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formance of any obligation." In Stiles v. Cain, 134 Cal. 171, 66 Pac. 232, Mr. Justice Temple says on this subject: "There are, then, contracts which are perfectly valid, and which a court of equity will not set aside for fraud, mistake, or for any unfairness, but which, nevertheless, are so unfair that specific performance will not be decreed. This has always been the rule with courts of equity. They will not aid in the enforcement of a harsh and unjust contract, even though it be valid." This doctrine has been repeatedly affirmed by this court in other cases. Agard v. Valencia, 39 Cal. 302; Nicholson v. Tarpey, 70 Cal. 609, 12 Pac. 778; Kelly v. C. P. R. R. Co., 74 Cal. 562, 16 Pac. 386, 5 Am. St. Rep. 470; Morrill v. Everson, 77 Cal. 114, 19 Pac, 190; Ward v. Yorba, 123 Cal. 447, 56 Pac. 58; Windsor v. Miner, 121 Cal. 491, 57 Pac. 386; Fleishman v. Woods, 135 Cal. 261, 67 Pac. 276. These are all cases in which the vendee was seeking to compel the vendor to perform the contract by the execution of a deed. But this does not affect the rule of the Code. It applies with equal force to both parties. There is no reason why the "conscience of a chancellor" should not be as tender toward the buyer as toward the seller, if he is the victim of an unconscionable bargain.

The rule that the party seeking in equity the specific performance of a contract must aver facts which affirmatively show adequacy of consideration, and that it is just and reasonable as to the other party, is also well settled. In the first case on the subject (Agard v. Valencia, supra) the court says: "Another well-established rule in courts of equity is that in a suit for a specific performance it must be affirmatively shown that tlie contract is fair and just and that it would not be inequitable to enforce it. The court will not lend 'ity aid to enforce a contract which is in any respect unfair or savors of oppression but in such cases will leave the party to his remedy at law. It is incumbent on the plaintiff, therefore, to state such facts as will enable the court to decide whether the contract is of such a character that it would not be inequitable to enforce it.” Bruck v. Tucker, supra, is to the same effect. In Stiles v. Cain, supra, upon this proposition the court said: "This does not mean that it must be alleged in hæc verba that the contract was supported by an adequate consideration, and is, as to the defendant, fair and just. These might be held insufficient, but the fact that the contract is such as will satisfy the conscience of the chancellor, in the respects mentioned, must appear from a proper statement of facts.” The same rule of pleading is declared in Ward v. Yorba, supra, Windsor v. Miner, supra, Prince v. Lamb, supra, Nicholson v. Tarpey, supra, Morrill v. Everson, supra, and Fleishman v. Woods, supra. The effect of these decisions is that the mere statement of the price agreed to be paid, as

in this case, will not suffice. There must be a showing of the value, at least, so that the court can determine whether or not it was in reasonable proportion to the price to be paid, or of other facts which are sufficient to satisfy the court that the contract is just and reasonable to the buyer in all its material elements. There is an entire absence of anything of this nature in the complaint under consideration. The answer alleged that the value of the land at the time of the contract did not exceed $4,400, which was considerably less than one-half the price that Sage was

was to pay. The finding is evasive upon this question. There is no finding of the actual value of the land, but it is said therein that it is not true that "the said land was of the value and worth not exceeding the sum of $4,400,” which finding could be true if the land was worth only $1 more. The failure to find on this issue also requires a reversal of the judgment. There is a bill of exceptions in the record, the authenticity of which is disputed, from which it appears that the uncontradicted evidence was that the value of the land did not exceed $4.400, so that if this bill of exceptions could be considered the finding. even in its evasive forin, would be contrary to the evidence. But we do not consider it necessary to determine the question whether the bill of exceptions is properly in the record or not. It being incumbent upon the plaintiff to allege in his complaint facts showing adequacy of the consideration, and that the contract was just and reasonable as to the defendant, the demurrer should have been sustained, and for this error and the failure to find the value the judgment must be reversed, regardless of the question whether the evidence sustains the findings.

It is but fair to the court below to say that there is nothing in the record, or in the briefs, indicating that this defect in the complaint was ever called to its attention in argument.

The judgment is reversed, with directions to the court below to sustain the demurrer to the complaint and for further proceedings.

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(149 Cal. 677) EDWARDS v. LECHLEITER (LECHLEIT

ER et al., Interveners). (Sac. 1,210.) (Supreme Court of California. Sept. 5, 1906.) 1. APPEAL-REVIEW-FINDINGS BY COURTCONFLICTING EVIDENCE.

Findings of the trial court, based on a material conflict in the evidence, will not be disturbed on appeal. 2. VENDOR AND PURCHASER-IMPROVEMENTS.

Where the purchaser of land took possession before paying the purchase price, and contracted that all buildings placed upon the land should be the property of the seller until the seller should be repaid advances that might be made by him to the purchaser, and the wife of the purchaser knew of the contract, the fact that one

of the buildings was erected with her money shall be sold according to the law relative to did not entitle her to claim ownership of the

the sale of property under execution, and the building as against the seller, wh) had not been paid the purchase price or his advances.

proceeds of the sale, or as much thereof as

shall be necessary, applied to the satisfaction Department No. 2. Appeal from Superior

of the expenses of the sale and to the payCourt, Yolo County; E. E. Gaddis, Judge.

ment of the said sum of $2,184.66, and costs. Action by D. P. Edwards against J. A.

It appears that at one time plaintiff and deLechleiter, in which Mrs. J. A. Lechleiter and

fendant agreed that $1,100 was the amount others intervene. From an order denying a due for the advancements made by plaintiff, new trial after judgment for plaintiff, de

and that defendant gave plaintiff a note for fendant and certain interveners appeal. Af- that amount bearing interest, and, also, a firmed.

chattel mortgage of all the property, as adWm. M. Sims, for appellants. Chas. w. ditional security. This chattel mortgage was Thomas, for respondent.

of no material importance, except as showing the amount due for advancements at the

time of its date. As there is no appeal from MCFARLAND, J. Judgment in the trial

the judgment, no question arises as to its court went for plaintiff. The defendant, J.

sufficiency in form or substance. A. Lechleiter, and the interveners Mrs. J. A.

On the appeal from the order denying the Lechleiter and Emma Lechleiter, made a

motion for a new trial there are a few exjoint motion for a new trial. This motion

ceptions made to rulings on the admissibility was denied; and from the order denying it

of evidence, but we see no error 'in these the defendant and interveners appeal. There rulings, and, moreover, they relate to matis no appeal from the judgment.

ters of no vital consequence. The main points About one-half of the transcript consists

made by appellants are that the findings are of numerous, voluminous, and rather weari

not supported by the evidence, but there was some pleadings and findings. The court

material evidence in support of all the findfound, in accordance with the material aver

ings. The principal contention of defendant ments of the complaint, that on or about Feb

is that the $1,100 was the whole amount due ruary 28, 1889, plaintiff was, and still is, the

including the $800 to be paid for the lots, but owner of three described lots of land in the

the testimony of plaintiff was directly to the town of Willows in Yolo county; that at

point that the $1,100 was for the amount of said time the defendant contracted with

the advancements, and was in addition to plaintiff that he would pay to the latter the

the $800; and, while the testimony of defendsum of $800 for said lots; that in pursuance

ant contradicts that of plaintiff on this point, of such contract defendant entered upon the

still there was on the subject only that matepossession of the lots and erected thereon a

rial conflict of evidence which placed the demachine and blacksmith shop and placed termination of the fact entirely within the therein certain machinery, implements, tools, province of the trial court. etc., for the operation of the same, and con

There is nothing in the contentions of the structed thereon a dwelling house; that it

interveners. The intervener Mrs. J. A. Lechwas also contracted between the parties that

leiter is the wife of defendant, and her plaintiff should advance to defendant all the

claim is that the residence building on the money necessary for the construction of said

plaintiff's lots was destroyed by fire, and that buildings and for the equipment of said

it was rebuilt with her money. It is useless shop with machinery, apparatus, implements,

to inquire whether or not there was evidence and tools, and that all the buildings, machin

enough to support that contention. She knew ery, tools and other personal property placed

that plaintiff owned the lots, and knew of the by defendant on the lots should be, and re

contract between plaintiff and defendant, and main, the property of the plaintiff until de

there is no principle upon which she could fendant should have repaid to plaintiff all

claim ownership of the building erected on the advances that should be made by the lat

plaintiff's land. The other intervener is deter as aforesaid, and with interest; that

fendant's daughter, and her claim is that plaintiff did advance money to defendant for

she got a money judgment in a justice's court said purposes to the amount of $1,100; that

against the defendant, and that execution isthe defendant has not paid to plaintiff any

sued thereon, and was levied on the property part of the $800 to be paid for the lots or

here involved. There is no evidence in the of the said $1,100 advanced by plaintiff ; and

record showing the issuance or levy of such that there is now due from defendant to

execution, but neither such execution or judg. plaintiff upon said contract the sum of $2,

ment would be of any value against the prop184.66. The judgment is that, if defendant

erty of plaintiff herein. shall pay to plaintiff the said sum of $2,184.

The order denying a new trial is affirmed, 64, with costs, within 60 days after the en

and it is ordered that the 60 days mentioned try of the judgment, the plaintiff shall exe

in the judgment do now commence to run cute to defendant a deed conveying and trans

from the date of the filing of the remittitur ferring to him all the said property; but,

on this appeal in the lower court. if defendant shall fail to pay said money within said 60 days, then all the property We concur: HENSHAW, J.; LORIGAN, J.

(1.19 Cal. 617)

BURNS V. HIATT. (Sac. 1,403, 1,410.) (Supreme Court of California. Aug. 30, 1906.

On Rehearing, Sept. 29, 1906.) 1. MORTGAGES-FORECLOSURE-ACTION - PARTIES-PURCHASER FROM MORTGAGOR.

The title of a purchaser from a mortgagor is not affected by foreclosure proceedings to which he is not made a party.

[Ed. Note.--For cases in point, see vol. 35, Cent. Dig. Mortgages, $$ 1087, 168.512.) 2. SAME-OPERATION-INVALID FORECLOSURE.

The foreclosure of a mortgage without bringing in one who purchased the property after the execution of the mortgage does not devest the lien as to such purchaser's interest.

[Ed. Note.--For cases in point, see vol. 35, Cent. Dig. Mortgages, 88 1682-108.714.] . 3. QUIETING TITLE--PERSON ENTITLED TO RELIEF-MORTGAGOR-INVALID FORECLOSURE.

A purchaser from a mortgagor after the execution of the mortgage, who has not been made a party to subsequent foreclosure proceedings, cannot maintain action to quiet title against the mortgagee without offering to pay the debt, even though it is barred by limitations.

[Ed. Note.-Hor cases in point, see vol. 41, Cent. Dig. Quieting Title, $ 46.] 4. MORTGAGES — FORECLOSURE — EFFECT-INVALID PROCEEDINGS-POSSESSION.

A mortgagee who has foreclosed his mortgage without bringing in a purchaser from the mortgagor, and who has entered into possession under such proceedings, though without the consent of such purchaser, is entitled to retain possession until his lien is released by payment, even though the debt is barred by limitations.

[Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Mortgages, $8 1652-16871..] 5. SANE-LIEN-MANNER OF RELEASE.

Where a mortgage covering more land than was included in a sale made after the execution of the mortgage was foreclosed without making the purchaser a party, and possession of all the property was taken by the mortgagee, the owner of the portion sold was only obliged to pay a portion of the debt to release his property from the mortgage lien and secure possession thereof.

[Ed. Note.--For cases in point, sce vol. 35, Cent. Dig. Mortgages, 88 784, 785.]

Department 1. Appeal from Superior Court, Yolo County; A. J. Buckles, Judge.

Action to quiet title by D. M. Burns against G. W. Hiatt. From a judgment determining the parties' rights, plaintiff and defendant appeal. Reversed on defendant's appeal, and remanded.

E. B. Mering. G. V. Martin, and W. A. Anderson, for plaintiff. A. C. Huston, for defendant.

of mortgage made, executed and delivered on the 18th day of August, 1892, by George H. Jackson to the said G. W. Iliatt"; third, that said Hiatt has no right, title, or interest in said premises, "except such right, title, or interest as may be derived by the said Hiatt, under the said mortgage"; and, fourth, that a certain foreclosure proceeding instituted by said Hiatt on said mortgage, and the decree, judgment, and all proceedings therein, are null and void so far as plaintiff is concerned, and in no way bind him. These are appeals from said judgment, one by the defendant from the judgment in favor of plaintiff, and the other by plaintiff from that portion of the judgment decreeing that his ownership of the property is subject to the rights of defendant under said mortgage. Both appeals are on the judgment roll.

According to the findings of the trial court, based upon appropriate allegations in that behalf contained in defendant's answer, the material facts are as follows: On August 18, 1892, one Jackson was the owner and in possession of the property in controversy and other property, and on that day he borrowed $1,000 from defendant, giving him his note therefor, payable one day after date, with interest at the rate of 9 per cent. per annum, and also, as security for the payment thereof a mortgage on said premises, which mortgage was duly recorded on August 22, 1892. On November 29, 1893, said Jackson executed and delivered to plaintiff a grant, bargain, and sale deed of the property in controversy, which deed was duly recorded on the same day. On August 15, 1896, said note and mortgage being wholly unpaid, de fendant commenced an action against Jackson for the foreclosure of said mortgage. Plaintiff was never made a party to this action. Proceedings were had in such action, resulting, on December 1, 1898, in a judg. ment for the sale of the mortgaged premises and the application of the proceeds to the payment of the amount found due, viz., $1,311.89. At the sale so ordered, defendant became the purchaser for the sum of $1,200. IIe subsequently, on August 30, 1899, received from the commissioner appointed to make the sale a deed for the premises, and immediately entered into the possession of all of the mortgaged premises, and has ever since been, and now is, in the actual and peaceable possession of the same, claiming to own the whole thereof. The court further found that the possession of said premises taken by defendant after the delivery of the commissioner's deed was without the consent of the plaintiff, and also that the note and mortgage are barred by the provisions of section 337 of the Code of Civil Procedure.

This action to quiet title was commenced on July 22, 1904, almost five years after defendant's possession commenced. Plaintifr not having been iade a party to the fore

ANGELLOTTI, J. This action was brought by plaintiff to obtain a decree quieting his title to the west 22 feet of lot 2, in block 4, in the city of Woodland; he alleging in his complaint that he was the owner and entitled to the possession of said property. The complaint was in the usual form of complaints in actions to quiet title. Judgment was given, first, that plaintiff was the owner in fee simple and entitled to the possession of said property; second, that he owns the same "subject to the rights of the defendant, Iliatt, under a certain indenture

closure proceedings, his title to the nort- circumstances, it was said: "But such a regaged premises was, of course, in no way af- sult cannot be achieved. It would be against fected thereby. It is the universally ac- general equitable principles and adjudicated cepted rule wherever a mortgage is only a cases [citing cases].

* * * The only lien not only before, but after, default in its way for a party in respondent's position to conditions on the part of the mortgagor, that quiet a mortgage is to pay it.

* * * Rethe title of the grantee of mortgage l prei- spondent can have no remedy in the premises is not affected by a foreclosure of the ises without paying or tendering the amount mortgage in an action commenced after the due appellant on his mortgages." The same (onveyance to him, unless he is made a

rule was previously applied in Booth v. Hosparty to the action. As to him, under such kins, 73 Cal. 276, 17 Pac. 225, which was also circumstances there is no foreclosure. This an action to quiet title by a mortgagor in is not disputed by defendant. It does not, possession, and in which the mortgage debt however, follow from this that he is entitled was barred by the statute of limitations. In to a decree quieting his title against the Spect v. Spect, 88 Cal. 437, 26 Pac. 203, 13 mortgagee. He took the property under his L. R. A. 137, 22 Am. St. Rep. 314, which was deed from the mortgagor, subject to the lien an action in ejectment by the successor of of the nortgage, and as to such lien, he the mortgagor against a mortgagee in posthenceforth stood in the place of the mort- session, it was pointed out that the rights. gagor. The proceeding to enforce such lien, which grow out of the relations existing bealthough ineffectual against plaintiff by rea- tween mortgagor and mortgagee, as well as son of the fact that he was not made a party, the remedies for the enforcement and and did not operate to divest the lien. Ilis rights | protection of those rights, are of equitable were in no way affected by the proceeding. origin and are to be determined by the and he acquired no additional right thereby. principles of equity, whether the right be He simply continued to be the owner of the asserted or the remedy sought in an action property, subject to the lien which had not

at law or in equity. It was there said: been enforced; his situation in this regard "Whenever a mortgagor seeks a remedy being precisely the same as it would have against his mortgagee, which appears to the been had no attempt to foreclose been made. court to be inequitable, whether it be to canThe mortgage was not extinguished by the cel the mortgage as a cloud upon his title, or ineffectual attempt to enforce it. It is clear to enjoin a sale under the power given by that where, for any reason, foreclosure pro- him in the security, or to recover from the ceedings are void, the legal title continues mortgagee the possession of the mortgaged subject to the lien of the unpaid mortgage, premises, the court will deny him the relief and it appears to be well settled that a pur- he seeks, except upon the conditions that he chaser of the property at a foreclosure sale shall do that which is consonant with equity." in such void proceedings thereby becomes It was further declared in that case that the an assignee of such mortgage, and the debt fact that the debt is barred by the statute of thereby secured, of which the mortgage is an limitations is immaterial in such a case; the incident, with all the rights of the original statute barring the remedy only, and not exmortgagee. See Miner v. Beekman, 50 X ). tinguishing, or even impairing, the obligation 337; Townshend v. Thomson, 139 N. Y. 1572. of the debtor. As long as the obligation to pay 34 N E. 891; Turman v. Bell, 54 Ark. 273, the debt exists, it is not equitable that the 15 S. W. 886, 26 Am. St. Rep. 35; Cooke v. mortgagor should have relief against the mortCooper, 18 Or. 142, 22 Pac. 945, 7 L. R. A. gage given to secure the same, and such re273, 17 Am. St. Rep. 709; Bryan v. Kales, lief can be given only on condition that he

162 U'. S. 411, 16 Sup. Ct. 802. 40 L. Ed. 1020; discharges the obligation. From what has · Bryan v. Brasius, 162 U. S. 415, 16 Sup. Ct. been said, it is clear that plaintiff cannot

803, 40 L. Ed. 1022; Investment Sec. Co. v. complain of the judgment. He was not enAdams (Wash.) 79 Pac. 62: Frische v. titled to a judgment decreeing him to be the Kramer's Lessee, 16 Ohio, 125, 47 Am. Dec. owner of the property free and clear of the 368; 2 Jones on Mortgages, $ 1395.

alleged mortgage. It is suggested by him So far, therefore, as the claim of plaintiff that the defendant in his answer does not that his title should be quieted against the set up any equity. He does fully set up mortgage is concerned, we have the case the facts already stated, which show such presented in Brandt v. Thompson, 91 Cal. equity, and we know of no reason why this 458, 27 Pac. 763, viz., that of a party stand- is not sufficient. ing in the position of a mortgagor seeking Another question is presented by defendto quiet his title against the mortgagee, with. ant's appeal from the judgment. Is he thereout paying or offering to pay the debt for by given everything to which he is entitled which the mortgage was created. It is the upon the facts already stated? While the settled rule in this state that this cannot be judgment declares that plaintiff's ownership done, even though the mortgage debt he is subject to the rights of defendant under barred by the statute of limitations. In the mortgage, and probably saves to defendBrandt v. Thompson, supra, which was an ant the right to take such affirmative proceedaction by a mortgagor in possession to quiet ings as the law allows for the collection of his title against the mortgagee under such the debt, a somewhat valueless privilege if

the statute of limitations has run against subject to the mortgage, yet if the morthis debt, as the court finds, it also undoubted- gagee, while the mortgage is still subsisting, ly entitles plaintiff to take and retain posses- does “in any lawful manner" obtain the possion of the property. He is expressly ad- session, his interest under the mortgage enjudged as against defendant to be "the own- ables him to retain such possession, and to er in fee simple and entitled to the posses- defend it against the mortgagor, or those sucsion” of the property, and this adjudication ceeding to his title. He further says: “If, as to his right to possession is not at all qual- through his [the mortgagor's] express conified by any other portion of the judgment. sent, or through any other lawful means, the The defendant, standing in the position of a mortgagee has been permitted to obtain posmortgagee, is in possession of the mortgaged session of the land, the mortgagor's only rempremises; this possession having been taken edy is the equitable suit for a redemption." without the consent of plaintiff, standing in While admitting that it is difficult to reconthe position of the mortgagor, but having cile this doctrine, on principle, with the been taken and peaceably retained by him theory that the mortgage is purely a lien, he under a claim made in good faith that he declares that the doctrine is retained by the owns the same by virtue of the attempted, courts as settled. 3 Pomeroy, Eq. Juris. $$ but ineffectual, sale made in the foreclosure 1189, 1190. Thus stated, in a manner which proceedings. By the judgment the person seems to us to be fully warranted by the austanding in the position of a mortgagor is thorities, the true rule would appear to be given possession of the mortgaged premises that where the mortgagee has, under color without being compelled to pay the mortgage of the mortgage or legal proceedings based debt. The question is thus presented as to thereon, acquired possession without resort whether a mortgagee who has entered into to force, fraud, or any other unlawful or and holds possession of the mortgaged prem- wrongful means upon which he would be esises, under such circumstances, can be thus topped to found a right, and under such cir(disturbed in his possession, at the suit of cumstances as not to make it inequitable that a mortgagor having the legal title, who does he should retain such possession as security, not pay or offer to pay the mortgage debt. he will be regarded as a mortgagee in pos

In Spect v. Spect, supra, it was declared session, and his possession will not be disturbthat, in consonance with the equitable prin- ed at the suit of the mortgagor, unless the (iples applicable in the determination of the mortgagor first pay the mortgage debt. So relative rights of mortgagor and mortgagee, stated, the rule is in consonance with the “it is a settled rule that a mortgagor cannot equitable maxim that he who seeks equity maintain ejectment against his mortgagee un- must do equity, and with the well-recognized til the debt is paid.” This was said with rule applicable in determining the relative reference to a mortgagee who had been placed rights of mortgagor and mortgagee that, in possession by the mortgagor; and as to whatever the mere form of the action as such a case it is not seriously disputed by shown by the complaint, the courts will not plaintiff that the rule is as stated in that aid the mortgagor in obtaining a remedy that case. It is universally declared by the deci- is inequitable, and will grant him the relief sions that ejectment will not lie on behalf sought to which he may be entitled under of the mortgagor against a mortgagee who strict legal rules only upon the condition that may properly be called a “mortgagee in he shall do that which is equitable. possession.” The contention of plaintiff is A long line of authorities holds that, where that no one can be included in that term un- for any reason foreclosure proceedings are less he has entered into possession by reason void, not only does the mortgage continue of the agreement or assent of the mortgagor alive for the benefit of the mortgagee, or or his assigns that he have such possession the purchaser at the foreclosure sale, as his under the mortgage and because of it-that,

assignee, but also, if the person entitled to the mortgage being a mere lien not entitling the benefit of the mortgage peaceably and the mortgagee to possession, some assent on in good faith, under color of such foreclosure the part of the mortgagor thereto is absolute- proceedings, enter into possession of the ly essential to a right to possession in the mortgaged premises, he does obtain possesmortgagee. If we disregard all equitable con- sion in a lawful manner and is a mortgagee siderations, this position of plaintiff is ap- in possession, with all the rights incident parently impregnable. But the rule is based

thereto, and cannot be dispossessed by the solely upon equitable considerations (see mortgagor without payment of the debt. See Spect v. Spect, 88 Cal. 443, 26 Pac. 203, 13 Townshend v. Thomson, 139 N. Y. 152, 34 N. L. R. A. 137, 22 Am. St. Rep. 314), and, we E. 891; Croner v. Cowdrey, 139 N. Y. 471, think, means more than plaintiff's conten- 34 N. E. 1061, 36 Am. St. Rep. 716; Shriver tion would make it mean.

v. Shriver et al., 86 N. Y. 575; Cooke v. CoopMr. Pomeroy, in his Equity Jurisprudence, er, 18 Or. 142, 22 Pac. 945, 7 L. R. A. 273, declares the doctrine established by the 17 Am. St. Rep. 709; Bryan v. Keles, 162 courts in this matter to be that, while the U. S. 411, 16 Sup. Ct. 802, 40 L. Ed. 1020; mortgagee is declared to have no legal estate Romig v. Gillett, 187 U. S. 111, 23 Sup. Ct. and is unable to recover possession against 40, 47 L. Ed.' 97; Investment Sec. Co. v. an unwilling mortgagor or owner of the fee Adams (Wash.) 79 Pac. 625; Stouffer v. Har

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