Claim and Delivery — Estoppel — Pleading and Evidence — Order Denying a New Trial—Beview upon Appeal.—Upon appeal from an order denying a new trial in an action of claim and delivery, where an estoppel was pleaded by the defendant, in whose favor judgment was rendered, technical objections to the answer cannot be considered; and reference may be made to the answer only to learn whether the estoppel was sufficiently pleaded to justify the taking of evidence thereunder.

Id.—Claim by Husband of Community Property—Defense by Execution Creditor of Wife—Estoppel In Pais Sufficiently Pleaded. —Where the action for claim and delivery was by a husband for alleged community property, and was defended by an execution creditor of the wife, who pleaded an estoppel in pais, held that facts were pleaded with sufficient particularity to show such estoppel by the acts, representations, and conduct of both husband and wife, upon which the creditor was entitled to rely, and did rely, in making advances to the wife when she was doing business in her own name and on her own account, as reputed owner of the property.

Id—Improper Evidence of Estoppel.—Though the pleading of an estoppel in pais was sufficient, the court erred in admitting the testimony of witnesses as to business transactions of other parties with the wife and her son by a former marriage covering a period of twenty years prior to the transactions in dispute, and in admitting testimony of their declarations not at all concerning the property involved in the action, and not proved to have been brought to the knowledge of the husband plaintiff, nor to have been communicated to the defendant creditor of the wife. The declarations of the wife’s son, a stranger to the plaintiff, were wholly inadmissible against him; and the declarations of the wife, made in his absence, cannot raise an estoppel as to his title to the community property.

Id.—Married Woman Engaging in Trade—Presumption of Community Property—Burden of Proof.—Where a married woman engages in trade it is presumed to be with the funds of the community, and the burden of proof is on the person asserting the property to be her separate property.

Id.—Improper Instruction as to Estoppel.—An instruction that “if a husband permits his wife to use his money or property, real or „ personal, as her own, for a considerable period of time, she incurring obligations and obtaining credit upon the faith and belief on the part of those from whom she obtained credit that the property is her own, the husband will be estopped from claiming such property as Ms own against those extending credit to the wife,” is erroneous, both as being contrary to the presumption of community property, find as eliminating from consideration the necessary elements of an estoppel ‘laid down in subdivision 3 of section 1962 of the Code of Civil Procedure.

Id.—Improper Instruction for Defendants—Separate Property of Wife.—An instruction that if the jury believed from the evidence that any of the property involved in the action grew out of or was bought by the rents, issues, or profits of any real property owned by the wife it was th¿r duty to find for the defendants, is erroneous, in not limiting their duty to find only as to the particular property so acquired, and not generally.