JAMES FULLER, MARY F. GOUGH, and her Husband RICHARD J. GOUGH v. GEO. N. FERGUSON et als., 26 Cal. 546

By the Court, Currey, J. Ejectment for the recovery of the western half of one hundred vara lot, No. 24, in the City of San Francisco, excepting a small portion of the same. The lot is described on three sides of it by Sacramento, Kearny and California streets. It was granted to John Fuller by the municipal authorities of the Town of Yerba Buena on the 14th of November, 1837. At that time Fuller was a married man, having a family.

On the 4th of February, 1838, he and his wife appeared before the Alcalde of the jurisdiction of San Francisco for the purpose, as they declared, of dividing this one hundred vara lot between them. An instrument in writing was drawn up by the Alcalde, which was signed by the husband and wife in his presence, who, with two assisting witnesses, also signed it.

This instrument sets forth that Fuller and his wife were married in the Roman Catholic religion, had a family, and that they appeared before him, the Alcalde, .-and agreed in his presence and in the presence of the assisting witnesses to have the lot “ divided in halves, they having paid the fees arising therefrom with their workand then follows the declaration of the Alcalde that “ there remains to each of them one hundred varas long from north to south and fifty varas wide from east .to west—they mutually agreeing upon their respective portions.

And for their safety they sign with me, placing the sign of the cross, not knowing how to sign.” John Fuller died on the 10th of June, 1849, leaving him surviving his wife, Concepcion A. Fuller, and four children, the eldest of whom was then about fifteen and the youngest about eight years of age. One of the plaintiffs in this pase is one of these children, and the other the legal representative of another of them, who claim the right to recover the property as heirs at law of John Fuller, deceased. The defendants claim the same property by titles derived from the widow, Concepcion A.

Fuller, and rely upon the written document which was executed in the presence of the Alcalde, and also upon matters which transpired subsequently to that time, in justification of their alleged title and right to the possession of the property. The cause was tried before a jury who, under the direction of the Court, rendered a special verdict, upon which the Court gave judgment for the defendants. By the special verdict the jury found that the money which was paid for the grant was merely municipal fees, and that the same was of moneys earned by Mrs.

Fuller while she was the wife of John Fuller, in the capacity of nurse in the family of a stranger. That after the grant was made, and in the same month, the proper magistrate gave to John Fuller juridical possession of this one hundred vara lot. That after the 4th of February, 1838, Fuller and his wife lived together on the eastern half of the lot. That during this time they had serious family difficulties, and separated, living apart from each other at various times, and finally separated in 1847, and continued to live apart until Fuller died.

That while Fuller was living on the east half of the lot he stated that the extent of his interest in it was the eastern half thereof; that the lot had been divided between himself and wife, and the eastern half of it had been allotted to him and the western half to her, and that he did not claim any interest in the western half.

That in November, 1847, Fuller caused a line to be run by a surveyor through the centre of the lot from Sacramento to California streets, and caused stakes to be set at the extremities of such line, and also caused a brush fence to be constructed on the line as far as the Kill then toward California street.

The jury also found that Fuller and his wife divided the lot between them by the document executed before the Alcalde and also by parol, and that in the division the west half of the premises was allotted to her and the east half to him ; and that for a long time previous to his death he recognized and acquiesced in Mrs. Fuller’s occupation and possession of the premises in controversy with claim of title to it on her part, and on the part of those claiming under her. That since November, 1847, Mrs.

Fuller and those claiming under her, including the defendants in this action, had continuous possession of the premises in question, claiming title thereto, and had improved the same.

The jury also found as a fact that in 1838 there were no Notaries Public in California, and that the officers who at that date received the declarations of parties stating their contracts, and who authorized and authenticated them as contracts made and passed before them, were Alcaldes or chief magistrates, and also that on or about May 19th, 1847, Edwin Bryant, then the Alcalde of San Francisco, made and issued to John Fuller a document purporting to be a grant embracing the demanded premises—a record of which was introduced in evidence by the plaintiffs as the foundation of their alleged title.

The plaintiffs maintain in argument that by the grants made to John Fuller he became seized in his own right of a sole and separate estate in the lot of land so granted; and further, that the fact that the money which was paid as municipal fees for the grant was earned by Mrs. Fuller or was the common earnings of the spouses, constituted no claim or consideration in her behalf for the divided moiety of the premises which the defendants claim passed to her by the division attempted to be.made of the property between herself and husband.

The defendants on their part maintain that by the law in force at the time, a husband and wife could enter into and make contracts with each other respecting property as fully and amply as it was competent for persons holding no such relation to each other to do, except as to donations. We shall consider the position assumed by the defendants at the outset, because if it be tenable it disposes of all other questions in the case and justifies the judgment rendered. It is agreed by the counsel for the respective parties that • according to the decisions of the Supreme Court in Scott v. Ward, 13 Cal. 458, and Noe v.

Card, 14 Cal. 576, the lot granted to John Fuller, vested in him as separate property, and hence we shall consider the case upon this hypothesis. The counsel also agree that the money which was advanced for the grant made, was the common or community property of the husband and wife, though the same was the fruit of the wife’s individual labor. In 1 Febrero Mejicano,

Chapter 10,

section 19, it is- said: “ To the married woman is imparted and transferred by usage and legal .authority, the dominion and possession, revocable and fictitious, of the one half of the property which, during the marriage, she gains and acquires with her husband, but after he dies the same passes to her irrevocably and effectively, so that after his death she becomes the absolute owner in possession and property of the one half which he leaves, in the manner prescribed by law, between conventional partners.

For this reason the wife is prohibited not only from giving away her dotal and ganancial property during the marriage, but also from giving alms without the license of her husband except in four cases.” The four excepted instances it is not necessary to mention, as they do not affect any question involved in this case. Again, at

section twenty: “A dissolution of the marriage is not necessary to constitute the husband the real and true owner of the property acquired after marriage, for during it he has in effect the irrevocable dominion thereof, and thus he can manage, barter, and even though they be neither military earnings nor quasi military earnings, can sell and alienate the same at his pleasure in the absence of an intent to defraud his wife as may be proved by law.

Wherefore, while the husband lives, and there is no divorce or dissolution of the marriage, the wife ought not to say that she has any gananciales, nor to hinder him in the lawful use of the property acquired, upon the pretext that the law allows her half of it; because this allowance refers to the cases expressed and no others.” By the Mexican law in force in California prior to its acquisition by the United States, all property acquired by husband and wife during the marriage, and while living together, whether by onerous or lucrative title, and that acquired by either of them by onerous title, belonged to the community; while property acquired by either of them by lucrative title solely, constituted the property of the party making the acquisition.

An onerous title, as defined by the Mexican law authorities, was that which was created by the payment or the rendering of a valuable consideration for the property acquired. A lucrative title, by the same law. was that which was created by donation, inheritance or devise. (Noe v.

Card, 14 Cal. 596; 2 Pandectas Hispano-Mejicanos, 447; Novissima Recopilacion, Book 10, Title 4.) The municipal fees which Fuller paid on receiving the grant, whether the same was the fruit of the wife’s industry or of his own, or that of both, was community property; and though the lot was obtained by the necessary expenditure of the community fund, still, according to the doctrine of Noe v. Card, this circumstance in no respect affected the separate character which became ircqoressed upon the property so acquired as the separate property of Fuller. The doctrine laid down in Noe v.

Card,, exhibits the title thus derived in its naked legal attitude, without reference to the equity which exists by the rules of an enlightened and just jurisprudence, in which the Spanish-Mexican law had its foundation, controlling the title for the benefit of the person whose means were used in the acquisition of the property. In Book 1, Title 1,

Chapter 4 of Schmidt’s Civil Law of Spain and Mexico, it is laid down that “ the law recognizes a partnership between the husband and wife.as to the property acquired during marriage, and which exists until expressly renounced in the manner prescribed” in the same chapter. To this community or partnership belongs : First—All the property, of whatevet nature, which the spouses acquire by their own labor and industry. Second—The fruits and income of the individual property of the husband and wife. Third—Whatever the husband gains by the exercise of a profession or office.

Fourth—The gains from the money of the spouses, although the capital is the separate property of one of them. Each of the spouses is entitled to an equal share in the community property, and they are liable equally to the losses and debts incurred during the existence of the conjugal partnership. During the existence of the marriage the husband alone manages or administers the property of the partnership, and he can sell and dispose of it as he deems proper, provided he does so without intent to injure his wife. In Labbe’s Heirs v.

Abat et al. 2 La. 565, the Court, referring to the Spanish laws relating to this subject, say: “Accord-to these laws, it is clear that husband and wife were considered so far separate persons that they could validly enter into any onerous contracts between themselves. A sale is the example given to illustrate this doctrine.

They seem to have been prohibited only from making donations to each other, during the marriage, of property actually in possession.” By the Spanish-Mexican law, the contract of purchase and sale, and any other onerous contract whatever, entered into between husband and wife, was valid, and she needed no authority or consent of her husband when dealing with him, other than that implied from the transaction itself. (4 Partida, Title 11, Law 4, and the annotations of Gregorio Lopez; Variae Resoluciones, Chap.

II, Sec. 3, by Antonio Gomez; 2 Febrero Mejicano, Title 44, Sec. 16.) Conceding that the acquisition of the one hundred vara lot in question was by a gratuitous as contradistinguished from an onerous title, which vested the title to the lot in the husband alone, the effect of the verdict is that the fees or charge exacted by the law for the grant was the joint or common property of the husband and wife. ° This sum thus withdrawn by the husband from the funds of the community or partnership, and used by him for his individual benefit, constituted a claim in favor of the community against the separate estate of the husband, without the power, however, on the part of the wife, to enforce its payment while the conjugal relation existed. (Schmidt’s Law of Spain and Mexico, supra; Noe v.

Card, 14 Cal. 606; Barbet v. Langlois, 5 La. Ann. 212; Lawson v. Ripley and Wife, 17 La. 251.) Fuller, the grantee of the lot, being thus under a pecuniary obligation to the community, the defendants maintain that it was competent for him and his wife, between whom the relation of a property partnership subsisted, to adjust and liquidate his obligation by the arrangement which it is found they consummated by a division of the lot between them.

This arrangement the defendants’ counsel denominates, in the lan- ■ guage of the Spanish law, dación in solutum, or dación en pago, which Escriche defines to be : “ The act by which one thing is given in payment of another which is due. This mode of paying a debt can take place only by consent of both parties, inasmuch as the creditor is not obliged to accept one thing in lieu of another, as will be seen under the word paga.

The dación in solukm (giving in discharge) is in general a contract that is equivalent to a true sale, the essentials of a sale being found in it—that is, the consent, the thing and the price.” The plaintiffs’ counsel controverts the position thus assumed on the part of the defendants, denying that Fuller could be a debtor to the community, and therefore also denying that there existed any debt to pay or satisfy; and the negative of the defendants’ position is sought to be demonstrated by the argument that if there was an obligation to pay or do something on the part of Fuller, then there must have been some one capable of receiving payment or accepting performance, and ,of asserting and enforcing the obligation in case its performance was refused.

It is also denied that the wife could, under any circumstances, assert as against her husband, that she owned any portion of the acquisitions—the gananciales of the conjugal partnership; and the passage of the law which we have quoted at length from Febrero are relied on as establishing the doctrine which the plaintiffs maintain. This law, it may be observed, recognizes the wife’s interest to the extent of one half of the gananciales, or community property, while it inculcates the duty on her part of remaining silent respecting her portion of it during the continuance of the conjugal relation.

This monition to the wife, it may be presumed, presupposes the capacity and prudence of the husband, and at the same time is designed to preserve domestic harmony. Though the husband in the case under consideration might not have owed his wife a debt in the ordinary sense of the term, it does not therefore follow that he was not under an obligation to the community of which she was a member, in whose property she was equally interested with himself. He had used the money belonging to himself and his wife, which was necessary to obtaining a lot of land which by the grant became his separate property.

This money was due from him to the community, and though the law afforded no means for enforcing its payment, it was not for that reason any the less due.

The contingency, it may be presumed, he knew might occur when it could be enforced as a claim against his separate estate; and we see no reason why he could not satisfy this obligation, if it was agreed to by his wife, by assigning to her the half of the lot which it is found by the jury was worth the.ha,If of the community funds used by him to obtain it, and to which she would have been entitled had the marriage become dissolved by his death immediately after he had become invested with the title to the lot.

It is said every payment presupposes an existing debt, and as a corollary, it is then said, if something should be given as a payment, and yet had been preceded by no obligation either natural or civil, there will result the right to reclaim it as a thing not due. (2 Febrero Mej. 244.) In the case in judgment there existed an obligation on the part of Fuller to restore to the community that which he had taken from it for his individual advantage", and though, perhaps, while he lived and the relation which he and his wife sustained to each other might continue, he could not have been compelled to perform it, yet he was competent to perform it voluntarily, and thus discharge it in anticipation of the time when his separate estate might be required to reimburse the amount withdrawn by him "from the property of the community.

"It is argued that if Mrs.

Fuller acquired title to half the lot, the acquisition was by onerous title, and therefore what was so acquired became eo instanti the common property of the husband and wife, and of consequence the undivided moiety to the portion of the lot so acquired as community property, became vested in him as a member of the matrimonial partnership—that is, that by the transfer of the half of the lot by the husband to his wife, in satisfaction of the wife’s interest in a demand which existed as a charge against him in favor of the community, the half so transferred upon that event was transformed into common property.

This argument assumes that the charge or claim which the community had against Fuller for the money he had withdrawn from the partnership, was incapable of division and satisfaction so long as the marriage relation might last, though the parties, having the power to enter into contracts with each other, desired to make the arrangement. The result of this doctrine would be that the parties could not, if they would, adjust and settle an obligation existing as a charge against the husband in advance of the contingency which might or might not happen, rendering it absolute and enforcible by legal remedies.

But this argument necessarily assumes that the law affecting the property relations of husband and wife, interposed a barrier to her acquiring by onerous cause property in her own right during the marriage. But was this so without limitation ? Could she not acquire separate property by purchase, provided she paid the price out of her separate funds ? And if she could, was it not competent for her to do so, with the consent of her husband, by the use of her share of the community money allotted 'to her upon a division of it between the conjugal partners ?

That .she could acquire separate property by purchase with her separate money, there is no reason to doubt (1 Domat, Secs. 889-92), and that the matrimonial partners could divide their common estate between them appears by the case of Labbes’ Heirs v. Abat and others. In that case the plaintiffs claimed from the defendants an account of the estate of their deceased mother, which they alleged was held in community with her husband, and they prayed judgment for whatever amount might have been the property of the deceased.

In the case here referred to the plaintiffs were the heirs of their mother, who by a second marriage, in 1781, became the wife of Jean Pierre Descuirs.

Prior to. this marriage and in contemplation of it, the parties entered into a marriage contract respecting the property which they respectively had at the time, by which they formed a community of property, and thereupon they were married, and thereafter lived together, holding their property in community, the wife having the right to one half the acquets and gains,'until 1805, when they agreed to a dissolution of the community or partnership and a separation of property.

Accordingly, all the property, both as to the bienspropres and the gananciales, was divided between them, he taking possession of the property assigned to him and she that assigned to her. This separation continued until the wife died, during which time each party had the separate use and enjoyment of the property as assigned.

The Court held that this division of the community property was lawful and valid, saying : “ The contract by which Descuirs and his wife agreed, in 1805, to a separation of property and dissolution of the matrimonial community which had existed between them, may be considered as partaking strongly of a contract of exchange, by which each one of the parties gave up his common right or claim to all the property in consideration of his having obtained a separate and distinct title as to a part.” In respect to the case here cited, the plaintiffs’ counsel say : Descuirs and his wife, being the owners of the property, did what they had a right to do when they divided it and each took the half of it.

But it is maintained that the case of Fuller and his wife bears no resemblance to the one cited, because Mrs. Fuller owned no part of the lot which the defendants claim was divided between herself and husband. In this connection it is admitted by the counsfel for plaintiffs that if Fuller and his wife had acquired this lot by onerous contract, they could have divided it between them. There is no doubt as tti the correctness of this admission. In it is recognized the right of the wife to. one half the ganancial property, and also the power of the parties to contract with each other. Though Mrs.

Fuller did not own one half the lot by reason of the grant to her husband, she did own one half the sum which was paid as fees for the • grant made. (Azo and Manuel’s Institutes of the Civil Law of Spain, Book 1, Tit. 7, Chap. 5.) For her half of this sum of money she held his estate charged, though her remedy to compel its payment may have been in abeyance, depending for the power to exercise it upon the dissolution of the marriage during her life by divorce, or the death of her husband.

While Fuller lived and the conjugal relation subsisted it may be he could not have been obliged in invitum to restore to the community that which he had withdrawn from it for his private gain; but, nevertheless, we see no reason, nor are we aware of any rule of law, which would incapacitate him from rendering an equivalent to his wife for her interest in the community funds converted by him to his own use.

Whether the assignment of half the lot to her in satisfaction of her interest in the community claim against the husband was a dación in solutum, or was of the nature of a contract of exchange, is not a matter of any special importance. If it was either it operated in satisfaction of the demand which existed against him for the money of the community which he had used. This, in our judgment, was a consideration sufficient to support the assignment of the half of the lot by Fuller to his wife.

The exchange effected by the contract between the parties was the assignment or transfer by him of the west half of the lot to her in consideration of her interest in the demand which the community held against him, and which interest became in legal effect assigned to him by this contract.

In the case of Descuirs and his wife the property, both as to the Mens propres and the gananciales, was divided between them, yet there was no dissolution of the marriage, and that division of property was said by the Court to partake strongly of a contract of exchange by which each party obtained a separate and distinct title to a part. In the case of Fuller and his wife, there was not a division of community property, but an assignment of a portion of his separate property for her interest in one of the items of the ganancial assets.

This transaction, as was said in Labbes' Heirs against Abat and others, may be considered as partaking strongly of a contract of exchange. If it were assumed that our understanding of the Mexican law is radically at fault respecting the validity of the assignment of the west half of the lot to Mrs. Fuller for a valuable consideration rendered by her to her husband for it, even then it would not follow that she did not thereby become the owner of the property in controversy.

There can be no doubt upon the finding of the jury that Fuller designed to transfer this property to his wife, and to do it effectually ; and as to both himself and wife was imputed a knowledge of the law of the land at the time, and consequently also an understanding of the legal effect of the transaction, it cannot be presumed what they did was designed to be abortive or without effect, but rather that he intended she should have the one half of the property while he retained the other ; and assuming that the parties knew he could not transfer any portion of the lot to his wife as a dación in solutum or dación en pago, nor by contract of exchange, we are left to discover if they could have intended anything by the execution of the document before the Alcalde and by their subsequent conduct in reference to the subject to which it related ; and if we can justly conclude they designed the same to have effect, then the inquiry is suggested, what effect ?

In the case of Labbes' Heirs it is said that husband and wife “ seem to have been prohibited only from making donations to each other during the marriage, of property actually in possession.” But we are not to understand from this that a donation by one of the spouses to the other was absolutely void, but rather voidable or revocable. Donations so made are declared voidable or revocable by Law 4, Title 11 of the 4th Partida.

This law says, “ Such donations are prohibited in order that the parties may not be prejudiced thereby, and dispossess themselves of their property, through their mutual affection; and also because the one who was the most avaricious would be in a better condition than the other who gave freely. And if they do make any such gifts after marriage they will not be valid, if one of the parties become thereby poorer and the other richer, unless he who made the donation did not revoke or annul it during his life, for then it would remain valid.

But if the party making the donation revoke it during his life by expressly saying, 11 do not wish such a donation made to my wife, should be valid or if he observe silence in this respect, and afterward give or sell the same thing to another person; or if the party receiving the donation die before the party who made it; in either of these cases the first donation will become void.” By this law, and others of like import, a donation made by a wife to her husband or by a husband to his wife, was revocable during the life and at the instance of the donor; and conversely it became valid if not revoked at the death of the donor, if the donee then survived. (Labbes’ Heirs v.

Abat and others, 2 La. 567; Escriche—Verbo, Donaciones entre conyuges; Gomez ad leges Tauri, Laws 50-53, Sec. 65.) Then upon the theory that Fuller and his wife knew the law to be as subsequently decided in Noe v. Card, and also that he could not assign and transfer to her half the lot in satisfaction of her interest in the sum of money which was expended to obtain it, the question again recurs what effect did they intend should follow as the result of their conduct ?

To this inquiry the answer seems to us to be suggested by the very conditions of the circumstances of the case, and therefrom to result naturally and logically, if not inevitably. Fuller had withdrawn from the community treasury twenty-five dollars for his private use, by which act the community was rendered poorer and he richer. His conjugal partner had suffered by the loss which the community had thus sustained and he wTas disposed to reverse it by a donation to her of half the lot. Here was a consideration or motive of sufficient potency to prompt him to the just act which he performed.

Fuller, in whose power it was to defeat the donation which he intended for the benefit of his wife, was, as the jury in effect found, faithful to the last, and died leaving .his wife surviving him his donee of the west half of the lot.

Our conclusion is, that Fuller and his wife intended that the agreement which they entered into before the Alcalde should be operative and effectual, and that if it did not, by reason of some legal impediment, a2nount to a dación in solutum or dación en pago, nor to a contract of exchange, the same was effectual as a donation by the husband of the west half of the lot to his wife, and that upon his death the donation became irrevocable. (Holmes v.

Patterson, 5 Martin, 693.) We have thus far assumed that the document purporting to have been executed by Fuller and his wife, in the presence of the Alcalde and witnesses, was genuine, and also that the verdict of the jury was based on evidence which authorized it. But it is now insisted on the part of the plaintiffs that such document was a foi'ge2’y, and the instrument itself and the other documentary evidence in the case is relied i2pon as establishing this chai'ge.

The record fails to disclose that the point was made on the trial of the cause, and it is not pretended that this objection was suggested until after the case came to this Court. But notwithstanding the omission, if the record itself contains internal evidence that the document is a forgery, it is not too late to raise tlie objection for the first thne in this Court. The internal evidence on which it is sought to impeach this instrument does not seem to us to create any reasonable suspicion as to its genuineness. The fact that it docs not affinnatively appear that Mrs.

Fuller had the west half of the lot in her actual possession until 1847 does not establish or tend to establish the fact that this document was fimged. The whole lot at the tune was worth only twenty-five dolla2’s, and continued without change in this respect until 1846, when it became worth one hundred dollars, and from that it increased in value in the course of a year to a sum between two hundred and three hundred dollars, and then it was that 'the division line was surveyed between the east and west halves of the lot, and a brush fence built upon a portion of it.

It is not probable that the west half of the lot was esteemed of sufficient value by Mrs. Fuller during the interval between 1838 and 1847 to induce her to fence it, in order to preserve it, as at that period, so far as we are informed, there were no squatters in the country. Nor does the fact that Fuller, in 1847, upon his application to the Alcalde for a new title deed to replace the lost or mislaid original, which he represented was obtained by him in 1842, together with the statements made in his behalf at the time by De Haro and Sanchez, prove that the. original grant was not made in 1837.

In reference to it Sanchez said it was issued when Don Ignacio Martinez was Alcalde, and himself Secretary.

De Haro certified that “ the citizen John Fuller is the owner of Lot 24 in the place of Yerba Buena, which consists of two hundred varas in length and fifty varas in width, * * * which lot was petitioned for by the said Fuller, and granted to him by the civil authorities of this jurisdiction in the year 1842." In this certificate De Haro was mistaken as to the form of a hundred vara lot, and it is quite probable that he and Fuller were equally mistaken in respect to the year when the original grant was made, as its date does not seem to have been a matter of any particular importance.

Either they were mistaken or Sanchez was. Sanchez said the original title was issued when Don Ignacio Martinez was Alcalde. Martinez held this position in 1836 and 1837, and not in 1S42. The charge of forgery is also sought to be maintained on the ground that Fuller could not write his name in 1847, while his name appears as if written by himself to the instrument executed in February, 1838.

This instrument states that Fuller and his wife signed it with the Alcalde, “ plaéing the sign of the cross, not knowing how to sign.” There appears to be one sign of the cross upon the record produced in evidence, and that stands opposite the' name of Mrs. Fuller. Which of the parties placed it there is not proved unless by the document itself. It may be that each contributed to it, or, if only one of them made it, the other ma,y have adopted it as his or her sign. A literal

interpretation of the words “placing the sign of the cross” would exclude the idea that more than one sign of the cross was intended to be written, and would impute its creation as it appears on the face of the instrument itself to the joint effort of the parties. The other reasons assigned in argument for the belief that the document in question is a forgery are of less weight even than those here noticed, and therefore they are passed by without further consideration. We think there is no good reason to suspect the genuineness of the instrument.

The conclusion to which we have arrived respecting the effect which the law attached to the agreement entered into between Fuller and his wife, and the assignment by him to her of- the western half of the lot, renders it unnecessary to consider the other points contained in the record. We are satisfied that by the Mexican law relating to the questions involved, and also upon the principles of equity, the judgment ought to be affirmed. Judgment affirmed.