against the other for a breach of their respective obligations arising out of the facts in controversy between them must be reciprocal. The entire transaction between them, and the rights resulting therefrom, are to be determined by the court; and it is incumbent upon the court, after hearing all the proof relative to that transaction, to render such judg

ment as may be consistent with the case, t presented by both parties.

Much of the argument of the plaintiff has been directed to the terms of section 2014 Civil Code, which provide that the wrongful conversion of personal property by a perse holding a lien thereon extinguishes the Len But, as this action is brought to recover the value of the goods, and not for the good themselves, the right of the defendant to assert a lien thereon is not involved. If the plaintiff had brought its action agains Mrs. Story to recover possession of the goods the effect of this section would have prop erly arisen; but, by bringing it for the value of the goods, he adopts her sale, and afirm the title conveyed thereby. It is a well-es tablished principle that when one has corverted to his own use, or sold, the goods of another, the latter may waive the tort and sue in assumpsit. It is immaterial in which mode he seeks redress for the wrong In either case, he can claim only a pecuniary compensation; and whether he claim this assumpsit, as upon a sale, or for the valu of the goods, as by conversion, he estab lishes only a pecuniary obligation, which the defendant may controvert by any facts connected with the transaction out of which the plaintiff's claim arose. The form which the plaintiff brought the present a tion is immaterial, as it might have treated the defendant as having received the pre ceeds of the goods sold by her, and sue. her therefor. But, whatever form of activ it might select, it was only entitled to con

pensation for the goods, and, in a suit fe the taking, it could only receive the amo in which it had been damaged. By its agree ment with Mrs. Story, it had appropriated this property to the payment of its obliga tion to her; and in the absence of any ind ing or any claim by it that it has suffered diminution of estate or damage beyond value of the property, if that value was 17 propriated by her to the purpose to whic the parties had agreed it should be app priated, it cannot claim any further com pensation from her. By its agreement wit her, it placed itself under an obligation her for the payment of all the moners which she should advance for its debts; and as the court finds that she has paid ther the sum of $113,000, it can only claim th the value of the property sold by her be ducted from that amount. By treating the goods as the property of the defendant, an suing merely for their value, the pla has elected to treat the obligation as of fixed value, and it is immaterial in w form it stated its cause of action. In either case, it would be competent for Mrs. S to show that by virtue of the agreement b tween them the property had been subjectal to the payment of the plaintiff's obligat to her, and that she had made such applic