the pleadings in this case, the trial court erred in admitting evidence tending to show duress or fraud on the part of the city.

It is further contended that the trial court erred in admitting evidence of loss of profits to the respondents' business by reason of their being compelled to change their location. The record in the former action, pleaded herein, shows a final adjudication to the effect that the building existed in violation of law; that it was an illegal structure, and that the appellants should not be enjoined from removing it. The respondents, therefore, had no vested right to its occupancy. It became necessary for them to discontinue their business in that location, and they could not recover from the appellants any damages to their business by reason of loss of profits that resulted from a change of location. The respondents claim the injunction suit did not become res adjudicata for the following reasons: (1) that the answer of the appellants failed to allege that no appeal from the judgment had been taken; (2) that an appeal had in fact been taken, and was pending in the Supreme Court; (3) that the parties to the judgment and to this action are not the same; (4) that the cause of action in the injunction suit was different from the cause of action herein, and (5) that the judgment was pleaded as a complete defense, while it is only a partial defense, if any. Each and all of these contentions are without merit. The answer alleged that the judgment was in full force and effect, and that it had not been vacated, reversed, or set aside; while the reply, although making certain allegations showing that the respondents desired to take an appeal, failed to allege that an appeal had been taken. It did appear from the evidence that an appeal had been taken, but that it had been dismissed by this court prior to the trial of this action. The judgment was then in full force and effect, and the respondents under the issues presented by the pleadings and evidence were in no position to raise at the trial any question as to the pendency of an appeal, at the time of the commencement of this action. 24 Enc. of Law (2d Ed.) 809-813. The issues involved in the injunction suit and in this action are the same in so far as the right of the appellants to destroy the building was concerned. The parties to the two several actions are either identical, or in privity. 24 Enc. of Law (2d Ed.) 751-752. The former adjudication was pleaded by the appellants as a complete defense, and the appellants have constantly relied upon it, and still rely upon it, as such complete defense. If it appears from the evidence that the respondents are entitled to certain damages by reason of the wanton and unnecessary manner in which the appellants damaged their merchandise, furniture, and fixtures, and the defense of res adjudicata so pleaded fails to completely prevent any recov

ery by respondents, the defense should not for that reason be entirely ignored, or stricken on the theory that it was only partial. From the issues raised by the pleadings, we conclude as a matter of law that the defense of res adjudicata became effective for the purpose of preventing the respondents from recovering any damages for loss of profits, and the trial court erred in admitting evidence tending to show the same.

It is further contended that the trial court erred in admitting evidence (1) tending to show the cost of removal of the respondents' merchandise, and (2) in permitting the respondents to show by cross-examination of Mayor Lindstrom that parties other than the plaintiffs were permitted to violate the fire ordinances, and that the city itself had violated them by maintaining wooden buildings within the fire limits. We think both of these contentions should be sustained. By reason of the former adjudication, it devolved upon the respondents to remove their stock, and they certainly could not require the plaintiffs to pay for the expense thereof. Conceding that other parties than the respondents were permitted to maintain and occupy buildings in violation of the city ordinances, such fact would not excuse the acts of respondents. Evidence, tending to show such a course upon the part of the city, was not only incompetent, but we think it was prejudicial as tending to raise an immaterial issue, and cause the jury to believe the appellants had been guilty of favoritism in discriminating against the respondents. The city denied any such favoritism, and claimed that it was generally enforcing the ordinances. It could not remove all buildings at once. It had to commence somewhere. It had already caused others to be removed, and was proceeding with the work by removing respondents' building.

Other assignments of error presented need not be considered, as they will not arise upon a new trial which must be ordered. From the pleadings and record, we conclude that by reason of the former adjudication, which is not denied by the reply, the appellants were entitled to destroy the respondents' building, and that by reason of such right the respondents are not entitled to recover for its value as a building, although they may recover damages for any unnecessary injury done to the materials of which it was constructed. The respondents are not entitled to recover damages to their leasehold estate, and the trial court properly withdrew the consideration of any such damages from the jury. It also properly withdrew from the jury the consideration of any damages which the respondents claim by reason of mental distress, shame, humiliation, and disgrace. The only damages which we think the respondents would be permitted to recover in this action are such as were needlessly inflicted by the appellants in unneces

sarily rendering worthless the material of which the building was constructed, and in unnecessarily destroying or rendering less valuable the furniture, fixtures, and merchandise. Upon a new trial of this action, recovery for such damages should be permitted if sustained by the evidence.

The judgment is reversed, and the cause remanded with instructions to grant a new trial.

MOUNT, C. J., and ROOT, DUNBAR, HADLEY, and FULLERTON, JJ., concur.

(45 Wash. 19)

CURRY v. WILSON et al. WILSON et al. v. CURRY. (Supreme Court of Washington. Dec. 14, 1906.) 1. LIMITATION OF ACTIONS-STATUTES-DISABILITIES.

Under the express provisions of Ballinger's Ann. Codes & St. § 5156, proceedings to set aside a judgment rendered against a person of unsound mind are not barred until the expiration of one year from the removal of the disability.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 413, 414.] 2. HOMESTEAD-MORTGAGES-INSANE SPOUSE.

2 Hill's Ann. St. & Codes, § 483, provided that no mortgage of a homestead should be valid as against the wife of the grantor unless she should sign and acknowledge the same. Held, that a mortgage executed by a husband and signed in his individual capacity and as guardian for his insane wife, as authorized by an order of the court was void prior to the passage of Ballinger's Ann. Codes & St. § 5239, authorizing such mortgages.

3. SAME-FORFEITURE OF RIGHTS.

Where a wife became insane, her involuntary absence from her homestead while being incarcerated in an asylum did not wrest from her her homestead rights in the property for herself and family.

4. APPEAL - REVERSAL CAUSE.

---

DISPOSITION OF

Where, in proceedings to set aside a mortgage foreclosure decree, the record on appeal disclosed that the real issue tried was the validity of the mortgage and the foreclosure proceedings, leaving other questions to be more fully heard if the mortgage and foreclosure should be set aside, judgment absolute would not be granted on reversal, but the cause would be remanded for further proceedings.

Appeal from Superior Court, Skagit County; Geo. A. Joiner, Judge.

Consolidated actions by J. Albert Curry against Richard Wilson and others, and by Augusta S. Wilson, an insane person, by Henry McLean, her guardian ad litem, and others, against said Curry. From a judg ment in favor of the latter, Richard Wilson and others and Augusta S. Wilson and others appeal. Reversed and remanded.

insane wife. Following is a history of the About the year 1886 Richard Wilson and his wife, Augusta S. Wilson, settled upon government land in Skagit county, Wash. The family consisted of the husband and wife and four minor children. On August 12, 1889, final proof as to settlement was made, and the family continued thereafter to reside upon the land as their home and homestead. On August 30, 1889, upon complaint of her husband, Augusta S. Wilson was declared insane and was committed to the asylum at Steilacoom, Wash., where she remained until the time of the trial of this cause. At the time the wife was adjudged insane, the financial affairs of the husband and wife seem to have been in good condition. They were not indebted, and they owned, in addition to their homestead, a small amount of personal property. The husband and minor children continued to live upon the land and occupied it as a homestead while the wife and mother was in the asylum. No guardian was appointed for the wife when she was declared to be insane, and such was the situation for a period of nearly three years. In 1892, the husband petitioned for his appointment as the wife's guardian. The record shows that, after the wife was adjudged insane, the husband contracted indebtedness which was somewhat heavy for one of his circumstances. He was being pressed by his creditors, among whom was his brother, to whom he was indebted in a considerable sum. This brother took the husband to see attorneys to consult them about some plan for securing his debt, and the application for the appointment of the husband as guardian immediately followed. The only purpose of the application was to effect his appointment as guardian so that he might petition the court for leave to mortgage the homestead for the purpose of paying his debts. The appointment of guardian was made, and this was followed by the guardian's petition for leave to mortgage the land. Leave was granted by an order of the court, and on June 6, 1892, the husband, in his own behalf and as guardian of his wife, executed to one Cloud a mortgage upon the land for $3,500. In 1898 Cloud prosecuted an action for the foreclosure of the mortgage, and such proceedings were had that decree of foreclosure was entered and the land was afterwards sold by the sheriff to said Cloud under the order of sale. The sale was confirmed, and, in February, 1899, by means of a writ of assistance, Cloud dispossessed the occupants of the land, who were of the family of the insane wife, and the premises passed into the possession of

HADLEY, J. This appeal involves the validity of a mortgage upon a homestead, which mortgage was executed by the husband, and also by him as guardian for his

company for the benefit of his heirs, and through this trust company possession has passed to one Curry. In July: 1905, Curry brought an action for the purpose of quieting his title to the land, and Augusta S. Wilson, the aforesaid insane wife, was made

a party to that action. Henry McLean was appointed her guardian ad litem to protect her interests. The order, appointing the guardian ad litem was comprehensive in its terms, and authorized the institution of such suits or proceedings at law or in equity as may be necessary to protect the interests of said Augusta S. Wilson. The guardian ad litem, fearing that an attempt to vacate the aforesaid mortgage and foreclosure proceedings might be regarded as a collateral attack if interposed as a defense in the Curry action, brought another action in the name of the incompetent, with her husband joining, for the purpose of vacating and setting aside the foreclosure proceedings and all of the proceedings leading up to the execution of the mortgage. Issues were joined in the two actions, and, on application of the guardian ad litem, the two causes were consolidated, and, without objection, were tried together. After a trial by the court without a jury, the court held that said Curry is the owner in fee simple, is in possession, and is entitled to the possession of the land in question. Decree was entered accordingly,

and this appeal is from the judgment.

We shall first consider a point suggested by respondent concerning the statute of limitations. Respondent seems to concede that the issues presented by the consolidated actions may be treated as one action in the nature of a common-law action for review within what is said in Ball v. Clothier, 34 Wash. 299, 75 Pac. 1099. It is pointed out that that action was brought within the time limited by statute. It is also pointed out that it was held, in Wilson v. Hubbard, 39 Wash. 671, 82 Pac. 154, that failure to bring suit within one year from the removal of the disability of minority is fatal. Inasmuch as Ball v. Clothier, supra, is cited in the last-named case, respondent is at a loss to know whether this court intends to hold that the statute of limitations, section 5156, Ballinger's Ann. Codes & St., applies to the common-law action of review. If it does so intend, then respondent asks the question, when will the disability be removed. in the case of one hopelessly insane? Whether the statute applies to such an action as this or not, we find it unnecessary to examine or discuss at this time. That question is of general importance, and its determination should be made in a case where it becomes necessary for the adjudication of litigants' rights. Such is not the case here. Even if the statute should be held to apply here, its language is so plain and comprehensive that we see no escape from the conclusion that this action is not barred. lief in cases within the statute will not be granted unless proceedings are commenced "within one year from the removal of such disability." It seems manifest from the above that relief is not barred so long as the disability continues, which is admittedly

true of Mrs. Wilson, the incompetent appellant here.

The appellants raise many questions concerning the procedure in the foreclosure of the mortgage, and it is contended that the foreclosure decree was void. First of all, however, it is contended that the mortgage itself was unauthorized and void in law, and, if that contention shall prevail, it will be unnecessary to examine and discuss a number of other questions which are discussed in the briefs. We have seen that the property was occupied as a homestead by the incompetent and her husband and family at the time she

was declared to be insane and sent to the

hospital. The family continued to so occupy it until the time the mortgage was made. At the time of the execution of the mortgage in 1892, the statute of this state provided as follows: "Nothing herein contained shall be construed to prevent the owner of a homestead from voluntarily mortgaging the same, but no mortgage shall be valid against the wife of the mortgagor unless she shall sign and acknowledge the same." Section 483, 2 Hill's Ann. St. & Codes. It will be seen from the above that no mortgage of the homestead was valid against the wife unless she joined in its execution. Admittedly the wife did not join in the execution of this mortgage in her own proper person. If she joined, she did so through her guardian as her representative. We must, therefore, determine whether the law then authorized the guardian of an insane spouse to mortgage the homestead. No statute upon the subject then in existence has been called to our attention, and we are not aware that there was any such. Apparently recognizing that, without a statute expressly authorizing the execution of a mortgage upon the homestead of an insane husband or wife, the power to do so did not exist, the Legislature of 1895 provided a way by which such mortgages could be made. The following statute was then passed: "In case of a homestead, if either the husband or wife shall become hopelessly insane, upon application of the husband or wife not insane to the superior court of the county in which the homestead is situated, and upon due proof of such insanity, the court may make an order permitting the husband or wife not insane to sell and convey or mortgage such homestead." Section 5239, Ballinger's Ann. Codes & St. As a matter of legislative construction we think it must be seen that the legislative body considered that no power to make such mortgages theretofore existed, and that the act above mentioned was intended to create the power. That such was true seems to have received the sanction of members of the bar, but we are not aware that the courts of the state have passed upon the subject, and particularly are we not advised of any decision of this court touching the question. Mr. Abbott, a member of the bar of this state, in his work on Probate Law, says of the statute of 1895: "Previous to the

adoption of this statute the interest of the incompetent spouse could not be conveyed, and much inconvenience and injury often resulted as a consequence." 1 Abbott's Probate Law, § 274.

The rights of an insane spouse in the homestead are so carefully guarded that, even when statutes specially authorize the conveyance of the homestead or a mortgage thereon, the provisions of the statute must be strictly pursued. California has a statute essentially the same as our statute of 1895, and in Jones v. Falvella, 126 Cal. 24, 58 Pac. 311, it was held that a petition for the sale of a homestead which did not state its value was insufficient to confer jurisdiction upon the court to act, and that the sale made in pursuance of such petition was void. Before the passage of the said statute in California, the Supreme Court of that state had before it the same question that is now before this court. In the case of Flege v. Garvey, 47 Cal. 371, it was held that the homestead could be conveyed in the manner provided by statute alone, and that, inasmuch as the statute made no provision for the sale in case of the lunacy, civil death, or imprisonment of either husband or wife, it followed that the guardian of the insane spouse had no power to sell the homestead although ordered by the probate court to do so. The Constitution of Kansas provides that the homestead cannot be alienated without the joint consent of husband and wife, and a statute of Kansas follows the Constitution in that regard. In Locke v. Redmond (Kan. App.) 49 Pac. 670, it was held that such consent cannot be supplied by the guardian of an insane spouse. The court observed as follows: "When the reason of the wife has been overthrown, when she has become so unfortunate as to be unable to protect herself, when, by her efforts to keep the homestead and family together, she has been overcome, and her mind gives way, it is not an unwise provision of our Constitution that she should be protected to the extent of the homestead. That this homestead should be placed beyond the power of a guardian, and beyond the power of her husband, except with her consent, is wise and just. The construction contended for by plaintiff in error would preserve the homestead to the wife and children during health and prosperity only. This cannot be the spirit of our Constitution. We hold that it requires the joint consent of husband and wife to alienate the homestead, and such consent cannot be supplied by a guardiam. If, for the reason of insanity, or any other reason, the wife's consent cannot be procured, there can be no conveyance. This consent is prerequisite." In principle our statute, section 483, 2 Hill's Ann. St. & Codes, supra, cannot be distinguished from the Kansas provision. Our statute does not use the words "joint consent of husband and wife," but it is made very clear that the wife must con

Not

sent, since otherwise she could not comply with the requirement that she must "sign and acknowledge" the mortgage. The case of Anderson v. Stadlmann, 17 Wash. 433, 49 Pac. 1070, is in essential particulars similar to the one now before us. In that case the land belonged to the husband, and the insane wife had the mere right of homestead in it. The husband executed a mortgage without the wife joining. She was afterwards adjudged insane and the husband was appointed her guardian. It was held that the mortgage was void and could not be enforced against the homestead. In the case at bar the property was community property, and the insane wife was an owner, having an interest in addition to the mere right of homestead. having joined in the consent to the mortgage of the homestead either in fact or in law, the situation is, in principle, the same as in Anderson v. Stadlmann, supra, with the existence of the additional fact that an attempt was made to mortgage her own community property without her consent and without her joinder. That the homestead was impressed upon this land when the mortgage was made, there can be no doubt under what is said in Anderson v. Stadlmann. The husband and wife occupied it as a homestead with their minor children until the enforced absence of the wife, and the husband and children were left in occupancy up to the time of the mortgage. The mere fact that the wife was involuntarily absent did not wrest from her her homestead rights for herself and family. For all the foregoing reasons, we think it must be held that the mortgage was without authority in law and was void. It follows that the foreclosure proceedings and the title founded upon the void mortgage must fail, and that appellants are entitled to have their title quieted as against the mortgage foreclosure proceedings and all conveyances thereunder.

Appellants also urge that this court shall enter a judgment for damages and finally dispose of the cause at this time. The record is such that it is evident the real issue tried below was the validity of the mortgage and foreclosure proceedings, leaving other questions to be more fully heard if the mortgage and foreclosure should be set aside. The cause should now be remanded for a more full hearing and consideration of other questions. While appellants are claiming damages, yet, as respondent suggests, there are other questions necessarily involved in the merits, such as improvements and taxes paid. We cannot, under the record, properly determine all the equities between the parties at this time. The judgment is therefore reversed, and the cause remanded for further proceedings as indicated by this opinion.

MOUNT, C. J., and FULLERTON, RUDKIN, and CROW, JJ., concur. DUNBAR and ROOT, JJ., not sitting.

(45 Wash. 59) PARAGON MINING & DEVELOPMENT CO. v. STEVENS COUNTY EXPLORATION CO.

KERR et al. v. SAME. (Supreme Court of Washington. Dec. 17, 1906.) MINES AND MINERALS-LOCATION OF CLAIMABANDONMENT RELOCATION CERTIFI

CATE.

Locators of a mining claim remained thereon until after 12 o'clock midnight of the day of the location, posted notice thereof, set stakes at the northeast and southwest corners of the claim, and immediately left the ground, and never did anything further in connection therewith. Three months later a new location was made by another. Held, that the first locators never proceeded far enough to acquire rights sufficient to make the claim abandoned proprty, within Act 1899, p. 71. § 8. providing that, where a relocation of abandoned quartz or iode claims is made, the certificate of such location shall state if the whole or any part of the new location is located as abandoned property, and hence the relocation was sufficient, though the certificate thereof did not state that the whole or any part of the new location was located on abandoned property, where it appeared that the relocator complied with section. 2. p. 69. c. 45, of the above act, providing that before filing the notice of location for record. the discoverer shall locate his claim by first sinking a discovery shaft upon the lode to the depth of 10 feet from the lowest part of the rim of such shaft at the surface.

Appeal from Superior Court, Stevens County; Miles Poindexter, Judge.

Actions by Paragon Mining & Development Company and Alexander Kerr and Harry L. Stone against the Stevens County Exploration Company. From a judgment for the Paragon Mining & Development Company, plaintiffs Kerr and Stone appeal. Affirmed.

William E. Richardson, for appellants. Merritt, Oswald & Merritt, for respondent.

RUDKIN, J. On the 15th day of March, 1905, the Stevens County Exploration Company filed in the United States Land Office at Spokane its application for a patent for the Velvet lode mining claim, accompanied by a plat and the field notes of the official survey made under the direction of the United States Surveyor General. Notice of this application was duly posted and published, and within the time required by law the Paragon Mining & Development Company and Alexander Kerr and Harry L. Stone filed adverse claims, under oath, setting forth the nature, extent, and boundaries of such adverse claims. Two actions were thereupon commenced in the superior court of Stevens county against the Stevens County Exploration Company to determine the right of possession to the grounds embraced in such application, one by the Paragon Mining & Development Company, the other by Kerr and Stone. The application for a patent was based on a discovery and location made by one George Peone on the 7th day of April, 1904. The adverse claim of the Paragon Mining & Development Company was based on a discovery and location made by Oscar M.

Matthews on the 2d day of March, 1904, called the "Lucky Boy Lode Mining Claim." The adverse claim of Kerr and Stone was based on a discovery and location made by them on the 1st day of June, 1904, called the "Amended American Eagle Lode Mining Claim." Each of these several claims conflicted with the others. By stipulation of the parties the two actions were consolidated and tried together, and proper pleadings were deemed to have been filed as between the plaintiffs in the respective actions. The court made findings in favor of the plaintiff the Paragon Mining & Development Company, and entered judgment accordingly, and from that judgment the plaintiffs Kerr and Stone have appealed. As will be seen from the foregoing statement, the location under which the respondent claims was first in point of time, and unless there was some defect in the original location, or some failure to comply with the requirements of the law, thejudgment should be affirmed.

The appellants contend, first, that the original location under which the respondent claims was invalid, because of a prior location made on the 1st day of January, 1904, by one Oscar Chamberlain; and, second, that Matthews, under whom the respondent claims, failed to perfect his location by performing the labor required by section 2 of the act of March 8, 1899 (Laws 1899, p. 69, c. 45). On the question of the Chamberlain location the court made the following finding, which was not excepted to: "That on the 31st day of December, 1903, O. T. Chamberlain and U. W. Upton went to the mouth of the lower tunnel, as shown on Plaintiff Paragon's Exhibit 1, at the northeast end of the two lines marked 'Lower Tunnel' and remaining there until after 12 o'clock midnight of said 31st day of December, 1903, and posted at the entrance of said tunnel the notice marked 'Plaintiff Paragon's Exhibit 6,' and thereafter, and on the 1st day of January, 1904, said Chamberlain and Upton set stakes at the northeast and southwest corners of the ground marked as the 'Night Hawk Claim' in red lines of Defendant's Exhibit 9 at the points marked 'corners 1 and 2,' and thereupon and immediately left said ground and said claim, and never did anything further in connection therewith, and did then and there and immediately abandon said Night Hawk claim."

If Chamberlain abandoned the claim on the 1st day of January, 1904, the ground was certainly subject to location on the 2d day of March following, unless other rights intervened. The appellants contend, however, that the Matthews location certificate does not state whether the whole or any part of the new location is located on abandoned property, as required by section 8, p. 71, c. 45, Act 1899, supra. That section is as follows: "The relocation of forfeited or abandoned quartz or lode claims shall only be made by sinking a new discovery shaft