MARLENEE v. BROWN ET AL

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District Court of Appeal, Second District, Division 3, California.

MARLENEE v. BROWN ET AL.

Civ. 13279.

Decided: July 31, 1942

Vere Radir Norton, W. H. Gregory and Finlayson, Bennett & Morrow, all of Los Angeles, for appellant. M. J. Rankin, Milo V. Olson, R. Leslie Sparks, Thomas Reynolds, and Howard Painter, all of Los Angeles, for respondents.

Plaintiff, as executrix of the will of Charles Lee Marlenee, deceased, brought this action to set aside an order, made in the probate proceedings on his estate, confirming a sale of real property of the estate, to have a deed thereof signed by her as executrix and other conveyances purporting to vest the title to the property in the defendants declared void, and to recover possession of, and quiet the title of the estate to, the property. She appeals from a judgment in favor of defendants.

Plaintiff's letters testamentary on the estate were issued May 9, 1931, and the estate is still in course of administration. On February 27, 1935, there was filed in the estate proceedings a return, signed and verified by plaintiff, of a sale of the real property here in question to William Gaston, with a prayer for its confirmation. Due notice of a hearing on this return was given, and on March 15, 1935, the court made an order purporting to confirm this sale and direct a conveyance to be made accordingly. On July 1, 1935, plaintiff as executrix signed and acknowledged such a deed and it was recorded June 2, 1936. Plaintiff denied the execution of this deed but there was testimony that she did execute it, sufficient to support the trial court's finding that she did so. Gaston, named as the purchaser, conveyed the property to Taylor O. Taylor, by deed recorded June 2, 1936. Taylor sold and conveyed the property to defendants, his deed to them being delivered March 31, 1937, and recorded the same day. They paid him $17,500 therefor.

Plaintiff makes no objection that the above mentioned return of sale and order confirming sale were not in all respects regular and valid, if regard is had only to matters appearing on the face thereof. She contends, however, that in fact there was no sale at all to Gaston and so no subject matter on which an order confirming the sale could operate, and that the order was therefore void. While apparently admitting that her attack on the order here may be regarded as collateral, in the ordinary sense of that term, she further claims that the facts from which its invalidity results were admitted by the answer and also proved without objection at the trial and that hence the case is the same as if those facts appeared on the face of the order, and the order must here be held void by reason thereof. Further contentions by plaintiff are that her deed to Gaston was never delivered and for that reason passed no title to him, that it is void because not in conformity to the order of confirmation, and that Gaston's deed to Taylor also was not delivered. Plaintiff also claims that she was induced to take the proceedings above mentioned, resulting in an apparent conveyance of the property to Gaston, by fraud of Taylor, the grantee of Gaston, who was also her attorney and confidential adviser, that this fraud was not discovered by her until a short time before this action was brought, that she was in possession of the property, by her tenants, when defendants bought it and that defendants did not make inquiry as to her rights and are hence subject to them.

Defendants concede here that there was in fact no sale to Gaston, take no position as to the asserted fraud of Taylor, and dispute all the other contentions of plaintiff. Defendants also contend that by reason of plaintiff's proceedings above mentioned and other matters to be mentioned later, plaintiff is estopped to deny the validity of the probate sale and of her deed to Gaston, and that they bought the property from Taylor, who appeared of record to be its owner, for value and without notice, actual or constructive, of plaintiff's claims, and therefore they hold it free therefrom.

Plaintiff's contention that her deed to Gaston was in violation of the order of confirmation is not supported by the record. That order directed a conveyance for a total price of $10,000, Gaston to assume “the existing liens and encumbrances on said property” and to deduct from the price “the amount of said liens and encumbrances up to March 1st, 1935” and pay the balance in cash. The deed recites a consideration of $5,670 received, which is $4,330 less than the stated price. Plaintiff's argument is that it was stipulated at the trial that on March 1, 1935, the liens and encumbrances amounted to only $3,773.79, and hence the deed was for too little cash. But the record referred to shows only a stipulation that on March 1, 1935, “the total amount of unpaid and due taxes and assessments against the property amounted to $3,773.79.” This does not show the total amount of liens and encumbrances, for there might have been liens other than taxes and assessments, and liens for taxes and assessments which were not due, all of which would have been included in the terms of the order, but not in the stipulation. We find nothing else anywhere in the record on this subject, and in the absence of a contrary showing the presumption is that the deed was regular in this respect.

There is no direct testimony that plaintiff's deed was delivered to Gaston or that Gaston's deed was delivered to Taylor. The notary who took plaintiff's acknowledgment testified that Taylor brought plaintiff into the notary's office, that he produced the deed and plaintiff signed it, but said nothing as to what became of it. The same notary testified that Gaston signed his deed to Taylor in her presence and acknowledged it before her, but did not say what became of it. Gaston testified that he never had possession of plaintiff's deed and did not knowingly sign and acknowledge a deed to Taylor, but admitted that he went to the notary's office to sign a paper for Taylor, and that there one more document, the nature of which he did not know, was handed back and forth between himself and Taylor and the notary. The record of each deed in the Recorder's office states that it was recorded at the request of the grantee. A certified copy of the record of each deed was admitted in evidence on plaintiff's offer, and such certified copies were prima facie evidence of the genuineness, due execution and delivery of the original deeds. Anthony v. Chapman, 1884, 65 Cal. 73, 76, 2 P. 889; Davis v. Pacific Improvement Co., 1897, 118 Cal. 45, 49, 50 P. 7; Dockstader v. First Nat. Bank of Lemoore, 1930, 104 Cal.App. 169, 172, 285 P. 715; see, also, Campbell v. Genshlea, 1919, 180 Cal. 213, 223, 180 P. 336; Keele v. Clouser, 1928, 92 Cal.App. 526, 532, 268 P. 682. A deed duly executed is presumed to have been delivered at its date (Civil Code, § 1055), and this presumption extends to the fact, as well as the time, of delivery. Marple v. Jackson, 1920, 184 Cal. 411, 417, 193 P. 940; Lewis v. Burns, 1898, 122 Cal. 358, 362, 55 P. 132; McDougall v. McDougall, 1902, 135 Cal. 316, 319, 67 P. 778; McGorray v. Robinson, 1902, 135 Cal. 312, 314, 67 P. 279.

One of the contentions most strongly urged by appellant is that there was in fact no probate sale of the property to Gaston and hence no subject matter on which the order of confirmation could operate, and therefore the order is void. The facts in this matter are admitted by the pleadings. The complaint alleges that Gaston “never at any time made any bid for said property or for any part thereof; he never at any time offered to purchase said property. * * * At no time did said Gaston have any intention of purchasing said property or any part thereof and never at any time did he purchase it or any part of it. At no time was there a sale of said property or any part thereof to said Gaston.” These allegations are undenied by the answer, except by an affirmative statement, not directed at these allegations of the complaint, that the sale was “an actual sale.” The specific facts thus admitted are sufficient to show that there was no sale to Gaston, and their effect is not overcome by a mere denial (affirmatively stated) of the conclusion that there was no sale. Schoonover v. Birnbaum, 1906, 148 Cal. 548, 551, 83 P. 999; Easom v. General Mortgage Co., 1929, 101 Cal.App. 186, 190, 281 P. 514; Gillons v. Turner Oil Co., 1921, 51 Cal.App. 139, 141, 196 P. 276.

We take it as a fact, therefore, that there was actually no sale by plaintiff to Gaston, up to the time of the return of sale and the order of confirmation; but we cannot agree to the proposition that this fact makes the order void. As already stated, it is tacitly conceded that both the return of sale and the order were complete and regular in form and appeared, on the face of the record, to be valid, and examination of the record discloses no defects in them. Under the statute in force now and at the time of these proceedings, where a sale of real property of the estate is necessary to pay debts, legacies, family allowance or expenses, an executor can make such a sale without any preliminary proceedings other than a notice of sale. Probate Code, §§ 754, 780. Such a sale must, however, be reported to and confirmed by the court before title to the property passes, and notice of hearing such a report, commonly called a “return,” is given by the clerk by posting (Probate Code, § 755), which notice directs all persons interested to appear and show cause, if any they have, why the sale should not be confirmed. Probate Code, § 1200. At the hearing the court is required to examine into the necessity for the sale and examine the return and witnesses in relation to the sale, and to confirm the sale if it appears “that the sale was legally made and fairly conducted,” that good reason existed for it, and that it complied with other requirements set forth in the statute. Prob.Code, § 785. If the purchaser does not comply with the terms of sale, the sale may be vacated and a resale ordered, with liability on the purchaser for any deficiency in the price on such resale. Prob.Code, § 788.

In following the procedure thus laid down an executor must necessarily file a return stating, with other matters, that a sale has been made, and the court is clearly given the power and duty to determine whether the sale so returned should be confirmed. One of the facts necessarily included in an affirmative determination of this question is that the sale reported has been made. The return here did allege a sale to Gaston, giving its terms, and the order found “that said sale was fairly conducted and legally made,” and confirmed it. This was a direct adjudication that there was such a sale and it was binding as such against the plaintiff, who was a party to, and in fact the initiator of, the confirmation proceeding, in favor of defendants, the successors in interest of Gaston, who was also a party by virtue of the allegations of the return and had due notice of the hearing by the clerk's posting. Code of Civ.Proc. § 1908. In Baldwin v. Stewart, 1933, 218 Cal. 364, 368, 23 P.2d 283, 284, the court said of the statutory provisions referred to above: “By requiring the court to inquire into the regularity and fairness of the sale, by making specific provision for the liability of the purchaser for a deficiency in the event of his default and a possible resale, and by giving the right of appeal from an order confirming sale, the Legislature has evidenced a clear intent to make conclusive an order confirming sale which has become final. And we can see no good reason why parties who have been duly notified of the proceeding and extended every opportunity to present their objections, if any they have, should not be concluded thereby.” It was further declared in that case that the notice provided for by section 1200 of the Probate Code was notice to the purchaser, and the order confirming a sale was held binding on a purchaser as to several facts relating to the sale which he sought to dispute. Regarding the validity of this notice by posting, see Security–First Nat. Bk. v. Superior Court, 1934, 1 Cal.2d 749, 756, 37 P.2d 69, 72, where the court, speaking of a posted notice of a testamentary trustee's account, said: “The notice required by the sections is constructive notice to everyone of the pendency of the proceedings, and a hearing had and order entered pursuant thereto is conclusive upon all parties in interest. [[[[Citing cases.] Absence of a personal notice in such proceeding does not deprive any person in interest of any of his constitutional rights. [Citing cases.]”

Plaintiff further contends, however, that because there was in fact no sale there was nothing on which the order of confirmation could operate, and hence the court had no jurisdiction to make the order. This point relates to jurisdiction of the subject matter, the rule on which is: “Jurisdiction always depends upon the allegations and never upon the facts. When a party appears before a judicial tribunal and alleges that a certain right is denied him, and the law has given the tribunal the power to enforce that right––his adversary being notified––it must proceed to determine the truth or falsity of his allegations. The truth of the allegations does not constitute jurisdiction. The tribunal must have jurisdiction before it can take any adverse step. Its jurisdiction, necessarily, has to be determined from the allegations, assuming them to be true.” Van Fleet on Collateral Attack, § 60, pp. 73, 74. This rule was followed in Stuart v. Allen, 1860, 16 Cal. 473, 501, 76 Am.Dec. 551, where the court, upholding an order authorizing a probate sale made under our former procedure requiring such an order, said: “* * * it is immaterial, so far as this question of jurisdiction is concerned, whether the statements of the petition are true or not; the jurisdiction resting upon the averments of the petition, not upon proof of them.” This rule was followed in case of an order confirming sale in Johnston v. Kitchin, 1928, 203 Cal. 766, 769, 265 P. 941. Likewise following this rule the court in Security–First Nat. Bk. v. Superior Court, supra, 1934, 1 Cal.2d 749, 755, 756, 37 P.2d 69, 72, said of a proceeding for settling the account of a testamentary trustee under the Probate Code: “The filing of the petition setting forth the matters required by the Code sections noted vests jurisdiction in the probate court (see Estate of Simmons, 168 Cal. 390, 395, 143 P. 697), whether or not the allegations of the matters necessary to vest jurisdiction accord with the actual facts. Estate of Strong, 119 Cal. 663, 666, 51 P. 1078; Nicholson v. Leatham, 28 Cal.App. 597, 601, 153 P. 965, 155 P. 98.” Similarly, it was held in Wood v. Roach, 1932, 125 Cal.App. 631, 639, 14 P.2d 170, that, while the court confirming a probate sale is required to ascertain the existence of proper grounds for the sale before acting, an erroneous conclusion in that regard would constitute error in the exercise of jurisdiction rather than a want of jurisdiction.

In this connection the case of Townsend v. Tallant, 1867, 33 Cal. 45, 91 Am.Dec. 617, is cited to us. There the validity of an order confirming a sale of real estate by an administrator was in question. At that time the statute required the administrator, before making a sale, to obtain an order authorizing him to sell, and to obtain such an order a petition must be filed and four weeks' notice by publication given of a hearing thereon. In case of the sale there in question such notice was published for only three weeks and it was held that by reason of this defect the order of sale was void. The order of confirmation, which recited the three weeks' publication of the notice, and thus showed the invalidity of the order of sale, was also held void. In so holding the court used some language which tends to favor plaintiff here, saying at page 54 of 33 Cal.: “But if the order of sale was coram non judice, then the ‘sale’ was no sale, and it could not be made valid and binding by any number of so–called confirmations. The sale being void, there was no subject matter upon which the order of confirmation could act. If the Court had no jurisdiction to order the sale it had none to confirm it. Where there is no power to render a judgment or to make an order, there can be none to confirm or execute it; or none, at least, without the help of legislation.” These statements were made in view of the statutory proceeding then provided for a sale, which included a petition for sale, a notice of hearing it, and an order of sale, to be followed by a return of sale, notice, and order of confirmation, and the court evidently regarded this whole proceeding as a unit, with the order of sale the principal element, or judgment, and all the following steps merely ancillary or subordinate to it. On this view of the matter the proceedings leading up to the order of sale would be a part of the record of the order of confirmation and if they showed any fatal defect it would be deemed to be carried over, of record, to the latter order. On any other view, the language just quoted appears inconsistent with the rule above stated in regard to the manner of obtaining jurisdiction of the subject matter, for if the proceeding for confirmation were independent of what had gone before, the allegation of a valid sale in the return of sale would give the court jurisdiction to determine whether there was such a sale. Of course the order of confirmation there showed that the order of sale was void, so the language quoted was not strictly necessary to the decision.

The fact that there was no sale to Gaston does not appear anywhere in the record of the probate proceeding for confirmation of the sale. Ordinarily, therefore, such fact could not be shown by evidence outside of the record for the purpose of avoiding the order of confirmation in a collateral attack thereon. Except as the plaintiff seeks by this action to set aside the order for fraud, this is a collateral attack on the order. Plaintiff, however, calls our attention to the admission of the fact in the pleadings in this case and the introduction of evidence of it without objection and contends that this works an exception to the rule above stated, or rather that thereby the case is put in the same legal condition as if the fact of no sale actually appeared in the record of the confirmation. In support of this contention plaintiff cites Hill v. City Cab, etc., Co., 1889, 79 Cal. 188, 191, 21 P. 728; People v. Harrison, 1895, 107 Cal. 541, 546, 40 P. 956; Akley v. Bassett, 1922, 189 Cal. 625, 639, 209 P. 576; Follette v. Pacific L. & P. Co., 1922, 189 Cal. 193, 205, 208 P. 295, 23 A.L.R. 965, and Estate of Ivory, 1940, 37 Cal.App.2d 22, 30, 31, 98 P.2d 761. These cases all relate to jurisdiction over the person of the defendant, not to jurisdiction of the subject matter, and none of them holds that jurisdiction of the latter disappears merely because the allegations showing it turn out to be untrue. We find nothing in any of them to suggest, for instance, that proceedings to collect or renew a superior court judgment would be defeated if the judgment creditor should admit, contrary to his pleading and the finding, that the value of the subject matter of the action was below the jurisdiction of that court. The holding of these cases is thus summed up in Estate of Ivory, supra, 37 Cal.App.2d at page 31, 98 P.2d at page 766: “These cases establish the rule that, although a judgment cannot be collaterally attacked because of lack of service, if that fact is stipulated to, the judgment must be read as if that fact appeared on the face of the judgment. In such event the judgment is then void on its face.” We see no reason to apply this rule to a case like that at bar, involving only jurisdiction of the subject matter.

None of the rules above stated prevent one in the plaintiff's situation from bringing an action to set aside the order by reason of fraud and this the plaintiff here has undertaken to do. She alleges that she was induced to sign the return of sale and consent to the order of confirmation, and to sign the deed, if she did so, by reason of fraud perpetrated on her by Taylor, who was a lawyer and had at one time been her attorney of record in the estate and continued to be her confidential friend and legal adviser in estate matters, although retiring as attorney of record, and who falsely represented to her that a sale of the property in question was necessary and that it had been sold to Gaston. Taylor later took the title by deed from Gaston. Further details of the fraud are alleged, but need not be recapitulated here. A person acquiring title to property in good faith and for value, under a judgment not void on its face, and without knowledge or notice of fraud by which it was procured, is fully protected against one assailing the judgment for fraud. Newport v. Hatton, 1929, 207 Cal. 515, 519, 279 P. 134; Garrison v. Blanchard, 1932, 127 Cal.App. 616, 622, 16 P.2d 273; Wood v. Roach, 1932, 125 Cal.App. 631, 640, 14 P.2d 170. We think this rule must be applied to protect defendants from the charge of fraud here.

Plaintiff's contention in this matter is that she was in possession of the property by her tenants at the time defendants bought it, and therefore defendants took it subject to her rights. It is not claimed that they had any actual knowledge regarding them. It appears that after the deeds from plaintiff to Gaston and from Gaston to Taylor, plaintiff continued to rent the property and collect rent from the tenants as she had done before. She testified that she did this on her own account. Assuming this to be the fact, it is not sufficient, under the circumstances of this case, as the trial court could have viewed them, to charge the defendants with notice of her rights. It is true that possession of land by one other than the seller is sufficient to put an intending purchaser upon inquiry as to the rights of such person in possession, and charges the purchaser with knowledge of all that such inquiry, if pursued, might have developed (J. R. Garrett Co. v. States, 1935, 3 Cal.2d 379, 383, 44 P.2d 538), but if such inquiry is made, the purchaser is not charged with notice of anything beyond what it discloses. Porter v. Johnson, 1916, 172 Cal. 456, 156 P. 1022.

In this case, inquiry of the actual tenants would have led the defendants to plaintiff, as their landlord, we may assume. It appears that defendants did come in contact with plaintiff before the sale. The defendant James E. Brown appears to have acted, throughout the transaction, for the other defendant, who is his wife; and, no contention being made to the contrary, we assume she must bear the burdens, and is also entitled to the benefits, of his acts and information in negotiating the purchase. Before the contract of purchase was signed, James E. Brown visited Taylor, who told Brown that he, Taylor, had a woman taking care of the rents and that she would go over them with Brown and introduce him to the tenants. Taylor called plaintiff from his office, and next day, but still before the purchase was consummated, plaintiff met Brown at the office of the real estate broker by whom the deal was handled and said to him, “I came down to check the rents with you.” She also said to Brown at this time that she was “collecting the rent for Mr. Taylor.” The word “for” has many meanings. It is often used to import an agency, and when so used means “as agent of” or “in behalf of”. 26 C.J 791. Such is the most obvious interpretation of it as used in this statement of plaintiff. She argues now that this statement might merely mean that Taylor was her agent and that when she collected rent she turned the money over to him to use on her behalf. This puts a strained and unusual meaning on the word “for” and we see no reason why the trial court should have so understood it, or should have attributed that understanding of it to defendants. After this conversation plaintiff went with Brown to the property and introduced him to several of the tenants, saying that he “was going to be the new purchaser of the property.” She also told him that she owned some of the furniture in the property and offered to sell it to him, stated that some of the rents were unpaid and she would come back to attempt their collection and the sale of the furniture to tenants and asked him what he was paying for the property, but at no time told him that she claimed an interest in the property. Plaintiff, as a witness, denies most of the facts just recited, which were testified to by Brown or the real estate broker, but in view of the trial court's decision for defendants we must accept them as facts. We think they are sufficient to relieve defendants from the rule imputing to a purchaser notice of the rights of the possessor. Here defendants found the possessor, who, in effect, told them her possession was in behalf of the seller with whom they were dealing, said nothing of her own rights, and treated them as persons who would become owners of the property by the transaction. The case is very much like Porter v. Johnson, supra, 1916, 172 Cal. 456, 156 P. 1022, 1023, where plaintiff, the buyer, talked to the occupant, who to his knowledge had an uncompleted contract of purchase, and she told him that she consented to a sale of the property to him by her vendor, saying nothing of any other rights she claimed in the property. Later she claimed that the contract was a mortgage in disguise, but it was held that her possession did not charge plaintiff with notice of her rights in this respect, the court saying: “The defendant relies on decisions to the effect that possession by her was notice of her claim sufficient to put the plaintiff upon inquiry at the time of his purchase. This proposition is not disputed. The answer is that, under the circumstances as appearing to the plaintiff, and under the statements made by the defendant herself, there was no occasion for inquiry. The possession of the defendant was fully explained, and it was in no manner inconsistent with the proposition that the investment company owned the legal title and was selling it with the consent and for the benefit of the defendant. The principle contended for is well established, but it has no application to the present case.”

Defendants contend that for several reasons plaintiff is estopped from asserting her title, that is, the title of the estate, against them. “An executor or administrator, in his capacity as such, is as much bound by the laws of estoppel as if he were acting in his individual capacity.” 23 C.J. 1178; see, also, Larco v. Casaneuava, 1866, 30 Cal. 560, 569. The plaintiff in her return of sale and in her deed of the property to Gaston stated the fact which she now seeks to deny, that is, that there had been a sale of the property to Gaston. Defendants and Taylor entered into a contract of sale which required Taylor to furnish a “guarantee” showing his title to be free and clear, and they also placed the matter in escrow with a title company under instructions calling for such a title to be insured by a policy running to defendants, and the transaction was closed through this escrow; from all of which the court might properly infer that the title company investigated the title, examined the documents just mentioned, and by means of the policy issued communicated the results of such examination to defendants, and that the defendants in legal effect relied on the facts stated in the return and deed.

The legal rule applicable to this situation is thus stated in section 1962 of the Code of Civil Procedure: “The following presumptions, and no others, are deemed conclusive: * * * 2. The truth of the facts recited, from the recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title; but this rule does not apply to the recital of a consideration; * * *.” This provision is applicable to plaintiff's deed, for defendants are the successors in interest of her grantee by a subsequent title. Recitals by deeds, it has been held, do not constitute estoppels when they are immaterial and not contractual or essential to the purposes of the instrument. 31 C.J.S. Estoppel, § 37, p. 215; 21 C.J. 1091; Osborne v. Endicott, 1856, 6 Cal. 149, 153, 65 Am.Dec. 498; Ingersoll v. Truebody, 1871, 40 Cal. 603, 610. But a recital of the giving of a notice which is necessary to the validity of the deed is material and is binding on the grantor as an estoppel. Simson v. Eckstein, 1863, 22 Cal. 580, 592. A recital in a deed made by an executor as such that he has letters testamentary is conclusive against him as to this fact. Larco v. Casaneuava, supra, 1866, 30 Cal. 560, 569. Recitals in the deed of a city that certain proceedings necessary to authorize the deed have been taken are binding on the city. Gordon v. City of San Diego, 1894, 101 Cal. 522, 527, 36 P. 18, 40 Am.St.Rep. 73. So here, the making of a sale to Gaston was one of the facts necessary to support plaintiff's deed to him and its recital in the deed is binding on plaintiff.

In opposition to the claim of estoppel plaintiff argues that an estoppel to dispute a fact does not arise unless the party against whom it is urged is “apprised of the true state of his own title” when he does the acts claimed to constitute an estoppel, citing Biddle Boggs v. Merced Mining Co., 1859, 14 Cal. 279, 367, 368, in support of the argument. This case has been cited and followed in many later cases and the rule declared by it must be regarded as settled in this state. But it relates only to an estoppel by conduct, otherwise known as an estoppel in pais. This is a different matter from an estoppel by deed. The latter is provided for by the part of section 1962 of the Code of Civil Procedure above quoted, and that does not state any such qualification to the estoppel, which is therein stated in the form of a conclusive presumption. No authority is cited to show any such limitation on an estoppel by deed, and the rules regarding such estoppels, as set forth in 31 C.J.S., Estoppel, §§ 36–39, pp. 213–219, do not state any such limitation. We think there is none. One who recites a material fact in his deed must at his own peril make sure of the truth of the recital and cannot later be heard to deny the existence of such fact merely because he was ignorant of the truth or deceived in regard to it, as against one entitled to rely on the estoppel.

Other estoppels claimed by defendants do arise from conduct. The conduct of plaintiff in her communications to and dealings with defendants in connection with the sale of the property to them by Taylor, which we have already recited, are sufficient to raise this sort of estoppel. Porter v. Johnson, supra, 1916, 172 Cal. 456, 156 P. 1022. The act of plaintiff in making a return of a sale to Gaston and stating therein that a sale to him had been made is sufficient to create an estoppel to dispute the fact of a sale, in favor of defendants, who, as the trial court could properly infer, relied upon that return and statement. Conceding that plaintiff's knowledge of the real facts is necessary to these estoppels, we find evidence of such knowledge. Defendants' Exhibit A, which is in evidence, is an affidavit purporting to be signed and sworn to by plaintiff July 7, 1937. She admitted that the signature to it was hers, but testified that when she signed the affidavit it contained only a part of the matter now appearing in it. Her testimony is uncertain on the question whether the part of the affidavit we are about to quote was in it when she signed it. Plaintiff further testified that she signed the affidavit at Taylor's office, then went to the notary with it and the notary did not notarize it, and plaintiff brought it back to Taylor and left it with him. The notary before whom the affidavit purports to have been made testified that plaintiff “executed” it in her presence and the witness “notarized” it, but had no recollection of the details of the incident. It was a question of fact for the trial court to determine whether the affidavit as signed was the same as that presented in court, and we must presume a decision that it was, which is binding on us. The affidavit contains this statement: “On March 1–35 the court ordered me to sell at once all the property then belonging to said estate, and I therefore carried through a probate sale of said property––(Lots one and eight of the Blondcau Tract with the buildings thereon and the furniture therein) to William Gaston. The fixed price was $10,000 gross, or $5,670 net, subject to liens and incumbrances amounting to more than $4,330. But Gaston couldn't raise the $5,670 and we couldn't get another offer from anyone. In order to avoid the expense of a second probate sale, enable us to hold the property for a better market, and enable me, in the meantime, to receive the rents thereof, I arranged with T. O. Taylor to take the title in his own name, through Gaston, hold it as long as he could, sell it for the best price obtainable, apply the net proceeds on my indebtedness to him, and meanwhile take care of all my litigation. The date of said transaction was July 1–35, and T. O. Taylor has fully kept and performed his agreement.” The property described is that involved in this action. This is sufficient to show plaintiff's knowledge, at all times material here, that there was in fact no sale to Gaston.

Plaintiff contends that this affidavit was signed by her at the request of Taylor, who was then her legal adviser, and that it is therefore presumed to have been obtained by undue influence, which presumption is not rebutted, and for that reason it cannot be used in evidence against her as an admission. The evidence of the fact on which this argument depends is doubtful. Plaintiff's testimony does not show that Taylor requested the signature, but only that it was made in his presence. In view of plaintiff's interest in the case and the various contradictions of her testimony in the record, in regard to this affidavit and other matters, the trial court may have rejected her testimony on this point. But if it be accepted as true and showing the affidavit was made at Taylor's request, no authority is cited in support of plaintiff's contention. While it is the rule that all transactions between attorney and client by which the attorney obtains an advantage over his client are presumptively invalid (3 Cal.Jur. 624; Civil Code, § 2235), we know of no rule that a written statement of fact signed by the client at the attorney's request, even though it may conceivably be useful to the attorney at some time as evidence in a controversy with the client, is to be regarded as an “advantage” to which this rule applies. All the cases cited by plaintiff to the rule above stated and all others which have come to our attention relate to contracts or other business dealings, or to matters affecting property, such as wills, deeds, gifts and other transfers. In 31 C.J.S., Evidence, § 298, p. 1067 and 22 C.J. 329, in the articles on Evidence, we find the rule that “The time and place of the making of an extrajudicial admission and the circumstances surrounding the admission bear only on its weight and not on its competency as evidence”; but neither in these articles, nor in the discussion of the subject of extrajudicial admissions in 4 Wigmore on Evidence, 3d (1940) Ed., §§ 1048 to 1087, do we find a hint of any such rule as that for which plaintiff now contends. The applicable rule is that just quoted from Corpus Juris and C.J.S. The affidavit was properly admitted in evidence and the matters now raised against it go only to its weight, on which the trial court's decision is binding on us.

Plaintiff's other contentions have been considered and found not determinative of the appeal, and it is not deemed necessary to lengthen this opinion by further discussion.

The judgment is affirmed.

SHAW, Justice pro tem.

SHINN, Acting P. J., and PARKER WOOD, J., concur.