void without actual fraudulent knowledge or intent on the part of the purchaser. Here actual fraud is necessarily involved in the charges against the respondent. This is manifestly the case with regard to the charge of "intent to hinder, delay, and defraud creditors," and equally so with regard to the charge that a payment was made "in contemplation of insolvency." To hold otherwise would be to regard the deliberate violation of the law, and of the rights of other creditors under the law, as a morally innocent act. The other instructions asked for involve each the same error.

3. In instructions 1, 3, 5, and 10-all of which are objected to the court in effect instructed the jury that a debtor, whether insolvent or not, might prefer any one of his creditors, provided he did not do so to hinder, delay, or defraud his creditors, or in contemplation of insolvency. This is a correct statement of the law. (Civ. Code, sec. 3432; Insolvency Act of 1895, secs. 9, 59; Matter of Muller, 118 Cal. 432.)

In the fourth instruction, which is also objected to, the jury were instructed that if they believed from the evidence that the respondent was not insolvent within the meaning of the insolvency law of the state at the time of the filing of the petition, and did not contemplate insolvency prior to that date, they should find in his favor; which is but a corollary from the principle stated in the instructions first above referred to, and therefore correct.

The judgment and order denying a new trial should therefore be affirmed.

Haynes, C., and Cooper, C., concurred.

For the reasons given in the foregoing opinion the judgment and order denying a new trial are affirmed.

Harrison, J., Van Dyke, J., McFarland, J.

[L. A. No. 610. Department One.-May 31, 1900.]

'ALEJANDRO F. SEPULVEDA, Appellant, v. MARIA DE JESUS ALVARADO DE SEPULVEDA et al., Respondents.

ACTION TO SET ASIDE DEED-FRAUD AND Undue InfluenCE-STATUTE OF LIMITATIONS-NONSUIT.-Where a father died, leaving estate in the name of his brother, who sold it in 1872, and then paid the share of the deceased in money to his widow, who invested it and raised all of the children thereupon, and all of them, when of age, in 1887, joined in a deed of all their rights to their mother, in an action by one of them brought in 1897 to set the deed aside, for fraud and undue influence, alleged to have been discovered within two years to avoid the statute of limitations, if the plaintiff's evidence shows no fraud or undue influence connected with the deed, but the contrary, and shows that plaintiff knew all of the facts known by him when the deed was executed, a judgment of nonsuit is properly entered, and should be affirmed.

APPEAL from a judgment of the Superior Court of Los Angeles County. W. H. Clark, Judge.

The facts are stated in the opinion.

Smith, McNutt & Hannon, for Appellant.

H. A. Barclay, and Barclay & Camp, for Respondents.

COOPER, C.-At the close of plaintiff's testimony the court on motion of defendants granted a nonsuit, and judgment was accordingly entered. This appeal is from the judgment.

The plaintiff is the son of defendant Maria de Jesus Alvarado de Sepulveda and of Juan Maria Sepulveda, her deceased husband, and is a brother of the other defendants. The father of plaintiff, Juan Maria, died prior to 1872, leaving an interest in certain real estate in the name of his brother Jose del Carmen de Sepulveda. Early in 1872 the real estate was sold by Jose del Carmen and the portion of the proceeds of the sale due to the widow and children of Juan Maria, deceased (the parties to this suit), was eight thousand dollars. After Jose

del Carmen de Sepulveda sold the property he desired to leave the state for a time, and he called defendant Maria, the widow of his deceased brother, and said to her: "Sister, I am going to Sonora and I want to leave you this eight thousand dollars so you will take care of my brother's little children." The money was paid to said Maria, or her agent, and Jose said: "Now my sister in law is safe. I go away and she have enough money to support the little ones." This money so left to Maria, the widow of Juan, has been from time to time invested and the real estate and property described in the complaint has been purchased with the said eight thousand dollars and its income. The said Maria raised and cared for her children, including this plaintiff, and also made such frugal use of the money as to preserve the original capital and increase it in investments. It seems that some question had been raised about the title or right of defendant Maria to the proceeds of the eight thousand dollars and to the title to the property purchased with it. Accordingly, in August, 1887, this plaintiff and all the other defendants, except Maria, joined in a deed to their mother, Maria, of all the estate and property of every kind and all claim to the estate of their deceased father, Juan Maria de Sepulveda.

It is alleged in the complaint that plaintiff joined in the execution of this deed, but it was obtained without consideration and by means of fraud and undue influence.

We think the motion for nonsuit was properly granted. The evidence offered by plaintiff does not even tend to show any fraud or undue influence connected with the execution of the deed. Francisco, the brother of plaintiff, testified that in 1883 or 1884 the plaintiff agreed to and did make a deed of his interest in the property for one hundred and fifty dollars. That witness paid him the money, procured the deed, and gave it to their mother, Maria. In regard to the deed of August, 1887, the witness was asked: Q. What representations, if any, or what influence did your mother use or exercise to induce you to make the deed of 1887? A. None. We all agreed to give mother this deed to all this property.

The plaintiff, in order to avoid the statute of limitations, alleged discovery of the fraud and undue influence within two

years. The evidence shows that plaintiff knew all the facts he ever knew in 1887, some ten years before the suit commenced.

The judgment should be affirmed.

Haynes, C., and Gray, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed.

Van Dyke, J., Harrison, J., McFarland, J.

Hearing in Bank denied.

[L. A. No. 668. Department One.-May 31, 1900.] P. F. READY, Respondent, v. JOHN M'DONALD, Appellant.

ACCOUNT STATED THROWN INTO NEW ACCOUNT-STATUTE OF LIMITATIONS.

If the balance shown to be due upon an account stated is unpaid, and is afterward thrown into a new account, it is thereby taken out of the operation of the statute of limitations. ID.-PLEADING-FIRST AND SECOND ACCOUNTS STATED-Demurrer.Where a complaint shows a first account stated, which, if standing alone, appears to be barred by the statute of limitations, but which is evidently intended by the pleader to be an introductory statement to a cause of action upon a second account stated, which is not barred by the statute, and in which the first account stated is included as an item, and the prayer of the complaint is for judgment upon the second account stated, and not upon the first, a demurrer to the first account stated is properly overruled.

ID. FINDING AGAINST STATUTE OF LIMITATIONS.-A finding that the second account stated included the amount due in the first account stated is a sufficient finding that the action was not barred by the statute of limitations.

ID.-SUFFICIENCY OF FINDINGS.-It is not necessary that the facts found should be in any particular form, or follow the pleadings; but the law is complied with if the truth or falsity of each material allegation in issue can be demonstrated from the findings.

APPEAL from a judgment of the Superior Court of San Luis Obispo County and from an order denying a new trial. E. P. Unangst, Judge.

The facts are stated in the opinion.

Graves & Graves, for Appellant.

W. H. Spencer, for Respondent.

COOPER, C.-Appeal from judgment and order denying new trial. The appellant urges two assignments of error: 1. That the court should have sustained the demurrer to the first cause of action set forth in the complaint; and 2. That the court failed to find on the plea of the statute of limitations. The complaint contains what purports to be three causes of action: 1. A balance due upon a stated account of May 2, 1895, for the sum of two hundred and thirty-seven dollars and fifteen cents; 2. A balance due upon a stated account of January 2, 1897, for the sum of three hundred and twenty-six dollars and twentyfive cents; 3. For twenty-six dollars and twenty-seven cents for labor performed by plaintiff for defendant between January 2, and September 1, 1897.

If the first alleged cause of action were standing alone, it would appear upon its face to be barred by the statute of limitations, and the demurrer should have been sustained; but it was not intended by the pleader to be a cause of action, but a statement showing that the stated account of May 2, 1895, was carried into and became an item in the stated account of January 2, 1897. This is apparent by the way in which it is pleaded, and by the prayer of the complaint which is for the amount of the second and third causes of action, three hundred and fifty-two dollars and seventy-nine cents. The judgment was only for the amount named in the last two causes of action. The pleading is not a model, but when liberally viewed, with the intent to arrive at the intention of the pleader, it stated only two causes of action, and the demurrer was properly overruled. The item of two hundred and thirty-seven dollars and fifteen cents in the first account was not barred by the statute on January 2, 1897, and, therefore, properly became a part of the second account stated. The amount being due on the lastnamed date, and not barred by the statute, could be included in the last account stated in precisely the same manner as any other indebtedness. As said by Chief Justice North in an early