very transaction here attacked as fraudulent, is highly commended. [1] Upon the face of the complaint itself the court was bound to sustain the demurrer. As we are not informed in the first amended complaint when John Ethan Boyes and Fannie Jane Pope or either of them reached majority, we are bound to assume, under familiar principles of pleading, that each was sui juris at a time long enough prior to the filing of the first amended complaint to allow the statute of limitations to operate if it be applicable at all. [2] When a complaint fails to state the time of the discovery of a fraud committed more than three years before the commencement of the action a demurrer based upon the statute of limitations will lie. (Sublette v. Tinney, 9 Cal. 425.) From the complaint itself it appears that record evidence of Mr. Churchill's purchase of this property has been in existence for many years and there is no allegation that appellants were not at all times fully aware of the facts. Merely because he had been their guardian they were not entitled, after coming of age, to shut their eyes to the fraud, if any had been committeed. Equity will not countenance stale claims and after the lapse of so much time will strictly scrutinize such bills as this and will send applicants for relief out of court unless they make a most meritorious showing of their right to the assistance for which they pray. (Burke v. Maguire, 154 Cal. 465; Robertson v. Burrell, 110 Cal. 578.)

[3] But appellants contend that by his fraud Mr. Churchill became their trustee; that his possession was their own; and that consequently the statute could not run against their rights. The rule which they invoke and the authorities which they cite are applicable to express trusts-not to involuntary trusts. A trustee of such a trust need not repudiate it in order that the statute should begin to run. (Hecht v. Slaney, 72 Cal. 366; County of Los Angeles v. Winans, 13 Cal. App. 261; Broder v. Conklin, 121 Cal. 288; Nougues v. Newlands, 118 Cal. 106.) Section 338, subdivision 4, Code of Civil Procedure, was therefore applicable and was properly held by the lower court to be a bar to the action. (Unkel v. Robinson, 163 Cal. 651.) The demurrer also specified sections 318, 336 (subdivisions 1 and 2), 343 and 1573, Code of Civil Procedure, so that in any view of the pleading the action was barred and the bar of the statute properly brought to the attention of the court.

All that has been written above has assumed that the fraud was sufficiently alleged. Respondents contend with much force that the complaint failed to aver fraud with that particularity and clearness required in all bills of equity seeking such relief as is here prayed for. But we need not go into that question as the cause of action, even if sufficiently set forth, is very clearly barred by the statute of limitations.

The judgment is affirmed.

We concur:

HENSHAW, J.
LORIGAN, J.

MELVIN, J.

Sac. Nos. 2175 and 2176. Department Two. March 31, 1915. EMPIRE INVESTMENT COMPANY, Plaintiff and Respondent, v. C. E. MORT and W. P. WAGY, Defendants and Appellants.

[1] APPEAL-ORDER GRANTING NEW TRIAL-INSUFFICIENCY OF EVIDENCE AFFIRMANCE OF ORDER.-An order granting a new trial in an action to recover possession of land and damages for its detention will not be disturbed on appeal, where the facts forming the basis of the answer are all disputed, and one of the grounds upon which the court granted the motion was the insufficiency of the evidence to support the verdict.

[2] ID. VENDOR AND PURCHASER-CONTRACT FOR SALE OF LAND— DEFAULT OF VENDEES-ACTION FOR RECOVERY OF POSSESSION-PLEADING-DAMAGES TO CROPS-BLOWING UP OF LEVEE-IMPROPER COUNTERCLAIM. In an action by a vendor under an executory contract of sale to recover the possession of land after failure of the vendees to perform the conditions of the contract, the vendees have no right to set up a counter-claim for alleged damages suffered by them by the blowing up of a levee and the overflowing of water upon their planted crops, where there is nothing in the contract relating to the raising of crops, or providing that the payment of the purchase price should be paid therefrom.

[3] -ORAL

ID.-ID.-ID.-ID.-ID.-EVIDENCE-CONSTRUCTION OF LEVEES AGREEMENT-OMISSION FROM SIGNED CONTRACT-PROOF INADMISSIBLE.-Evidence in such an action of an oral agreement to the effect that if the vendees would sign a certain instrument, the vendor would construct certain levees to protect the land, is inadmissible, where it is shown that such subject was discussed during the earlier negotiations between the parties, but finally omitted from the signed contract.

[4] ID.-WRITTEN CONTRACT-EVIDENCE-ADDITION OF TERMS.Where a written agreement purports to be complete, parol evidence is no more admissible for the purpose of adding to its terms than would such evidence be proper in an effort to vary the terms of the instrument itself.

[5] ID. STATUTE OF FRAUDS-ORAL AGREEMENT-CREATION OF FIXTURE. An oral agreement dealing with the creation of a fixture on real property and with the granting of an easement in real property is inadmissible as within the statute of frauds.

[6] ID.-AGENCY-EVIDENCE-EXTRA-JUDICIAL STATEMENTS-PROOF INADMISSIBLE.-Testimony regarding extra-judicial statements or declarations in pais made by an alleged agent is not admissible for the purpose of establishing agency.

Appeal from the Superior Court of Kings County-J. A. Allen, Judge on Order; John G. Covert, Judge on Judgment.

For Appellants-H. Scott Jacobs, John G. Covert, for Defendants and Appellants on Appeal from Order; for Defendants and Respondents on Appeal from Judgment.

For Respondent-Scarborough and Bowen for Plaintiff and Respondent on Appeal from Order, and for Plaintiff and Appellant on Appeal from Judgment.

The Empire Investment Company, in September, 1910, entered into a contract with defendants whereby plaintiff agreed to sell and defendants to buy a tract of land in Kings county for something more than $23,000, payable in annual installments. The first payment was due on November 1, 1911, but was not met by defendants, and plaintiff having elected to declare the contract forfeited and so to notify defendants, brought suit to recover

possession of the tract and for damages for retention, alleging in its complaint that it was the owner in fee of the property. Defendants answered and upon issues thus joined and upon others, arising by reason of a pleading in the nature of a cross-complaint and an amendment to the answer (both of which defendants were permitted to file after the cause had come on for trial before the court and jury), the case was tried and judgment was given in favor of defendants. From this judgment plaintiff appealed during the preparation of the statement on motion for a new trial. Subsequently the motion for a new trial was granted and from the court's order in that behalf defendants have appealed. Both appeals are by stipulation heard together.

By the contract of sale and purchase, which admittedly was made by the parties hereto, it was provided, among other things, that Messrs. Mort and Wagy should take and occupy the premises until they should make default; that they should pay all taxes and all dues for water; that time was of the essence of the agreement; and that failure by the vendees to perform any of the cov enants would, at the option of the vendor, terminate the contract and the interest of the vendees and give the Empire Investment Company the right to re-enter and take possession of the land. These provisions of the agreement and others were set forth in plaintiff's amended complaint, and in addition to the allegation that no part of the purchase price had been tendered or received, it was averred that defendants had failed to settle the water rent and had, in fact, paid nothing under the contract; that upon their refusal, upon request of performance of the terms of that agreement, plaintiff had demanded possession of the land and notified defendants that it elected to terminate the agreement. The prayer was for the usual relief in such cases.

In their answer as originally filed defendants denied plaintiff's title to a part of the land in dispute and to the water rights attached thereto and alleged that by plaintiff's fraud they had been prevented from learning such facts until long after the suit had been instituted; denied that plaintiff was entitled to possession of the land; admitted their own possession thereof; and denied that the water company had furnished water, as agreed, for the land or that they owed for water used on the premises. As a separate defense it was alleged that in June, 1911, plaintiff, by the blowing up of a certain levee, had caused the waters of the river to overflow the planted crops of defendants, thus preventing them from making the payments stipulated in the contract and damaging them in a large sum of money.

When the case came on for trial the court permitted the filing of an amended answer, setting up substantially all of the matters pleaded in the original answer, but introducing for the first time a counterclaim against plaintiff for the alleged damages suffered by defendants because of the overflow of the water.

On motion, the parts of the answer denying plaintiff's title to the land in controversy were stricken out on the ground that defendants were estopped from disputing such title. The court ruled that it would be taken as an admitted fact in the case that plaintiff owned the property described in the complaint,

Plaintiff thereupon offered evidence on the issue of the rental value of the premises after the default of defendants, and upon the matter of the furnishing of water to defendants by the water company referred to in the complaint and the failure of defendants to pay for such water.

During the trial defendants sought unsuccessfully to introduce evidence of a certain oral agreement made by the parties at the time the written contract was executed; but subsequently by amendment to the answer they were allowed to plead it and in the trial to offer testimony in support of such oral agreement. The alleged verbal contract was, in brief, that if Messrs. Wagy and Mort would sign the written instrument which was then presented to them, the Empire Investment Company would complete the levee along the west line of the land now in question in the suit, being the east bank of Kings river; would repair the weak places in the levee; would bring it up to grade; and would construct and complete a levee along the south line of the property.

[1] Plaintiff insists that, even upon the assumption of the absence of error from the court's ruling permitting the amendments and the testimony in support of them, defendants have no standing in their attack upon the order granting a new trial, for the reason that the facts forming the basis of the answer were all disputed. For example, defendants introduced testimony tending to show that one Howard Odale blew up the levee, thus causing a great and destructive flow of water over their crops and that Odale was the agent of plaintiff, acting within the scope of his employment. Plaintiff denied Odale's agency; and also the existence of any oral agreement binding it to repair any levees or to keep them in repair. These denials were all supported by testimony in conflict with that which defendants offered. One of the grounds upon which the court granted the motion for a new trial was insufficiency of the evidence to support the verdict. We may not disturb such an order where there was a conflict of evidence upon material issues unless we may say that a verdict in favor of the moving party would not have found sufficient legal support in the evidence adduced at the trial. (Wendling Lumber Co. v. Glenwood Lumber Co., 153 Cal. 416; Gordon v. Roberts, 162 Cal. 509.) And this is the rule even in a case in which, as in this one, the judge who made the order did not preside at the trial. There was direct testimony that Odale was not employed by plaintiff at all, but was a servant of the Empire Water Company. Defendants introduced testimony of circumstannces tending to show that Odale was the ostensible agent of plaintiff, but the existence of many of these circumstances was denied by plaintiff's witnesses. Both defendants gave testimony regarding the oral agreement, but they were flatly contradicted by plaintiff's witnesses. There was ample evidence in the record to have given support to a verdict in favor of plaintiff if such evidence had been accepted as true. Therefore under the pleadings, as they stood, the order should be affirmed.

[2] As the case may be tried again we shall discuss some of the errors of law specified. Plaintiff contends that the action was one

in ejectment and not on the contract. It is insisted that when defendants failed to perform the conditions of the contract plaintiff immediately became entitled to possession of the land and might maintain ejectment to obtain such possession. Defendants may not hold the premises and withhold the purchase price. Undoubtedly that is the rule. (Gervaise v. Brookins, 156 Cal. 104; Champion Gold Mining Co. v. The Champion Mines, 164 Cal. 205.) This is an action in ejectment. (Haggin v. Kelly, 136 Cal. 483; Newman v. Duane, '89 Cal. 598; Kerns v. Dean, 77 Cal. 557.) As against the issues tendered by such a pleading an independent tort was not available. There was nothing in the contract suggesting that a crop was to be raised upon the land or that the purchase price was to be earned by sale of the proceeds of any crop or crops. The contract provided for money payments at specified times. There were no precedent duties to be performed by plaintiff before defendants upon the dates indicated in the agreement should be bound to make payments. The alleged tort, therefore, had no relation to the payments under the contract. An act which amounts to prevention of the performance of a contract must be one which has relation to the subject thereof. The crops were not mentioned in the agreement. There was no sale of them to plaintiff and no pledge or understanding that the proceeds of the land should be devoted to the payment of the purchase price. Therefore this was not an instance of the destruction of the subject of the sale. There was nothing in the tort or its results which essentially interfered with the carrying out of the stipulations contained in the writing. A "prevention" must be a breach of some duty which one party to the contract owes to the other as a condition precedent to performance. Therefore the tort was not properly pleaded as a defense to the action. (Cox v. McLaughlin, 54 Cal. 605; Porter v. Arrowhead R. Co., 100 Cal. 500; Alderson v. Houston, 154 Cal. 13.) For like reasons the counterclaim was not a proper one in such an action. The alleged tort of defendants and the tort of plaintiff averred by way of counterclaim did not arise out of the same transaction. In any event, such a counterclaim may not be set up in an action of ejectment. (Wigmore v. Buell, 116 Cal. 95.)

The counterclaim does not tend to defeat plaintiff's recovery. Plaintiff asked for possession of certain land. Defendants' demand was for a money judgment by way of damages. Plainly the two causes of action founded on tort were distinct and did not arise out of the same transaction. It was therefore error to allow the amendment introducing the so-called counterclaim. (Yorba v. Ward, 109 Cal. 108; Meyer v. Quiggle, 140 Cal. 499; Glide v. Kayser, 142 Cal. 420; Engebretson v. Gay, 158 Cal. 29.)

[3] The trial court at first rejected all evidence regarding the oral agreement on the ground that no such contract had been pleaded. Subsequently and after amendment to the complaint evidence regarding it was received. Two of the questions submitted to the jury related to this oral understanding and the jury decided that plaintiff did enter into such agreement and failed to perform it. The secretary of plaintiff with whom, according to defendants, they