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his foot between the cable and the pulley, Tenino Stone Quarries, 37 Wash. 333, 79 Pac, with the result as above stated. The trial 9.5. There the machinery on which the child judge first submitted the case to the jury was injured was within an inclosure which which returned a verdict for the appellant. was constructed at a considerable distance Afterwards he granted a motion for a new from any highway or any place where chiltrial on the ground that the evidence, is a dren were accustomed to play, and had no matter of law, did not justify a verdict. This especial attractiveness, being machinery in appeal is from the order granting the new common use and no more exposed than the trial.
manner of its use required, and we held, The motion for a new trial was not filed which must unquestionably be the rule, that before it was served on the appellant, and a the owner of such property owed no such motion was made in the court below to strike duty to trespassing children as required him it for that reason. The respondent, in an to so fence and guard his machinery as to swer to the motion, asked, and over the ob render it impossible for them to receive an jertion of the appellant obtained from the injury therefrom. On the other hand, we court an order extending the time within have held that where dangerous machinery which to move for a new trial, and the mo and dangerous substances, of a character tion for a new trial on which the court acted likely to excite the curiosity of children and was served pursuant to that order. The ap allure them into danger, have been left pellant urges here that the trial court was unguarded in exposed places close to the without power to make an order extending highways, or playgrounds of children, even the time in which a motion for a new trial though on the premises of the owner, and could be filed, and he insists that the order children have been attracted to them and met appealed from is erroneous for that reason. with injury, the owner or persor leaving the It is conceded that this court has, in a num dangerous machinery or substance is liable ber of cases, approved the practice followed for such injury. Case of this class are Ilby the trial court, but it is contended that Waco, etc., Nav. Co. v. Hedrick, 1 Wash. St. the recent statute which requires a judgment | 446, 2.7 Pac. 337, 22 Am. St. Rep. 169, and on a verdict to be entered immediately on Velson v. McLellan, 31 Wash. 208, 71 Pac. the return of the verdict has changed the 747, 60 L. R. A. 793, 96 Am. St. Rep. 902. rule. But, without following the argument, The first is a turntable case, and the second we think that the statute cited did not have a case where dynamite had been left parthat effect. It does not purport to change tially exposed on a vacant lot used br chilthe existing practice, and the reasoning by dren as a playground. The children injured which the practice was justified under the in each case had no special license to be at earlier statute is equally applicable to the ex the place where the injury occurred, nor did isting one. For cases where the reasons are the owner of the articles or substance causstated, see Bailey v. Drake, 12 Wash. 99, 10 ing the injury owe to the children any special Pac. 631; Leavenworth v. Billings, 26 Wash. duty of protection or care. But the cases are 1, 66 Pac. 107; Kreielsheimer r. Nelson, 31 rested on the principle that it is negligence in Wash. 406, 72 Pac. 72.
itself to leave exposed and unguarded near Passing to the principal question, we think the haunts of children dangerous machinery the court was in error in holding that the ev or compounds which must necessarily result idence introduced at the trial did not justify in injury to them if they come in contact a verdict. There are jurisdictions in which with it. It matters not that the dangerous it is maintained as a hard and fast rule that article may be on the premises of its owner, if a child goes upon the premises of another or that the injured person must become without express permission, and is there in- technically a trespasser to approach it, it jured by coming in contact with dangerous is enough that the thing is dangerous in itmachinery, it cannot recover damages from self, and is attractive and alluring to chilthe owner, on the principle that such owner dren, and has been left exposed and unguardowes the child no active duty to see that it ed in a place where it must reasonably have does not come to harm, but only the duty not been anticipated that children would be atto wantonly or willfully injure it. But this tracted to it, and tempted to play with and court has not adopted this rule in its entirety. handle it. Between the two extremes lepWhere the dangerous machinery is connected resented by these divergent rules tliere are, with an ordinary manufacturing plant, and of course, a large class of cases which, from so surrounded with the ordinary safeguards the facts, or the deduction properly to be as to legitimately lead to the conclusion that drawn from the facts, cannot certainly be children of immature years unattended will said to fall within the one or the other. The not approach it, the owner or operator oves question then, like all other disputed quesno such duty of active vigilance to possible tions of fact, becomes one for the jury, to be trespassing children as requires him to keep determined for or against the plaintiff as the a guard over the premises; and hence he is jury may believe the evidence warrants, aftnot responsible if a child does approach er the court has instructed them in the law and meet with injury from such machinery. relating to the duties of the owners and opSuch is the principie of the case of Curtis y. erators of such property.
Applying these principles to the case before us, we think the court erred in adjudging that the facts shown by the evidence did not warrant a recovery. Whether the sheave wheel when in operation belonged to the class of dangerous machinery, whether it was of such an attractive or alluring character as to attract children, and whether it was placed and operated without guards or protected so close to a public highway that it must have been foreseen that it would attract and injure a child of such tender years as the plaintiff, were questions for the jury to determine from all of the evidence, and the court was right in submitting it to them in the first instance, but in error in afterwards holding that the question presented was of such a nature that it must be determined in favor of the defendant as a matter of law.
We conclude, therefore, that the order appealed from must be reversed, and the cause remanded, with instructions to enter a judgment upon verdict returned by the jury. It is so ordered.
MOUNT, C. J., and RUDKIN, ROOT, DUNBAR, and CROW, JJ., concur.
(44 Wash. 1-13)
MERRITT et al. v. RUSSELL & CO. (Supreme Court of Washington. Oct. 15, 1906.) CITATTEL MORTGAGES-RECORD-REMOVAL OF I'ROPERTY-STATUTORY PROVISIONS.
Ballinger's Ann. Codes & St. § 4539, enacted in 1879, providing that where mortgaged property is renoved from the county where the mortgage is recorded, it is, except as between the parties, exempted from the mortgage, unless the mortgagee shall, within 30 days after such removal, take possession of the property, or cause the mortgage to be recorded in the county to which the property is removed, is not repealed by Act March 13, 1899 (Sess. Laws 1899, p. 157, c. 98), which contains no provision for recording a chattel mortgage other than in the county where the property is at the time of its execution, no direction as to what shall be done in case of removal of the property from that county, and no repealing clause, but provides in section 7 (page 159) that, in case mortgaged property exists in two or more counties, a copy of the mortgage may be filed in each, and in section 3 (page 158) that every mortgage filed in pursuance of the act shall be full notice to all the world.
[Ed. Note.--For cases in point, see vol. 9, Cent. Dig. Chattel Mortgages, § 466.]
Appeal from Superior Court, Spokane County; D. H. Carey, Judge.
Action by M. W. Merritt and another for injunction against Russell & Co. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.
Jas. A. Williams and Denton M. Crow, for appellant. Post, Avery & Higgins, for respondents.
mortgage thereon, which chattel mortgage was filed in the office of the auditor of Whitman county, Wash., the county in which the property was then situate, on September 12, 1900. Some time after the filing of the chattel mortgage, the mortgaged property was removed by Grimes to Spokane county, and was, on June 9, 1902, purchased by respondents, who had no notice of appellant's chattel mortgage, except such notice as was given by the filing in Whitman county. Appellant's mortgage was not filed in Spokane county until after the purchase by respondents. On May 16, 1904, appellant placed a certified copy of its chattel mortgage in the hands of the sheriff of Spokane county and delivered to such officer notice of mortgage sale, and the sheriff was advertising the property to be sold under said mortgage when this action was begun by respondents to enjoin the sale. Upon a trial, judgment was entered in favor of respondents, adjudging that they were the owners of the mortgaged property, freed from any lien under appellant's mortgage.
The only question which arises on this appeal is, was the filing of appellant's mortgage in Whitman county sufficient notice to charge respondents with constructive notice in purchasing the property after its removal to Spokane county? Section 4559, Ballinger's Ann. Codes & St. (enacted in 1879), reads as follows: "A mortgage of personal property must be recorded in the office of the county auditor of the county in which the mortgaged property is situated, in a book kept for that purpose. When personal property mortgaged is thereafter removed from the county in which it is situated, it is, except as between the parties to the mortgage, exempted from the operation thereof unless either: (1) The mortgagee within thirty days after said removal, causes the mortgage to be recorded in the county to which the property has been removed; or * * *
(3) The mortgagee within thirty days after such removal takes possession of the property.
Appellant contends that this section of the statute is repealed by the act of March 13, 1899 (chapter 98, p. 157, Sess. Laws 1899). The act just mentioned contains no repealing clause, and contains no provision for recording a chattel mortgage other than in the county where the property exists at the time of the execution of the mortgage. There is no direction as to what shall be done in case the property mortgaged is removed from the county where the mortgage was made and filed. The only reference to property existing in more than one county is found in section 7, which reads as follows: "That in case the property mortgaged exists in two or more counties, a copy of such mortgage may be filed in each of such counties with like force and effect as the original mortgage.” This section evidently refers only to the property which exists in two or more counties at the time of the execution of the mortgage. Section 3
ROOT, J. On August 29, 1900, one G. A. Grimes, the then owner of certain personal property which was situate in Whitman county, Wash., executed and delivered to appellant, Russell & Co., a corporation, a chattel
of said act, among other things, said: "Every mortgage filed and indexed in pursuance of this act shall be held and considered to be full and sufficient notice to all the world, of the existence and conditions thereof."
It is appellant's contention that, under this section, the filing and indexing of a mortgage in Whitman county, where the property existed at the time the mortgage was executed, constituted constructive notice to the respondents and to all other persons of the existence and the conditions of said mortgage. Whether or not this is true must depend upon the question as to whether or not said section 4539, Ballinger's Ann. Codes & St., is repealed by the act of 1899. The latter act not purporting to cover the entire subject-matter of the former statute and having no repealing clause, and repeals by implication not being favored, it follows that the provision in section 1359 for the recording of the mortgage in the county in which the property 'has been removed is still in force, unless there be something in the act of 1899 repug. nant thereto. We can find in the latter act no such inconsistent provision. Therefore, the appellant not having within 30 days after the removal of the property from Whitman to Spokane county caused the mortgage to be recorded in the latter county, and not having within said period taken possession of the same, its lien thereupon, as against these respondents, who purchased the property in good faith and without knowledge of the mortgage, becane ineffectual.
The judgment of the trial court is affirmed.
RUDKIN, J. On the 27th day of March, 1903, the plaintiff commenced an action against the defendants Henry A. Shaw and wife for the recovery of the sum of $296.90 with interest at the rate of 6 per cent. per annum from January 24, 1903. At the time of the commencement of such action a writ of garnishment was sued out and served on the garnishee defendant, Benesh. The garnishee answered that he was conditionally indebted to the defendants in the principal action in the sum of $500, with interest at the rate of 8 per cent. per annum from June 2, 1902, on account of the balance due on the purchase price of certain real property purchased by the garnishee from the principal defendants, and in the further sum of $24 on account of interest paid by the principal defendants on account of a certain mortgage on said real property, subject, nowever, to a counterclaim in the sum of $137.50 in favor of the garnishee against the principal defendants. The principal defendants controverted the answer of the garnishee, alleging, among other things, that the money due from the garnishee to the principal defendants was a part of the purchase price of their home stead, and that they intended to invest the same in another homestead. Judgment was given in favor of the plaintiff in the principal action on the 10th day of October, 1904, in the sum of $344.42 and $16.60 costs of suit. At the hearing of the garnishment proceedings the court found that the defendants in the principal action had occupied the premises theretofore sold to the garnishee for a period of 20 years prior to the time of sale, and that they at all times claimed the same as their homestead. "That on the 2d day of June, 1902, said Henry A. Shaw and wife sold to the garnishee defendant, Frank Benesh, said premises for the sum of $1,600, said premises being at that time mortgaged for the sum of $600, which mortgage the said Benesh assumed and agreed to pay as a part of the purchase price; and that the money due from the said Benesh to said Shaw and wife is the proceeds of the sale of said homestead, and that they at all times intended to purchase another homestead with said proceeds; and that the interest in said lands in said Henry .1. Shaw and wife at the time of said sale is of the value of $1,000." As conclusions of law the court found that the proceeds of the sale of the homestead were exempt from garnishment, and entered judgment accordingly. From this judgment the plaintiff has appealed.
The case comes before us on the findings of the court below, and the sufficiency of these findings to sustain the judgment is the only question for consideration. The appellant contends that a voluntary sale of the homestead is a waiver of the homestead right, and that the exemption does not attach to or follow the proceeds of the sale. In support of this view he cites 15 Am. & Eng. Ency. of
MOUNT, C. J., and HADLEY, FULLERTON, RUDKIN, and DUNBAR. JJ., concur. CROW, J., having been of counsel, took no part.
(44 Wash. 166) BECHER V. SHAW et ux. (BENESI, Gar
nishee). (Supreme Court of Washington. Oct. 19, 1906. HOMESTEAD - VOLUNTARY SALE - PROCEEDSEXEMPTION FROM GARNISIIMENT.
In view of Ballinger's Ann. Codes & St. § 5219, providing how the homestead may be conveyed or incumbered, and section 5217, providing that in case of the sale of the homestead any subsequent homestead acquired by the proceeds thereof shall be exempt from attachment and execution, the money due from the purchaser on a voluntary sale of the homestead is not subject to garnishment.
[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Homestead, $ 109.)
Appeal from Superior Court, Spokane County; D. H. Carey, Judge.
Action by Phil T. Becher against Henry A. Shaw and wife and Frank Benesh, garnishee. From a judgment in favor of defendants on a hearing of the garnishment proceedings, plaintiff appeals. Affirmed.
A. E. Gallagher and W. J. Thayer, for appellant. Belt & Powell, for respondents.
Law (20 Ed.) p. 294, as follows: "In the absence of some provision in the statute to the contrary, the voluntary sale of his homestead hy a debtor will constitute a waiver or abandonment of his right of homestead exemption, and the right will not follow and attach to the proceeds, but creditors may reach and subject thein hy garnishment or otherwise. In many states, however, the statute expressly or implieilly allows a debtor to sell his homestead for the purpose of investing in another homestead, and protects the procerils prior to such reinvestment. In some states the proceeds are thus protected for a limitod time only.” Exemptions are no doubt. (reatures of the Constitution or the statute, and we accept the foregoing as a correct statement of the law. It only remains to consider whether our statute does expressly or by implication exempt the purchase price of the homestead from exer'ution or garnishment, whire the homestead claimant intended in good faith to reinvest the proceeds in another homestead. The statutory provisions bearing upon this question are the following: Section 219, Ballinger's Ann. Codes & St., provides how the homestead may be (onvepeal or incumbered. Section 5220 provides how the homestead may be abandoneil, viz., by declaration of abandonment or a grant thereof, executed and acknowledged. Nections .72.22 to 3232 provide for a forced sile of the homestead, where the value exceeils the statutory exemption. Section 5233 provides that the amount of the homestead exemption must be paid to the claimint,' and Section 234, that the money paid to the claimant is entitled to the same protection against legal process and the voluntary disposition of the husband as is the homestead itself. Section 52 17 provides as follow's: "In case of the sale of said homestead, any suhsequent homestead acquired by the proceeds thereof shall also be exempt from attachment and execution; nor shall any judgment or other claim against the owner of such homestead be a lien against the same in the hands of a bona fide purchaser for a valuable ('onsideration.” We are inclined to agree with the appellant that section 5233, supra, has no application to the proceeds of a voluntary sale; but we are nevertheless of opinion that sections 3219 and 52 17, which authorize the sale of the homestead free from all claims or liens and the acquisition of a new homestead exempt from attachment or execution, by implication exempt the proceeds of the sale of the homestead from garnishment for a reasonable time where the homestead claimant intends in good faith to reinvest the proceeds in another homestead. We think that a liberal construction of the statute requires us to so hold, and that any other construction would in a measure defeat the beneficent purpose the Legislature had in view. Of what avail would it be to the homestead claimant to sell his homestead free from claims and liens, if the proceeds are to become immediately subject to execution or garnishment.
If the claimant may exchange one homestead for another without forfeiting his exemption rights, why should he not be permitted to accomplish the same result through the medium of a sale.
In Watkins v. Blatschinski, 40 Wis. 347, the court said: “The statute further prorides that no judgment or decree against the owner shall be a lien upon the homestead for any purpose whatever, except in certain spexified cases, which need not be noticed. The policy of the statute cannot be misapprelended. Its obvious design and plain purpose is to benefit the debtor by securing to him his homestead beyond all liability to forced sale on execution or other process. In case the debtor desires to remove from the homestead for some temporary cause, or to ibsent himself for a time, the statite perinits him to do so (Jarvais v. Joe, 38 Wis. 410); and the statute further enables hiin to sell and convey the homestead to a purchaser, free from all liens by judgment. It is obvious that this legislation is in the interest of the owner of the homestead, and was intendel to conter valuable rights. It is not legislation for the benefit of creditors. Now, is it not plain that the right to sell and convey the homestead free from judgment liens is a barren right, so far as the owner is concerned, if the proceeds of the sale cannot be protected until they reach the hands of the vendor, or while in transition from one homestead sold to another purchased? It certainly seems to us to be a valueless right, if the proceeds of the sale are liable to be attachcil, or are subject to garnishment process, as soon as the homestead is sold. And we hardly think the Legislature would have been to the trouble of enacting that the homestead might be sold and conveyed free from all judgment liens, if the right existed in the judgment creditor at once to attach all securities or garnish all moneys arising from the sale. Consequently we must hold the intent of the law to be, to exempt the proceeds of the homestead, which the debtor bona fide intends to use and apply in obtaining another homestead. *
This undoubtedly is the policy and spirit of the statute, to allow a person to sell one homestead and buy another; and the exemption must cover the change, and protect the proceeds while the transfer is being made. Otherwise the beneficent object of the law would often be defeated, and the owner would derive no possible benefit from the provision which enables him to sell and convey his homestead free from all judgment liens except those specified.” This decision was prior to the Wisconsin statute exempting the proceeds of the sale of the homestead for the period of two years. See, also, Cullen v. Harris, 111 Mich. 20, 69 N. W. 78, 66 Am. St. Rep. 380. The statute of Iowa authorizes a change in the homestead and provides that the new homestead shall be exempt to the extent of the value of the old, but does not in terms ex
empt the purchase moner arising from the shore or bank of a stream, the grant carries sale of the homestead. Nevertheless, the Su- by high or low water mark or by the thread
the entire estate of the grantor whether limited preme Court of that state has repeate:lly held
of the stream. that, where a party sells his liomeste:li wiih Ed. Note: -For cases in point, see rol. 8, the intention of purchasing another, he will Ceist. Diy. Boundaries, $$ 102-108.] be allowell a suílicient time within which to i SIM--L'LSTS. exercise that right, and during such period Wicre the owner of land bounded on the the proceeds of the sale are exempt. In State
south by a river platted the land, but as a
considerable portion of the river bank above v. Geddis, 44 Iowa, 537, the court said: "Sec
the government meander line had been washed tion 2000 of the Code provides that: 'The away, did not, according to the plat, extend owner may from time to time change the lim- : the boundaries of lots along the river beyond
the bank of the river as it actually existed at its of the homestead by changing the metes
the time the plat was filed, the purchasers of and bounds, as well as the record of the plat the lots did not take title beyond the southern and description, or may change it entirely. boundaries as shown on the plat. * * *' Section 2001: "The new homestead [Ed. Note.-Tor cases in point, see vol. 8, to the extent in value of the old, is exempt
Cent. Dig. Boundaries, $$ 99, 91.] from execution in all cases where the olil or Appeal from Superior Court, Chebalis former homestead would have been exempt, County; Jason Irwin, Judge. but in no otlier, nor in any greater degree.' Suit by Alex Polson and wife against the Here is an absolute right given to change one city of Aberdeen to quiet title. From a homestead for another, or to sell the home judgment in favor of plaintiffs, defendant stead and acquire a new one, which shall be appeals. Affirmed. exempt to the same extent as the former one.
R. E. Taggart and Ben Sheeks, for appelThere is no prescribed method as to how this
lant. Jolin C. Hogan, for respondents. shall be done. The statute does not provide that the sale must be for money in hand, RUDKIN, J. On the 10th day of October, which must be immediately invested in the 1866, the United States by letters patent new homestead; that is, that the selling of granted to Samuel Benn lots 3 and 4, and the old and purchasing of the new must be the W. la of the N. W. 14 of section 9, townsimultaneous acts. We must give the statute ship 17 X., range 9 W., W. M., in Chehalis a reasonable construction so as to effectuate , county, Wash. Terr. The lands thus granted its object. If a homestead be sold, and the are situated on the northerly bank of the proceeds applied to some other use, there is Chehalis river. Benn and wife continued to no doubt that the exemption would cease; own the property until the 16th day of Febbut where the sale is made on a credit and ruary, 188, on which date they prepared, with the intention of using the proceeds when executed, and filed a plat of a portion therecollected in purchasing another homestead, of, known as “Samuel Benn's plat of Aberand the proceeds are not put to any inter- deen." Between the time the government vening use, they are exempt while thus in surveys were extended so as to include these transitu, so to speak, from the old homestead lands and the time of filing the last-mento the new. Any other rule would practi- tioned plat, the northerly bank of the river cally prohibit the changing of homesteads." had washed away to such an extent that the See, also, Schuttloffel v. Collins, 98 Iowa, 576, government meander line extended from 30 67 X. W. 397, 60 Am. St. Rep. 216, and cases to 10 feet below the grass line or river bank cited. We are not unmindful of the fact proper, and below the line of ordinary high that there are numerous decisions to the con tide. When the survey for the plat Was trary of the views here expressed, but as made the surveyor, by direction of the ownsaid by the court in Watkins v. Blatschinski, ers, placed the stakes marking the southerly supra, they are mostly from states where boundary of the plat and the fractional lots the courts place a strict construction on ex bordering on the river at the edge of the emption law's; whereas, this court has uni grass line, or on the bank of the river as it formly declared that such laws must be lib then existed, and the plat as filed shows the erally construed.
length of the side lines of each fractional lot Finding no error in the record, the judg. from River Street, which is substantially ment is affirmed.
parallel to the river, but the side lines of
the lots are not joined on the river front. MOUNT, C. J., and FULLERTON. HAD II street as shown on this plat intersects LEY, CROW, ROOT, and DUNBAR, JJ., River street at right angles and extends to concur.
the southerly boundary of the plat on the river front, wherever that may be ascertained
to be. Lot 6 of block 52 lies on the easterly (44 Wash. 155)
side of II street, and on the southerly side POLSON et ux. v. CITY OF ABERDEEX. of River street. The east line of the lot (Supreme Court of Washington. Oct. 19, 1906.)
as shown by the plat is 51 feet in length and
the west line fronting on H street 50 feet 1. BOUNDARIES-WATERS-LANGUAGE OF DESCRIPTION-CONSTRUCTION.
in length. Lot one of block 53 lies to the Where land is described as bounded by or westerly side of H street, and to the southerupon, or as running to or along, the sea, or ly side of River street. The east line of the