that plaintiff believed that the mortgage, as executed by them to him, did include all the land they, and each of them,had agreed to mortgage as aforesaid, and that plaintiff was deceived in so believing, and took and accepted said mortgage with the mistaken belief that the same did embrace all the land said defendants had agreed to mortgage to him."

If the appellants were both men, and there were no question of homestead rights involved, there would be no plausible objection to the judgment. But the land constituted the homestead. of the appellants; and their counsel contend that, as a homestead can be conveyed or encumbered only by an instrument signed and acknowledged by both husband and wife, the acknowledgment of the latter to be in the form provided for the acknowledgment of married women, therefore there could be no reformation of the mortgage by the court, because such reformation would not have the sanction of the wife's acknowledgment.

But the provisions of the statute invoked merely prescribe the things which are requisite to the due execution of a written instrument by a married woman. It may be readily conceded that she is not bound by any instrument not executed by her in the manner prescribed by the statute. When, however, she has duly executed a contract, there is no reason why she does not bear the same relation to it, and to, rights and remedies under it, as any other contractor: See Hamar v. Medsker, 60 Ind. 413; Savings etc. Soc. v. Meeks, 66 Cal. 371. And in the case at bar the contract -the mortgage-was duly executed by the appellants, the wife having signed and acknowledged it with all the formalities prescribed by the 350 code. If, therefore, the mortgage could have been rightfully reformed as decreed by the court, in case neither of the mortgagors had been a married woman, the decree was right as against the appellants. The fact that the land was a homestead cuts no figure; parties can contract as to their homestead as fully as to any other land, provided their contract be executed in the manner prescribed by statute. These views are sustained by the decision and opinion in Savings etc. Soc. v. Meeks, 66 Cal. 371. There the lower court had reformed a mortgage upon land which was the separate property of the wife, so as to make it describe the land intended to be mortgaged; and we see no difference in principle between that case and the one at bar. It was there contended that "the court erred in reforming the mortgage, because the mortgage as reformed was not the act and deed of the wife, as it was not acknowledged by her as required by law." But the court said "It is merely carrying into effect the

intention of the parties. No new right was conferred. The instrument was reformed so as to express truly the intention of the parties: Hayford v. Kocher, 65 Cal. 389. If such mistakes could not be corrected, gross wrong and injustice would result. By the reformation of the instrument, and the correction of the mistakes, the object and policy of the law as to the conveyance of the separate property of a married woman are not controverted or thwarted." In Hayford v. Kocher, 65 Cal. 389, Flavel Hayford had made a conveyance to Kocher in which certain premises were "intended to be, but by mutual mistake were not, included." Kocher afterward, in an action against Flavel, had the conveyance reformed so as to include said premises. But before the reformation Flavel's wife, Lydia Hayford, selected said premises as a statutory homestead. The two Hayfords then brought an action in ejectment to recover said premises, upon the theory that there could be no judicial reformation of a conveyance affecting a homestead; they were defeated in the lower court, and the judgment was affirmed here. But if the homestead 351 had existed at the time of the conveyance, and the wife had duly executed the conveyance in the manner as prescribed by the statute, must not the judgments in the suit for reformation and in the action of ejectment have been, upon principle, the same?

Counsel for appellants cite Barrett, v. Tewksbury, 9 Cal. 14; Leonis v. Lazzarovich, 55 Cal. 52. The former case is not at all in point; for there it was merely held that the consent of a married woman to execute an instrument must be perfectly free; and that "it is not in the province of a court of equity to compel a married woman to correct an insufficient acknowledgment." Leonis v. Lazzarovich, 55 Cal. 52, lends some support to appellants' contention; but that case, in the character of the action and the substance of the judgment, is different from the case at bar; and the form of the judgment was evidently the thing most prominent in the mind of the court when the opinion was delivered; that action was evidently not for the reformation of a conveyance which had been already properly executed by a married woman, but for a decree compelling her to execute another conveyance. The court, in its opinion, says: "Was it within the equitable powers and jurisdiction of the court below to decree, as it did, that the defendant should, within a certain time fixed by the decree, execute to the plaintiff her deed conveying lands not described in any deed or other written instrument, and, in case she made default, that such deed should be executed by the clerk of the court? That is what the court did by its decree; and it is

the correctness of such proceeding that we are now called upon to review." It is true that in the opinion there are some statements about the reformation of a married woman's deed which are inconsistent with Savings etc. Soc. v. Meeks, 66 Cal. 371, but they are mainly dicta, and if any of them can be considered as forming a part of the decision they must be held as overruled by the case last above mentioned: See, also, Banbury v. Arnold, 91 Cal. 610. When a conveyance, mortgage, or other contract of a married woman has been duly 352 executed by her as provided by statute, it is subject to reformation in like manner as the contract of any other person. In such a case, she has no special license to insist upon a wrong caused by fraud or mistake.

Most of the adjudged cases upon the subject deal with mutual mistakes; but the code provides expressly for the kind of mistake involved in this action. By section 3399 of the Civil Code it is enacted as follows: "When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written instrument does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it may be done without prejudice to rights acquired by third parties in good faith."

There is no difference between a description which does not include all the property intended to be included, and a description which is defective in any other respect. In either instance an action for a reformation lies. Hayford v. Kocher, 65 Cal. 389, is an instance of the one kind: Savings etc. Soc. v. Meeks, 66 Cal. 371, is an instance of the other.

We see nothing in the point that there is no averment in the complaint that the mortgage as mistakenly made is not sufficient security. Respondent was entitled to all the security for which he contracted.

The judgment is affirmed.

Garoutte, J., Van Fleet, J., Harrison, J., and Henshaw, J., concurred.

JUSTICE TEMPLE dissented. He referred to the fact that the statute in force at the time of the execution of the mortgage required it to be executed in a special mode, included in which was the acknowledgment thereof by the wife after it had been explained to her; that any acknowledgment which she made in the present case must have been made after it had been explained to her that such mortgage did not convey the entire homestead; and he claimed that in the present case, on a finding that her husband practiced a fraud upon the plaintiff, "the court is asked to hold that she did

execute such mortgage, and acknowledged that she did so freely and voluntarily, and that after being made acquainted with its contents, she did not wish to retract the execution of the same. To my mind, the mere statement has the force of a demonstration, but the identical question was settled by this court in Leonis v. Lazzarovich, 55 Cal. 52. This decision has been frequently affirmed by this court. The finding that the defendants promised and agreed to mortgage to plaintiff the entire homestead is not supported by the evidence. No such agreement could be made except by an instrument signed and acknowledged by both husband and wife. The action is really to enforce specific performance of a parol contract to give a mortgage upon the homestead. To so decree is, in my opinion, to violate the law."

MARRIED WOMEN-REFORMATION OF INSTRUMENTS EXECUTED BY.-A homestead mortgage executed by a husband and wife in conformity with the Alabama statute may be reformed in equity for a mistake in describing one of the subdivisions of land, if the quantity of land conveyed is not thereby increased: Witherington v. Mason, 86 Ala. 345; 11 Am. St. Rep. 41, and note. Married women may, in Illinois, be compelled to correct a mistake which has occurred in the execution of a conveyance, and such conveyance, if duly executed, may be reformed in equity by correcting a mistake in the description of property therein, so as to make the conveyance express what the parties intended it should: Snell v. Snell, 123 Ill. 403; 5 Am. St. Rep. 526, and note. A mortgage will not be reformed so as to include the homestead of the mortgagors, though such homestead was intended to be embraced in it, if the statute of the state declares that no mortgage of a homestead by a married man shall be of any effect without the signature of the wife to the same, though before suit the husband had died and the widow by her answer assented to such reformation: O'Malley v. Ruddy, 79 Wis. 147; 24 Am. St. Rep. 702, and note. Equity has no power to reform a conveyance executed by a married woman: Moulton v. Hurd, 20 Ill. 137; 71 Am. Dec. 257, and note. See, also, the note to Bowden v. Bland, 22 Am. St. Rep. 182.

EPPINGER V. SCOTT.

[112 CALIFORNIA. 369.]

EVIDENCE.-A TELEGRAM IS PRESUMED TO HAVE BEEN DELIVERED in the regular course of business to the person to whom it was directed. The fact that the telegram was sent is therefore admissible in evidence, and tends to prove that it was received.

EVIDENCE TO PROVE DELIVERY OF TELEGRAM.-From the testimony of a witness that he wrote and sent a telegram it will be presumed that he sent it in the ordinary manner, to wit, by delivering it to a telegraph company for transmission.

EVIDENCE-FRAUDULENT TRANSFER-RES GESTAE.— Statements made by a vendor before the sale had become complete by delivery and while delivery was in process are admissible for the purpose of throwing light upon the character of the sale by enabling the jury to determine whether it was bona fide or with intent to defraud creditors.

Terry & Williams and H. G. W. Dinkelspiel, for the appellants. George E. Church, for the respondent.

369 HARRISON, J. Action of claim and delivery to recover the possession of certain trays and sweat boxes.

370 The plaintiffs claim the property by virtue of a bill of sale made to them by Napoleon Vieu; and the defendant, who is the sheriff of Fresno county, claims the same by virtue of a levy under a writ of execution upon a judgment issued against said Vieu in behalf of one Fon Kee. The controverted issues at the trial were whether there had been a sufficient change of possession to satisfy the statute of frauds, and whether the sale to the plaintiffs had been made with the express purpose, on the part of Vieu, to hinder and defraud his creditors, and particularly the plaintiff, in the execution. The case was tried by a jury, who rendered a verdict in favor of the defendant. From the judgment thereon and an order denying a new trial the plaintiffs have appealed.

Upon the foregoing issues, the evidence in behalf of the respective parties was decidedly conflicting, and the verdict of the jury thereon cannot be disturbed.

For the purpose of sustaining the defendant's claim that the sale by Vieu to the plaintiffs was with the intent to defraud his creditors, evidence was introduced tending to show that the sale was made in consequence of an effort by Fon Kee to collect the amount of his claim; and a telegram, dated April 5, 1893, and directed to Vieu at Dixon, which Mr. Spencer, a witness on behalf of the defendant, testified that he wrote and sent for Fon Kee, was offered in evidence. This telegram is as follows:

"April 5, 1893. "N. Vieu, Dixon, Cal.: Your note is past due. You no pay me I commence suit. FON KEE."

The plaintiffs objected to the introduction of this telegram, on the ground that it was irrelevant, immaterial, and incompetent, and could in no way bind them. Their objection was overruled and the telegram admitted in evidence, and this ruling is now assigned as error. It has already been shown that Vieu made the bill of sale to the plaintiffs on the sixth day of April; that Ettlinger, one of the plaintiffs, who resided at San Francisco, met Vieu at the ranch in Fresno on that day by previous 871 appointment, and received the bill of sale, and commenced moving the property in the afternoon; that it was moved by persons who up to that time had been in the employ of Vieu; that they worked in moving the property during the whole of that