respondent, or of some official of the state, to immediately cause an action to be brought to cancel said deed, and to recover the property title to which was thus fraudulently acquired. 26 Am. & Eng. Ency. of Law (2d❘ Ed.) 397, and note 1; 19 Am. & Eng. Ency. of Law (2d Ed.) 754-757, and notes. This being true, it follows that the delivering of the deed to relators would be an idle ceremony. It is an accepted maxim that the law never requires the doing of a useless thing. We cannot think that the Legislature intended to deprive the Commissioner of Public Lands or the Board of Public Land Commissioners of authority to examine into charges of fraud preferred under circumstances such as surround this case. The great volume of business transacted in the office of the Commissioner of Public Lands makes it impossible for the respondent, or other members of the Board of State Land Commissioners to be at all times personally familiar with the condition of every tract of state land with which they have to do, and with the circumstances surrounding every sale, and it is certainly not the policy of the law that they should be handicapped in the exercise of functions necessary to the state's protection. We hold that, at any time prior to the actual delivery of the deed of conveyance, these officers, or any of them, may refuse to deliver a deed when bona fide charges of fraud are properly interposed, or when they themselves are in any way apprised of facts which afford them good reason to believe that the applicant has been guilty of fraud to the detriment of the interests of the state. The relators have filed herein an affidavit, asserting that there were no improvements, within the meaning of the law, upon these tide lands at the time said application was made, and deny that there was any collusion in the matter of the bidding at the public auction. This raises issues of fact which this court cannot conveniently determine. Respondent, in his answer, prays that the action be dismissed, or that it be referred to some superior court to take evidence and report the facts to this court. If the relators have been guilty of no misrepresentation or fraud, they should be allowed to receive the deed to these lands, and the same should not be again offered for sale. We therefore think that it is but fair that the facts should be ascertained and reported to this court, whereupon an appropriate disposition will be made of the case.

It is therefore ordered that the superior court of Pierce county be, and it is hereby, authorized and directed to take evidence upon the questions of misrepresentation, collusion, and fraud presented in this proceeding, and to make a return of the evidence and its findings thereupon to this court in due form and time. Either party hereto may call the matter on for hearing before said court upon 10 days' notice in writing, duly served on the other side. Costs in this court, and in said

superior court, to abide the final decision herein.

MOUNT, C. J., and DUNBAR, CROW, HADLEY, and FULLERTON, JJ., concur. RUDKIN, J., dissents.

(44 Wash. 226)

MILLER v. CALVIN PHILIPS & CO. (Supreme Court of Washington. Oct. 27, 1906.)

VENDOR AND PURCHASER-MARKETABLE TITLE INABILITY TO CONVEY ACTION FOR EARNEST MONEY.

Defendant agreed to convey to plaintiff certain described real estate, free and clear of all incumbrances, and that if the title was not good, and could not be made good within 30 days of the date of the delivery of the abstract, it should be optional with the purchaser whether the title should pass subject to any defect that might be found, or that the earnest money should be refunded. After the abstract was furnished, plaintiff discovered that a railway corporation had begun proceedings to condemn a right of way through the property, and had filed a lis pendens. Held, that such proceedings constituted a defect in the title warranting plaintiff in refusing the same and in recovering the earnest money.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 242, 238.] Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by W. H. Miller against Calvin Philips and Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Fogg & Fogg, for appellant. Shackleford & Hayden, for respondent.

DUNBAR, J. Appeal from a judgment of the superior court of Pierce county, overruling defendant's demurrer to plaintiff's complaint. The action was by the vendee, Miller, on a contract for the sale of certain real estate, to recover back from the vendor, Calvin Philips & Co., the deposit of earnest money, amounting to $600, paid by him to bind the contract, on the ground that the vendor could not furnish a good title free from incumbrances. The complaint sets forth the contract and the receipt of the money, the latter part of which is as follows: "I hereby agree to furnish abstract of title completed down to date and to convey the above described real estate, or cause the same to be conveyed by special warranty deed, free and clear of all incumbrances to the said W. H. Miller. * * * It is agreed that if the title to said premises is not good or cannot be made good within thirty days of the date of delivery of the abstract as herein mentioned, then it shall be optional with the purchaser whether the title pass subject to any defect that may be found or the earnest money shall be refunded. But if the title to said premises is good and the conditions of this agreement are not completed by the said W. H. Miller the earnest money shall be forfeited to us as liquidated damages. [Signed] Calvin Philips & Co." This instrument is

dated March 9, 1906. It is alleged in the complaint that, after the abstract of title was furnished, it was discovered by the plaintiff, that the Chicago, Milwaukee & St. Paul Railway Company of Washington, a corporation organized and existing under the laws of the state of Washington, had established a line of railroad through, over, and across the real estate above described; that the railroad corporation was organized to build, operate, and maintain railroads as common carriers, etc., and was entitled to exercise the power of eminent domain; that it had begun proceedings in the superior court of the state of Washington for the appropriation and condemnation of the land for which the plaintiff had contracted; that upon discovering the fact of location and establishment of said line of railroad across said premises and the beginning of proceedings for condemnation and the filing of lis pendens, the plaintiff requested defendant to make good the title within the time of 30 days, as provided in the agreement of March 9, 1906; that the defendant refused to take any steps to that end, and thereupon notified plaintiff that, unless plaintiff would take said property subject to said lien and charge, and in the defective condition of its title, plaintiff would forfeit his earnest money; and thereafter the said defendant sold to other parties the said real estate, and notified plaintiff that defendant had forfeited plaintiff's earnest money. Plaintiff demanded judgment for $600, and for costs and disbursements. The defendant moved to strike from the complaint that portion in relation to the sale to other parties of said real estate, which motion was denied, and the action of the court in that respect is alleged as error here. With the view we take of the other allegations of the complaint, however, this becomes immaterial, and its insertion in the complaint could in no way prejudice the appellant. The main contention is that the court erred in overruling the demurrer to the complaint, for the reason that, as is urged by the appellant, the act of the railroad company did not constitute an incumbrance. It is conceded that, if such act did constitute an incumbrance upon appellant's land, respondent was entitled to a return of his deposit, and the judgment should be affirmed.

It seems to us too plain for extended discussion that, under the allegations of the complaint, the respondent was unable obtain that for which he contracted. and that it would be inequitable to compel him to pay for anything less. No matter what the technical definition of "incumbrance" may be, the language of the contract is plain and specific. "It is agreed that, if the title to said premises is not good, or cannot be made good within 30 days of the date of delivery of the abstract.

it shall be optional with the purchaser whether the title pass subject to any defect that may be found or the earnest money

shall be refunded." Can it be said with any degree of reason that, after the commencement of the condemnation proceedings, and the filing of the lis pendens by the railroad company, a good title without defect could have been given by the appellant? It may be that a conveyance any time before the condemnation proceedings culminated in vesting the title in the railroad company would convey to the grantee the right to receive the damages allowed for the taking: but the value of the damages for the taking was not the subject of the contract-was not what the respondent expected to buy, or the appellant intended to sell. Under such contract it has been universally decided that the grantee is entitled to a marketable title to an indubitable title-and that he cannot be compelled to buy a lawsuit, or a title that will involve him in litigation, but that he has a right to a title which will enable him to hold possession of his land in peace and security.

The judgment is affirmed.

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

(48 Or. 179)

HAINES v. CONNELL, Sheriff, et al. (Supreme Court of Oregon. Oct. 30, 1906.) 1. ATTACHMENT-PRIORITY BETWEEN ATTACHMENT AND UNRECORDED DEED.

Where a deed had not been recorded, and more than five days had elapsed since its execution. at the time an attachment was levied on the land against the grantor, the attachment took precedence over the deed.

[Ed. Note.--For cases in point, see vol. 5, Cent. Dig. Attachment, § 565.]

2. SAME ATTACHMENT OF REAL ESTATE SHERIFF'S CERTIFICATE-SUFFICIENCY.

B. & C. Comp. § 301, in relation to attachment of real estate, requires the sheriff to deliver to the county clerk a certificate containing the title of the cause, the names of the parties, a description of the property, and a statement that the same has been attached. Held. that where a certificate contained in the body thereof all the essential requirements of the statute, it was sufficient, though it did not contain as a caption the title of the cause or the names of the parties.

3. PLEADING-ADMISSIONS-FAILURE TO DENY. A deed not having been recorded, an attachment was levied on the land as that of the grantor, and the grantee sued to restrain further proceedings under the attachment, and for a cancellation of the same as a cloud on title; the complaint alleging that defendants had notice of plaintiff's claim to the property at the time the attachment was levied. The answer denied the allegations of the complaint, but also set up facts constituting defendants bona fide purchasers, and such facts were not denied by reply. Held that, under the pleadings, the facts showing defendants to be bona fide purchasers were admitted.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 354, 355.]

Appeal from Circuit Court, Washington County; Thomas A. McBride, Judge.

Suit by E. W. Haines against J. W. Connell, as sheriff of Washington county, and another. From a decree in favor of complainant, defendants appeal. Reversed and dismissed.

This is an appeal from a decree in favor of the plaintiff in a suit brought to remove a cloud from title. On April 22, 1902, F. T. Kane was the owner of the S. E. quarter of section 11, township 2 N., range 5 W. On that day he attempted to convey the same by warranty deed to the plaintiff, but, by mistake, the land was described as being in The deed was not range 4 instead of 5. recorded until July 11, 1904, and about that time plaintiff discovered the mistake in the description, and, after having it corrected, had the deed re-recorded on July 19th. The land was and is wild land, and not in the possession of any one. On July 1, 1904, before the deed to Haines had been recorded, the defendant Connell's predecessor in office, as sheriff of Washington county, levied, or attempted to levy, upon the property under a writ of attachment issued in an action brought against Kane by J. F. Schoch, by making and filing in the proper office a certificate of attachment as follows: "State of Oregon, county of Washington-ss. I, J. W. Sewell, sheriff of Washington county, Oregon, do hereby certify that by virtue of a writ of attachment issued out of the circuit court of the state of Oregon, for the county of Washington, upon the 30th day of June, A. D. 1904, in a cause therein pending, wherein J. F. Schoch is plaintiff and F. T. Kane is defendant, said writ being in favor of said plaintiff and against the property of said defendant, and directed to me, the sheriff of Washington county, I did on the 1st day of July, 1904, at the instance of the above-named plaintiff, attach the following described real property of the within named F. T. Kane, to wit: Lot 1, block 31, Forest Grove; lot 9, block 1, West Portland Heights; southeast quarter of section 11, township 2 north, range 5 west of Willamette Meridian. All said property being in Washington county, Oregon. In witness whereof I have hereunto set my hand this 1st day of July, A. D. 1904, at 10 o'clock a. m. J. W. Sewell. Sheriff of Washington County, Oregon." The plaintiff thereafter, and before the action of Shoch v. Kane had passed to judgment, commenced this suit to enjoin and restrain the defendants from further proceeding under the attachment, and for a decree canceling the same, on the ground that it tended to cloud his title. The complaint alleges that the defendants had notice of the plaintiff's interest at the time of the levy of the attachment. This averment is denied by the answer. For an affirmative defense the answer sets up the attachment proceeding in detail, and alleges that the attachment was caused to be levied by Schoch, the attaching credi

of

tor, in good faith, and without notice that the property had been transferred to the plaintiff, or to any other person, or that plaintiff claimed any interest or title, legal or equitable, therein. This allegation is not denied by the reply, and there was no evidence given on the trial by either party concerning a knowledge or want of knowledge of plaintiff's interest in the property by the attaching creditor at the time of the attachment. Plaintiff had decree in the

court below, and the defendants appeal. L. L. Langley, for appellants. S. B. Huston, for respondent.

BEAN, C. J. (after stating the facts). It is contended by defendants that the deed from Kane to the plaintiff was intended as a mortgage to secure the payment of money, and therefore conveyed no interest or title in the property to Haines, and hence will not support a suit to remove a cloud from title; and also that this suit was prematurely brought, because the action of Schoch v. Kane, in which the writ of attachment issued, had not passed to judgment at the time it was commenced. In view of the conclusion we have reached as to the merits of the controversy, it is not necessary to examine these questions, although they are important. The deed from Kane to the plaintiff had not been recorded at the time of the levy of the attachment issued in the action of Schoch v. Kane, and more than five days had elapsed since the date of its execution, and, therefore, the attachment, if valid, will take precedence over such deed, if such attachment was made in good faith and without notice of plaintiff's rights. Boehreinger v. Creighton, 10 Or. 42; Riddle v. Miller, 19 Or. 468, 23 Pac. 807; Meier v. Hess, 23 Or. 599, 32 Pac. 755; Dimmick v. Rosenfeld, 34 Or. 101, 55 Pac. 100; Osgood v. Osgood, 35 Or. 1, 56 Pac. 1017; Security Trust Co. v. Loewenberg, 38 Or. 159, 62 Pac. 647.

It is claimed, however, that the attachment is void, because the certificate of the sheriff, as filed with the county clerk, did not contain as a caption thereto the title of the cause or the names of the parties. The statute provides that "real property shall be attached as follows: The sheriff shall make a certificate containing the title of the cause, the names of the parties to the action, a description of such real property, and a statement that the same has been attached at the suit of the plaintiff; and deliver the same to the county clerk of the county in which the attached real estate is situated." B. & C. Comp. § 301. The certificate in question admittedly contains in the body thereof all the essential requirements of the statute. It states the title of the case by giving the name of the court in which the action was pending, the names of the parties, a description of the property

attached, and states that it was attached at the instance (which is equivalent to suit) of the plaintiff, and is, therefore, in our opinion, sufficient. There is no requirement in the statute that the title of the cause and the names of the parties shall be stated as a heading or caption to the certificate, as required by section 67 in the case of a complaint. The statute provides that a complaint shall contain (1) the title of the cause, specifying the name of the court and the names of the parties plaintiff and defendant; (2) a plain and concise statement of the facts constituting the cause of action; and (3) the relief demanded; which would seem to contemplate that these requisites should be stated in the order named, notwithstanding which it has been held that the stating of the names of the court and of the parties in the caption of a complaint is a formal, and not a jurisdictional, matter. Adams v. Kelly, 44 Or. 66, 74 Pac. 399; Smith v. Watson, 28 Iowa, 218; Hill v. Thacter, 3 How. Prac. (N. Y.) 407: Van Namee v. Peoble, 9 How. Prac. (N. Y.) 198. The statute regulating the attachment of real property provides what the certificate shall contain, but does not require that the essen-. tial matters shall be set out in any particular order, and it seems to us that a certificate is clearly sufficient which states such matters in the body thereof without giving to it the formality of a heading or caption. When a certificate of attachment attempts to state the title of the cause and the names of the parties in a caption, it must state them correctly, and an error therein is not cured by a subsequent recital in the body of the certificate. McDowell v. Parry, 45 Or. 99, 76 Pac. 1081. But where no caption is used, it is enough if the essential facts required to be stated appear in the body of the certificate.

It is next contended that the burden was on the defendants to show that the attachment was levied in good faith, and without notice or knowledge of plaintiff's interest in the property, and this seems to be the logical effect of the former decisions of this court. Rhodes v. McGarry, 19 Or. 222, 23 Pac. 971; Laurent v. Lanning, 32 Or. 11, 51 Pac. 80. But here the defendants have assumed such burden by stating in their answer facts necessary to make them purchasers in good faith, and these allegations are not denied by the reply. The want of such denial is an admission of their truth, and no proof was required. It is said that because the complaint alleges that the defendants had notice of the plaintiff's claim to the property at the time the attachment was levied, and this averment is denied by the answer, the question of defendants' good faith was thus made an issue in the cause, and it was not necessary for plaintiff to deny the affirmative plea of a bona fide purchaser set up by the answer. The denial of the averments of the complaint did not entitle defendants

to make the defense of a bona fide purchaser. That was an affirmative matter which they were required to plead in their answer, notwithstanding the allegations of the complaint. Rhodes v. McGarry, 19 Or. 222, 23 Pac. 971. And since they were required to plead facts constituting them bona fide purchasers, it would necessarily follow that such facts must be regarded as true, unless denied by the plaintiff, and an averment of the complaint cannot be treated as such a denial.

It follows from these views, that defendants' attachment takes precedence over the rights acquired by the plaintiff by his deed from Kane, and the complaint must be dismissed.

(31 Utah, 191)

NELSEN v. HENRICHSEN. (Supreme Court of Utah. Nov. 2, 1906.) 1. PLEADING-COMPLAINT-SEPARATE CAUSES OF ACTION.

Plaintiff alleged that he performed labor at defendant's request on defendant's mining claims as a miner, and performed other work and labor on such claims as foreman and manager; that the labor performed, the services rendered, and moneys paid out by plaintiff at defendant's request amount in the aggregate to $1,177, all of which were done and performed between April 5, 1904, and February 26, 1905; that no part thereof had been paid, except $800.67, leaving a balance of $376.33 due from defendant to plaintiff. Held, that such complaint properly stated a single cause of action, and was not objectionable for failure to separate plaintiff's claim for services as a miner on the amount due as defendant's foreman and manager.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 112, 113.]

2. SAME-BILL OF PARTICULARS-DEMURRERGROUNDS.

Where a complaint for service and money paid alleged the different items sought to be recovered, and made brief mention of the character of each class, it was not demurrable for failure. to state each item more specifically; defendant's remedy, if he desired a more specific statement, being by motion for a bill of particulars, authorized by Rev. St. 1898, § 2988.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 408, 409.]

Appeal from District Court, Fifth District; J. Greenwood, Judge.

Action by Jens Nelsen against H. A. Henrichsen. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank Hoffman, for appellant. Knox & Fennemore, for respondent.

MCCARTY, C. J. Plaintiff brought this action to recover the sum of $376.33, a balance alleged to be due from defendant on an account. The complaint, in substance, alleges that plaintiff, at defendant's request, performed labor in and upon defendant's mining claims as a miner, and performed work and labor upon said claims as foreman and manager thereof, and paid moneys for defendant's use and at his request in the management and operation of said mining claims; that the labor performed, services

rendered, and moneys paid out by plaintiff at defendant's request, as aforesaid, in the aggregate amounted to and was of the value of $1,177; that the whole was furnished, done, and performed at the request of defendant between the 5th day of April, 1904, and the 26th day of February, 1905; that no part thereof has been paid, except the sum of $800.67, leaving a balance of $376.33 due from defendant to plaintiff. The defendant demurred to the complaint on the grounds, first, that it does not state facts sufficient to constitute a cause of action; second, that several causes of action are improperly united and are not separately stated; third, that the complaint is ambiguous and uncertain, in this: that it nowhere appears in the complaint what sum of money was claimed to be due plaintiff for work as a miner, or what sum was claimed to be due plaintiff as foreman and manager of defendant's mine, or what sum was claimed to be due plaintiff for moneys paid out by him for defendant and for defendant's use. The demurrer was overruled, and the defendant answered, denying the allegations of the complaint. The case was tried to the court without a jury, and the judgment entered was in favor of plaintiff for the sum of $361.61. To reverse the judgment, defendant has appealed to this court on the judgment roll.

The only question presented and discussed by counsel for appellant, in his oral argument and in his printed brief on this appeal, is, did the trial court err in overruling defendant's demurrer? We think this question must be answered in the negative. While it is alleged in the complaint that the claim sued on is made up of different items, making brief mention of the character of each class of items, there is but one cause of action stated. If the defendant desired a more detailed statement respecting the character of the different items comprising the account, he could have demanded a bill of particulars, as provided by section 2988, Rev. St. 1898, which, so far as material here, provides that "it is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof." The Legislature evidently intended by this provision of the statute to relieve the pleader from the necessity of setting forth in detail each item of the account, and at the same time enable the adverse party to procure in advance of the trial a full and complete statement of the account sued on, and thereby guard against surprise. 1 Cyc. 481; Mills v. Glennan et al. (Idaho) 6 Pac. 116; Farwell v. Murray (Cal.) 38 Pac. 199; Roehring v. Huebschman, 34 Wis. 185; Beardsley v. Southmayd, 14 N. J. Law, 534; 1 Estee's Pleading, p. 301.

The judgment is affirmed, with costs.

STRAUP and FRICK, JJ., concur.

(34 Mont. 379)

STATE v. ETNA BANKING & TRUST CO. (Supreme Court of Montana. Oct. 22, 1906.) 1. BANKS AND BANKING-REGULATION-EXAMINATION-FEES-PENALTIES.

Pol. Code, pt. 3, tit. 1, c. 3, art. 11, § 497, as amended by Act March 4, 1897 (Laws 1897 p. 107), and Laws 1903, p. 184, c. 100, requiring each bank or investment and loan company incorporated under the laws of this state to pay certain fees into the state examiner's fund, and requiring each building and loan association, whether foreign or domestic, to pay a certain proportion of its assets into the fund, and section 498, providing penalties for failure of any bank, building and loan association, or investment and loan company incorporated under the laws of this state, "or doing business under any law of this state concerning corporations," to pay the fees prescribed in the preceding section, do not apply to foreign banking companies doing business in the state, since the statute being penal, and to be strictly construed, the phrase quoted cannot be read into section 497.*

2. STATUTES-EFFECT OF PARTIAL INVALIDITY -FOREIGN BANKING COMPANIES.

In Laws 1905, p. 232, c. 104, requiring foreign banking companies doing business in the state to make certain reports and to pay certain fees into the state examiner's fund, and prescribing penalties for violation of the provisions of the act, the provision in section 15 (page 237), which, after defining foreign banking concerns, provides that the act shall not apply to any corporation which at the time of its approval may be openly and lawfully engaged in banking at a fixed place of business within the state, is so inseparable from the remainder of the act that its invalidity would invalidate the whole, so that in any case the corporations described in the proviso are not subject to the penalties provided in the act.

Appeal from District Court, Lewis and Clarke County; J. M. Clements, Judge.

Action by the state against the Etna Banking & Trust Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State. J. L. Wines and W. T. Pigott, for respondent.

HOLLOWAY, J. The state of Montana and the Etna Banking & Trust Company, acting under the provisions of section 2050 of the Code of Civil Procedure, submitted to the district court a case containing an agreed statement of the facts upon which the controversy then existing between them depended. The court found for the Etna Banking & Trust Company, and judgment was entered accordingly. From that judgment, the state appeals.

The agreed statement of facts discloses that since 1901 the Etna Banking & Trust Company has been a foreign corporation engaged in a banking business at a known and fixed place of business in Butte, Mont., with a capital stock of $100,000. It has at all times fully complied with the laws prescribing the conditions under which foreign corporations may do business in this state. Laws 1901, p. 150. During the year ending November 1, 1904, the state examiner demanded from this respondent that it furnish