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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 justitied 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 mani. festly 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 titie. 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 pendeney 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.


(44 Wash. 200) REDDING et al. v. PUGET SOUND IRON &


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

fendant for expense and delay owing to plain-| tion of laches or inattention rests upon the tiff's action.

party applying, is an act of grace and favor [Ed. Note. -For cases in point. bez vol. 30,

and is discretionary with the trial court, it Cent. Dig. Judgment, $ 757.]

has power to impose such terms as may be Appeal from Superior Court, Pierce Coun

just and reasonable, as a condition to the ty: W. H. Snell, Judge.

granting of such relief, and its action in this Action by Mattie E. Redding, on her own

respect will not be interfered with, unless for behalf and as guardian ad litem of Nina

a gross and manifest abuse of discretion. B. Redding and another, against the Puget * * * It is clearly within the power of the Sound Iron & Steel Works. A judgment court to make the payment of costs a condidismissing the action was vacated condition

tion to granting the relief asked, including, ally, and the order not being complied with,

in a proper case and where justice appears to final judgment rendered for defendant, from

require it, the disbursements of the opposite which plaintiff appeals. Affirmed.

party, a proper fee to his attorneys, and his W. F. Hays, for appellant. Hudson & reasonable personal expenses incurred in conHolt, for respondent.

nection with the suit, and also the costs of

the motion itself." To the same effect is 15 I'ER CURIAM. This cause was originally Enc. Pl. & Pr., p. 10. set for trial on April 25, 1905. Upon ap- Being unable to discover any abuse of displication of appellant, it was continued until cretion on the part of the court in the whole June 1, 1895, and a further continuance was transaction, the judgment is affirmed had until June 7th. Upon that date it was called for trial, neither appellant nor her at

(44 Wash. 202) torneys being present; whereupon the action

CALLISON V. COLE et al. was dismissed for want of prosecution. Sub

(Supreme Court of Washington. Oct. 24, 1906.) sequently, there was an attempt by the ap

1. TAXATION-ACTION TO FORECLOSE DELINpellant to have the judgment of dismissal

QUENT TAX CERTIFICATE-PUBLICATION OF vacated, and the court did, on the 27th day SUMMONS-SUFFICIENCY. of October, 1905, make an order vacating 3 Ballinger's Ann. Codes & St. Supp. §

1751, in relation to publication of summons in said judgment, on condition that appellant

an action to foreclose a delinquent tax certifipay all costs incident to the entry of said

cate against a nonresident owner, provides that judgment, and the costs of witnesses paid on the summons shall direct defendant to appear the final bearing, and $50 attorney's fees.

within a specified time from the date of the

first publication and defend the action or pay The appellant, upon petition and affidavits,

the amount due. Held, that a summons was asked the court to modify said conditional not insufficient merely because it failed to conorder setting aside said judgment, so as to

tain the alternative direction to "pay the allow the defendant the witness fees, court

amount due.”

2. SAME-JUDGMENT-VACATION. costs, the statutory attorney's fees, and no

Where, in an action to foreclose a delinmore. This motion was denied and, the quent tax certificate, sufficient service was had order not being complied with, the court on the nonresident owner by publication of gave final judgment to the defendant for its summons, it was no ground for a vacation of

the judgment rendered against her that a cercosts incurred. From this judgment this ap

tain illegal item had been included in the tax. peal is taken.

3. APPEAL - PRESUMPTIONS – FACTS NOT The appellant does not deny the power of SHOWN BY EVIDENCE. the court to impose terms as a condition Where, on appeal from a judgment in fa

vor of plaintiff in an action to foreclose a deprecedent to vacating the judgment, but the

linquent tax certificate, wherein jurisdiction principal objection is that the court had no

was obtained by publication of summons, it power to assess an attorney's fee of $50, or appeared that the affidavit making proof of any other attorney's fee greater than the

publication was verified by one whose name was

identical with plaintiff's, in the absence of any statutory attorney's fee of $10, upon the trial

showing, it would not be presumed that they of the cause without a jury. We have ex- were the same person. amined the record in this case and, without 4. TAXATION-ACTION TO FORECLOSE DELINdiscussing it, are satisfied that the court QUENT TAX CERTIFICATE-SERVICE-SUFFI

CIENCY. was justified in making the several different

In an action to foreclose a delinquent tax orders in the case that it did make, and that certificate, the publication of summons is not it also had authority to assess any reason- insufficient because the affidavit of publication able penalty upon the appellant as a con

was made by plaintiff, he being the publisher

of the paper. dition precedent to vacating the judgment. It matters not whether that penalty was in

Appeal from Superior Court, Lewis Counthe form of costs or attorney's fees: if it

ty; A. E. Rice, Judge.

Action by I. P. Callison against Zack Cole was necessary to reasonably reimburse the respondent for the expense and delay that it

and Mary R. Smith to foreclose a delinquent had been to on account of appellant's action,

tax certificate, and from a judgment dismiss the action of the trial court in that respect

ing the petition of Mary R. Smith to vacate a would not be disturbed by this court. On

judgment rendered against defendants, she that question it is said by Black on Judg- appeals. Affirmed. ments, $ 352: "Since the opening or vacation Forney & Ponder, for appellant. Maurice of a judgment, in any case where an imputa- 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 rst 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 14 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. Section 1751, 3 Ballinger's Ann. Codes & St. Supp. (Sess. Laws 1901, p. 384, c. 178), with other requirements, provides that the sum

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, SO Pac. $10; Dolan v. Jones, 37 Wash. 176, 79 Pac. 610; 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 mentieneil 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 judyment 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 froin 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 band's note. This note was paid in full, but right to pay? While a plaintiff should en

at the same time the husband purchased cer

tain stock, giving the note sued on and another deavor to comply with all the requirements

in payment, and agreed that the grantees in of the statute, we nevertheless conclude that

the deed should release a portion of the land there has been no fatal omission in the sum- and hold the balance as security for the paymons in this case.

ment of the notes; the wife not being a party

to such agreement. Held, that the deed was The findings further show that the appel

ineffective as security for such subsequent note. lant, Mary Smith, owned the land during and

[Ed. Note.-For cases in point, see vol. 35, since the years for which the delinquent tax- Cent. Dig. Mortgages, $8 237–241.] es were levied; that the defendant Zack Cole, | 2. EVIDENCE-PRESUMPTIONS-FOREIGN LAWS. being a former owner, still held the record ti- Where the statutes of a foreign state, tle, and that $2.40 of personal taxes assessed

where land mortgaged was located, with ref

erence to mortgages and deeds of property against Zack Cole were charged by the county

given to operate as mortgages, are not pleadtreasurer, under section 1748, 3 Ballinger's ed, they will be presumed to be the same as the Ann. Codes & St. Supp., against the land and

laws of Washington regulating such subjects. included in the certificate of delinquency, and

[Ed. Note.-For cases in point, see vol. 20,

Cent. Dig. Evidence, 8 101.) the judgment entered thereon. The appel

3. MORTGAGES_VALIDITY-ACTION FOR DEBT. lant now contends that her real estate was

Where a mortgage was ineffective as senot liable for Cole's personal taxes; that she curity for the note sued on, the holder was is therefore entitled to defend as to that item, not required by statute to attempt to enforce and that the default judgment should be va

the security before bringing an action on the

note. cated to enable her to do so. This contention

[Ed._Note.--For cases in point, see vol. 35, cannot be sustained. Swanson v. Hoyle, 32 Cent. Dig. Mortgages, 88 568, 569.] Wash. 170, 72 Pac. 1011.

4. HUSBAND AND WIFE-HUSBAND'S DEBTSThe last contention made by appellant is LIABILITY OF WIFE. that the summons was not legally served, or,

Montana Civ. Code, $ 227, provides that in other words, that it was not legally pub

the separate property of the wife shall be ex

empt from her husband's debts, except for lished. It appears from the record that the

necessaries, and that in no case shall any of affidavit making proof of publication was ver- the wife's separate estate be liable for the husified by one I. P. Callison, whose name is

band's debts, unless such property is in the identical with that of the respondent in this

sole and exclusive possession of the husband,

and then only to such persons as deal with the action. No showing appears to have been husband in good faith, on the credit of such made that the I. P. Callison who made the af- property, without knowledge or notice that fidavit and I. P. Callison, the respondent, are

the property belongs to her. Held, that as

there is no community-law system in Montana, one and the same person; nor did the court and notes given in that state by a husband in make any finding showing such identity, if it payment for oil stock were not given for necesexisted. Two different persons might be

saries, the debt was not enforceable against the known by the same name, and we do not

wife's separate estate.

[Ed. Note.-For cases in point, see vol. 26, think we are justified in presuming that I. P.

Cent. Dig. Husband and Wife, $8 573, 574.] Callison, the publisher, and I. P. Callison, the respondent, are one and the same person, es

Appeal from Superior Court,

Superior Court, Chehalis pecially when we would be indulging in such

County; Mason Irwin, Judge. presumption for the sole purpose of question

Action by Lee Mantle against Joseph B.

Dabney and another. From a judgment in ing the jurisdiction of the trial court.

favor of defendants, plaintiff appeals. Judgwere we to presume the identity to be as contended by the appellant, the publication

ment affirmed as to defendant Louise E. Dabwould not, therefore, be void.

ney, and reversed as to Joseph B. Dabney.

We do not know, nor can we presume, that any other

A. M. Abel and W. H. Abel, for appellant. paper was published in Lewis county. The

John C. Hogan, for respondents. statute made it the duty of the plaintiff to publish in some paper in that county, and it

ROOT, J. This was an action by appellant may have been necessary to publish in the

upon a promissory note made by the defendPeople's Advocate. Further, there is nothing

ant Joseph B. Dabney in the state of Monin the statute prohibiting publication in a

tana. From a judgment for respondents, an paper owned by the respondent.

appeal is prosecuted. The material facts inWe find no error in the record, and the

volved are about as follows: On January 27, judgment is accordingly affirmed.

1902, Joseph B. Dabney borrowed $15,000

from Mantle and Hodgens on his personal MOUNT, C. J., and DUNBAR, HADLEY, note, and with his wife executed a warranty and FULLERTON, JJ., concur.

deed for 350 acres of land in California,

which deed was delivered with the verbal un(44 Wash. 193)

derstanding that it was to be held as security MANTLE V. DABNEY et ux.

for the payment of said note. On July 28,

1902, Dabney paid said note in full, but at (Supreme Court of Washington. Oct. 24, 1906.)

the same time purchased 22,000 shares of oil 1. MORTGAGES-PAYMENT-SECURITY FOR AD.

stock, giving in payment thereof two promDITIONAL DEBT. Defendants, husband and wife, executed a

issory notes, one of which is the subject-matdeed on community property to secure the hus- ter of this action. At the time of this transaction said Dabney agreed with Mantle and ing of this action, as the note was not secured. Hodgens that they should release 150 acres It is contended by appellant that, under of the land conveyed to them as aforesaid, the laws of Montana, respondent Louise E. and hold the balance as security for the pay- Dabney could be held for this indebtedness, ment of the two notes given for the oil stock. and that the transaction ly her husband was Respondents at the time of the commence- sufficient to bind her and her property. The ment of this action were residents of the state following statutes of Montana are pleaded: of California. The action was commenced Montana Civil Code: by attachment of property belonging to them "Sec. 212. The husband must support himin this state. Respondents answered sepa-self and his wife out of his property or by rately. One defense interposed was that of his labor. If he is unable to do so, she must usury, which was, however, withdrawn from assist him as far as she is able. the trial. The principal de The principal defense urged by

“Sec. 213. Neither husband nor wife has respondent Joseph B. Dabney was that the any interest in the property of the other, statute of Montana, where and when the note except as mentioned in the preceding section, was given, was and ever since has been that but neither can be excluded from the other's no action shall be maintained upon a prom

dwelling. issory note other than one to enforce the “Sec. 214. Either husband or wife may ensame against the property by which it is se- ter into any engagement or transaction with cured, until such property has been subjected the other, or with any other person, respectto the payment of said note. To this defense ing property, which either might if unmarthe appellant replies that this note was not ried, subject in transactions between themsecured. He maintains that, when the $15,000 selves to the general rules which control the note was paid, the trust deed which had been actions of persons occupying confidential regiven as security for the payment of said

lations with each other, as defined by the title note became as a matter of security functus, on trusts." and that said deed was never as a matter of “Sec. 218. Neither husband nor wife, as law any security for the payment of the note such, is answerable for the acts of the other." sued on herein. The deed, having been ex

"Sec. 220. All the property of the wife ownecuted and delivered to be held as security ed before her marriage and that acquired for the payment of the $15,000 note, must be afterwards is her separate property. The treated in effect as a mortgage. When the wife may, without the consent of her husentire indebtedness secured by a mortgage band, convey her separate property or exis paid and satisfied, such mortgage ordinar- ecute a power of attorney for the conveyance ily becomes ipso facto null and void. In this thereof." instance the mortgage was given by both the “Sec. 222. The filing of the inventory in husband and wife to secure the $15,000 note. the clerk's office is notice and prima facie eviWhen that note was paid, the husband and dence of the title of the wife. wife could doubtless have executed and deliv- "Sec. 223. The earnings and accumulations ered another note and agreed that the deed of the wife are not liable for the debts of the theretofore made and delivered should be still husband." retained by the payee of the new note as se- “Sec. 227. The separate property of the ('urity for the payment thereof. But this wife shall be exempt from all debts and liawas not done in this instance. The transac- | bilities of the husband, unless for necessary tions with reference to the new note were articles procured for the use and benefit of made without the wife being in any wise a herself and her children under the age of party thereto. To hold

To hold the deed good as se- eighteen years, but such exemption shall ex curity for the new note, it was necessary that tend only to such property of such wife as something should have been done by the hus- shall be mentioned in an inventory thereof, band and wife equivalent to the legal ex- as provided in sections 221 and 222. And in ecution of a mortgage, or a deed in trust to no case shall any of the separate property of serve the same purposes as a mortgage. The the wife be liable for the debts of the husland covered by this deed is in the state of band, unless such property is in the sole and California. The statutes of that state are not exclusive possession of the husband, and then pleaded. Therefore we are required as a mat- only to such persons as deal with the huster of law to act upon the assumption that band in good faith on the credit of such propthe statutes of that state with reference to erty, without knowledge or notice that the mortgages and deeds of property given to property belongs to the wife. But the sepaserve the purposes of mortgages are the same rate property of the wife is liable for her own as the laws touching such matters in our own debts, contracted before or after marriage." state. Here a mortgage given by the hus- “Sec. 247. The property rights of the husband upon community property without the band and wife are governed by this chapter, wife joining in the execution thereof is ab- unless there is a marriage settlement consolutely void. It therefore follows that the taining stipulations contrary thereto." deed of this property, in so far as it was in- “Sec. 253. A married woman may sue and tended to serve as security for the payment of be sued in the same manner as if she were the note sued on, was and is void. Hence the sole. statute in question did not forbid the bring- "Sec. 254. The contracts made by a mar

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