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tice to the defendants herein to appear and defend on their covenants of warranty, and the default judgment. Upon this testimony the court found, among other things, "that the judgment of eviction aforesaid was not rendered by reason of a superior title of the said A. W. Salisbury and wife not derived from the said Mads Peterson," and entered a judgment of dismissal. From this judgment the defendants appeal.

If the finding that the judgment of eviction was not rendered by reason of a paramount title in Salisbury and wife, not derived from the appellant, is sustained by the testimony, or, rather, is justified by the lack of testimony, no breach of the covenant of warranty is shown, and the judgment must be affirmed. The appellant relies upon the rule broadly stated by this court in Cullity v. Dorffel, 18 Wash. 122, 50 Pac. 932, as follows: "The rule is well settled that a covenantor of title is bound by a judgment of eviction against the person to whom the covenant has run, where he has appeared and defended the action, or where he was notified to do so, and, in the absence of any showing of fraud or collusion, the covenantor who has neglected after notice to defend will not be permitted to assert that the recovery was not obtained by virtue of a paramount title;" and upon other like general statements of the rule contained in judicial decisions and text-books. This general statement of the rule is correct, if limited to the issues presented and tried in the ejectment suit. Where notice to defend has been given, the judgment in ejectment is no doubt conclusive of the question that the title of the plaintiff in ejectment was paramount to the title of the defendant in ejectment at the time of the rendition of the judgment of eviction, in the absence of fraud or collusion, and is also conclusive of the question that the title of the plaintiff in ejectment was paramount to the title of the covenantor at the time of his conveyance to the defendant in ejectment, if such title was in issue in the ejectment suit; but otherwise, it manifestly is not. Suppose the covenantee should give a deed of the property and refuse to surrender possession, or should give a mortgage and suffer a foreclosure, or should suffer the property to be sold for a tax or assessment which he was obligated to pay, could the covenantor defend against such claims, or would a judgment in ejectment be conclusive that the grantor's covenant of warranty was broken? Assuredly not. And the general rule above stated is only correct and only applicable when limited by the issues presented and tried in the ejectment suit. Thus, in Cullity v. Dorffel, supra, the court cites in support of its decision Rawle on Covenants for Title, § 122. That section is as follows: "So far as the plaintiff in his action on the covenant must, notwithstanding a notice given by him, affirmatively show by evidence dehors the record that the recovery against him was under a title not

derived from himself, the question admits of easy solution. It has been seen that in a declaration for a breach of the covenant for quiet enjoyment it is necessary to allege not merely that the eviction was made under paramount title, but that such title was 'existing before and at the time of the conveyance to the plaintiff,' as the eviction might, indeed, be under a paramount title, but one which had been derived from the plaintiff himself, for which, of course, his covenantor would not be responsible." In Davenport v. Muir, 3 J. J. Marsh. (Ky.) 310, 20 Am. Dec. 143, the court said: "If the covenantor be notified of the pendency of the suit against his covenantee, the judgment against the latter is evidence against the former that the recovery was obtained by paramount title. If the notice be sufficient, the judgment will be conclusive, unless it had been obtained in consequence of some act which occurred after the date of the covenant." "But where the covenantor has been notified of the pendency of such suit, or appeared, or was a party thereto, the record of such judgment is conclusive evidence of the paramount title of the adverse claimant, provided the covenantee proves or the record shows affirmatively that such judgment was not obtained through title derived from himself since the execution of the deed by the covenantor." 8 Am. & Eng. Ency. of Law (2d Ed.) p. 203. See, also. Freeman on Judgments (4th Ed.) § 187. While, therefore, a conclusive presumption attaches to the judgment of eviction in ejectment, where notice to the covenantor to defend has been given, in the absence of fraud or collusion, the judgment, in the nature of things, can be no evidence that the title of the covenantor was defective, perhaps, years before, unless that title was in issue; and, unless the record in the ejectment suit shows that the title deraigned from the covenantor was in issue, it is incumbent on the plaintiff to show in an action on the covenant that the judgment in ejectment was not rendered by reason of any act or default of his own.

Inasmuch as the appellant failed to prove a breach of the covenant of warranty the judgment must be affirmed, and it is so ordered.

MOUNT, DUNBAR, CROW, HADLEY, and ROOT, JJ., concur.

(44 Wash. 200)

REDDING et al. v. PUGET SOUND IRON & STEEL WORKS.

(Supreme Court of Washington. Oct. 24, 1906.) JUDGMENT-VACATION IN SAME COURT-IMPOSITION OF CONDITIONS.

On vacating a judgment of dismissal of an action for want of prosecution, the trial court had authority to make the vacation conditional on plaintiff's paying defendant $50 attorney's fees, though the statutory attorney's fee on the trial of a cause without a jury is $10, where the $50 was necessary to reasonably reimburse de

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[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment. $ 757.]

Appeal from Superior Court, Pierce County: W. H. Snell, Judge.

Action by Mattie E. Redding, on her own behalf and as guardian ad litem of Nina B. Redding and another, against the Puget Sound Iron & Steel Works. A judgment dismissing the action was vacated conditionally, and the order not being complied with, final judgment rendered for defendant, from which plaintiff appeals. Affirmed.

tion of laches or inattention rests upon the party applying, is an act of grace and favor and is discretionary with the trial court, it has power to impose such terms as may be just and reasonable, as a condition to the granting of such relief, and its action in this respect will not be interfered with, unless for a gross and manifest abuse of discretion. ** * It is clearly within the power of the court to make the payment of costs a condition to granting the relief asked, including, in a proper case and where justice appears to require it, the disbursements of the opposite party, a proper fee to his attorneys, and his

W. F. Hays, for appellant. Hudson & reasonable personal expenses incurred in conHolt, for respondent.

PER CURIAM. This cause was originally set for trial on April 25, 1905. Upon application of appellant, it was continued until June 1, 1895, and a further continuance was had until June 7th. Upon that date it was called for trial, neither appellant nor her attorneys being present; whereupon the action was dismissed for want of prosecution. Subsequently, there was an attempt by the appellant to have the judgment of dismissal vacated, and the court did, on the 27th day of October, 1905, make an order vacating said judgment, on condition that appellant pay all costs incident to the entry of said judgment, and the costs of witnesses paid on the final hearing, and $50 attorney's fees. The appellant, upon petition and affidavits, asked the court to modify said conditional order setting aside said judgment, so as to allow the defendant the witness fees, court costs, the statutory attorney's fees, and no more. This motion was denied and, the order not being complied with, the court gave final judgment to the defendant for its costs incurred. From this judgment this appeal is taken.

The appellant does not deny the power of the court to impose terms as a condition precedent to vacating the judgment, but the principal objection is that the court had no power to assess an attorney's fee of $50, or any other attorney's fee greater than the statutory attorney's fee of $10, upon the trial of the cause without a jury. We have examined the record in this case and, without discussing it, are satisfied that the court was justified in making the several different orders in the case that it did make, and that it also had authority to assess any reasonable penalty upon the appellant as a condition precedent to vacating the judgment. It matters not whether that penalty was in the form of costs or attorney's fees: if it was necessary to reasonably reimburse the respondent for the expense and delay that it had been to on account of appellant's action, the action of the trial court in that respect would not be disturbed by this court. On that question it is said by Black on Judgments, § 352: "Since the opening or vacation of a judgment, in any case where an imputa

nection with the suit, and also the costs of the motion itself." To the same effect is 15 Enc. Pl. & Pr., p. 10.

Being unable to discover any abuse of discretion on the part of the court in the whole transaction, the judgment is affirmed

(44 Wash. 202)

CALLISON v. COLE et al. (Supreme Court of Washington. Oct. 24, 1906.) 1. TAXATION-ACTION TO FORECLOSE DELINQUENT TAX CERTIFICATE-PUBLICATION OF SUMMONS-SUFFICIENCY.

3 Ballinger's Ann. Codes & St. Supp. § 1751, in relation to publication of summons in an action to foreclose a delinquent tax certificate against a nonresident owner, provides that the summons shall direct defendant to appear within a specified time from the date of the first publication and defend the action or pay the amount due. Held, that a summons was not insufficient merely because it failed to contain the alternative direction to "pay the amount due."

2. SAME-JUDGMENT-VACATION.

Where, in an action to foreclose a delinquent tax certificate, sufficient service was had on the nonresident owner by publication of summons, it was no ground for a vacation of the judgment rendered against her that a certain illegal item had been included in the tax. 3. APPEAL - PRESUMPTIONS FACTS NOT SHOWN BY EVIDENCE.

Where, on appeal from a judgment in favor of plaintiff in an action to foreclose a delinquent tax certificate, wherein jurisdiction was obtained by publication of summons, it appeared that the affidavit making proof of publication was verified by one whose name was identical with plaintiff's. in the absence of any showing, it would not be presumed that they were the same person.

4. TAXATION-ACTION TO FORECLOSE DELINQUENT TAX CERTIFICATE-SERVICE-SUFFICIENCY.

In an action to foreclose a delinquent tax certificate, the publication of summons is not insufficient because the affidavit of publication. was made by plaintiff, he being the publisher of the paper.

Appeal from Superior Court, Lewis County; A. E. Rice, Judge.

Action by I. P. Callison against Zack Cole and Mary R. Smith to foreclose a delinquent tax certificate, and from a judgment dismissing the petition of Mary R. Smith to vacate a judgment rendered against defendants, she appeals. Affirmed.

Forney & Ponder, for appellant. Maurice A. Langhorne, for respondent.

CROW, J. Action by the plaintiff I. P. Callison against the defendants, Zack Cole and Mary R. Smith, to foreclose a delinquent tax certificate. Service was made by publishing in the People's Advocate, a newspaper of general circulation in Lewis county, a summons which, omitting the caption, reads as follows: "You are hereby summoned to appear within sixty days after the date of the first publication of this summons, exclusive of the Erst day of said publication, which will be on the third day of July, A. D. 1903, and defend the above entitled action in the above entitled court and answer the complaint of the plaintiff and serve a copy of your answer upon the undersigned attorney for the plaintiff at his office below stated, and in case of your failure so to do, judgment will be rendered against you according to the demand of the plaintiff's complaint, which has been filed with the clerk of said court. This action is brought upon a certificate of delinquency numbered 388, issued on the first day of July, A. D. 1899, for the amount of $22.70 with interest at 15 per cent. per annum by the county of Lewis, state of Washington, and now owned and held by the plaintiff herein for delinquent taxes for the years 1897 and 1898 upon the following described real estate situate in the county of Lewis, state of Washington, to-wit: NE 4 sec. four (4) township thirteen (13) north, range one (1) west W. M. Plaintiff has also paid taxes on the above-described property for the years 1899 and 1900 amounting to $35.88 for which he also seeks payment, which amounts, with interest at 15 per cent. per annum, now amount to $85.59, and he now seeks to obtain judgment foreclosing the lien thereof for such taxes and costs and for a sale of said real estate according to law. J. E. Willis, Plaintiff's Attorney. P. O. Address, Chehalis, county of Lewis, state of Washington." Proof of such publication was made by the affidavit of one I. P. Callison, who deposed that he was the publisher of the People's Advocate, and who, the defendant now claims, is the plaintiff in this action. The defendants failing to appear, a foreclosure decree was entered, and the treasurer of Lewis county, on September 19, 1903, executed and delivered to plaintiff a tax deed for the land. On August 29, 1904, the defendant Mary R. Smith, claiming to be the owner of the property, and being a nonresident of the state of Washington, filed her motion and petition to vacate the judgment and sale. The trial judge entered a judgment dismissing this petition, and the defendant Mary R. Smith has appealed.

No statement of facts has been brought to this court, and the only question now before us is whether the findings made by the trial court sustained the judgment. The findings show that the only service made was by publication of the summons above set forth. tion 1751, 3 Ballinger's Ann. Codes & St. Supp. (Sess. Laws 1901, p. 384, c. 178), with other requirements, provides that the sum

Sec

mons shall direct the defendant "to appear within sixty days after the date of the first publication * * * and defend the action or pay the amount due." The summons herein contains no alternative direction to the defendants to "pay the amount due," and the appellant contends that it is void by reason of such omission. This court has held that, in proceedings to foreclose a tax certificate, a publication summons directing a defendant to appear and defend the action within 60 days after the service of the summons was void under the requirements of the above section. Thompson v. Robbins, 32 Wash. 149, 72 Pac. 1043; Smith v. White, 32 Wash. 414, 73 Pac. 480; Young v. Dorz, 38 Wash. 648, 80 Pac. S10; Dolan v. Jones, 37 Wash. 176, 79 Pac. 640; Owen v. Owen (Wash.) 84 Pac. 606. The appellant has cited Thompson v. Robbins, supra, and insists that it is controlling here; that the statute must be strictly followed in every particular; and that the summons now before us is void. In the cases above mentioned the time within which the defendants were required to appear was not definitely fixed at 60 days after the first publication, as provided by the statute. A plaintiff is entitled to judgment by default only upon failure of a defendant to appear and plead within the statutory time, and it is essential that a specific statement of the exact time for answer be incorporated, so that no misapprehension may arise upon the part of a defendant as to when a plaintiff will enter judg ment after nonappearance. A definite time for answering becomes, therefore, an essential part of the process, and this court held that the statute should be strictly followed in that particular. In the case at bar the omission complained of does not seem to us to have been one of such vital importance as to prevent the court from acquiring jurisdiction. The summons, by its terms, has substantially complied with all of the essential provisions of the statute. The defendant is directed to appear and defend within the exact time fixed by the statute, the nature of the action and the relief demanded are both clearly stated, and we fail to understand why the chance omission of the words "or pay the amount due" should avoid the service. Any action would necessarily be terminated should payment of the amount claimed be made before judgment, while a tax foreclosure may be avoided by payment at any time before delivery of a deed. Payment in a proceeding of this character would prevent a foreclosure, and would. therefore, be one method of defense, which the summons informs the defendant must be made within a definite and fixed time after the date of the first publication. A defendant, when informed by a summons that he has a definite time within which to appear and defend, would most certainly know that he could, if he so preferred, determine the action by payment of the amount due within that time. How, then, could he be deceived or misled by the failure of the

summons to affirmatively advise him of his right to pay? While a plaintiff should endeavor to comply with all the requirements of the statute, we nevertheless conclude that there has been no fatal omission in the summons in this case.

The findings further show that the appellant, Mary Smith, owned the land during and since the years for which the delinquent taxes were levied; that the defendant Zack Cole, being a former owner, still held the record title, and that $2.40 of personal taxes assessed against Zack Cole were charged by the county treasurer, under section 1748, 3 Ballinger's Ann. Codes & St. Supp., against the land and included in the certificate of delinquency, and the judgment entered thereon. The appellant now contends that her real estate was not liable for Cole's personal taxes; that she is therefore entitled to defend as to that item, and that the default judgment should be vacated to enable her to do so. This contention cannot be sustained. Swanson v. Hoyle, 32 Wash. 170, 72 Pac. 1011.

The last contention made by appellant is that the summons was not legally served, or, in other words, that it was not legally published. It appears from the record that the affidavit making proof of publication was verified by one I. P. Callison, whose name is identical with that of the respondent in this action. No showing appears to have been made that the I. P. Callison who made the affidavit and I. P. Callison, the respondent, are one and the same person; nor did the court make any finding showing such identity, if it existed. Two different persons might be known by the same name, and we do not think we are justified in presuming that I. P. Callison, the publisher, and I. P. Callison, the respondent, are one and the same person, especially when we would be indulging in such presumption for the sole purpose of questioning the jurisdiction of the trial court. But were we to presume the identity to be as contended by the appellant, the publication would not, therefore, be void. We do not know, nor can we presume, that any other paper was published in Lewis county. The statute made it the duty of the plaintiff to publish in some paper in that county, and it may have been necessary to publish in the People's Advocate. Further, there is nothing in the statute prohibiting publication in a paper owned by the respondent.

We find no error in the record, and the judgment is accordingly affirmed.

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

(44 Wash. 193)

MANTLE v. DABNEY et ux. (Supreme Court of Washington. Oct. 24, 1906.) 1. MORTGAGES-PAYMENT-SECURITY FOR AD

DITIONAL DEBT.

Defendants, husband and wife, executed a deed on community property to secure the hus

band's note. This note was paid in full, but at the same time the husband purchased certain stock, giving the note sued on and another in payment, and agreed that the grantees in the deed should release a portion of the land and hold the balance as security for the payment of the notes; the wife not being a party to such agreement. Held, that the deed was ineffective as security for such subsequent note. [Ed. Note. For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 237-241.] 2. EVIDENCE-PRESUMPTIONS-FOREIGN LAWS. Where the statutes of a foreign state, where land mortgaged was located, with reference to mortgages and deeds of property given to operate as mortgages, are not pleaded, they will be presumed to be the same as the laws of Washington regulating such subjects. [Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, § 101.]

3. MORTGAGES-VALIDITY-ACTION FOR DEBT. Where a mortgage was ineffective as security for the note sued on, the holder was not required by statute to attempt to enforce the security before bringing an action on the note.

[Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 568, 569.]

4. HUSBAND AND WIFE-HUSBAND'S DEBTSLIABILITY OF WIFE.

Montana Civ. Code. § 227, provides that the separate property of the wife shall be exempt from her husband's debts, except for necessaries, and that in no case shall any of the wife's separate estate be liable for the husband's debts, unless such property is in the sole and exclusive possession of the husband, and then only to such persons as deal with the husband in good faith, on the credit of such property, without knowledge or notice that the property belongs to her. Held, that as there is no community-law system in Montana. and notes given in that state by a husband in payment for oil stock were not given for necessaries, the debt was not enforceable against the wife's separate estate.

[Ed. Note. For cases in point, see vol. 26, Cent. Dig. Husband and Wife, §§ 573, 574.] Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by Lee Mantle against Joseph B. From a judgment in Dabney and another. favor of defendants, plaintiff appeals. Judgment affirmed as to defendant Louise E. Dabney, and reversed as to Joseph B. Dabney.

A. M. Abel and W. H. Abel, for appellant. John C. Hogan, for respondents.

ROOT, J. This was an action by appellant upon a promissory note made by the defendant Joseph B. Dabney in the state of Montana. From a judgment for respondents, an appeal is prosecuted. The material facts involved are about as follows: On January 27, 1902, Joseph B. Dabney borrowed $15,000 from Mantle and Hodgens on his personal note, and with his wife executed a warranty deed for 350 acres of land in California, which deed was delivered with the verbal understanding that it was to be held as security for the payment of said note. On July 28, 1902, Dabney paid said note in full, but at the same time purchased 22,000 shares of oil stock, giving in payment thereof two promissory notes, one of which is the subject-matter of this action. At the time of this trans

action said Dabney agreed with Mantle and Hodgens that they should release 150 acres of the land conveyed to them as aforesaid, and hold the balance as security for the payment of the two notes given for the oil stock. Respondents at the time of the commencement of this action were residents of the state of California. The action was commenced by attachment of property belonging to them in this state. Respondents answered separately. One defense interposed was that of usury, which was, however, withdrawn from the trial. The principal defense urged by respondent Joseph B. Dabney was that the statute of Montana, where and when the note was given, was and ever since has been that no action shall be maintained upon a promissory note other than one to enforce the same against the property by which it is secured, until such property has been subjected to the payment of said note. To this defense the appellant replies that this note was not secured. He maintains that, when the $15,000 note was paid, the trust deed which had been given as security for the payment of said note became as a matter of security functus, and that said deed was never as a matter of law any security for the payment of the note sued on herein. The deed, having been executed and delivered to be held as security for the payment of the $15,000 note, must be treated in effect as a mortgage. When the entire indebtedness secured by a mortgage is paid and satisfied, such mortgage ordinarily becomes ipso facto null and void. In this instance the mortgage was given by both the husband and wife to secure the $15,000 note. When that note was paid, the husband and wife could doubtless have executed and delivered another note and agreed that the deed theretofore made and delivered should be still retained by the payee of the new note as security for the payment thereof. But this was not done in this instance. The transactions with reference to the new note were made without the wife being in any wise a party thereto. To hold the deed good as security for the new note, it was necessary that something should have been done by the husband and wife equivalent to the legal execution of a mortgage, or a deed in trust to serve the same purposes as a mortgage. The land covered by this deed is in the state of California. The statutes of that state are not pleaded. Therefore we are required as a matter of law to act upon the assumption that the statutes of that state with reference to mortgages and deeds of property given to serve the purposes of mortgages are the same as the laws touching such matters in our own state. Here a mortgage given by the husband upon community property without the wife joining in the execution thereof is absolutely void.

It therefore follows that the deed of this property, in so far as it was intended to serve as security for the payment of the note sued on, was and is void. Hence the statute in question did not forbid the bring

ing of this action, as the note was not secured. It is contended by appellant that, under the laws of Montana, respondent Louise E. Dabney could be held for this indebtedness, and that the transaction by her husband was sufficient to bind her and her property. The following statutes of Montana are pleaded: Montana Civil Code:

"Sec. 212. The husband must support himself and his wife out of his property or by his labor. If he is unable to do so, she must assist him as far as she is able.

"Sec. 213. Neither husband nor wife has any interest in the property of the other, except as mentioned in the preceding section, but neither can be excluded from the other's dwelling.

"Sec. 214. Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried, subject in transactions between themselves to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the title on trusts."

"Sec. 218. Neither husband nor wife, as such, is answerable for the acts of the other." "Sec. 220. All the property of the wife owned before her marriage and that acquired afterwards is her separate property. The wife may, without the consent of her husband, convey her separate property or execute a power of attorney for the conveyance thereof."

"Sec. 222. The filing of the inventory in the clerk's office is notice and prima facie evidence of the title of the wife.

"Sec. 223. The earnings and accumulations of the wife are not liable for the debts of the husband."

"Sec. 227. The separate property of the wife shall be exempt from all debts and liabilities of the husband, unless for necessary articles procured for the use and benefit of herself and her children under the age of eighteen years, but such exemption shall extend only to such property of such wife as shall be mentioned in an inventory thereof, as provided in sections 221 and 222. And in no case shall any of the separate property of the wife be liable for the debts of the husband, unless such property is in the sole and exclusive possession of the husband, and then only to such persons as deal with the husband in good faith on the credit of such property, without knowledge or notice that the property belongs to the wife. But the separate property of the wife is liable for her own debts, contracted before or after marriage."

"Sec. 247. The property rights of the husband and wife are governed by this chapter, unless there is a marriage settlement containing stipulations contrary thereto."

"Sec. 253. A married woman may sue and be sued in the same manner as if she were sole.

"Sec. 254. The contracts made by a mar

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