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forgery and notifying this appellant. It is Appeal from Superior Court, King County ; also quite evident that appellant, or who Arthur E. Griffin, Judge. soever first cashed these forged checks, was Action by Shamgar Morris and another guilty of some negligence in not having the against the lealy Lum:er (ompany and otlıparty properly identified. But, laying aside

From a judgment for defendants, pain the question of negligence as to appellant tiffs appeal. Allirmed. and those from whom he bought the checks,

Walter S. Fulton, for appellants. Brownit does not appear from the pleadings and

ell & Coleman, for respondents. evidence in this case that the appellant suffered loss by reason of the delay or negli

FULLERTOX, J. The appellants brought gence of respondent. If the appellant hac

this action against the respondents to promade a showing that at the time he wa.: ap cure a cancellation of a written lease and to prised of the forgery he was unable to col

recover the possession of certain lands held lect the money which he bad paid for said

by the respondents under and by virtue of checks, but that he could have done so if re

the lease. The facts necessary to an underspondent had promptly detected the forgery,

standing of the controversy are, in sulias it should have done, he would doubtless

stance, these: The appellants own certain have a defense to this action. But nothing

lands situated in King county, described, acof the kind appears. So far as this record cording to the l'nited States government surshows, the appellant, when apprised of the

veys, as the N. E. 14 of the Y. E. 14 of secforgery, could have recovered from each of

tion 3, and the N. 12 of the Y. W. 14 and the the parties from whom he received the checks

V. W. 14 of the X. E. 14 of section 10, all in the amount of money paid therefor, or was

township 25 N. of range 7 E. of the Willain as good a position to have done so as he

mette meridian. The respondent Ilealy Lumwould have been, had the respondent imme

ber Company owns land abutting upon the diately protested the checks and notified him

appellants' land on the north, east, and south. of the forgery. We think the judgment of

The land of the respondent is valuable chiefthe trial court was in accord with the priu

ly for the timber standing upon it. Owing to (iples enunciated in the opinion of this couri

the topography of the country in its vicinity, upon the former hearing.

the lands of the respondent cannot be logged The judgment is affirmed.

profitably without bringing the logs out

through certain gulleys or ravines which exHADLEY, C. J., and FULLERTOX and

tend diagonally across the appellants' land. MOUNT, JJ., concur.

In the year 1889, the respondent was engaged in logging the land lying north of the land of

the appellants, and was bringing the logs out (46 Wash. 686)

over a road extending diagonally across the MORRIS et ux. v. IIEALY LUMBER CO.

two western 40-acre tracts above described, et al.

having theretofore entered into a written (Supreme Court of Washington. Aug. 2, 1907.

agreement with the appellants which granted 1. LANDLORD AND TEXANT – LEASE — ABAX

it that right. In the year named, a dispute DOXMENT. The failure to build a logging road or rail

arose between the parties as to the extent of road under a lease of premises "for a logging the rights conferred by the agreement, and road or railroad to be thereafter constructed" an action was begun by the appellants against was not such an abandonnent of the lease as to entitle lessors to re-enter before expiration

the respondent to have them judicially deterof the term.

mined. This action was settled by the ex[Ed. Note.-For cases in point, see Cent. Dig. ecution of the agreement out of which the vol. 32, Landlord and Tenant, & 360.]

action at bar arises. The latter agreement 2. SAME-TEXAXCY FOR INDEFINITE TERM. contained seven clauses, only two of which,

A lease for one year, and so on from year however, are material to the present controto year, until the same should be terminated at the end of the first or any subsequent year by

versy. By the first clause, the appellants lessee giving one month's notice in writing to

leased to the respondent for three years, that effect, and providing that failure to pay "and no longer," the right to construct and rent should work a forfeiture thereof. was not operate a logging road through the two westa lease for an indefinite term, within Ballinger's Ann. (odes & St. $ 1.370.

ern 10-acre tracts, together with the right 3. SAME-LACK OF MUTUALITY.

to use a small lake near the southern boundA lease, under which l:-ssee may at its op ary of the land as a storage ground. By the tion hold the premists inclefinitely, or comminate third clause they leased to the respondent a it on one month's notice, and confering no

strip of land 100 feet wide, being 50 feet on right on lessor to terminate the same while the rent should continue to be paid, is not thereby

cach side of a line theretofore surveyed rendered voil for lack of mutuality.

through the two eastern 10-acre tracts, for a 4. EVIDENCE – L'AROL EVIDENCE – VABYING | vgring road or railroad to be thereafter conTERMS OF LEASE,

structed, and a tract of land in the northParol evidence to show that a lease was made on a condition that would defeat it is in

west (orner of the X. E. 14 of the X. W. 14 admissible.

of section 10, suflicient in size for a logging [Ed. Notr. For posin it: point, see Cent. Dig.

camp with the privilege of erecting buildings vol. 20, Evidence, $ 1.132.)

and other improvements thereon necessary


and convenient for the use of the respondent is at once apparent. The respondent is acin conducting the logging business. The du tually in possession, and has now all of the ration of the lease was prescribed in the fol possession that was surrendered to it when lowilig language: "To have and to hold said the lease was executed. Did its failure to strip for a reriod of one ye:ir from the 24th build either the logging road or railroad clay of October, 1889, and so on fron year to amount to an abandonment in law? It seems year until tl.e lease mentioned in this clause to us that it did not. There was no express shall be terminated ai the end of the first agreement in the lease that it would build year or any subsequent year by the party of either of the roads. The le:se merely lets the the second part [respondent] giving to tie land to the respondent for that purpose, but parties of the firs: piirt (appellants] one cal does not obligate it to build. Hence it would endar month notice in writing; the party o: seem that the mere failure of the lessee to do the second purt yielding and paying the year something it did not obligate itself to do ly rent o. fifteen dollars ($15.00) on the 24th could not be such an abandonment of the day of October of each and every year of said lease as to permit the lessor to re-enter betenancy for said strip and the camping place fore the expiration of the term. Doubtless, hereinafter :nentioned. Failure to pay said a failure on the part of the lessee to perform rent when the same falls due may be treated express stipulations contained in the lease as a forfeiture of this lease by the parties of may work a forfeiture where these stipulathe first part." The roadway described in tions are for the benetit of the estate or the this clause of the lease was intended to con profit of the lessor, but forfeitures are never nect with the roadway described in the first favored, and will not be enforced, even in clause, at or near the place where the camp actions at law, unless the right is clear and was located, and its situation is such that it the proofs evident. The lease in question cannot be used as an independent way, but here contains no express stipulations that must be used in connection with the road first have been violated by the lessee, and we described. The respondent, however, did not must conclude that the lessor cannot declare find it necessary to make use of the way dur the lease at an end on this ground. ing the life of the lease mentioned in the first The second contention is that the lease clause, and no logging road or railroad was creates a tenancy at will, which could be ever constructed over the way. It took posses terminated at any time by the lessor, and sion of the camping place and erected a num was so terminated by the oral notice to quit ber of buildings thereon shortly after the and the subsequent commencement of this lease was executed, using it in connection action. But we cannot agree that this is the with its logging business conducted while effect of the lease. In the first place. we the lease mentioned in first clause of the think it may be doubted whether there is mmagreement was in existence. After that lease der the statutes of this state any such tenexpired, it attempted to get it renewed by ancy as a tenancy at will, at least, any such agreement, and failing in that it sought to tenancy as was known by that name at the procure a right of way under a statute at common law. The statute recognizes but tempting to confer on logging companies the four species of tenancies, namely, tenancies right of eminent domain. The statute was for a fixed time, tenancies from year to year, held unconstitutional by the trial court, and tenancies for an indefinite term, and tenanthe right to condemn denied; its judgment cies by sufferance. Ballinger's Ann. Codles being atlirmed by this court on appeal. Hea & St. $$ 4568-1571. The nearest approach to ly Luber Co. v. Morris, 33 Wash. 490, 74 a tenancy at will in the tenancies here menPac. 681, 6:3 L. R. A. 820, 99 Am. St. Rep. 964. tioned is the tenancy for an indefinite time; After this decision, the respondent was oblig. but, if the lease in question creates a tenancy ed to cease its operations, since it was unable for an indefinite time, it does not aid the apto get its logs to market. It therefore sold pellants in this action. Such a tenancy can all of its stock and equipment of a perisha- | only be terminated by a written notice given ble nature, keeping only its permanent equip 30 days or more preceding the end of some ment, blacksmith tools, and the like. These rent-paying period (Id. $ 1509), and no such it has since kept in the building, on the notice was given in this case. But we do camp site, where the other named respond not think the lease was a lease for an indefients have since resided. Prior to commen nite time in the sense used in the Code. By cing this action, the appellants made an ora! its terms it was to expire, if not sooner fordemand upon the respondent for possession feited for the nonpayment of rent, when the of the premises described in the third clause lessee gave one calendar month's notice in of the lease, and, on its failure to surrender writing to that effect at the end of the first possession, brought this action for the pur year of the lease or any subsequent year. poses first stated. The trial court held that In other words, it bound the lessor as long the facts did not justify a recovery, and en as the lessee paid the rent, and bound the tered judgmnt accordingly. This appeal is lessee until he gave the calendar month's nofrom that judgment.

tice in writing. It is argued that this conThe appellants' first contention is that struction of the lease :lvoids it, because it there was an abandonment of this le:ise. then lacks mutuality. But mutuality in this But that there was no abandonment in fact sense is not essential to a valid lease. In

this state there are no restrictions upon the Hathaway & Alston, for appellants. J, Y. right of alienation. A person owning land | Kennedy, for respondent. in fee may convey a fee, and, having power to convey a fee, may convey any interest in FULLERTOX, J. On May 24, 1906, in an the land less than a fee. Tischner v. Rut action pending in the superior court of Snoledge, 35 Wash. 288, 77 Pac. 388. So, in this homish county between the respondent and case, the appellants, having power to convey the appellant Frank M. Curtis for a divorce, their whole estate by deed, had power to con the court entered a decree divorcing the parvey in the same manner any lesser estate ties and awarding the care and custody of therein.

their minor son, then of the age of 414 years, Lastly, it is contended that the court err to the appellant Clara Maltby, further deed in excluding evidence as to the consid creeing that the appellant Curtis pay to Mrs. eration that actuated the appellants in enter Maltby the sum of $15 per month for the ing into the lease. But such evidence was maintenance of the child. On October 23d immaterial to any issue made by the plead thereafter, the respondent petitioned the ings. While it is permissible for certain court for a modification of the decree to the purposes to show by parol what the actual con effect that the child be taken from the cussideration was upon which a deed is found tody of Mrs. Maltby and awarded to her, aled, it is never permitted where the purpose leging as grounds therefor that the appellant of the evidence is to annex a condition to Maltby and her husband were then engaged the instrument not expressed in it. Here the in running a hotel at Marysville, Wash., conpurpose of the oral evidence was to show nected with which was a saloon, which could that the grant was made upon a condition be entered by a door opening therein from that would defeat its operative effect, and various parts of the hotel; that much drinkfor this purpose parol evidence is inadmis- | ing and carousing occurred in the saloon, sible. Wright v. Stewart, 19 Wash. 179, 52 which could be witnessed by the boy by Pac. 1020.

merely opening one of the doors leading to The judgment appealed from is affirmed. the saloon; and, further, that the boy was

permitted to mingle promiscuously with the HADLEY, C. J., and MOUNT, CROW, and guests of the hotel and the patrons of the ROOT, JJ., concur.

saloon. She further alleged that at the time of the decree she was much broken in health, caused by the cruel treatment of her hus

band, and consented to the decree awarding (46 Wash. 664)

the child to Mrs. Maltby without fully un. CURTIS v. CURTIS et al.

derstanding the effect of the same, believing (Supreme Court of Washington. Aug. 1, 1907.) that it was but temporary, and that a hear.

ing would be had before a final decree would 1. DIVORCE-CUSTODY OF CHILD - MODIFICATION OF DECREE-SUFFICIENCY OF SHOWING. be made relating to the permanent custody of

Where on divorce the custody of a minor the child. She also alleged that she was child was awarded a third person, a showing earning lucrative wages as a cook, and by made by the mother afterwards that through her improved health she was able to support

doing domestic and laundry work in the and educate the child, and was a proper person

town of Index, Wash., and was capable of to have its care and custody, was sufficient to caring for and educating the child. The apwarrant a modification of the decree by award

pellants put in issue the allegations of the ing the child to her; it being unnecessary to show that its welfare demanded a change in its

petition by answer, and a trial was had on custody.

the merits of the controversy. The trial [Ed. Note.-For cases in point, see Cent. Dig. court held that the respondent was entitled vol. 17, Divorce, SS 793, 791.]

to the custody of the child and modified the 2. SAME-MOTHER'S MORAL CHARACTER.

decree accordingly. That long before marriage, and before her

The respondent offered no evidence whatchild's birth, and in her earlier years, the wife was immoral, does not establish her present un

ever in support of her allegation that the apfitness to have the custody of her minor child pellant Maltby was subjecting the child to on divorce; her past character being known to improper influences, nor did she show, or atthe husband when they married, and there be

tempt to show, that the child was not receiving no showing of her improper conduct since. 3. SAME-CONSENT TO DECREE - COXCLUSIVE

ing due and proper care. She confined her NESS,

proofs to the allegation that she, herself, by That in a divorce suit the wife stipulated a reason of her change in health, was then third person might have her minor child's cus

able to support and educate the child, and tody did not estop her from afterwards seeking a modification of the decree.

was a proper and fit person to have its care

and custody. It is the appellant's contention Appeal from Superior Court, Snohomish that this showing is not suflicient; that the County; W. W. Black, Judge.

respondent should have shown not only her Action by Rebecca Viola Curtis against own changed condition, but that the welfare Frank M. Curtis and another. Defendant of the child demanded a change in its cusand Clara Maltby appeal from a decree mod todian before the court was authorized to ifying a decree granting a divorce and the modify the original decree. But the rule is custody of a minor child to Maltby. Affirmed. not so broad as this. It is true this court

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said, in Koontz v. Koontz, 25 Wash. 336, 65

(46 Wash. 671) Pac. 546, that a decree of the superior court

PIPER V. PIPER. which deterinines the custody of infant chile (Supreme Court of Washington. Aug. 1, 1907.) dren is conclusive upon the court which ren 1. MARRIAGE-ANNULMENT-PROCESS SERVdered the decree, and upon all other courts, ICE BY PUBLICATION. in the absence of a material change in the

Pierce's Code, $ 335, subd. 4 (Ballinger's condition and fitness of the parties, or the re

Ann. Codes & St. $4877), authorizing service

of summons by publication on a nonresident dequirements for the welfare of the child; but

fendant in an action for divorce, authorizes like it did not mean by this that both these con- service in an action for the annulment of a ditions had to concur before a change in the

marriage. decree could be made. While the welfare of


ONE SUBJECT-DIVORCE AND ANNULMENT the child is in all cases, where the court is

OF MARRIAGE. clothed with power of its disposition, the Statutes classifying an action for the annulprimary consideration, yet it is not the policy ment of a marriage with an action for divorce

are not in violation of the constitutional reof the law to take children away from their

quirement that no bill shall embrace more than parents and give them to strangers merely

one subject, which shall be expressed in its title; because the strangers are better provided : the subject of the annulment of marriage being financially to rear and educate them than are germane to that of divorce. the parents. Parents are their children's Appeal from Superior Court, Spokane Counnatural protectors. They have an interest ty; E. H. Sullivan, Judge. in them that is not shaken by acts of diso Action by Dollie A. Piper against William

: bedience or ingratitude, and because of this E. Piper. From a judgment for defendant, interest children under their parents' imme plaintiff appeals. Reversed and remanded, diate care, even though their surroundings be with directions. humble and their opportunities narrow, are

Roche & Onstine, for appellant. R. M. much more apt to grow up useful men and

Barnhart and Carroll A. Gordon, for respondwomen than they are when reared by stran

ent. gers, who do not have this natural affection for them. When, therefore, the parents are HADLEY, C. J. This is an action for the able to care for their children, it is the pol- annulment of a marriage. The complaint alicy of the law to award their custody to leges that the plaintiff and defendant were them, rather than to the custody of stran- | intermarried on the 29th day of November, gers.

1899, and that prior to and at the time of the The appellants further urge, however, that marriage defendant had a wife living, his the wife is unfit morally to have the custody marriage to whom was still in force and efof the child. But we do not think the evi fect, undissolved by decree of divorce or dence establishes this fact. The specific acts otherwise. Affidavit in due form was filed, of immorality charged against her, even ad- showing that the defendant is a nonresident mitting that they are proven, occurred in of this state and that his residence is unher earlier years, long before her marriage

known to the plaintiff; his last known place to the appellant Curtis or the birth of the of residence being stated. Service of publichild, and were known, moreover, by him at cation summons was regularly made in the the time of such marriage. Surely he should usual manner. No appearance was made by not be permitted to urge these as a reason the defendant, and in due time a default was for depriving her of her offspring. Nor do

claimed against him. The plaintiff offered we think Mrs. Malthy can urge the matter.

evidence in support of her complaint, when The mother's right to the child must depend the deputy prosecuting attorney, who appearon her present conduct, and we find nothing ed in behalf of the state, objected to the in the eridence that impugns her character

hearing of any evidence on the ground that for morality and decency occurring since her

the action is one for the annulment of a mar

riage, and that service of summons by publimarriage with the appellant. It is contended that, because the respond

cation is not authorized in such a case. The ent stipulated in the divorce that the child court sustained the objection, and thereupshould be awarded to Mrs. Maltby, she can

on entered judgment dismissing the action.

Plaintiff has appealed. not now question the decree. We do not think, however, that this fact has any bear

The sole question presented by the appeal

is whether our statutes authorize service of Ing upon her right to now seek its modification. A stipulation in an action ordinarily

summons by publication in an action of this merely takes the place of evidence. It was

character. Section 335, subd. 4, Pierce's Code so here, and the decree founded thereon no

(Ballinger's Ann. Codes & St. $ 4877), au

thorizes service by publication upon a nonmore estops the parties from seeking its

resident defendant "when the action is for modification than would a decree founded

divorce in the cases prescribed by law.” Apupon evidence of a different character.

pellant argues that an action for the annulThe order appealed from is affirmed.

ment of a marriage is in this state of the

same nature as an action for divorce, and HADLEY, C. J., and CROW, MOUNT, and that it has always been treated by our LegisROOT, JJ., concur.

latures in the passage of statutes as in effect

the same. We believe this is true. In the not uncommon legislative policy above inditerritorial law of 1854 (Laws 1854, p. 405 et cated, as well as in view of the express pro56.) and again in the territorial law of visions of our statutes, we think it has been 1862 (Laws 1862–63, p. 113 et seq.), suits for the evident intention of our Legislature to divorce and alimony and for the annulment establish the same jurisdiction and practice of mariages are treated together in the ; for both divorce and annulment suits. It Xiume legislative acts. The Same is true os follows that there was authority to serve sertion 2000 et seq. of the Code of 1881, and the summons by publication in this action. also of a subsequent act of the state Legisla The judgment is therefore reversell, and ture found in Sess. Laws 1891, P. 42, c. 26. the cause remanded, with instructions to The legislative designations of the above stat vacate the judgment of dismissal and proutes are as follows: "An act regulating di ceed to hear the appellant's testimony. vories." "An act to regulate suits for dirorce ind alimony." "An act in relation to applica FULLERTOX, JOUNT, ROOT, and CROW, tions for divorce, amendatory of section JJ., con(ur. 2000 * * of the Code of 1881." Section 4632 of Pierce's Code (Ballinger's Ann. (odles & St. $ JT1S) provides : latt ne mist ip

(46 Wash. 568) side in this state for one year before apply

PIERCE et ux. v. PETTIT et al. ing for a divorce, and the same section makes (Supreme Court of Washington. Jug. 1, 1907.) the same provision with regard to suits for 1. APPEAL-PRESENTATION OF ERROR-EXCEPannulment of marriage. Section 16:33 also: TIOXS-XECESSITY. provides that the court shall require proof in

Where no exceptions were taken to the

court's findings of fact, they are not subject to either il suit for divorce or for annulment,

review on appeal. when there has been a failure to answer, or

[Ed. Note. For cases in point, see Cent. Dig. when the answer admits the allegations of

vol. 2, Appeal and Error, $ 1536.] the complaint. It thus appears that our Leg

2. V'ENDOR AND PURCHIASER-RESCISSION BY islature has invariably treated actions for PURCHASER—WAIVER. divorce and for the annulment of marriage Though, at the time vendees paid a part of as belonging to one general subject, and in

the purchase price of land and received a memo

randum receipt therefor, providing that if ticonferring jurisdiction to grant divorces it

tle as shown by an abstract to be furnished was has also been made to include the annulment | not good, and could not be made good, then the of marriages.

agreement should be void, it was represented

that vendor, who had but a contract of sale, was Yo constitutional objection can well be

the owner, yet vendees, having learned that venurged against classifying the two actions to dor had but a contract of sale before themselves gether, for the reason that the subject of the subsequently entering into a contract of sale of annulment of marriage is germane to that of

the land and the owner being able, ready, and

willing to convey, they were not thereby exdivorce, and the statutes are therefore not

cused from performance of the contract. repugnant to the constitutional requirement [Ed. Yote.For cases in point, see Cent. Dig. that “no bill shall embrace more than one vol. 48, Vendor and Purchaser, $8 2:38, 268.j subject, and that shall be expressed in the title.” That these two matters are often

Appeal from Superior Court, King County;

A. W. Frater, Judge. treated in statutes as of the same subject

Action by C. C. Pierce, Jr., and another, and as germane to each other is evident from the following: “The word “divorce,' as now

against Herman C. Pettit and others. From used, means a dissolution of the bonds of

a judgment for defendants, plaintiffs appeal,

Affirmed. matrimony, although, as used in the statutes of many states, it includes both nullity and McCafferty & Bell, for appellants. Shank divorce. * * * The jurisdiction of court & Smith, for respondents. to annul marriages is usually conferred by statutes including both causes for annulment HADLEY, C. J. This is a suit to recover and causes for divorce, without attempt to $800, which was the sum paid by the plaindistinguish one from the other. * * The tiffs as a part of the purchase price upon a nullity suit, like a suit for divorce, is a pro contract to purchase real estate. The cause ('eeding to establish the status of the parties. was tried by the court, and recovery was Therefore the proceeding must be brought denied. Judgment was entered dismissing where the parties are domiciled. The law of the action, and the plaintiffs have appealed. domicile will be the same as in divorce pro Errors are assigned upon certain of the ("edings." 19 Am, & Eng. Enc. of Law, pp. court's findings, and considerable discussion 1218, 1219. "A suit to declare a marriage of the evidence in reference thereto is connull is held to be within the term 'divorce tained in appellants' brief. The record, howsuit' in a statute of the sort we are consider ever, discloses no exceptions to the findings, ing." 2 Bishop on Marriage, Divorce, and and they are therefore not reviewable here, Separation, $ 750. The same author, at sec as we have often held. Late expressions of tion 808 of said voltime, says: "A statute the court in point may be found in the folcreating a jurisdiction for divorce' arries lowing cases: lioeschler v. Bascom (Wash.) with it suits for nullity--a dortrine before S7 Pac. !-133, and Bybee v. Bybee (Wash.) stated in another aspect." In view of the S7 Pac. 1122.

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