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the pleadings in this case, the trial court ery by respondents, the defense should not erred in admitting evidence tending to show for that reason be entirely ignored, or strickduress or fraud on the part of the city. en on the theory that it was only partial.

It is further contended that the trial court From the issues raised by the pleadings, we erred in admitting evidence of loss of prof- conclude as a matter of law that the deits to the respondents' business by reason of fense of res adjudicata became effective for their being compelled to change their loca- the purpose of preventing the respondents tion. The record in the former action, plead- from recovering any damages for loss of ed herein, shows a final adjudication to the profits, and the trial court erred in admitting effect that the building existed in violation evidence tending to show the same. of law; that it was an illegal structure, and It is further contended that the trial court that the appellants should not be enjoined erred in admitting evidence (1) tending to from removing it. The respondents, there- show the cost of removal of the respondents' fore, had no vested right to its occupancy. merchandise, and (2) in permitting the reIt became necessary for them to discontinue

spondents to show by cross-examination of their business in that location, and they Mayor Lindstrom that parties other than the could not recover from the appellants any plaintiff's were permitted to violate the fire damages to their business by reason of loss ordinances, and that the city itself had vioof profits that resulted from a change of lo- lated them by maintaining wooden buildings cation. The respondents claim the injunc- within the fire limits. We think both of tion suit did not become res adjudicatul for these contentions should be sustained. By the following reasons: (1) that the answer reason of the former adjudication, it devolvof the appellants failed to allege that no ap- ed upon the respondents to remove their peal from the judgment had been taken; (2) stock, and they certainly could not require that an appeal had in fact been taken, and the plaintiffs to pay for the expense thereof. was pending in the Supreme Court; (3) that

Conceding that other parties than the rethe parties to the judgment and to this ac

spondents were permitted to maintain and tion are not the same: (1) that the (ause of occupy buildings in violation of the city oraction in the injunction suit was different dinances, such fact would not excuse the acts from the cause of action herein, and (5) that of respondents. Evidence, tending to show the judgment was pleadeil as a complete de- such a course upon the part of the city, was fense, while it is only a partial defense, if not only incompetent, but we think it was any. Each and all of these contentions are prejudicial as tending to raise an immaterial without merit. The answer alleged that the issue, and cause the jury to believe the apjudgment was in full force and effect, and pellants had been guilty of favoritism in that it had not been vacated, reversed, or discriminating against the respondents. The set aside; while the reply, although making city denied any such favoritism, and claimcertain allegations showing that the respondl- ed that it was generally enforcing the ordients desired to take an appeal, failed to al- nances. It could not remove all buildings lege that an appeal had been taken. It did at once. It had to commence somewhere. appear from the evidence that an appeal It had already caused others to be removed, had been taken, but that it had been dis- and was proceeding with the work by remissed by this court prior to the trial of this moving respondents' building. action. The judgment was then in full force Other assignments of error presented need and effect, and the respondents under the is- not be considered, as they will not arise upon sues presented by the pleadings and evi- a new trial which must be ordered. From dence were in no position to raise at the trial the pleadings and record, we conclude that any question as to the pendency of an ap- by reason of the former adjudication, which peal, at the time of the commencement of is not denied by the reply, the appellants this action. 24 Enc. of Law (2d Ed.) 809–813. were entitled to destroy the respondents' The issues involved in the injunction suit building, and that by reason of such right and in this action are the same in so far as the respondents are not entitled to recover the right of the appellants to destroy the for its value as a building, although they may building was concerned. The parties to the recover damages for any unnecessary intwo several actions are either identical, or jury done to the materials of which it was in privity. 24 Enc. of Law (2d Ed.) 751-752. constructed. The respondents are not entiThe former adjudication was pleaded by the tled to recover damages to their leasehold appellants as a complete defense, and the estate, and the trial court properly withdrew appellants have constantly relied upon it, the consideration of any such damages from and still rely upon it, as such complete de- the jury. It also properly withdrew from fense. If it appears from the evidence that the jury the consideration of any damages the respondents are entitled to certain dam- which the respondents claim by reason of ages by reason of the wanton and unneces- mental distress, shame, humiliation, and dissary manner in which the appellants dam


The only damages which we think aged their merchandise, furniture, and fix- the respondents would be permitted to retures, and the defense of res adjudicata so cover in this action are such as were needpleaded fails to completely prevent any recov- lessly inflicted by the appellants in unneces

sarily rendering worthless the material of , insane wife. Following is a history of the which the building was constructed, and in

About the year 1886 Richard Wilson unnecessarily destroying or rendering less and his wife, Augusta S. Wilson, settled up)valuable the furniture, fixtures, and mer- on government land in Skagit county, Wash. chandise. Upon a new trial of this action, The family consisted of, the husband and recovery for such damages should be per- wife and four minor children. On `August mitted it sustained by the evidence.

12, 1889, final proof as to settlement was The judgment is reversed, and the cause made, and the family continued thereafter to remanded with instructions to grant a new reside upon the land as their home and hometrial.

stead. On August 30, 1889, upon complaint

of her husband, Augusta S. Wilson was deMOUNT, C. J., and ROOT, DUNBAR, ,

clared insane and was committed to the asyHADLEY, and FULLERTON, JJ., concur. lum at Steilacoom, Wash., where she remain

ed until the time of the trial of this cause.

At the time the wife was adjudged insane, (45 Wash. 19)

the financial affairs of the husband and wife CURRY v. WILSON et al.

seem to have been in good condition. They WILSON et al. v. CURRY.

were not indebted, and they owned, in ad(Supreme Court of Washington. Dec. 14, 1906.) dition to their homestead, a small amount 1. LIMITATION OF ACTIONS-STATUTES-DIS- of personal property. The husband and miABILITIES.

nor children continued to live upon the land Under the express provisions of Ballinger's and occupied it as a homestead while the Ann. Codes & St. § 5156, proceedings to set

wife and mother was in the asylum. No aside a judgment rendered against a person of unsound mind are not barred until the expira- guardian was appointed for the wife when tion of one year from the removal of the dis- she was declared to be insane, and such was ability.

the situation for a period of nearly three [Ed. Note.-For cases in point, see Cent. Dig.

years. In 1892, the husband petitioned for vol. 33, Limitation of Actions, 88 413, 414.]

his appointment as the wife's guardian. The 2. HOMESTEAD-MORTGAGES-INSANE SPOUSE.

record shows that, after the wife was ad2 Hill's Ann. St. & Codes, $ 483, provided that no mortgage of a homestead should be

judged insane, the husband contracted invalid as against the wife of the grantor unless debtedness which was somewhat heavy for she should sign and acknowledge the same. one of his circumstances. He was being Held, that a mortgage executed by a husband

pressed by his creditors, among whom was and signed in his individual capacity and as guardian for his insane wife, as authorized by

his brother, to whom he was indebted in a an order of the court was void prior to the pas- considerable sum. This brother took the sage of Ballinger's Ann. Codes & St. § 5239,

husband to see attorneys to consult them authorizing such mortgages.

about some plan for securing his debt, and 3. SAME-FORFEITURE OF RIGHTS. Where a wife became insane, her involun

the application for the appointment of the tary absence from her homestead while being husband as guardian immediately followed. incarcerated in an asylum did not wrest from The only purpose of the application was to her her homestead rights in the property for

effect his appointment as guardian so that herself and family. 4. APPEAL – REVERSAL DISPOSITION OF

he might petition the court for leave to CAUSE.

mortgage the homestead for the purpose of Where, in proceedings to set aside a mort- paying his debts. The appointment of guardgage foreclosure decree, the record on appeal dis

ian was made, and this was followed by the closed that the real issue tried was the validity of the mortgage and the foreclosure proceedings,

guardian's petition for leave to mortgage the leaving other questions to be more fully heard

land. Leave was granted by an order of if the mortgage and foreclosure should be set the court, and on June 6, 1892, the husband, aside, judgment absolute would not be granted

in his own behalf and as guardian of his on reversal, but the cause would be remanded for further proceedings.

wife, executed to one Cloud a mortgage up

on the land for $3,500. In 1898 Cloud proseAppeal from Superior Court, Skagit Coun- cuted an action for the foreclosure of the ty; Geo. A. Joiner, Judge.

mortgage, and such proceedings were had Consolidated actions by J. Albert Curry that decree of foreclosure was entered and against Richard Wilson and others, and by

the land was afterwards sold by the sheriff Augusta S. Wilson, an insane person, by to said Cloud under the order of sale. The Henry McLean, her guardian ad litem, and

sale was confirmed, and, in February, 1899, others, against said Curry. From a judg. by means of a writ of assistance, Cloud disment in favor of the latter, Richard Wilson

possessed the occupants of the land, who and others and Augusta S. Wilson and others were of the family of the insane wife, and appeal. Reversed and remanded.

the premises passed into the possession of McLean & Wakefield, for appellants. Mil- Cloud. Cloud conveyed the land to a trust lion & Houser, for respondent.

company for the benefit of his heirs, and

through this trust company possession has HADLEY, J. This appeal involves me passed to one Curry. In July: 1905, Curry validity of a mortgage upon a homestead, brought an action for the purpose of quietwhich mortgage was executed by the hus- ing his title to the land, and Augusta S. band, and also by him as guardian for his Wilson, the aforesaid insane wife, was made

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a party to that action. Henry McLean was true of Mrs. Wilson, the incompetent appelappointed her guardian ad litem to protect | lant here. her interests. The order appointing the The appellants raise many questions conguardian ad litem was comprehensive in its cerning the procedure in the foreclosure of terms, and authorized the institution of such the mortgage, and it is contended that the suits or proceedings at law or in equity as foreclosure decree was void. First of all, may be necessary to protect the interests of however, it is contended that the mortgage said Augusta S. Wilson. The guardian ad

itself was unauthorized and void in law, and, litem, fearing that an attempt to vacate the if that contention shall prevail, it will be unaforesaid mortgage and foreclosure proceed necessary to examine and discuss a number ings might be regarded as a collateral at

of other questions which are discussed in the tack if interposed as a defense in the Curry

briefs. We have seen that the property was action, brought another action in the name

occupied as a homestead by the incompetent of the incompetent, with her husband join

and her husband and family at the time she ing, for the purpose of vacating and setting

was declared to be insane and sent to the aside the foreclosure proceedings and all of

hospital. The family continued to so occupy the proceedings leading up to the execution

it until the time the mortgage was made. At of the mortgage. Issues were joined in the

the time of the execution of the mortgage in two actions, and, on application of the guard- 1892, the statute of this state provided as fol

lows: ian ad litem, the two causes were consolidat

"Xothing herein contained shall be ed, and, without objection, were tried to

construed to prevent the owner of a homegether. After a trial by the court without

stead from voluntarily mortgaging the same, a jury, the court held that said Curry is the

but no mortgage shall be valid against the

wife of the mortgagor unless she shall sign owner in fee simple, is in possession, and is entitled to the possession of the land in

and acknowledge the same." Section 483, 2

Hill's Ann. St. & Codes. It will be seen from question. Decree was entered accordingly,

the above that no mortgage of the homestead and this appeal is from the judgment. We shall first consider a point suggested

was valid against the wife unless she joined

in its execution. Admittedly the wife did not by respondent concerning the statute of lim

join in the execution of this mortgage in her itations. Respondent seems to concede that

own proper person. If she joined, she did so the issues presented by the consolidated ac

through her guardian as her representative. tions may be treated as one action in the

We must, therefore, determine whether the nature of a common-law action for review

law then authorized the guardian of an inwithin what is said in Ball v. Clothier, 34

sane spouse to mortgage the homestead. No Wash. 299, 75 Pac. 1099. It is pointed out

statute upon the subject then in existence that that action was brought within the

has been called to our attention, and we are time limited by statute. It is also pointed

not aware that there was any such. Apparout that it was held, in Wilson v. Hubbard, ently recognizing that, without a statute ex39 Wash. 671, 82 Pac. 154, that failure to

pressly authorizing the execution of a mortbring suit within one year from the removal

gage upon the homestead of an insane husof the disability of minority is fatal. In

band or wife, the power to do so did not exasmuch as Ball v. Clothier, supra, is cited

ist, the Legislature of 1895 provided a way in the last-named case, respondent is at a

by which such mortgages could be made. loss to know whether this court intends to

The following statute was then passed: "In hold that the statute of limitations, section case of a homestead, if either the husband or 5156, Ballinger's Ann. Codes & St., applies to wife shall become hopelessly insane, upon apthe common-law action of review. If it plication of the husband or wife not insane does so intend, then respondent asks the to the superior court of the county in which question, when will the disability be removed the homestead is situated, and upon due in the case of one hopelessly insane? Wheth- proof of such insanity, the court may make er the statute applies to such an action as an order permitting the husband or wife not this or not, we find it unnecessary to exam- insane to sell and convey or mortgage such ine or discuss at this time. That question homestead.” Section 5239, Ballinger's Ann. is of general importance, and its determina- Codes & St. As a matter of legislative contion should be made in a case where it be- struction we think it must be seen that the comes necessary for the adjudication of liti- legislative body considered that no power to gants' rights. Such is not the case here. make such mortgages theretofore existed, and Even if the statute should be held to apply that the act above mentioned was intended here, its language is so plain and compre- to create the power. That such was true hensive that we see no escape from the con- seems to have received the sanction of memclusion that this action is not barred. Re- bers of the bar, but we are not aware that lief in cases within the statute will not the courts of the state have passed upon the be granted unless proceedings are commen- subject, and particularly are we not advised ced "within one year from the removal of of any decision of this court touching the such disability.” It seems manifest from the question. Mr. Abbott, a member of the bar above that relief is not barred so long as the of this state, in his work on Probate Law, disability continues, which is admittedly says of the statute of 1895: "Previous to the adoption of this statute the interest of the sent, since otherwise she could not comply incompetent spouse could not be conveyed, with the requirement that she must "sign and much inconvenience and injury often re- and acknowledge" the mortgage. The case sulted as a consequence." 1 Abbott's Probate of Anderson v. Stadlmann, 17 Wash. 433, 49 Law, $ 274.

Pac. 1070, is in essential particulars similar The rights of an insane spouse in the home- to the one now before us. In that case the stead are so carefully guarded that, even land belonged to the husband, and the insane when statutes specially authorize the convey- wife had the mere right of homestead in it. ance of the homestead or a mortgage thereon, The husband executed a mortgage without the provisions of the statute must be strictly the wife joining. She was afterwards adpursued. California has a statute essentially judged insane and the husband was appointed the same as our statute of 1895, and in Jones her guardian. It was held that the mortgage v. Falvella, 126 Cal. 24, 58 Pac. 311, it was was void and could not be enforced against held that a petition for the sale of a home- the homestead. In the case at bar the propstead which did not state its value was insuf- erty was community property, and the insane ficient to confer jurisdiction upon the court wife was an owner, having an interest in adto act, and that the sale made in pursuance dition to the mere right of homestead. Not of such petition was void. Before the pas- having joined in the consent to the mortgage · sage of the said statute in California, the Su-) of the homestead either in fact or in law, the preme Court of that state had before it the situation is, in principle, the same as in Ansame question that is now before this court: derson v. Stadlmann, supra, with the exIn the case of Flege v. Garvey, 47 Cal. 371, istence of the additional fact that an attempt it was held that the homestead could be con- was made to mortgage her own community veyed in the manner provided by statute property without her consent and without alone, and that, inasmuch as the statute her joinder. That the homestead was immade no provision for the sale in case of the pressed upon this land when the mortgage lunacy, civil death, or imprisonment of either was made, there can be no doubt under what husband or wife, it followed that the guard- is said in Anderson v. Stadlmann. The husian of the insane spouse had no power to band and wife occupied it as a homestead sell the homestead although ordered by the with their minor children until the enforced probate court to do so. The Constitution of absence of the wife, and the husband and Kansas provides that the homestead cannot children were left in occupancy up to the be alienated without the joint consent of hus- time of the mortgage. The mere fact that band and wife, and a statute of Kansas fol- the wife was involuntarily absent did not lows the Constitution in that regard. In wrest from her her homestead rights for herLocke v. Redmond (Kan. App.) 49 Pac. 670, self and family. For all the foregoing reait was held that such consent cannot be sup

sons, we think it must be held that the mortplied by the guardian of an insane spouse. gage was without authority in law and was The court observed as follows: "When the void. It follows that the foreclosure proceedreason of the wife has been overthrown, ings and the title founded upon the void when she has become so unfortunate as to be mortgage must fail, and that appellants are unable to protect herself, when, by her ef- entitled to have their title quieted as against forts to keep the homestead and family to- the mortgage foreclosure proceedings and all gether, she has been overcome, and her mind conveyances thereunder. gives way, it is not an unwise provision of Appellants also urge that this court shall our Constitution that she should be protect- enter a judgment for damages and finally dised to the extent of the homestead. That this pose of the cause at this time. The record homestead should be placed beyond the power

is such that it is evident the real issue tried of a guardian, and beyond the power of her

below was the validity of the mortgage and husband, except with her consent, is wise

foreclosure proceedings, leaving other quesand just. The construction contended for by tions to be more fully heard if the mortgage plaintiff in error would preserve the home

and foreclosure should be set aside. The stead to the wife and children during health cause should now be remanded for a more and prosperity only. This cannot be the full hearing and consideration of other quesspirit of our Constitution. We hold that it

tions. While appellants are claiming damrequires the joint consent of husband and ages, yet, as respondent suggests, there are wife to alienate the homestead, and such con

other questions necessarily involved in the sent cannot be supplied by a guardian. If,

merits, such as improvements and taxes paid. for the reason of insanity, or any other rea

We cannot, under the record, properly deterson, the wife's consent cannot be procured,

mine all the equities between the parties at there can be no conveyance. This consent is

this time. The judgment is therefore reversprerequisite.” In principle our statute, sec

ed, and the cause remanded for further protion 483, 2 Hill's Ann. St. & Codes, supra,

ceedings as indicated by this opinion. cannot be distinguished from the Kansas provision. Our statute does not use the words MOUNT, C. J., and FULLERTON, RUD"joint consent of husband and wife," but it KIN, and CROW, JJ., concur. DUNBAR is made very clear that the wife must con- and ROOT, JJ., not sitting,



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


Locators of a mining claim remained there. on 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 inade by another. IIeld, that the first locators never proceeded far enough to acquire rights sufficient to make the claim abandoned proptorty, within Act 1899, p. 71, § 8, providing that, where a relocation of abandoned quartz or lode 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.

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, the judgment 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, 0. 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

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.

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