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Black & Black, for appellants. & Howard, for respondent.

Newman | Wilson, who attempted to intervene, have appealed from that decree.

When the case was remanded to enter judgment foreclosing the mortgage for the entire mortgage debt and to allow the plaintiff a reasonable attorney's fee based on the recovery of the entire debt, the duty of the trial court was plain. This did not mean that the case was to be again tried, or that further evidence was to be taken. It meant that all the issues in the case had been determined, and that a decree should be entered as direct

MOUNT, J. This is the second appeal in this case. When it was here before, we determined that the trial court had erred in not entering a decree for the entire debt, in allowing a release of certain premises, and in fixing the attorney's fee based on a foreclosure for a part of the debt. The case was therefore remanded to the lower court with the following directions: "The judgment appealed from is reversed, and the cause re-ed without further hearing. It was, no doubt, manded, with instructions to enter the usual judgment foreclosing the mortgage for the entire mortgage debt, disallowing the application to release the tract known and described in the mortgage as the 'Old Colony Wharf strip,' and allowing to the plaintiff a reasonable attorney's fee based on the recovery of the entire mortgage debt." Bartlett Estate Co. v. Fairhaven Land Co., 49 Wash. 58, 94 Pac. 900, 15 L. R. A. (N. S.) 590, 126 Am. St. Rep. 856. The case was here upon a complete record, and was not remanded for a new trial. When the case was remitted to the lower court, counsel for the plaintiff filed a motion for a decree in accordance with the mandate. In this motion it was alleged that certain payments had been made without prejudice upon the debt, by the payment of certain collateral notes held as security in addition to the mortgage, which payments had been made pending the appeal, and were proper credits on the debt, and that no other payments had been made. The defendant Fairhaven Land Company then filed an answer to this motion, denying that no other payments had been made. The answer also contained two alleged affirmative defenses; the first alleging a tender of $11,381 before maturity of one of the notes, thereby canceling the lien thereof, and the second affirmative defense alleging a transfer of certain of the property by the mortgagor to third parties. The answer prayed for a credit of said $11,381, and for a marshaling of assets. The trial court upon motion struck out the affirmative matter. The appellant E. M. Wilson applied to intervene in the action, alleging that he had purchased a part of the mortgaged premises while the appeal was pending, and prayed that the sum of $11,381 be credited upon his purchase, and that the assets be marshaled. This application was denied. The court thereupon heard evidence upon the credits alleged to have been made, and found the whole amount thereof and the amount due upon the mortgage. The court also fixed the attorney's fee at $6,500 upon the evidence as introduced in the original case, and a decree was entered accordingly. The Fairhaven Land Company and E. M.

proper practice, when it was conceded that payments had been made upon the debt after the appeal had been taken, to give credit for such payments before the judgment was entered; but these credits might just as well have been given upon the judgment, and, where there was any dispute as to the correct amount of such credits, it was the duty of the court to try that question and determine the amount to be credited, whether the credits were to be made upon the debt before judgment or upon the judgment itself. The parties in this case sought to have the credits made upon the debt before the judgment was entered. This was done, and in our opinion was properly done, under the mandate. One of the questions on the other appeal was whether the whole debt became due on account of the failure of the debtor to pay certain installments, and we held that the whole debt was due, and that the assignee had the same right as the mortgagor to declare the whole debt due. It is not claimed that the tender of $11,381 was made upon one of the notes prior to such declaration. The tender was as a matter of fact made after the action was begun, and was therefore too late, because the decision in the other appeal determined the time of the maturity of the note upon which the tender was made and the time of maturity of the whole debt, and also determined the right of appellant and privies claiming under it to litigate that question further. Mr. Wilson also acquired his interest in the mortgaged property while the appeal was pending. He acquired with notice, and is therefore a privy bound by the judgment against his grantor. 23 Cyc. p. 1253. It is clear therefore that the court properly struck out the further answers of the appellant and properly denied the intervention. There was substantially no dispute upon the items which the court gave credit for upon the debt.

There is no merit in any of the points presented on this appeal, and the judgment is therefore affirmed.

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

BARTLETT ESTATE CO. v. FAIRHAVEN LAND CO. et al.

(Supreme Court of Washington. Dec. 20, 1909.)

1. MORTGAGES (§ 512*)-ACTION TO FORECLOSE -MODE OF SALE-ENTIRE TRACT.

Ballinger's Ann. Codes & St. § 5288 (Pierce's Code, § 868), requiring all lands except town lots to be sold by the acre, if in force, is directory, and does not require sale of each acre separately, and on a mortgage foreclosure a sale of, or bid on, a tract for a certain sum, will be deemed to be for the average amount per

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Ballinger's Ann. Codes & St. Supp. § 5276, providing that when the sale is of real property, consisting of several known lots or parcels, they shall be sold separately or otherwise as is likely to bring the highest price, or when a portion of such real property is claimed by a third person, and he requires it to be sold separately, such portion shall be sold separately, means such third persons as claim adversely to mortgagor and mortgagee and such as acquire interest after the mortgage but before action to foreclose. [Ed. Note.-For other cases, see Mortgages, Dec. Dig. § 512.*]

3. JUDGMENT (§ 682*)-CONCLUSIVENESS-PARTIES BOUND--PRIVIES.

Persons acquiring rights in mortgaged premises pending, and with notice of, action to foreclose, became privies and were bound by the decree and have no greater right to object to the decree as to method of sale than the original defendants.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1203-1205; Dec. Dig. § 682.*] 4. APPEAL AND ERROR (§ 934*) - PRESUMP

TIONS JUDGMENT.

Where no objection was made to the portion of a decree foreclosing a mortgage directing the method of sale, it must be presumed that the court tried out that question and decided that such method of sale was most advantageous. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 934.*]

5. MORTGAGES (§ 512*)-ACTION TO FORECLOSE -METHOD OF SALE-ENTIRE TRACTS.

When those acquiring interests in mortgaged premises to be sold on foreclosure made written request on the sheriff to sell separately the interests so acquired, he replied that he "would comply with the mandate," and at the sale he inquired if any wished it sold in one block, or if there was any particular portion they wanted sold. Held that, if such persons had a right to a separate sale, there was no such denial of the request as relieved them from attending the sale or from remaining silent under the offer made at the sale.

[Ed. Note. For other cases, see Mortgages, Dec. Dig. § 512.*]

6. MORTGAGES (§ 512*)-ACTION TO FORECLOSE -METHOD OF SALE.

Certain tracts of upland were described in a mortgage and decree by metes and bounds, followed by the words, "together with the leases heretofore issued by the state to the harbor area in front of and abutting upon said premises." Held, that the harbor area leases were clearly appurtenant to the upland and properly sold together as one tract.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. § 1515; Dec. Dig. § 512.*]

7. MORTGAGES (§ 512*)-ACTION TO FORECLOSE -METHOD OF SALE.

Assuming that they were separate tracts, the decree authorized sale thereof as one parcel, and no substantial irregularity appeared in such sale.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1515; Dec. Dig. § 512.*] 8. MORTGAGES (§ 515*)-ACTION TO FORECLOSE -METHOD OF SALE.

Under Ballinger's Ann. Codes & St. § 5291 (Pierce's Code, § 871), requiring a mortgage foreclosure sale to be to the highest bidder who shall forthwith pay the bid to the officer, a sale having been advertised as for cash, the sheriff's announcement that he would not take checks or anything of that kind was not unfair or preventive of competition.

Cent. Dig. § 1517; Dec. Dig. § 515.*] [Ed. Note.-For other cases, see Mortgages,

Department 2.

Court, Whatcom County; John A. Kellogg, Appeal from Superior Judge.

Action by the Bartlett Estate Company against the Fairhaven Land Company and others. From an order confirming sale of mortgaged premises, defendants appeal. Affirmed.

Black & Black, for appellants. Newman & Howard, for respondent.

MOUNT, J. This appeal is from an order confirming the sale of mortgaged land pursuant to a decree of foreclosure. The decree and order of sale directed "such property to be sold in separate parcels according to the separate descriptions of such property contained in such mortgage." The mortgage debt amounted to something over $137,000. This debt was secured by a mortgage upon several different parcels of land. Some of these parcels were described as city lots, others were described by metes and bounds, and still others by legal subdivisions of section, township, and range. The decree set forth the different parcels and lots as they were described in the mortgage. Prior to the sale, but after the notice thereof had been published, several persons, claiming to have purchased certain portions of the property pendente lite, gave written notice to the sheriff that they had purchased such portions of the property, each of such portions being less than the whole of any one parcel thereof as described in the mortgage and decree, and requested the sheriff to sell such portions separately. The sheriff replied to each of these requests, in writing, that he would sell the property as directed in the decree. At the time of the sale the sheriff announced: "Now, gentlemen, this property we intend to sell for cash, and all those bidding are supposed to have the cash here. We are not taking any checks or anything of that kind. How do you gentlemen want this sold? In one block? Any particular piece that you want sold? If not, I will follow the decree of the court. I will commence to sell it." The

property was then offered for sale parcel | brought to foreclose. Such persons, no by parcel as described in the mortgage and decree, until the platted town lots were reached, when a bidder offered to bid on such lots separately. The lots were then offered and sold separately. At the sale the sheriff did not, after the offer first above stated, offer any portion of any tract as he had been requested by written notice to do, and no further request therefor was made at the sale. The property sold, except the town lots, was made up of large tracts, and was not offered by the acre. It was bid in by the plaintiff; no other person offering bids thereon. After the return of the sale was made, the defendant in the action and E. M. Wilson, Alfred L. Black, and Ada F. Black, his wife, Alfred L. Black, Hugh Eldridge, and D. B. Edwards, claiming to be successors in interest of the defendant, objected to confirmation of the sale upon the grounds that the sheriff failed: (1) To sell by the acre; (2) to sell portions of property claimed by the objector; (3) that he sold two parcels as one tract; and (4) that the refusal of the sheriff to take checks prevented competitive bidding. The trial court overruled all these objections and entered an order confirming the sale. The appeal is from that order. We shall consider these points in the order stated.

1. It is true that section 5288, Ballinger's Ann. Codes & St. (Pierce's Code, § 868), provides that "all lands except town lots shall be sold by the acre." This, however, does not mean that the land shall be sold an acre at a time. It means that bids shall be at so much per acre. If this provision is still in force, it is merely directory. If a tract of 40 acres of land were sold for $400, the court would construe such sale as being by the acre, and such bid as meaning by the acre at $10 per acre. This court has held that it was within the discretion of the sheriff to sell lands en masse or in parcels, and such sale would be confirmed where no substantial irregularity is shown. Otis Bros. & Co. v. Nash, 26 Wash. 39, 66 Pac. 111. A bid for a whole tract is not a substantial irregularity, even though not made by the acre, for the bid would be construed as so meant.

2. The statute under which the sale was made provides: “*** And when the sale is of real property, consisting of several known lots or parcels, they shall be sold separately or otherwise as is likely to bring the highest price; or when a portion of such real property is claimed by a third person, and he requires it to be sold separately, such portion shall be sold separately." Ballinger's Ann. Codes & St. Supp. § 5276; Laws 1899, p. 87, c. 53, § 4. We are of the opinion that the third persons here referred to are such persons as claim adversely to the mortgagor and mortgagee, and such as acquire interests in the mortgaged property after the mortgage but before action is

doubt, are entitled to a direction in the decree of foreclosure that the portions claimed by them shall be sold separately. Solicitors' Loan & Trust Co. v. Railroad Co., 11 Wash. 684, 40 Pac. 344. In this case the objectors other than the defendant acquired their rights pendente lite with notice of the action to foreclose; in fact, after the original decree had been entered. They therefore became privies to the defendant, and were as much bound by the decree as if they had been parties from the beginning, and have no greater right to object to the decree in regard to the method of sale than the original defendants. The decree ordered the property sold in parcels as described in the mortgage. No objections were made to this part of the decree. It must be presumed therefore that the court tried out that question and decided that such method of sale was likely to bring the highest price. If this question was one to be determined by the sheriff at the time of the sale, and not to be determined by the court at the trial of the case, as some courts seem to hold, and if these objectors were third persons within the meaning of the statute, we are still of the opinion that, when the sheriff at the beginning of the sale stated: "How do you gentlemen want this sold? In one block? Any particular piece that you want sold? If not, I will follow the decree of the court"-it was then the duty of these objectors at that time to require the sheriff to offer specified portions separately, and, when they failed to accept the offer of the sheriff to sell particular pieces separately, they must be held to have waived the privilege which the statute gave them. When the written request was made upon the sheriff to sell certain specified portions separately, he did not deny the request, but stated that he would at the sale "comply with the mandate of such execution and decree." This was not such a denial of the request as would relieve the parties from attending the sale, or, if present, in remaining silent when they were asked if there was "any particular piece that you want sold." 3. Certain of the tracts of upland were described in the mortgage and decree by metes and bounds, followed by the words "together with the leases heretofore issued by the state of Washington to the harbor area in front of and abutting upon said described premises." It is claimed by the objectors that these leasehold interests in the harbor area in front of the upland are separate interests from the upland, and constituted two parcels, and that the two parcels should have been sold separately, and that, because they were sold as one tract, the sale should not have been confirmed. It is not claimed that any demand was made for separate sale of these particular tracts. The harbor area leases were clearly appurtenant to the upland; but, assuming that

they were separate tracts, the decree authorized the sale thereof as one parcel, and no substantial irregularity appears, and therefore, under the rule in Otis Bros. Co. v. Nash, supra, the sale was properly confirmed.

4. The sale was advertised to be for cash. The statute provides that such sale shall be made to the "highest bidder who shall forthwith pay the bid to the officer." Section 5291, Ballinger's Ann. Codes & St. (Pierce's Code, § 871). There is no merit therefore in the appellants' contention that the announcement of the sheriff that "we are not taking any checks or anything of that kind" was unfair or prevented competitive bids.

We find no error in the record.

property for the purpose of placing it beyond the reach of his creditors, or at all; that he has at all times desired his creditors to receive the full amount to which they are entitled," etc. A counter affidavit filed by the appellant averred that on the 17th day of November, 1908 (the attachment issued two days later), the respondent "had a tentative agreement or contract, to sell the property upon which the attachment was levied," etc. Based on the foregoing affidavits, the contention of the appellant is that the respondent did not deny that he was about to convert his real property into money. We can not agree with this contention. While the respondent did not in express terms controvert the averments of the attachment affi

The order appealed from is therefore af- davit, he did deny that he at any time atfirmed.

tempted to sell any of his property, and we fail to see how a person can convert real

RUDKIN, C. J., and CROW, PARKER, property into money except through the mediand DUNBAR, JJ., concur.

WATSON v. SHELTON. (Supreme Court of Washington. Dec. 20, 1909.) ATTACHMENT (§ 246*)-AFFIDAVIT-MOTION TO DISSOLVE-DENIAL OF GROUNDS.

An affidavit for attachment, after stating the formal matters required, and particularly describing certain real property, alleged as the ground for attachment, "Which said real estate the defendant is about to convert into money for the purpose of placing it beyond the reach of his creditors." An affidavit of defendant in support of a motion to dissolve the attachment averred that defendant had at no time attempted to sell any of his property for the purpose of placing it beyond the reach of his creditors, or at all, etc. Held that, although defendant did not in express terms deny the averments of the attachment affidavit, he did deny that he at any time attempted to sell any of his property, and, since he could not convert real property into money except by sale, the denial of the ground of attachment set out in the original affidavit was direct and explicit.

[Ed. Note.-For other cases, see Attachment, Dec. Dig. § 246.*]

Department 1. Appeal from Superior Court, Lincoln County; O. R. Holcomb, Judge.

Action by Charles Watson against James Shelton. From an order dissolving an attachment, plaintiff appeals. Affirmed.

Merritt, Oswald & Merritt, for appellant.

um of a sale.

In our opinion there was a direct and explicit denial of the ground of attachment set forth in the original affidavit, and the court committed no error in the ruling complained of.

The order discharging the attachment is therefore affirmed.

NORTHERN MERCANTILE CO. v.

SCHULTZ. (Supreme Court of Washington. Dec. 17, 1909.) 1. SALES (§ 156*)-DELIVERY-ACCEPTANCE. At the time of the sale of cedar poles, they were piled on a river bank, and the purchaser's agent marked each pole, and stated that he would thereafter send a barge, and the seller agreed to load them on the barge. Held, that the poles were delivered and accepted, and that delivery was not postponed until the loading upon the barge.

[Ed. Note. For other cases, see Sales, Cent. Dig. 372; Dec. Dig. § 156.*]

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2. SALES (§§ 135, 166*) PERFORMANCE OF CONTRACT.

A contract to sell cedar poles is not affected by the fact that some of the poles were cut from dead trees, which would only affect the price, or by the fact that the seller had not made final proof on his homestead from which some of the poles were cut.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 330, 391-400; Dec. Dig. §§ 135, 166.*] Department 1. Appeal from Superior Court, Stevens County; D. C. Carey, Judge.

Action by the Northern Mercantile Company against Frank Schultz. Judgment for defendant, and plaintiff appeals. Affirmed.

Alva S. Sherlock and Judson & Rochford, for appellant. W. H. Jackson and S. Douglas, for respondent.

PER CURIAM. This is an appeal from an order dissolving an attachment. The affidavit for attachment, after stating the formal matters required in such cases, and particularly describing certain real property, alleged the ground of attachment as follows: "Which said real estate the defendant is about to convert into money for the purpose of placing it beyond the reach of his creditors." The affidavit in support of the motion to dissolve the attachment averred, among other things: "That [the defendant] has at no time attempted to sell any of his

MORRIS, J. Appellant brought this action to recover $241.61 due upon merchandise sales between June 19 and November 1, 1907. Respondent, answering, admitted the pur

chase of the merchandise, the value as alleged, and that he had not paid for same, and by way of counterclaim set forth that, on June 4, 1907, he sold appellant 376 cedar poles for the sum of $818, and that it was then agreed that all merchandise purchased by him from appellant should be credited upon the purchase price of the poles, and demanded judgment. The reply contested this counterclaim and, upon the issues thus joined, trial was had to the court. Findings and conclusions were handed down, sustaining the counterclaim and awarding respondent judgment in the sum of $576.39, from which this appeal is taken.

The only question involved in the appeal is: Did the appellant purchase and accept delivery of the cedar poles? The court below so found, and a reading of the record establishes the correctness of such a finding. At the time of the sale, the poles were on the river bank, and the agent of the appellant, with a piece of lumberman's chalk, marked each pole across the end, and stated he would thereafter send a barge, and respondent agreed to load them upon the barge. This would be an acceptance and delivery, and did not mean that delivery was postponed until the loading upon the barge. The marking of the poles was a clear expression of intent to exercise ownership. It was an exercise of dominion over the poles, and manifested an acceptance and intention to claim them as the poles of appellant. Pacific Lounge Co. v. Rudebeck, 15 Wash. 336, 46 Pac. 392; Williams v. Ninemire, 23 Wash. 393, 63 Pac. 534.

The fact that some of the poles were cut from dead trees did not affect the sale, but only the price to be paid for such poles. Neither is it material here that respondent had not made final proof upon his homestead claim, from which some of the poles might have been cut.

Judgment affirmed.

RUDKIN, C. J., and GOSE, CHADWICK, and FULLERTON, JJ., concur.

MCEVOY et ux. v. TAYLOR et ux.

many as 6 cows and 6 or 7 horses, and his geese, to the number of about 20, to drink from of the water resulted; such use not being unthe pond and to go into it, though a pollution reasonable.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 35; Dec. Dig. § 43.*]

3. WATERS AND WATER COURSES (§ 39*)-RIPARIAN OWNERS-RIGHTS.

Where the water from a spring rising on an owner's land did not in its natural state flow onto the land of another, but had been diverted so as to do so, the other, being a nonreasonable use of the water by the owner of the riparian owner, could not enjoin an alleged unland upon which the spring was situated, who was a prior riparian proprietor.

[Ed. Note.-For other cases, see Waters and

Water Courses, Cent. Dig. § 31; Dec. Dig. § 39.*]

Department 1. Appeal from Superior Walla Walla County; Thos. H.

Court,

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MORRIS, J. Appellants own a small tract of land on the outskirts of Walla Walla. Springs of water rise upon the land, and the waters therefrom form a small pond about 20 feet in width and 40 feet in length. From this pond the water flows in a small stream down upon and across respondents' property. The action was brought, alleging the pollution of the water by appellants in permitting their horses, cattle, and geese to use the pond so as to befoul its waters and render its use unfit for respondents. The action resulted in the court enjoining the appellants from permitting their horses, cattle, or geese from entering into and corrupting the water, so as to prevent its flow in its natural purity, commanded them to clean out the spring, restoring it to its natural condition, and to remove a hogpen situate near the head of one of the springs, which last spring, however, did not empty its water into the pond. From the decree so entered, defendants have appealed.

Respondents have not appeared in this court, so that we have not the benefit of a volved in the appeal is the general one inbrief in their behalf. The only question in

(Supreme Court of Washington. Dec. 16, 1909.) 1. WATERS AND WATER COURSES (§ 42*)volved in the decree. The parties being ripaRIPARIAN OWNERS-RIGHTS.

Each riparian owner is entitled to a reasonable use of the waters as an incident to his ownership; his right to be consistent with the rights of the others.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 33, 34; Dec. Dig. § 42.*]

2. WATERS AND WATER COURSES (§ 43*)-RIPARIAN OWNERS RIGHTS.

The owner of 72 acres of land upon which springs arose forming a pond, the waters of which flowed across the property of another, had a right to permit his stock, consisting of as

rian owners, their respective rights to the use of the water are to be determined by their rights as such riparian owners. These rights are now well established. Each riparian owner is entitled to a reasonable use of the waters as an incident to his ownership, and, as all owners upon the same stream have the same right of reasonable use, the use of each must be consistent with the rights of others, and the right of each is qualified by the rights of others. We are speaking

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