The plaintiff commenced this action to obtain an accounting, and the appeal is from a judgment entered against him after demurrer sustained to his third amended complaint.

The facts stated in the complaint are, in substance, as follows: —

On the twelfth day of April, 1849, Csesario Lataillade, *573 plaintiff’s father, died intestate, in the town of Santa Barbara, where he was residing, leaving a widow and three minor children, of whom plaintiff, who was born December 2, 1849, was one.

After his marriage to plaintiff’s mother, the decedent purchased two ranchos situated in what is. now the county of Santa Barbara, and paid for them with his own funds; but at his request, the conveyances were executed to his wife as grantee, and were accepted by her for the benefit of her husband, and thereafter the ranchos were owned and possessed as the community property of the two. At the time of his death the decedent was also the owner of a large number of cattle then grazing upon the ranchos. For several years prior to 1849, defendant had the care and management of the ranchos and cattle as the agent of the decedent, and afterwards, with the consent of plaintiff’s mother, he continued to have the same care and management, until the property was sold and disposed of, as hereinafter stated.

In 1854 the defendant married the plaintiff’s mother, who is still his wife, and thereafter, during his minority and until July, 1885, plaintiff continuously lived in defendant’s family, and was brought up and treated as his own child. In the same year defendant was duly appointed the guardian of plaintiff’s person and estate, and continued to act as such until the latter became of age.

From time to time, after April, 1849, defendant sold all of the said cattle, but for what sum or sums of money plaintiff is not advised; and in 1868 he negotiated a sale of the ranchos for the sum of twenty-seven thousand dollars, or thereabouts, and induced the plaintiff’s mother to execute deeds thereof to the purchasers, and to permit him to. receive the entire purchase-money. The defendant received all the money paid for the cattle and ranchos, and mingled the same with his own funds, and wrongfully and fraudulently converted the same to his own use, with the intent to deprive plaintiff of his lawful share thereof.

*574 At all the times mentioned, defendant knew that the cattle and ranchos were owned by the plaintiff’s father at the time of his death, and that plaintiff became the owner of an interest therein as his heir; but he always concealed this fact from the plaintiff, and wrongfully and fraudulently represented to him that his father died insolvent, and that he had no interest in the cattle or ranchos.

When defendant was appointed guardian of plaintiff, he filed in court an inventory purporting to show all the estate of his ward, but he did not, in that inventory or in any inventory, or otherwise, at any time include any of the aforesaid property; and when he applied for and obtained a final discharge from his trust, he falsely stated in his petition, and represented to the court, that he had returned a full and true inventory of all the estate of plaintiff which had come into his hands as guardian, and paid over and delivered the same to the plaintiff.

This condition of things continued until July, 1885, the plaintiff all the time during his minority, and'after-wards, relying implicitly on the statements and representations of defendant concerning plaintiff’s property rights and the condition of his father’s estate, and having no means of ascertaining the falsity of such statements and representations.

In the last-named month difficulties and disputes arose between the parties, and the plaintiff then left the household of defendant, and ceased to be a member of his family, or to have friendly or confidential relations with him. “ Thereupon this plaintiff, in interview's with persons who had acted in the capacity of servants upon the ranchos belonging to his said father, for the first time ascertained that his father, during his lifetime, had the interests in said real and personal property as particularly hereinabove set forth, and that said property was in the custody, care, and management of the defendant at the time of the death of his said father; and this plaintiff was then, for the first time, directed to one Augustin . *575 Janssens, who carried on business in the said county of Santa Barbara during the married lifetime of the said Ctesario Lataillade, deceased, and at the time of the purchase of the said ranchos, who then, for the first time, showed this plaintiff, by entries in his commercial books regularly kept in his business, wherein his daily transactions were entered at the time they took place, that he had acted as the agent of the said Cassario Lataillade in respect to the payment of the purchase-money of said ranchos; and plaintiff avers that said account-books and the statements of said Janssens then and there disclosed to this plaintiff that his father was the owner of said ranchos, and that he was the real purchaser thereof, and the owner of the said cattle thereon.”

Shortly after these discoveries, plaintiff demanded of defendant a full accounting of all his dealings with the property of the deceased Lataillade since his death, and the increase thereof, but defendant refused, and still refuses, to render to plaintiff any such account, or any account whatever, in relation to the said property. The proceeds of the catt’e and lands disposed of by defendant, as aforesaid, are still in his hands, and plaintiff is the owner of and entitled to the one-sixth part thereof, together with the increase and profits arising therefrom.

The complaint was filed on the twenty-first day of February, 1887, and the prayer was, that defendant be compelled to account for all his dealings and transactions with the said property, and the proceeds and increase thereof; that he be charged interest on all sums of money received by him from the sales of the property, compounded annually; and that plaintiff have judgment for such amount as he may be found entitled to.

The demurrer was upon the grounds that the court had no jurisdiction of the subject-matter of the action; that several causes of action were improperly united, and not separately stated; that the complaint did not state facts sufficient to constitute a cause of action, for the reason that it appeared on the face thereof that the cause of action was barred by the statute of limitations and by *576 the plaintiff’s laches; and that the complaint was ambiguous, unintelligible, and uncertain in several particulars. It does not appear upon what ground the demurrer was sustained.

1. The respondent contends that the probate court had exclusive jurisdiction to compel defendant to account as guardian, and that its decree, settling his accounts and discharging him from his trust, was final and conclusive; and in support of this position numerous authorities are cited. This is undoubtedly the general rule applicable to the settlement of the accounts of guardians, executors, and administrators, but we do not think it applicable to a case like this. Here, if the averments of the complaint are true,—and they must be assumed to be so for the purposes of this decision, — none of the matters now in controversy were passed upon in the settlement, for the reason that the guardian intentionally and fraudulently concealed from the court and his ward the fact that the latter had then or ever had any interest in the property in question. The cases cited state and apply the general rule, but, so far as we have discovered, no one of them goes to the extent of holding that such a settlement can shield a guardian from afterwards being called upon in a court of equity to account for the property so concealed. The rule applicable to the case is correctly stated in Griffith v. Godey, 118 U. S. 89 . In that case, Mr. Justice Field, in delivering the opinion of the court, said: “It is well established that a settlement of an administrator’s account, by the decree of a probate court, does not conclude as to property accidentally or fraudulently withheld from the account. If the property be omitted by mistake, or be subsequently discovered, a court of equity may exercise its jurisdiction in the premises, and take such action as justice to the heirs of the deceased or to the creditors of the estate may require, even if the probate court might, in such case, open its decree and administer upon the omitted property. And a fraudulent concealment of property, or a fraudulent *577 disposition of it, is a general and always existing ground for the interposition of equity.” (And see Estate of Hudson, 63 Cal. 454 ; Dean v. Superior Court, 63 Cal. 473 ; In re Cahalan, 70 Cal. 604 ; Tableman v. Hildebrandt, 72 Cal. 316 .)

2. In support of the second ground of demurrer, it is claimed that the transactions in regard to the land and cattle were entirely distinct, and involved different facts, and that they constituted two distinct causes of action, which should have been separately stated. But as we read the complaint, it states only one cause of action; namely, for an accounting as to moneys received by defendant, and in part held by him in trust for plaintiff. The money received constituted in defendant's hands a single fund, though derived from sales of real and personal property, and received at different times.

3. The third ground of demurrer seems to be the one mainly relied upon as justifying the ruling of the court, and it is very elaborately discussed by counsel.

The code provides that an action for relief on the ground of fraud or mistake must be commenced within three years; but the cause of action in such case is not deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake. (Code Civ. Proc., sec. 338, subd. 4.)

Was the cause of action in this case saved from the bar of the statute by this section? Counsel for respondent earnestly contend that it was not, for several reasons.

(a.) It is urged that the action was not one for relief on the ground of fraud. It is true, the action was for an accounting, but the grievance complained of was, that defendant knowingly received and held moneys in trust for plaintiff, and appropriated the same to his own use, and at all times fraudulently concealed from plaintiff the fact that he had ever received or held any such moneys, or any money in which plaintiff had any interest. It seems to us, therefore, that the averments make a case of the class provided for in the section of the code above cited.

*578 (b.) It is urged that the averments respecting the discovery of the fraud are wholly insufficient It is said that a party seeking to avoid the bar of the statute on account of fraud must show that he used due diligence to detect it, and if he made any particular discovery, should state when it was made, what it was, how it was made, and why it was not made sooner; and further, that one will be presumed to have known whatever with rear sonable diligence he might have ascertained concerning the fraud of which he complains.

The. foregoing propositions seem to be well supported by the authorities. (Wood v. Carpenter, 101 U. S. 140 ; Badger v. Badger, 2 Wall. 94 ; Hecht v. Slaney, 72 Cal. 367 .) And the question is, whether or not, in view of them, the averments of the complaint are sufficient.

It must be observed that the relations of the parties were such as would naturally inspire trust and confidence on the part of the plaintiff in the defendant. The defendant was plaintiff's step-father and guardian, and brought him up in his own family and as his own son. Plaintiff always, up to the time of the rupture in 1885, placed implicit confidence in whatever defendant told him, and never doubted its truth. He had no knowledge, and no reason to suspect, that a fraud was being practiced upon him. There was nothing, therefore, to put him upon inquiry, and under such circumstances we do not see how it can be said that he failed to use due diligence to detect the fraud, or how he can be presumed to have known anything concerning it. The complaint does state, we think, when the discovery was made, and what it was, and how it was made, and why it was not made sooner. It is claimed, however, that the averments as to the discovery were of mere conclusions of law, and not of the facts.

It is true that pleadings should state the ultimate facts, and not the probative facts or conclusions of law. But what are ultimate facts and what conclusions of law are often mixed and uncertain questions. (Levins v. Rovegno, 71 Cal. 273 ; Turner v. White, 73 Cal. 299 .) *579 The same averment may be of a fact or of a conclusion of law, according to the context. We think the averments here complained of should be held sufficient as statements of fact.

(c.) Conceding all that has been said to be true, it is further contended that no cause of action against the defendant respecting the two ranchos or their proceeds is shown.

The argument on this point, briefly stated, is as follows; According to the averments of the complaint, plaintiff’s father purchased the ranchos with his own funds; but at his request, the conveyances thereof were made to his wife, who thereafter held the same as community property. Being community property, the title to the .ranchos, under the Mexican law then in force, upon the death of the husband immediately descended to and became vested in the widow and children, without the necessity of any administration. (De la Guerra v. Packard, 17 Cal. 183 ; Scott v. Ward, 13 Cal. 459 .) The plaintiff and his mother became tenants in common of the property, and were such at the time of the alleged sale thereof. The mother had no power to"sell or convey the plaintiff’s interest, and there is nothing to show that she attempted to do so. And if she did, the deeds did not pass or affect his interest in any way. He could afterwards have asserted his right thereto just as well as if no deeds had been made, and possibly could do so now. The purchase-money received was therefore the money of the mother, in which the plaintiff had no interest.

This argument seems to be sound, and the conclusions reached correct.

A similar claim is made in regard to the cattle and their proceeds, but we do not think it can be sustained. The defendant sold all the cattle and received all of the purchase-money, and converted the same to his own use. As to the plaintiff’s interest, the sale was a conversion; but he could waive the tort, and sue in assumpsit for his share of the purchase-money, or, under the circum *580 stances shown here, for an accounting. (Pomeroy’s Remedies and Remedial Rights, sec. 110.)

4. We'see nothing in the fourth ground of demurrer calling for special consideration. As we read the complaint, it is not ambiguous, unintelligible, or uncertain in any material respect.

We advise that the judgment be reversed and the cause remanded, with directions to the court below to overrule the demurrer.

Temple, C., and Fitzgerald, C., concurred.

For the reasons given in the foregoing opinion, the judgment is reversed and the cause remanded, with directions to the court below to overrule the demurrer.

Rehearing denied.