This cause was tried before a referee, who reported his findings and a judgment in favor of the defendants, which was duly entered; and thereupon the plaintiff moved for a new trial. The motion was argued, and the defendants’ counsel was allowed a certain period within which to file a brief in opposition to the motion. Before the time had expired, the Judge, apparently through inadvertence, wrote and signed an order at chambers granting the motion, and filed it with the papers in the cause, and caused it to be noted in the daily rough minute book kept by the Clerk. But when his attention was called to the fact that the order was prematurely made, he rescinded it on the ex parte motion of the defendants’ counsel, who was .then permitted to file his brief; after which the Court denied the motion, and the plaintiff has appealed as well from the judgment as from the order denying the motion for a new trial.
If we can review this order on the record here presented (a point not necessary to be now denied), I think there was no error in vacating the order upon the facts contained in *225the stipulation of counsel. It was prematurely entered, evidently through the inadvertence of the Judge, and before the motion was finally submitted for decision. It had not even gone into the engrossed minutes of the Clerk; and it was the duty of the Court, as soon as its attention was called to the fact, to vacate, of its own motion, an order prematurely made, through its own inadvertence, before the final submission of the motion.
One of the grounds of a motion for a new trial was that the evidence was insufficient to support the findings of the referee; and as to some of the findings this point is well taken. The first finding is directly against the admissions of the am,, or of Joel S. Polack. In the answer it is explicitly admitted that the several interests of Pixley, King, and Hart, in Coat Island, were purchased by the plaintiff, and that on the purchase of Pixley, she paid, of her own money, the sum of six hundred and fifty dollars; but the answer avers that Polack loaned her the purchase money paid to King and Hart. The first finding is to the effect that all these purchases were made by Polack in the name of the plaintiff, and that he paid all the purchase money out of his own funds. All evidence contrary to the admissions of the pleadings should be disregarded, the admissions being binding on the party. (1 Greenl. Ev. Secs. 27-205; Mulford v. Estudillo, 32 Cal. 131.) This finding was clearly not justified by the evidence; but-it is claimed that this finding is immaterial, in view of the subsequent findings, which, it is said, are -decisive of the action. This is doubtless true, if it be conceded that the error into which the referee fell in the first finding had no influence upon his mind in deciding upon the conflicting evidence on the other points in the case. The contest turned mainly on two questions, to wit: First—Whether the consideration of the *226conveyance from the plaintiff to Polack of her interest in Goat Island was a promise by the latter to convey to the plaintiff one half of the Geyser Springs property, or whether the conveyance was made solely on account of the plaintiff’s indebtedness to Polack for the advances made by hin on the purchase by her of the interests of King and Hart in Goat Island. Second—Whether Polack put the plaintiff into jDossession of the Geyser Springs, in virtue of his verbal promise, to convey to her one half of the property. On both these issues the referee found against the plaintiff, on the erroneous assumption that the plaintiff held the interests in Goat Island, acquired through Pixley, King, and Hart, not in her own right, but in trust for Polack, who had purchased the property in the plaintiff’s name, and paid for it with his own money. But if the referee had assumed as true the admissions of the answer on this point, as he ought to have" done, it might, and probably would, have materially influenced his judgment in weighing the conflicting evidence on the contested points above mentioned. At all events, we cannot assume that this error of the referee did not and could not properly influence his mind in deciding on the credibility of witnesses, who flatly contradicted each other as to the most material facts of the. case. Assuming that Polack purchased and paid for the Goat Island property, and took the deeds, for his own convenience, in the plaintiff’s name, the referee may well have concluded that the plaintiff" and her daughter were not worthy of credence when they testified that Polack promised to convey to the plaintiff" one half of the ^Geyser Springs, in consideration of a conveyance to him of the mere legal title to the Goat Island property, of which he was already the equitable owner. But he might have taken" a very different view of the credit to which they were entitled, and of the probable truth of their statements, if he had assumed that the plaintiff was, in fact, the owner of the Goat Island property, *227subject only to a debt of one thousand four hundred and sixty dollars due to Polack for the money advanced on the purchases from King and Hart. The defendant Mary Polack, however, claims to have been a purchaser for value, in good faith, and without notice of the plaintiff’s equities of the Geyser Springs prior to her intermarriage with the other defendant. The findings are entirely silent on this branch of the case, and there was no exception to the findings as defective. In such cases the rule is well settled in this Court that we will presume all the facts to have been found which are necessary to support the judgment. We cannot, therefore, disturb the judgment as to Mary Polack.
Judgment affirmed as to the defendant Mary Polack, and reversed as to the defendant Joel S. Polack, and remanded for a new trial as to him.
Wallace, J., concurring:
I concur in the judgment.