ment of an express trust in the lands in question, whereas the findings are predicated upon the fact that the parties engaged in a joint adventure for the purchase of said lands out of which a trust arose by operation of law. We are unable to discover the inconsistency of which the appellant complains. The findings of the court follow in almost their precise language the averments of the plaintiff's amended complaint. They then go further and set forth in haec verba the two declarations of trust signed by Silva in connection with the loan from Adolphe Jean. [2] That an oral understanding between two parties of the kind in question here may give rise to an enforceable trust in favor of one of them is abundantly supported by a long line of authorities in this state, of which the following are a few: Brison v. Brison, 75 Cal. 525, [7 Am. St. Rep. 189, 17 Pac. 689]; Bradley Co. v. Bradley, 165 Cal. 237, [131 Pac. 750]; Younger v. Moore, 155 Cal. 768, [103 Pac. 221]; Arnold v. Loomis, 170 Cal. 95, [148 Pac. 518]; Lamb v. Lamb, 171 Cal. 577, [153 Pac. 913]; Willats v. Bosworth, 33 Cal. App: 710, [166 Pac. 357]; and in the case last cited this court held that such a trust could at the same time be an express and a resulting trust, and that the fact that the trustee of such trust had made a written declaration of trust did not change the character of the trust itself, but merely furnished additional proof of its existence. [3] The criticisms which the appellant herein aims at the two written declarations of trust executed by him in connection with the making and renewal of the plaintiff's note to Adolphe Jean thus lose much of their force; but apart from this they are not justified by the terms of these writings taken as a whole, for while it is true that they were made with express reference to the transaction with Adolphe Jean, they both expressly declare the existence of a trust entitling the plaintiff to an equitable interest in the property in question, and in its proceeds in the event of a sale of such interest in order to pay said note, while the fact that the appellant and not the maker of the Jean note did eventually pay the same in no wise changes the situation, since according to the original understanding of the parties the entire purchase price of the property was to be paid out of itself, and this, according to the finding of the court, was what was actually and eventually done.

[4] The appellant's next contention is that the plaintiff's claim for accounting is barred by laches for the reason that between the years 1909 and 1913 he made no assertion of a claim of interest in the property nor made any demand for an accounting. The evidence abundantly shows, however, that during all these years the relation between the parties. was intimate and cordial, consisting of interchanges of courtesies and services, and that down to a short time before the sale of the property its character and value had remained about the same as when it was purchased by them, and hence that there was no reason for a balancing of accounts between them. It was not, in point of fact, until the rather unexpected rise in the values of this and similarly situated property made its advantageous sale a possibility, and until it was actually sold to such advantage, that the occasion for an accounting and settlement between the parties arose; and it was only a short while after this that a demand for an accounting was made and refused and that the present action was instituted. We think the contention that the plaintiff was guilty of laches under these circumstances cannot be sustained.

The other contentions of the appellant herein we find upon a careful examination of the quite elaborate briefs of counsel to be neither covered by the point that they are not reviewable because based upon conflicting evidence, or by the other points already discussed, or else that they are not of themselves of sufficient importance to warrant consideration or to justify a reversal of the case.

The judgment is affirmed.

Waste, P. J., and Kerrigan, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on September 20, 1919, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 20, 1919.

All the Justices, except Wilbur, J., concurred.

[Civ. No. 2985. First Appellate District, Division One.-August 23,

1919.]

ESSIE TURNER et al., Respondents, v. JOHN TALMADGE et al., Appellants.

[1] HUSBAND AND WIFE-NECESSARIES FURNISHED TO HUSBAND-LIABILITY OF WIFE STATUS OF PROPERTY TRANSFERRED TO WIFE WITHOUT CONSIDERATION.-Section 171 of the Civil Code recognizes a debt for necessaries furnished to the husband as the debt of the husband and does not make the wife personally liable therefor, but merely provides that when the husband's property has been transferred to the wife without consideration, this property may be regarded as the property of the husband for the purpose of satisfying any debts of his incurred for necessities furnished to both the husband and wife while living together. [2] HOMESTEAD ISSUANCE OF PATENT-LIABILITY FOR PRIOR DEBTS.Although the effect of such section is to regard land transferred to the wife without consideration as though it had not been transferred, if such land was acquired by the husband under the homestead laws of the United States, it is, under section 2296 of the United States Revised Statutes, exempt from liability for debts of the husband contracted prior to the issuance of the patent.

[3] ID. RIGHTS OF PURCHASER FROM PATENTEE.-Such property is also protected in the hands of a purchaser from execution upon debts of the patentee which could not have been enforced against it while the title remained in the patentee.

APPEAL from a judgment of the Superior Court of San Bernardino County. H. T. Dewhirst, Judge. Affirmed. The facts are stated in the opinion of the court.

C. C. Mishler and C. J. MacMillan for Appellants.

Douglas L. Edmonds and J. Karl Lobdell for Respondents.

KERRIGAN, J.-This is an appeal from a judgment quieting title in plaintiffs to 160 acres of land located in San Bernardino County. The case was tried upon a stipulated statement of facts which shows that a patent of the United States of America to the said real property was duly issued to Essie Turner, one of the plaintiffs, on the ninth day of April, 1915, and said patent was thereafter recorded in the

office of the county recorder of San Bernardino County; that on the sixth day of July, 1915, John W. Talmadge and Frank L. Talmadge, defendants here, commenced an action in the superior court of the county of San Bernardino against Essie Turner and Mary Doe Turner, his wife, plaintiffs herein, praying judgment for the sum of $372.71; that on the sixth day of July, 1915, a writ of attachment was duly issued in said action and a notice of attachment was filed in the office of the county recorder of San Bernardino County; that said action under which said real property was attached was an action for the purchase price of groceries, meats, provisions, and merchandise purchased by Essie Turner prior to April 1, 1915; that after the attachment and with knowledge thereof, on the seventh day of July, 1915, the said Essie Turner executed and delivered to Ossie Turner, his wife, a deed to the said real property, which deed was recorded on July 13, 1915; that thereafter said Ossie Turner executed and delivered a deed of trust to said property to secure a note for $125 in favor of I. R. Overell, one of the plaintiff's herein; that default of the defendants, Essie and Ossie Turner, was duly and regularly entered in the said action brought by Talmadge, and on October 28, 1915, execution issued and the real property was sold on November 23, 1915, at execution. sale, to F. L. Talmadge.

The trial court held that the property is exempt from the levy and sale made by the sheriff, and that the purchaser acquired no title or interest therein, and gave judgment quieting title in Ossie Turner, subject to the deed of trust herein mentioned. The only question arising on appeal is whether or not section 2296 of the United States Revised Statutes, [U. S. Comp. Stats., sec. 4551; 8 Fed. Stats. Ann., p. 575], providing for the exemption of land taken under the homestead laws of the United States from execution for debts contracted prior to the issuance of the patent is applicable to the facts presented here. Said section provides as follows: "No land acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor."

[1] The debt out of which the execution and sale arose was a debt of the husband, Essie Turner. It was admittedly a debt for necessaries furnished to him and for which he,

and not his wife, was liable. Section 171 of the Civil Code, relied upon by appellants, recognizes such debt as the debt of the husband and does not make the wife personally liable therefor, but merely provides that when the husband's property has been transferred to the wife without consideration, this property may be regarded as the property of the husband for the purpose of satisfying any debts of his incurred for necessities furnished to both the husband and wife while living together. [2] The effect of this section is to regard such property as though it had not been transferred. In the present case, if the property is so regarded, it is not liable for the husband's debt contracted before patent issued to the land. (Barnard v. Boller, 105 Cal. 214, [38 Pac. 728]; Miller v. Little, 47 Cal. 348.) [3] Such land is also protected in the hands of a purchaser from execution upon debts of the patentee which could not have been enforced against it while the title remained in the patentee. (Miller v. Little, supra; note to Sprinkle v. West, Ann. Cas. 1912D, 284, and cases there cited.)

The judgment is affirmed.

Richards, J., and Waste, P. J., concurred.

[Civ. No. 3013. First Appellate District, Division One.-August 25, 1919.]

JOHN JIRKU, Appellant, v. J. M. BROD, Respondent. [1] MALICIOUS PROSECUTION ESSENTIAL ELEMENTS MALICE AND WANT OF PROBABLE CAUSE.-In an action for malicious prosecution the plaintiff must, in order to recover, establish, not only malice, but want of probable cause.

[2] ID. WANT OF PROBABLE CAUSE-WHEN QUESTION FOR COURTWANT OF PROOF SUBMISSION TO JURY ERROR.—Where, in such an action, there is no conflict in the testimony, the question whether or not the evidence introduced shows a want of probable cause is for the court to decide. It is error in such cases, where there is no proof of want of probable cause, to submit any question to the jury.

2. Probable cause as question for court or jury, notes, 26 Am. St. Rep. 141; L. R. A. 1915D, 1, 85.