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month and later $15 a month for a wet nurse | able to locate the respondents until she heard for her child. According to her testimony, of them in the year 1905, when she was inthe child did not seem to thrive under the formed that they lived in the city of Bellingcare he was receiving, and she concluded, un- ham, Wash., and that, as soon as she was der the advice of others, that it was best to able to earn the means necessary for the take him to the hospital for treatment, and prosecution of the suit, she commenced the on the 8th day of June, 1896, she did take the same in the month of June, 1908. child to a place that she says she was in- The testimony concerning the attempt to formed was a child hospital, and was known locate the respondents was the testimony of as the "Bethesda," and that at this time she the appellant as to what was told her by was weak and ill. She was accompanied to Detective Welt; he not having been called as the hospital by a negress, who had been em- a witness in the case. The respondents inployed by her as a wet nurse for the child. troduced Mrs. Roger Haynes, the founder At this point the real controversy commences, and directrix of the Bethesda hospital, the the appellant testifying, in substance: That home where the baby was left. She testified she did not intend to do more than to leave that she knew of the circumstances under the child at the hospital for a short time un- which the baby was left at the home, and til she should be able to take care of it her- that the child was a deserted child, abandonself; that, in about three weeks from the ed by its mother, who at the time she brought time she left it, she went to see the child, and it there signed papers of abandonment, and was informed that it had been placed in a that it was neglected, dirty, and sickly. The family, and it was against the rules of the testimony of this witness was also largely hospital to inform the mother of the destina- hearsay, being a recital of what was told her tion of the child; that it appeared that this by the superintendent and other employés of was a foundling hospital where babies were the place; but she remembered the child, its received for the purpose of finding them good name, and its installation in the hospital, teshomes; but that she did not know when she tifying that it remained in the hospital about took the child there that it was a foundling a year, and that during that time its mothhospital, and did not wish to, and did not, er never came to see it and never was heard abandon the child or authorize the hospital of until after the child had been taken and to do anything but exercise temporary care adopted by the respondents in this case. She over the child; that, when she found the was, however, unable to produce the relinchild was gone, she was prostrated with grief, quishment which she said the mother made; which was followed by illness; and that as her testimony being to the effect that she had soon as she was able to do so she employed searched in the records for it, and her exa detective, one Arthur Welt, to find the child. planation of its loss being that the hospital To condense the recital, the child was located was in a torn up and disorderly condition in the home of the respondents, and a writ just at that time by reason of the building of habeas corpus was sued out in a competent having been seriously damaged by a cyclone court in the city of St. Louis, Mo., in July, a day or two before that, and that just at 1898. The respondent answered the writ, that time they were moving into temporary bringing the child into court. The cause was quarters, and she thought it might have been continued a few days, and when it was call- lost in the confusion attending the moving. ed for trial again it was dismissed without Mrs. C. S. Nelson, who, as Miss Schoenher, prejudice on motion of petitioner's counsel, was superintendent of the Bethesda foundfor the reason, according to her statement, ling home at the time the baby was left there, that she was not able to attend court and was testified: That they were then in temporary then in the country some distance from St. quarters following the unroofing of their Louis. The appellant undertakes to make building by the tornado; that she distinctly some point on the alleged fact that she did remembered the baby, William Barnes; that not authorize the dismissal of the case, but it was brought to the hospital on the 8th day only its continuance; but she herself testi- of June, 1896, by its mother and a negress; fies that she wrote to the detective, who that she met them at the door; that the seems to have had the matter in charge, to mother said she had come to give the baby up continue the case indefinitely, which amounts if they would take it; that she informed the to about the same thing, as, of course, the mother that the institution was a home for case could not be continued indefinitely. She deserted babies, but that it also took in mothremained in the country without any further ers with their babies if they chose to come, correspondence on the subject until the last until such time as a home could be found of October or first of November, when she re- for the babies; that appellant informed her turned to the city. No further attention was that she did not wish to come; that she paid to the matter, and it does not appear said she was willing to sign a paper to give that there was any further correspondence the baby up; that she did sign such paper about it until her return to the city some after having it read to her, and after having months afterwards, when she was informed the form of relinquishment handed to her for that the case had been dismissed. Appellant her investigation; that the paper was signed testified that she again took up the search and witnessed; that she then delivered the

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the custodian of such papers; that the name | forced to the conclusion that there was an of the child filled into the blank was William abandonment after the attempted recovery of Barnes. She further testified that she had a the custody of the child in 1898. Ten years vivid recollection of the circumstances by rea- is a long time to leave a child in the cusson of the unfeeling acts of the mother; her tody of kind-hearted people who have seen language being: "She showed no feeling fit to adopt it, when the tendency must be whatever. She did not touch the child nor that mutual affection will spring up between kiss it good-bye; so much so I doubted in the foster parents and the adopted child. my own mind whether it was her own child." The testimony in this case shows that there She testified that she remained at the home is a warm attachment and affection existing until the next January, and that the mother between the respondents and this child. It did not call to inquire for the child in three is impossible to read the record without weeks, or at all during her stay there, and concluding that that affection is as warm that she would have known it had she called. and abiding as the affection between There was a great deal of other testimony on natural parent and child. These people have this point which it is impracticable to re- given this child all the advantages that view; but what we have set forth is, in sub- could have been given to a child of their stance, the testimony adduced. In answer to own. Little circumstances are testified to the testimony of the appellant that, after the which show conclusively the feeling that exdismissal of the cause in the city of St. isted. The foster father has looked with Louis, she had attempted to locate the Dem- particular interest after the education of the ings, respondent Arthur Deming testified: boy, has helped him in his studies at home, That he was served with the writ before men- not occasionally, but constantly, and testitioned at his place of business at the store of fies: That he always heard his prayers Meyer, Bannerman & Co., where he was su- of nights when his mother was not able to perintendent for many years; that he contin- attend to him, and he administered the ued in that employment until the summer of thousand and one little attentions that are 1900, when he came to Washington; and that only administered through the promptings he could have been found there any day dur- of affection; that he was a sickly boy; that ing business hours during that time. This they have spent much for him in the way of testimony was corroborated by the wife of medical services and attention, and devoted the respondent, by his employer, and by oth- their own personal attention to him most ers. The fact seems to be firmly established. faithfully; that the boy is impulsive, someThe testimony in this case is exceedingly what stubborn, in disposition, and at the voluminous; the record being very large. same time loving and affectionate. CertainThe court was liberal in allowing the intro- ly he is just at the age when he needs the duction of testimony, and everything con- restraining hand of a father. nected with the case or tending to throw light on the actions or motives of these parties was allowed to go into the record. There seem to be two leading questions in the case. The first is: Was the child abandoned by its mother before its adoption by the Demings? It may be stated here that the record shows that the respondents adopted, or undertook to adopt, this child under the laws of the state of Missouri, and, whether or not it was a legal adoption binding on the mother, it is at least competent to show the intention and good faith of the respondents, and is probably binding upon them. The second proposition is: Was there an abandonment of the custody of the child after the dismissal of the habeas corpus proceedings in July, 1898. From a careful investigation of all the testimony in this case, and recognizing the pitiful condition of the mother, that she was grievously sinned against, and that her fault, if fault there was, was caused by inexperience on her part and by villainous wiles on the part of her seducer, we are forced to the conviction that the fact was that the intention of the appellant when she took the child to the hospital was to abandon it, in the sense of relinquishing all claims that she had upon it, so that it might be legally disposed of by

The court found, among other things, that it was to the best interests and welfare of the child that he be and remain in the care and custody, and under the control, of said respondents, and that to transfer his care, custody, and control to the petitioner herein would be detrimental to the interests of said child and detrimental to his welfare. The learned counsel for the appellant complain of this finding, and insist that the court based its conclusion in this case altogether upon the welfare of the child, inasmuch as the court had previously found that the mother was a proper person to have the care and custody of the child. This finding of the court was as follows: "That the petitioner resides in the said city of St. Louis, state of Missouri, in what has been designated by her as a 'flat,' which she has rented and is now renting, which flat has been by her and is comfortably furnished and equipped for living purposes, and in which said flat rooms are let by her from time to time to female tenants who remain for irregular periods; that the petitioner is a seamstress, engaging principally in sewing, and, in pursuing the same, the major portion of her work is done away from her home; that there are no other members of petitioner's family or other relatives residing

but, for the reasons assigned, we think the court acted wisely in reaching the conclusion that it did, and the judgment will therefore be affirmed.

RUDKIN, C. J., and CROW, MOUNT, and PARKER, JJ., concur.

PRICE et al. v. LOE et al. (Supreme Court of Washington. Dec. 10, 1909.) 1. PUBLIC LANDS (§ 185*)-TIDE LANDS-CONVEYANCES. Where the state commissioner of public lands approved assignments of a contract of sale of tide lands, and the state in pursuance thereof issued a patent to the assignee, the title of the patentee, or one claiming under him, could not be attacked by one contracting to purchase the land from the person claiming under the patentee on the ground that the assignments were defective.

sufficient means to clothe, nurture, and edu- | raised in the trial of this case which we do cate said child in the schools of the said not deem it necessary or best to discuss; city of St. Louis, but is not possessed of sufficient means to maintain him in the position and station in life in which he is now being maintained by respondents, and to which he has been hitherto accustomed; that the petitioner is otherwise a suitable and proper person to have the care and custody of said child, and is strongly attached to said child; and that said child has never known the petitioner until the institution of this proceeding." So that the finding that the petitioner was qualified to have the possession of the child was somewhat modified by the facts found. There is no question but that, while the welfare of the child is of grave importance, the rights of the natural parent must also be taken into consideration; but, under the circumstances of this case, the rights of the foster parents must also be considered, and, in taking into consideration the welfare of the child, it is not proper to consider the material wealth possessed by either the natural or foster parents, or to make comparisons in that regard, for the tendrils of parental affection entwine around the offspring of the poor with as much strength as they do around the children of the rich; if, indeed, with not greater strength by reason ordinarily of more intimate relationships and sacrifices that have to be made and which tend to strengthen mutual love and affection. Nor, looking exclusively at the welfare of the child, can it be said that the financial condition of the parents, respectively, should be taken into consideration, for it is a matter of common knowledge to all thinking and observing people that the best men and women of our nation, if not of the world, came up through the gateway of industry, self-denial, and

self-reliance. These efforts and sacrifices seem to be necessary to the moulding and rounding out of perfect individuals. At the same time, it must be apparent that, where a child has been brought up by foster parents in an environment that is distinctly different from the environment to which he would be submitted by a change of guardianship, a revulsion of feeling would be liable to occur which would lead to embarrassments and misery. In this case, looking at the question strictly from the standpoint of the boy's welfare, the mother would not be able to give him the attention which at this age he sadly stands in need of. She would not be able to give him a name, for he has none, and if he were uprooted from the home and affection which now warm and protect him, and transplanted to the environment described by the mother as her home, the probabilities are that it would result in discontent and misery to both mother and

Cent. Dig. § 598; Dec. Dig. § 185.*]
[Ed. Note.-For other cases, see Public Lands,

2. VENDOR AND PURCHASER (§ 334*) - CON

TRACTS-FORFEITURE.

Where the vendor in a contract for the sale of land complied with the purchaser's requirements to perfect the title, though they were preventing a performance by the vendor within without merit and were raised with a design of the time fixed, and the vendor tendered full performance prior to any claim of forfeiture by the purchaser, and time was not of the essence, the made. purchaser could not recover the cash payment

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 965-972; Dec. Dig. § 334.*]

Department 2. Appeal from Superior Court, King County; Ralph Kauffman, Judge.

Action by John G. Price and another against A. O. Loe and another. From a judgment of dismissal, plaintiffs appeal. Af

firmed.

Shank & Smith, for appellants. Douglas, Lane & Douglas, for respondents.

CROW, J. This action was commenced by John G. Price and A. G. Boyd against A. O. Loe and James E. Stevens to recover $500, part payment on a contract to purchase real estate, which contract they allege was breached by the defendants. On trial without a jury, and without any findings being made, the action was dismissed. The plaintiffs have appealed.

On January 12, 1906, the appellants and Feeney & Pettingill, claimed by appellants to have been agents for the respondents, executed the following written agreement. "Seattle, Wash., January 12, 1906. Received from John G. Price & A. G. Boyd the sum of $500 to apply on contract for the purchase of lots 25, 26 and 27, block 433, Seattle Tide Lands, Seattle, Wash. The full purchase There are many other questions that were price of said property to be $12,000, payable

son.

stating two classes of objections: (1) Objections pertaining to a contract of sale for the tide lands, and to assignments of the contract made prior to the issuance and delivery of the state patent to the Ferry-Leary Land Company, a corporation, from which corporation respondents deraign their title; and (2) objections to certain alleged defects in the title, subsequent to the patent. The respondents were ready, willing, and able to correct the latter objections by complying with all reasonable requirements made by the appellants relative to the title subsequent to patent, and did so within the 30 days named by the appellants' alleged contract, and for that

From the entire record we conclude that the controlling objections to the title, upon which appellants relied, pertained only to proceedings had prior to the issuance of the patent; all other objections being either waived by appellants or promptly cured by the respondents within 30 days after January 12, 1906.

as follows: $6,000, cash in hand (including | returned it with a written opinion specifically the amount of this receipt), and balance on or before three years, with interest on deferred payments at 6 per cent. per annum until paid. The said purchaser shall be furnished a complete abstract showing good and sufficient title to said property and allowed five days for examination thereof; whereupon he agrees to complete the purchase in the manner and upon the terms herein; and that in case of his failure so to do the said sum of money hereby receipted for shall, at the option of the undersigned, be forfeited as liquidated damages. It is further agreed that, in the event of failure to convey good and sufficient title within 30 days from date hereof, the said sum of money shall be re-reason we will not consider such objections. funded. It is understood that purchasers are to be allowed at least 15 days from date hereof before making further payment. [Signed] Feeney & Pettingill, Agent. Subject to the owner's approval, I hereby agree to the above provisions. [Signed] J. G. Price. A. G. Boyd, Purchaser." Respondents contend: That they never saw or heard of this instrument until after the appellants had claimed its forfeiture. That Feeney & Pettingill were agents for appellants. That respondents never listed their property with Feeney & Pettingill, who came to them with a proposition to buy. That they paid respondents $500 cash. That respondents thereupon executed and delivered to them the following receipt pleaded in their answer: "Seattle, January 12, 1906. Received of Feeney & Pettingill, agents, five hundred dollars as earnest money on purchase price of lots 25, 26 and 27, block 433, Seattle Tide Lands, balance eleven thousand five hundred dollars, payable as follows: Fifty-five hundred dollars cash in 15 days, and six thousand dollars cash on or before 3 years at 6 per cent. per annum. Abstract of title to be delivered and good title to be conveyed by warranty deed and free from all incumbrance and liens. Subject to fill, charges for. Dated January 12, 1906. A. O. Loe. James E. Stevens." That respondents never made, ratified, approved, or executed any other agreement. That they were to pay a commission to Feeney & Pettingill, although Feeney & Pettingill were agents of the appellants. That the respondents tendered performance of their contract on or about February 10, 1906, and again on or about February 20, 1906. That they have at all times since been able, ready, and willing to complete the sale and transfer a good title to appellants, and that appellants have at all times failed to perform or tender performance on their part.

The evidence shows: That on January 25, 1906, an abstract of title was delivered by respondents to appellants, whose attorney on January 30th, after examination, rejected the same, without stating his specific objections. That on February 4, 1906, an extended abstract was delivered by respondents to

As to the objections to proceedings had prior to the issuance of the patent, the respondents claim: That they were technical and without merit; that respondents never made, ratified, approved, or executed any contract requiring them to convey a good and sufficient title within 30 days after January 12, 1906; that, without admitting the validity of the objections made, respondents did in fact fully correct and remove the same on or before February 20, 1906; that they tendered by good and sufficient deeds of conveyance a full and complete performance of their contract to sell, doing so prior to February 10, 1906, and again on or about February 20, 1906; that the market value of tide lands rapidly depreciated immediately after January 12, 1906; that the respondents were damaged in the sum of $2,000 by reason of appellants' failure to complete their contract to purchase; and that appellants' technical and captious objections were made to afford them an excuse for refusing the completion of their contract to purchase, to aid them in recovering their cash payment, and to enable them to avoid loss resulting from the depreciation of value in tide lands. The trial court excluded competent evidence offered by the respondents in support of their contentions that the land had depreciated in value, and that they had been damaged; but sufficient competent evidence was admitted to sustain all of respondents' other contentions, and the action was therefore properly dismissed.

The abstract of title which is in the record shows: That the state of Washington, on December 15, 1898, issued a contract of sale for the tide lands in question to one Thomas Flint, who, with his wife, Mary Flint, on January 2, 1890, by written assignment, transferred the contract to his son, Thomas Flint, Jr.; that the assignment was, on May 12,

spondents to sell, the evidence fails to show that respondents approved the written contract executed by Feeney & Pettingill, upon which appellants rely, and which by its terms contemplated that it should be subject to their approval. Nor was there any evidence of the execution of any agreement by respondents, other than the one signed and pleaded by them, upon which $500 was paid by Feeney & Pettingill. The evidence establishes the fact that respondents promptly complied with all of appellants' requirements to perfect the title, although they were captious and technical, without merit, and must have been raised with the sole design of preventing a performance of the contract by respondents within the 30-day limit claimed by appellants. We further find that the respondents tendered full performance of the contract prior to any claim of forfeiture by appellants, and that time was not of the essence of the contract which respondents actually made. The trial court ruled strictly against respondents in the matter of admitting evidence, but found in their favor. The evidence admitted by its clear preponderance sustains such finding.

later Thomas Flint died testate; that after | question whether Feeney & Pettingill were his death Mary Flint, his widow, acknowl- their agents to purchase, or agents of reedged the assignment she and her husband had jointly made during his lifetime; that the assignment was approved by the state commissioner of public lands; that Thomas Flint, Jr., on December 11, 1905, executed, acknowledged, and delivered an assignment of the contract to the Ferry-Leary Land Company, a corporation, which was also approved by the state commissioner of public lands; that on December 26, 1905, the state executed and delivered a patent for the land to the Ferry-Leary Land Company, from which company the respondents deraigned title. The appellants' attorney, who examined the abstract, questioned the sufficiency of the assignment from Thomas Flint and Mary Flint, his wife, to Thomas Flint, Jr., by reason of the fact that it had not been acknowledged by Mary Flint prior to the death of her husband. He also attacked the sufficiency of the assignment from Thomas Flint, Jr., to the Ferry-Leary Land Company by reason of the fact that it did not disclose whether the assignor was a married man, and for the further reason that it was not executed by the assignor's wife, if he had one. Both assignments, however, were approved by the state commissioner of public lands, and subsequently the state, in pursuance thereof, issued a patent to the Ferry-Leary Land Company.

In Welsh v. Callvert, 34 Wash. 250, 75 Pac. 871, this court said: "The deed, having been made by the state, and purporting to convey a portion of its public lands, is analogous to a patent issued by the United States for a portion of the public domain, and is governed by similar legal principles. The state has created a land department with administrative and executive functions similar to the land department of the general government. That department is authorized to supervise the proceedings by which title is sought to be obtained to any portion of the state's public lands. Having supervised such proceedings in a given case, and having caused the deed of the state to issue, it becomes, in effect, the patent of the state, and cannot, under the rules established as to federal land patents, be collaterally attacked." On the authority of this case, we do not think the appellants were in a position to question the validity of the patent issued by the state or the title of respondents thereunder, or to make a collateral attack upon the same. In any event, the respondents, without conceding any merit in the objections made by the appellants to the assignment of the contract of sale, corrected the same by proper written instruments, which were tendered to the appellant on or before February 20, 1906. We do not deem it necessary to enter upon a further discussion of appellant's various objections to the title. Without regard to the

The judgment is affirmed.

RUDKIN, C. J., and MOUNT, DUNBAR, and PARKER, JJ., concur.

HILZINGER v. GILLMAN, City Comptroller
(HULBERT, Intervener).

(Supreme Court of Washington. Dec. 9, 1909.)
1. MUNICIPAL CORPORATIONS (§ 159*) -OF-
FICERS RECALL-INTERVENTION
ENTITLED TO INTERVENE.

PERSONS

An elector and taxpayer of a city has no such interest in the matter in litigation as enCodes & St. § 4846 (Pierce's Code, § 272), in titles him to intervene under Ballinger's Ann. a suit by a councilman of a city to enjoin the city comptroller from certifying to the sufficiency of a petition for the recall of the councilman in the manner prescribed by the city charter; the comptroller appearing and defending the action.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 352; Dec. Dig. § 159.*]

2. MUNICIPAL CORPORATIONS (§ 155*)-CHARTERS-CONSTRUCTION.

The provision in Everett city charter for the summary removal of elective officers for specified causes, and the provision for the recall of any elective officer at any time his official conduct is not responsive to the will of the majority of the electors, are not inconsistent when considered in the light of the entire charter, which discloses a purpose on the part of the electors to reserve to themselves the power to control the legislative and executive policy of the city.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 155.*]

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