pressly declares only a trust for the joint and several interests of the' trustor and trustee, and does not allude in terms to any creditors of the trustor, cannot be construed as a trust for the benefit of his creditors in such a sense as to make them beneficiaries of the trust, or to confer upon them any vested interest in the trust estate, or to charge it with the payment of their claim, either in full or pro rata, although the payment of the debts of the trustor may be incidental to the execution of the trust, in order to prevent his creditors from assailing it; and under such a conveyance the trustee may deal with any of the creditors of the trustor at arm's length, and is not charged with any duty as to

them. ID.-EXPRESS TRUST IN WRITING-DECLARATIONS OF TRUSTEE-INCREASE OF BENEFICIARIES-ACCOUNTING OF TRUST ESTATE. -The declarations of the trustee cannot add to the terins of an express trust created by an instrument in writing, or vest an interest in the trust estate in other beneficiaries of his own selection, who were not selected by the trustor as beneficiaries, nor can the creditors of the trustor, for whom he declared no trust, demand an accounting from the trustee or his representatives, upon the ground that the trustee declared himself to be their trustee.

ID.-USE OF MONEY TO PAY OFF LIENS-CHARGE UPON TRUST ESTATEABSENCE OF AGREEMENT MONEY NOT EAR-MARKED.-The use of money obtained by a trustee from another person to clear off liens upon the trust estate cannot make such person a beneficiary of the trust, nor create a lien in favor of such third person upon the trust estate, in the absence of any agreement that it should constitute a lien thereupon, nor can such money be collected from the trust estate where it is not ear-marked or followed into any property in his hands, or in the hands of his successors in interest in the trust estate; but the claim for such money is a mere personal demand against the trustee, to be enforced against him or his personal representatives.

PLEADING SPECIFICATION OF AMENDMENT AFTER DEMURRER SUSTAINEDDISCRETION.In the absence of a specification of what amendment could be made, or which was desired to be made, to the complaint, after a demurrer is sustained thereto, it is not an abuse of discretion for the court not to grant leave to amend.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. San Francisco. WALTER H.

LEVY, Judge.

The facts are stated in the opinion of the court.

Joseph M. Nougues, and Charles E. Nougues, for Appellants.

Ralston's deed to Sharon was, and operated as, an assignment for the benefit of creditors; and was contemplated to protect and provide for all subsisting liabilities

of the assignor (Ralston) whether absolute or contingent. This was lawful for him to do, for his trustee to accept, and for his creditors to accept. (Civ. Code, sec. 3452.) Sharon's written declaration that it was a trust. to pay Ralston's debts bound him and those in privity. Sharon, having accepted the trust, entered into the possession of the trust estate, and he became, and was a trustee of an express trust, whether any of the provisions of sections 3461, 3462, 3463, et seq., of the Civil Code were complied with or not; and the trust continues until repudiated to the knowledge of the cestui que trust. (Baker v. Joseph, 16 Cal. 173; Ord v. De La Guerra, 18 Cal. 67; Schroeder v. Jahns, 27 Cal. 274; Wright v. Ross, 36 Cal. 414; Miles v. Thorne, 38 Cal. 335; 99 Am. Dec. 384; Hearst v. Pujol, 44 Cal. 230; Janes v. Throckmorton, 57 Cal. 368; Zuck v. Culp, 59 Cal. 142; Mitchell v. Beckman, 64 Cal. 330; McClure v. Colyear, 80 Cal. 378.) The Burlings were creditors of Ralston. (Civ. Code, sec. 2847, 3429, 3430; Mechem on Agency, sec. 652; Story on Agency, sec. 336; D'Arcy v. Lyle, 5 Binn, 441; Maitland v. Martin, 86 Pa. St. 120; Bibb v. Allen, 149 U. S. 481-99; 1 American Leading Cases, 856; Bayley v. Wilkins, 7 Com. B. 886; Smith v. Lindo, 5 Com. B., N. S., 587; Elwood v. Diefendorf, 5 Barb. 398; Van Wyck v. Seward, 18 Wend. 375; Estate of Hill, 67 Cal. 238–43; Dunsmoor v. Furstenfeldt, 88 Cal. 529.) The liability of Ralston to the Burlings was subsisting at the time he made the deed in trust to Sharon. The amount of money the Burlings had to pay depended, under the circumstances of the case, upon the ascertainable value of the collaterals. It made no difference in regard to whom they paid, and whatever amount they paid formed a provable and enforceable debt against the trust estate in Sharon's possession. (Roberts on Fraudulent Conveyances, 459; Bump on Fraudulent Conveyances, 484; Howe v. Ward, 4 Greenl. 195; Thompson v. Thompson, 19 Me. 244; Carlisle v. Rich, 8 N. H. 44; Ex parte Simpson, 3 Deac. & C. 792; Ex parte Myers, 2 Deac. & C. 251; French v. Morse, 2 Gray, 111; Jemison v. Blowers, 5

Barb. 686; Woodard v. Herbert, 24 Me. 358.) The payment to Sharon, the trustee, by the Burlings merely ascertained the amount of the previously existing liability on Ralston's part. (Bide v. Harrison, L. R. 17 Eq. 76, 77; Booth v. Hutchinson, L. R. 15 Eq. 30, 33; Civ. Code, secs. 3429, 3430; Frazer v. Tinus, 1 Binn. 25462; New Jersey Ins. Co. v. Meeker, 37 N. J. L. 282.) The right to an accounting of the trust estate of Ralston is. inherent in the Burlings as beneficiaries, and does not rest in or arise from fraud. (Green v. Brooks, 81 Cal. 328; Dickenson v. Lord Holland, 2 Beav. 310.) Nor does it depend upon the money paid by the Burlings having been "ear-marked," but upon the principle that Sharon, in breach of the trust, transferred all the property of the Ralston estate, without consideration, to defendants, and one of them having actual notice of the fraudulent manner in which Sharon dealt with that estate, the Burlings, the cestuis que trust, have the right to follow all the trust property in their hands, and obtain an accounting thereof. (Oliver v. Piatt, 3 How. 333-412; Prevost v. Gratz, 6 Wheat. 482; Story's Equity Jurisprudence, secs. 533, 1258, 1291; Taylor v. Plummer, 3 Maule & S. 574; Liddell v. Norton, 21 Beav. 183; Lathrop v. Bampton, 31 Cal. 17; 89 Am. Dec. 141; Scrivner v. Dietz, 84 Cal. 295; Price v. Reeves, 38 Cal. 457.) The negotiations of Sharon with the Burlings was in regard to the subject matter of the trust, and in connection with the trust, and he could not obtain any advantage therein over the latter by the slightest misrepresentation or concealment. (Civ. Code, secs. 2228-31, 2234, 2235; Wickersham v. Crittenden, 93 Cal. 17.) There was no release from the Burlings. The assignment of claims or notes was not an assignment of their right as creditors, but if so, the release was void. Sharon never individually parted with a cent. (Trigg v. Read, 5 Humph. 529; 42 Am. Dec. 447; Carr v. Callaghan, 3 Litt. 365; Gibbons v. Caunot, 4 Ves. 840; Walker v. Symonds, 3 Swans. 1; Gordon v. Gordon, 3 Swans. 471; Hotchkis v. Dickson, 2 Bligh, 348; Stewart v. Stewart, 6 Clark & F.

911; Harvey v. Cooke, 4 Russ. 34; Pickering v. Pickering, 2 Beav. 36; Civ. Code, sec. 1542; Wells v. Robinson, 13 Cal. 133; Taylor v. Plummer, supra.) The court erred in refusing leave to amend the complaint.

William F. Herrin, J. M. Allen, and H. L. Gear, for Respondents.

No cause of action is stated, as there is no allegation of any agreement between the Burlings and Ralston in regard to commissions, and no allegation as to what their services were reasonably worth, or that they were unpaid for their services, or that any specified amount was due therefor. The averment of what sum is "due and owing" is a mere conclusion of law, which is not admitted by demurrer, where no facts are alleged from which the conclusion follows. (Frisch v. Caler, 21 Cal. 71; Doyle v. Phoenix Ins. Co., 44 Cal. 264; Roberts v. Treadwell, 50 Cal. 520; Richards v. Travelers' Ins. Co., 80 Cal. 506; Curtiss v. Bachman, 84 Cal. 216.) The payment of the $200,000 from the Burlings to Sharon could not create an indebtedness against Ralston as an individual, nor operate to raise any charge or lien upon the trust estate in the hands of Sharon, in the absence of an express agreement for a specific lien thereupon, the payment not being included in the terms of the trust deed from Ralston to Sharon. A trustee cannot create a charge or lien upon the trust estate in favor of a third person without express authority given by the terms of the trust deed. (New v. Nicoll, 73 N. Y. 127; 29 Am. Rep. 111; L'Amoureux v. Van Rensselaer, 1 Barb. Ch. 34, 37, 38; Steele v. Steele, 64 Ala. 438; 38 Am. Rep. 15; Starr v. Moulton, 97 Ill. 525; Johnson v. Lemon, 131 Ill. 609; 19 Am. St. Rep. 63; Worrall v. Harford, 8 Ves. Jr. 4, 8; Hall v. Laver, 1 Hare, 577; Heriot's Hospital v. Ross, 12 Clark & F. 507; Francis v. Francis, 5 De Gex, M. & G. 108; Jones v. Dawson, 19 Ala. 676-677; Fearn v. Mayers, 53 Miss. 458.) The mere request of Ralston for the negotiation of the loans by the Burlings is not sufficient to show the relation of suretyship between them

!

and him in his individual capacity. (Civ. Code, sec. 2831; Code Civ. Proc., sec. 1963, subds. 1, 15, 19, 20; Bean v. Pioneer Min. Co., 66 Cal. 451; 56 Am. Rep. 106.) The assignment and the accompanying assumption by Sharon of all liabilities of the Burlings upon their outstanding notes and his payments thereof was an executed contract between them and Sharon, which could only be avoided by a direct proceeding for rescission against Sharon or his personal representative, and must be held valid in this proceeding. (Hammond v. Wallace, 85 Cal. 522; 20 Am. St. Rep. 239.) A contract cannot be rescinded when the parties to it cannot be placed in statu quo (State v. McCauley, 15 Cal. 458); nor rescinded in part and affirmed in part. (Bohall v. Diller, 41 Cal. 533; Raymond v. Bearnard, 12 Johns. 276; 7 Am. Dec. 317.) There is no cause of action for damages, as such, for the deceit of Sharon, as there is no averment of damages, as such, nor claim for damages, out of the individual estate of Sharon (Bohall v. Diller, supra; McKinlay v. Tuttle, 42 Cal. 570; Holton v. Noble, 83 Cal. 9; Palmer v. Reynolds, 3 Cal. 396; 5 Am. & Eng. Ency. of Law, 53, and cases cited); and the whole frame of the amended complaint which prays only for recovery out of the trust estate of Ralston in the hands of defendants excludes any idea of recovery of damages, as such, against the estate of Sharon. (People v. Mier, 24 Cal. 71; Morrison v. Bowman, 29 Cal. 354; Arrington v. Liscom, 34 Cal. 375; 94 Am. Dec. 722; Nevada etc. Co. v. Kidd, 37 Cal. 283; Mayo v. Tomkies, 6 Munf. 527; Stockton etc. Assn. v. Chalmers, 75 Cal. 332; 7 Am. St. Rep. 173.) No cause of action purely ex delicto for damages for Sharon's deceit could survive the death of Sharon, or pass by assignment from James W. Burling to his assignee in insolvency. (Oliver v. Walsh, 6 Cal. 456; Lawrence v. Martin, 22 Cal. 173; Tufts v. Matthews, 10 Fed. Rep. 609; In re Crockett, 2 Nat. Bank. Reg. 209: Lamphere v. Hall, 26 How. Pr. 509; Read v. Hatch, 19 Pick. 47; Newsom v. Jackson, 29 Ga. 61; Henshaw v. Miller, 17 How. 212; Cutting v. Tower, 14 Gray, 183; De Hoghton v.

CXII. CAL.-31