she left the plaintiff in said will the land above described, but the plaintiff has since the death of said Arcadia B. de Baker hereinafter mentioned made much inquiry and search for the said will but has been unable to find one in existence and has been informed during her extended inquiries and search for said will that the said will had been destroyed prior to the death of the said Arcadia B. de Baker. And the said Arcadia B. de Baker died, as plaintiff is informed and believes, without fulfilling and keeping her said promise under said agreement to this plaintiff. Plaintiff alleges that if the said promise hereinbefore referred to made by the said Arcadia B. de Baker to the said plaintiff on or about the said twenty-fourth day of November, 1894, had not been so made to the plaintiff by her said grand-aunt and made in the kindly and affectionate manner in which it was made, she, the said plaintiff, would not have accepted the said promise and offer upon the part of the said Arcadia B. de Baker and would not have remained and lived with the said Arcadia B. de Baker up until the marriage of the said plaintiff, but would have returned to her home and to her parents and brothers and sisters and friends in San Diego; but it was by reason of the said promise upon the part of the said Arcadia B. de Baker to this plaintiff, and made in the affectionate manner in which it was made, which caused plaintiff to accept the said promise and remain with the said Arcadia B. de Baker up to plaintiff's said marriage. That Colonel Baker," husband of Arcadia B. de Baker, "died on the twenty-sixth day of May, 1894. That at the time the said contract hereinbefore referred to was entered into between the plaintiff and the said Arcadia B. de Baker, the said Arcadia B. de Baker was suffering keenly from the recent death of her said husband and that on or about the date of making said contract the said Arcadia B. de Baker informed the said plaintiff that it was her wish and desire to have plaintiff with her and near her to love, particularly at that time, as she, the said Arcadia B. de Baker, found her life very lonesome and void after the death of her said husband, and that she had no relative living with her upon whom she could bestow her affections, and that plaintiff's society and affection would in a measure atone for the loss

she had suffered in her late bereavement. That during the time that said plaintiff resided with said Arcadia B. de Baker in the fulfillment of the said contract and agreement, the said Arcadia B. de Baker often told plaintiff that because of her great love for plaintiff that she had never been more happy than during the time that plaintiff was residing with her." Upon information and belief the plaintiff alleged further that the land was, at the time. of the making of the alleged promise, of the value of twenty-five thousand dollars. It was further alleged that after the marriage of the plaintiff she and her husband took apartments in the Baker Block, being the same building occupied by Arcadia B. de Baker, and remained there for a period of about nine years, "during all of which time the affectionate relation between plaintiff and the said Arcadia B. de Baker continued."

Respondents urge a number of contentions against the validity of the alleged contract and as showing that the same was not of such a nature as would be enforced by a court of equity. Among other grounds, it is asserted that the contract is obnoxious to the statute of frauds, and that plaintiff is barred of the remedy sought by laches. The principal contentions, however, are comprehended in a statement made in the brief, that "the alleged contract is not founded on adequate consideration and is harsh and unjust. The alleged contract is vague and uncertain." [1] It is well settled that in order to entitle a party, claiming under a contract such as that here alleged, to the specific relief afforded in equity, it must appear that the contract is in all respects just, fair, and reasonable in its mutual compensations; that it must be certain in its terms, and a case must be presented that will show such changed conditions on the part of the plaintiff to have been worked by reason of the promise alleged as would result in a fraud being permitted to be perpetrated against the plaintiff should the relief be denied. [2] Preliminarily, it may be said that such a contract, resting in parol and sought to be enforced at a time when the voice of the opposite contracting party may not be heard in opposition thereof, will be strictly construed, closely scrutinized, and weighed with a careful balance. It must be such as, attended by all the attributes of frank

ness, fairness, and honesty, will appeal to the conscience of the chancellor. That such is the uniform rule has been often announced; its substance is declared in Owens v. McNally, 113 Cal. 444, [33 L. R. A. 369, 45 Pac. 710]. [3] Examining the alleged contract, as set forth in plaintiff's amended complaint, by this standard and measure, we reach the same conclusion as did the trial judge, and affirm that the plaintiff has not presented such a state of facts as should call into action the unusual power of a court of equity in determining that, as against the administrator and heirs of Arcadia B. de Baker, a trust has been impressed upon the land referred to in favor of the plaintiff. The contract appears to be uncertain and unfair in its terms. It will be noted that Mrs. Baker agreed to "leave to the plaintiff," at the time of the former's death, large acreage of land, then of great value, in return for what? That the plaintiff would "reside with her until the plaintiff's marriage." Generally, it may be gathered from the allegations quoted that the companionship of the plaintiff was sought by Mrs. Baker and that that companionship was mutually agreeable to both parties. But how long under the agreement made was the return consideration to be rendered by the plaintiff to continue? Plaintiff alleged that it was to continue until her (the plaintiff's) marriage. At the time of the making of the agreement the plaintiff was eighteen years of age and capable of entering into the matrimonial state at the next moment thereafter. In so far as the agreement bound her to continue to render any service to Mrs. Baker, the continuance of such service was in effect optional-that is, until plaintiff received and concluded to accept an offer of marriage. As a matter of fact, she did marry three years after the making of the alleged agreement, while Mrs. Baker continued to live for an additional term of about fifteen years, during which latter time, by reason of the condition of the contract, plaintiff was not bound to live with or see or visit her benefactor. We say that the contract was uncertain because the termination of the period of service of the plaintiff was altogether a matter of her own option. [4] The contract must be construed with reference to the obligations which its terms imposed, rather than any statement of fact (which the complaint gives illustration of) as

having represented the actual occurrences which followed. It is immaterial that plaintiff and her husband did reside in the same building with Mrs. Baker subsequent to the plaintiff's marriage; plaintiff was under no obligation so to do, and her act in so doing was not in any wise, when legally considered, in execution of her agreement. She terminated her obligation when she married. The case is very different from some to which our attention has been called, where the party seeking to enforce a contract of this general kind agreed to and did render service up to the date of the death of the other person. It cannot be said, we think, that where the plaintiff had the privilege of terminating her residence with Mrs. Baker at any time after the making of the agreement by selecting a husband, she contracted to render adequate consideration in return for the tract of land. Were we to sweep aside these objections which we deem insuperable to the enforcement of the contract, we would still have to consider as to whether the plaintiff, by reason of the making of the agreement, so changed her situation that to deny her relief would work a fraud upon her. She had reached the age of maturity and was a member of a large household, there being seven children besides herself; she was in the habit of visiting Mrs. Baker, who was a wealthy woman and from whom, we can infer from the allegations of the complaint, she received every care, attention, and consideration; in fact, it appears by express allegation that the attachment after the relations were commenced under the contract was mutual. There is nothing shown from which we can infer that plaintiff was denied the right to visit her family or to have the members thereof visit her. It is stated that she was a member of some social organizations composed of "the best" people in the city of San Diego, and that such associations were interrupted; but we are inclined to the view that the latter consideration alone would not be sufficient to justify the conclusion that the change made was to her great injury. If we were permitted to speculate at all, we might fairly infer the contrary. See Baumann v. Kusian, 164 Cal. 582, [44 L. R. A. (N. S.) 756, 129 Pac. 986], which case, together with cases cited therein, is very much in point upon the propositions herein before discussed.

McCabe v. Healy, 138 Cal. 81, [70 Pac. 1008], is clearly distinguishable from this case upon its facts.

The questions discussed are determinative against the right of the plaintiff to recover in this action, and it seems to us unnecessary to enter upon a discussion of any other phases of the argument as presented in the briefs. The judgment appealed from is affirmed.

Conrey, P. J., and Shaw, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on August 12, 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 September 11, 1919.

All the Justices concurred.

[Crim. No. 860. First Appellate District, Division One.-July 15, 1919.]

In the Matter of the Application of NATHAN RANKIN for a Writ of Habeas Corpus.

[1] CRIMINAL LAW-INFAMOUS CRIME AGAINST NATURE-SUFFICIENCY OF INFORMATION.-An information charging the commission of "the infamous crime against nature" in the words of the statute, or their equivalent is sufficient.

PETITION for a Writ of Habeas Corpus. Writ denied.

The facts are stated in the opinion of the court.

Nathan Rankin, in pro. per., for petitioner.

WASTE, P. J.-From the petition filed in the aboveentitled matter, it appears that the petitioner is confined in the state prison of the state of California at San Quentin, after conviction, upon a charge of attempt to commit the infamous crime against nature, under section 286 of the Penal Code. While the document is denominated, "A Petition for a Writ of Habeas Corpus and Certiorari," it