In my opinion, the finding of the court, that the former wife of the defendant “left” him, is not sustained by the evidence. The defendant alleged in his answer that they “ separated by mutual consent, and this defendant, in the year 1865, removed to the state of California.” Upon the trial, he *464 testified to the same effect, saying: “I left in 1865. She left and went home to her father and mother. I came on to Sydney, and after a while came to San Francisco.”

His testimony that she “left,” not that she left him, and that he “ came on to San Francisco,” accords with the allegation in the answer that they separated by mutual consent. There is no other testimony in reference to this subject, except that of the former wife, which is to the effect that he left her. If they did separate by mutual consent, she was not “absent ” from him in the sense in which that term is used in subdivision 2 of section 61 of the Civil Code.

I do not, however, think that this finding of the court, or the construction given by the commissioner to the word “absent,” is material to the determination of the action. It may be conceded that the parties to this action entered into the contract of marriage with each other under such circumstances that it was valid to all intents and purposes until annulled by decree of the court; but the fact that the defendant had at that date a former wife living, from whom be had not been divorced, gave to the plaintiff the right to have the marriage annulled upon the discovery of such fact. (Civ. Code, sec. 82, subd. 2.) Upon its dissolution, there would arise the same equitable grounds for an equal division of the property that had been acquired by the parties during the existence of the relation of husband and wife as would exist upon the dissolu'ion of any valid contract of marriage for a cause other than adultery or extreme cruelty. I therefore concur in affirming the judgment and order denying a new trial.

Paterson, J., concurred.

Rehearing denied.