courts of the power to enforce them when subsequently pleaded. Remedies conferred by law can not be waived, by mere agreement not to claim them, so as to divest courts of the duty of according them if they be afterward claimed by one of the contracting parties."

So on page 546, he says: "No such act on the part of a husband or father, or of a wife or widow, or of any person, as might estop him or her personally from claiming a homestead right, can possibly debar others, who have rights therein, from their interest. Such rights of others render his own inviolable, since they are inseparable from his. What might be an act in pais operating as an estoppel, were he alone concerned, would not be such when the rights of those to be protected through him are involved. He would not be estopped from claiming homestead, though he had solemnly promised not to claim, and had received a consideration equivalent to the value of his right."

Following these principles it is generally held that the right to claim either real or personal property as the law exempts can not be waived by a general waiver in an executory contract. The taking away of the right to surrender future protection under exemption laws, is based upon public policy and the probable needs of the family, the improvidence of many people when making contracts to be performed in the future, the danger of the weak being overreached by the strong, the interest of the state in preventing pauperism, and the necessity of guarding the impecunious from their own want of caution when releasing rights before the occasion of asserting them arises.

In our opinion, the homstead right, when vested in the head of a family, as guaranteed by the constitution and laws of this State, is not a right to the husband or other head of the family for their protection alone, but it is as

well bestowed upon those enumerated in the statute as members of his household and under his care, protection and maintenance while the statutory relation exists. It was intended to secure and protect the home as such, not only against creditors, but as against every act on the part of the head of the family not authorized by law, by which he could in advance barter away the right to the homestead, and thereby sacrifice the home as against himself and those constituting his family and under his care and maintenance. Therefore no waiver of the homestead right, as contained in the contract offered in evidence could affect the right of the head of the family, or those under his care and maintenance. as members of his legal household. To uphold such a contract would be against public policy.

The doctrine announced in this opinion should not be construed as preventing the head of the family, who is the owner of land, from conveying or encumbering his homestead under the provisions of the statute. Kimball v. Salisbury, supra; Blalock v. Elliott, 59 Ga., 837; Showers v. Robison, 43 Mich., 502; Waples on Homesteads and Exemptions, 538, 540, 542, 545; Kneettle v. Newcomb, 22 N. Y., 249; 78 Am. Dec., 196; Maloney v. Newton, 85 Ind., 560; People v. Phelps, 72 Ill., 549; Shelby v. Abbott, 42 N. Y., 451; Hooper v. Leal, 10 How. Pr., 282; Carter v. Carter, 20 Fla., 558; Recht v. Kelly, 82 Ill., 147; Curtis v. O'Brien, et al., 20 Ia., 376; Maxwell v. Reed, 7 Wis., 493; Beecher v. Baldy, 7 Mich., 488.

We find no reversible error in the record. ment of the district court is affirmed, with costs.

BASKIN, J., concurs.

The judg

BARTCH, C. J., concurs in affirming the judgment.

21 178 23 318

21 176 24 27

A. T. SCHROEDER, RESPONDENT, v. MILANDO
PRATT, ORTHERUS P. PRATT, VALTON M.
PRATT, NANCY ELIZABETH R. PRATT, EMMA
L. PRATT, AND BENJAMIN W. DRIGGS, JR.,
APPELLANTS.

ASSIGNMENT OF JUDGMENT - UNDER SEC. 2920, R. S. 1898 - No
ABATEMENT OF ACTION-SERVICE OF NOTICE OF APPEAL - ON
WHOM MADE APPEAL - EQUITY CASE - POWER OF APPELLATE
COURT - SEC. 9, ART. 8, CONST.- WHEN FINDINGS OF LOWER
COURT NOT DISTURBED.- FRAUDULENT TRANSACTION

OF PARTIES CONNECTED THEREWITH.

STATUS

Assignment of Judgment Under Sec. 2920, R. S. 1898 — No Abatement
of Action
Service of Notice of Appeal On Whom Made.

An assignment of judgment, under the provisions of Sec. 2920,
R. S. 1898, does not abate the action, but the same may be
carried on in the name of the original party, or the court may
allow substitution of the transferee, but until substitution has
actually been made a notice of appeal may be served on the
judgment creditor.

Appeal - Equity Case- Power of Appellate Court. Sec. 9, Art. 8,
Const. When Findings of Lower Court Not Disturbed.

An appeal in an equity case, under the provisions of Art. 8, Sec.
9, Const., brings up questions of both law and fact for review,
and the appellate court may render such judgment and de-
cree, and enter such findings as, in their judgment, the evi-
dence may justify; but where excluded testimony was
admissible, and is incorporated in the bill of exceptions, yet
if by including it and giving it its full force it does not clearly
appear that the evidence is insufficient to support the find-
ings, they will not be disturbed.

Fraudulent Transaction

- Status of Parties Connected Therewith.

In a trans:.ction tainted with fraud as between the parties to it, a court should not aid either, but should leave them in the position in which they have placed themselves.

(Decided March 9, 1900.)

Appeal from the Second District Court, Weber County, Hon. H. H. Rolapp, Judge.

Action to set aside the mortgage and note on the ground that it was made without consideration and for the purpose of hindering and delaying creditors, and especially respondent. From a judgment for plaintiff, defendant ap pealed. Modified.

Messrs. Young & Moyle, for appellants.

"The payment of a judgment may be proven by parol evidence, by separate written receipt, or by a receipt upon the record of the court." Hollenbeck v. Stanberry, 38 Ia., 325; Black on Judgments, Vol. II, Sec. 990. Greenleaf on Evidence, 14th ed., Vol. I, Sec. 302. Judgments are conclusive only as to all matters directly in issue and passed upon by the court. Greenleaf on Evidence, 14th ed., Vol. I, Sec. 528.

The court erred in finding and decreeing that the note and mortgage in question was fraudulent and void, and given with the intention of hindering and delaying creditors, and also in enforcing the provisions of the note and mortgage and granting foreclosure. If the transaction was fraudulent, surely this or any other court ought not to lend its aid to the enforcement of a fraudulent contract or agreement. In all such cases the court will leave the parties to any fraudulent transaction as they find them,

21 Utah-12.

and in pari delicto potior est conditio defendentis." Miller v. Marckle, 21 Ill., 151; Bump on Fraudulent Conveyances, 4th ed., Secs. 434-5, 444, 485; Wait on Fraudulent Conveyances, 2d ed., Sec. 401; Wearse v. Pierce, 41 Mass., 141.

Respondent is bound by the evidence of his own witnesses, he can not say they are not worthy of belief. Paxton v. Boyce, 1 Tex., 317; Hunt v. Hoover, 34 Ia., 77; 1 Greenleaf on Evidence, Sec. 442; 1 Rice on Evidence, Sec. 285.

And the same rule applies when the evidence is brought out on cross-examination of his witnesses. 1 Rice on Evidence, Sec. 285.

A verbal sale, although within the statute of frauds, is sufficient consideration for the giving of notes or the conveyances of property by a judgment debtor as against all creditors. Stowell v. Hazlet & Co., 57 N. Y., 637; Brookville Nat. Bank v. Kimball, 76 Ind., 195; Patterson, et al., v. Mc Kenney, et al., 97 Ill., 41, 50, 51; Livermore v. Northrup, 44 N. Y., 107; Hunt v. Hoover, 34 Ia., 77; Keen, et al., v. Kleckner, 42 Pa. St., 529; Bump on Fraudulent Conveyances, Sec. 202, note 7.

Security given on an outlawed claim is good as against creditors. Updike v. Titus, 13 N. J. Eq., 151; Keen, et al., v. Kleckner, supra; Shearon v. Henderson, 38 Tex., 246; French v. Motley, 63 Me., 326; Manchester v. Tibbetts, 121 N. Y., 219.

Security given by a debtor is not fraudulent because it secures "an old debt which was discharged under the insolvent laws; for the moral obligation to pay such debt remains, notwithstanding the discharge, and is sufficient consideration to support a promise to pay." Wilson, et al., v. Russell, et al., 13 Md., 494, syllabus 2; Bump on Fraudulent Conveyances, Sec. 203.