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SLOSS, J. This case was argued and sub- court misconstrued his language, and that mitted with Plumas County v. Wheeler et he was simply repeating what others had al. (just decided) 87 Pac. 909, and involves said; but the record does not bear him out the validity of an ordinance of Sierra county, in this. While the conduct of the respondent substantially similar to the ordinance of and her daughter may not have been above Plumas county, considered in the Wheeler criticism, there is nothing in the record to Case. IIere a general demurrer to the warrant or justify the charges made by the county's complaint setting forth the ordi- appellant, and the animus of the witnesses nance and seeking to recover license fees due called by him to sustain his charges was so under it, was overruled, with leave to the apparent that the court evidently paid little defendant to answer. Upon his default for

heed to their testimony. The lower court failure to answer within the time allowed, concluded on the entire record that the alplaintiff had judgment according to the legations of cruel treatment and personal pirayer of its complaint. Defendant appeals. | indignities were sustained, and we are satis

For the reasons stated in Plumas County fied with that conclusion. v. Wheeler, the complaint stated a cause of The ruling of the court in awarding all action, and the demurrer was properly over- the community property to the respondent ruled.

is also assigned as error. The property conThe judgment is affirmed.

sisted of household goods of the value of

about $150 and a house and lot of the value We concur: BEATTY, C. J.; SHAW, J.; of $1,600, against which there was a mortANGELLOTTI, J.

gage of $600, payable in monthly installments of $15 each. The appellant has steady

employment, earning $56 or $57 per month, (:14 Wash. 594)

while the respondent is in ill health and has MARKOWSKI V. MARKOWSKI. no earning capacity. Had the parties no (Supreme Court of Washington. Dec. 7, 1906.) community property, the court would have 1. DIVORCE EVIDENCE-CRUELTY.

been called upon to make some provision In an action for divorce, evidence held to for the support of the wife, and anything sustain a judgment in favor of plaintiff on the

less than the court awarded would leave ground of cruel treatment, consisting of repeated accusations by defendant of the infidelity of

her a burden to the public or an object of plaintiff.

charity to her friends. 2. SAME-ALIMONY-AMOUNT.

We find no error in the record, and the Where the community property of a hus- | judgment of the court below is affirmed. band and wife consists of household goods worth about $150 and a house and lot worth $1,500, subject to a mortgage of $600, and the husband MOUNT, C. J., and ROOT, DUNBAR, and has steady employment earning $56 or $57 CROW, JJ., concur. FULLERTON and per month, while the wife is in ill health and has

HADLEY, JJ., not sitting. no earning capacity, it is proper to award her all the community property on granting her a divorce for cruel treatment. [Ed. Note.-For cases in point, see Cent. Dig.

(44 Wash. 27) vol. 17, Divorce, $$ 713–715.]

SEATON V. COOK. Appeal from Superior Court, King Coun- (Supreme Court of Washington. Dec. 14, 1906.) ty: Geo. C. Hatch, Judge.

APPEARANCE-EFFECT. Action by Wanda Markowski against Mar- Ballinger's Ann. Codes & St. § 4856, protin Markowski. From a judgment in favor

vides that an action commenced in the wrong

county may be tried there unless defendant of plaintiff, defendant appeals. Affirmed.

when he appears and demurs or answers, files James McNeny, for appellant. Aust &

an affidavit of merits, and demands that the Terhune, for respondent.

trial be had in the proper county. A defendant, at the time of filing a motion for change of

venue, filed an affidavit of merits, but no anRUDKIN, J. This was an action for di- swer or demurrer. After default, he appeared vorce on the ground of cruel treatment and

generally, moving for a vacation of the judg.

ment on the ground of mistake in having failed personal indignities rendering life burden

to file the demurrer, which motion was granted, some. The court below granted the divorce, and the demurrer filed. The demurrer having as prayed, and awarded all of the com- been stricken out as frivolous and issue having munity property, of the value of about $1,150,

been joined, defendant failed to appear at the

trial, but subsequently, without limiting his to the plaintiff'. From this judgment the

appearance, moved to vacate on the ground of defendant appeals.

mistake of the default judgment. Held, that The only questions raised on the appeal

though the filing of an affidavit of merits with

the motion for change of venue was sufficient are questions of fact. It appears from the

to take away the jurisdiction of the court any testimony that the parties lived in a state

objection to the jurisdiction was waived by the of turmoil during the greater part of their two general appearances. married life. The appellant declared in the

[Ed. Note.--For cases in point, see Cent. Dig. presence of strangers that his home was lik

vol. 3, Appearance, 88 111-117.] a brothel, and repeatedly accused the re- Appeal from Superior Court, Jefferson spondent of infidelity, even upon the witness County; Geo. C. Hatch, Judge. stand. The appellant contends that the Action by John Seaton against A. E. Cook, From an order, granting defendant a new assignments present but one question, viz., trial upon condition that he pay certain costs, whether the court upon the facts presented he appeals. Affirmed.

by the motion for change of venue could en

tertain any further jurisdiction than to order Allen, Allen & Stratton and Coleman &

a change of renue. We have seen that appelBallinger, for appellant. A. W. Buddress, for

lant filed no answer or demurrer at the time respondent.

he filed his motion for change of venue. The

statute upon the subject is as follows: "If HADLEY, J. This action was brought in

the county in which the action is commenced Jefferson county, to recover for the use of a

is not the proper county for the trial thereof, SCOW, and for damages occasioned by the

the action may, notwithstanding, be tried manner of using it. The defendant was per

therein, unless the defendant, at the time he sonally served with a copy of the summons

appears, and demurs or answers, files an afand complaint at his place of business in

fidavit of merits, and demands that the trial Jefferson county. Within 20 days after such

be had in the proper county." Section 4856, service, he served and filed a motion for

Ballinger's Ann. Codes & St. Appellant cona change of venue from Jefferson county to

tends that it was sufficient to file with the King county, accompanied by an affidavit,

motion an affidavit of merits without the decalled an "affidavit of merits," which re

murrer or answer, and that the court had no cited that the defendant was a resident of

further jurisdiction thereafter except to King county. No answer, demurrer, or other

grant the change of venue. Whether the afpleading was filed at the time, or within the

fidavit of merits accompanied by a demurrer 20 days. Some days after the expiration of

or answer was sufficient under the statute to the 20 days, the plaintiff moved for a default

wrest from the court all jurisdiction except judgment, which was granted. Thereafter

to grant the change of venue, we need not the defendant moved for the vacation of the

now decide, for the reason that appellant default judgment, stating among other

afterwards invoked the jurisdiction of the grounds that the judgment was entered as

court to permit him to file the demurrer, on the result of mistake and inadvertence, and

the ground that it had been omitted by overaffidavits in support of the motion stated

sight at the time the motion for change of that the defendant had, by oversight, failed

venue was filed. The jurisdiction of the to file a demurrer to the complaint when the

court was also invoked to set aside the demotion for change of venue was filed. A

fault judgment. This was all done under a demurrer was submitted and filed with the

general and not a special appearance, and motion, and the court granted the motion to

appellant unconditionally thereby submitted vacate the default judgment. The demurrer

himself to the jurisdiction of the court. If was noted for hearing, and the court struck it as frivolous. Answer was then filed, to

the action of the court theretofore taken was which plaintiff replied, and the cause was

without jurisdiction, the general appearance

and demand for affirmative relief waived the then noted by plaintiff for trial. The defendant objected to the jurisdiction of the court,

jurisdictional objection. Sayward v. Carlson. but was overruled, and the cause was again

1 Wash. 29, 23 Pac. 830; Teater V. King, 35 assigned for trial at a later date. No one ap

Wash. 138, 76 Pac. 688; Larsen v. Allan peared at the trial for the defendant, and

Line Steamship Co., 37 Wash. 555, 80 Pac. judgment was given for the plaintiff. There

181; Gaffner v. Johnson, 39 Wash. 437, 81 after the defendant moved for a new trial, on

Pac. 859. Again, after the second judgment the ground of accident and surprise which

was entered, appellant also moved to vacate ordinary prudence could not have guarded

that judgment without in any manner limitagainst, and whereby the defendant was ing his appearance. We think appellant has prevented from appearing at the trial in per

waived the jurisdictional objection, and has son or by counsel. Affidavits were submit

fully submitted himself to the jurisdiction of ted with reference to an alleged misunder

the court. "The right to have a cause tried standing about the assignment of the cause

in a particular county is one which a party for trial. The motion for new trial was

may waive either expressly or by implicagranted, and the judgment vacated, condi

tion.” Hearne v. De Young, 111 Cal. 373, 43 tioned upon the payment by defendant to Pac. 1108. Appellant assumes inconsistent plaintiff of the sum of $35 costs within 10 positions. He first sought the aid of the days. The defendant refused to comply with

court to relieve him from the default, and the terms of the order, and has appealed afterwards from the second judgment by way therefrom.

of a new trial. he cannot now be heard to The first three assignments of error are: challenge the very jurisdiction he has in(1) That the court erred in striking the de- voked. “Even if the objection has been taken murrer to the complaint; (2) in refusing to in time, the defendant may by his own acts direct a change of venue; (3) in hearing the deprive himself of the benefit thereof, it because, or in making any order therein, after ing sometimes stated that a party who inthe motion for change of venue was filed, vokes the jurisdiction of a court is not thereother than to set aside the order of default after in a position to question the jurisdicand judgment. Appellant says the above tion." 12 Enc. Pl. & Pr. 185,

It is further urged that the court erred in not granting a new trial without the imposition of terms. The first default was vacated upon appellant's application, and leave was granted to file a demurrer, relief which appellant sought on the ground of mistake and inadvertence. This relief was granted without the imposition of any terms in the way of payment of (osts or otherwise. Relief from the second judgment was asked on the ground of accident and surprise which ordinary prudence could not have guarded against, and it was within the discretion of the trial court, under all the circumstances, to impose terms as a condition of granting relief from a second judgment in the action. We find that there was no abuse of discretion, and in such cases the action of the trial court will not be reversed unless there is manifest abuse of discretion. 14 Enc. Pol. & I'r. 724. The action of the court is sustained by the rule followed in O'Toole v. Phenix Ins. Co., 39 Wash. 688, 82 Pac. 175.

The judgment is therefore aflirmed.

MOUNT, C. J., and RUDKIN, FULLERTON, and CROW', JJ., concur. DUNBAR and ROOT, JJ., not sitting.

( 11 Wash. (150)

SPRAGUE v. BETZ et ux. (Supreme Court of Washington. Dec. 3. 1906.) TRUSTS-MANAGEMENT OF ESTATE-POWER OF SALE---EXECUTION.

Plaintiff, being the exceutor and trustee of an estate with power to sell, but not to mortgage, conveyed the property to one of the heirs, who executed mortgages thereon for money which he gave to plaintiff, who expended it in a iřairs of the estate. The heir then reconveyed the property to plaintiff. On attempt to foreclose the mortgages, which was defended on the ground that they were an evasion of the plainuifi's duty not to mortgage, and were fictitious in character, a stipulation was entered into between the mortgagees and the trustee and legatees, whereby the premises were conveyed to the mortgagees by quitclaim deed giving them possession, with a further stipulation that any legatee might within three years repurchase the property on payment of the mortgages, with interest, the consideration of the deed being the dismissal of the foreclosure suits, and the payment of an additional sum to the trustee and legatees. Held, that whether or not the mortgages were valid, the execution of such quitclaim deed was a valid exercise of the trustee's power of sale.

Appeal from Superior Court, Pierce County: W. 0. Chapman, Judge.

Bill by Clark W. Sprague, executor and trustee of the estate of John W. Sprague, deceased, against Jacob Betz and wife. From a decree for defendants, plaintiff appeals. Aflirmed.

Fogg & Fogg and Campbell & Powell, for appellant. John C. Stallcup and J. W. A. Nichols, for respondents.

Plain:iff elected to stand upon the allegations made in the complaint. A judgment of dismissal was entered, and the plaintiff appeals.

The facts stated in the complaint are, in substance, that John W. Sprague died testate in Tacoma on December 24, 1893, leaving a valuable estate therein; that the most valuable asset of the estate consisted of the Sprague Block in the city of Tacoma, being a large brick and stone building, and the land upon which this building was located; that the testator, by his will provided for certain legacies to be paid within a specified time, and left all the remainder of his property to his four sons, viz., Otis, Winthrop W., Clark W., and Charles Sprague, share and share alike. James R. Hayden and Otis Sprague were designated as executors, and the will provided that, in case of the death or refusal of either of these appointees to act, then certain of the sons were appointed as executors as designated by the terms of the will. The testator directed that the estate should be settled as provided by the will, without the intervention of any court. The testator gave the executors full power and authority to sell any or all of the estate or personal property, except certain parcels, without notice, and upon such terms as they should deem best, but no provision was made for the executors and trustees, as they were designated by the will, to borrow money or mortgage any of the estate. The complaint then alleges, that on December 29, 1893, the will was duly admitted to probate, and that Otis Sprague and James R. Hayden were appointed executors and qualified as such, and acted in that capacity until December, 1898, when they resigned and Winthrop W. and Clark W. Sprague became executors and trustees, and continued to act until 1.903, when Winthrop W. Sprague died; that Charles Sprague died about the same time, so that Clark W. Sprague is now the sole surviving executor and trustee of the estate; that in August, 1894, Otis Sprague, then one of the trustees of the estate, applied to the Prevident Loan & Trust Company for a loan of $55,000 to the trustees, offering as security therefor a mortgage upon a part of the Sprague Block; that the l'rovident Loan & Trust Company examined the property, and was satisfied with the security, and agreed to make the loan provided the title should be passed by its attorney.

Subsequently the attorney for the trust company rejected the security, for the reason that the trustees had no authority under the will to mortgage the property of the estate. Oris Sprague then asked the attorney for the trust company if there was not some way by which the title could be adjusted so as to satisfy the trust company, and was informed by the attorney that, inasmuch as the will gave the trustees full power and authority to sell the property, they could convey the property to one of the residuary devisees, and that such devisce could then borrow the mon

MOUNT, C. J. A demurrer was sustained to the amended complaint in this action.

ey and secure the same by a mortgage upon and each of the heirs, legatees, and devisees the property, and then reconvey the property under the will were made parties in these to the trustees. Otis Sprague then went to foreclosure actions. the agent of the trust company, and asked The complaints in these actions alleged, him if a loan could be made to Charles that default had been made in the payment Sprague, if the property were transferred of interest, etc., and that the notes were then to said Charles Sprague by the trustees. due; that the defendants, in said actions, apSaid agent answered that all matters, per- peared and answered the complaints, setting taining to the title, were left to their attor- up the fictitious character of the mortgages, ney, and that if said attorney passed the title, whereupon the trust company filed demurrers the loan would be made. Said attorney there- to the answers. These demurrers were susupon advised the agent of the trust company tained, the court holding that the mortgages that a mortgage by Charles Sprague under were invalid. Thereupon a stipulation was the circumstances would give a valid lien entered into by the attorneys representing upon the property. The trustees thereupon the Provident Loan & Trust Company (the executed a deed conveying a certain portion plaintiff in the foreclosure actions), and the of the Sprague Block to Charles Sprague, for defendants therein, to the effect that the trusan expressed consideration of $120,000), and tees of the Sprague estate and the residuary thereupon Charles Sprague executed his note legatees under the will, including the plainand mortgage in favor of the trust company tiff in this action, should convey to the trust for $33,000, due five years from date, with company the mortgaged premises by a quitinterest at the rate of 7 per cent. per annum. claim deed, in satisfaction of the money adThe deed and mortgage were executed in Au- vanced upon said mortgages, and that the gust, 1894. The said $75,000 was thereupon trust company should have possession of the paid directly to the trustees of the Sprague property and the rents thereof, but that the estate by order of Charles Sprague. About said legitees or auy one of them might, withfour weeks later Charles Sprague transferred in three years from the date of the stipulathe property back to the trustees of the es- tion, repurchase the said property, upon the tate, for an express consideration of $120,000. payment of $107,215.63, with interest thereon The money received from this loan was used at the rate of 7 per cent. per annum from the for the benefit of the estate. $10,000 was date of the stipulation, less the net rentals used to satisfy a mortgage existing on the of the property. The consideration for this Sprague Block, at the time of the death of stipulation was the dismissal of the foreJohn W. Sprague, and the other $15,000 was closure suits and the payment to the trustees applied to the payment of a legacy designated and legatees of $1,075, in addition to the by the will. In September, 189.7, Otis amount then owing from the estate to the Sprague, as trustee, again applied to the trust trust company. Thereupon, on December 1, company for another loan of $30,000. upon 1897, the trustees of the Sprague estate and another portion of the sprague Block. This the residuary legatees executed a quitclaim loan was subsequently made in the same way deed conveying the Sprague Block to the said as the one above stated. The complaint al- trust company, and delivered possession thereleges that $6,300 of this last-named loan of to sail company. The complaint alleges was used to pay taxes and assessments that the property at that time was of the acagainst the Sprague Block, but the plaintiff tual value of $280,000, and is now of the valdoes not know how the balance was expend- ue of $100,000 or $500,000; that owing to the ed; that Charles Sprague paid nothing for clepressed condition of the real estate market either of said conveyances to him by the and lack of funds, the said trustees have trustees of the estate, and never took posses- been unable to pay or discharge the claim sion of the property nor exercised any acts of the trust company for the money advanof ownership over the same; that he took no ced to the trustees of the estate, or to demand part in the negotiations leading up to the a reconveyance of said property, until at this loans beyond signing his name to such papers time, and that the defendants, through the as he was advised to sign; that each of such trust company, now claim to own said propconveyances was 'a sham and fictitious sale. erty. The complaint also alleges that the demade with the knowledge of the trust com- fendants herein, Betz and wife, have purpany, in order to evade the terms of the will chased the said Sprague Block, but that, of John W. Sprague, deceased, and that the prior to such purchase and prior to the paymortgages made by Otis Sprague were illegal ment of any part of the purchase price thereand void; that the trust company never of, the said defendants had actual and conloaned any money to the trustees of the es- structive knowledge of all the facts herein tate, but loaned the same to Charles Sprague. stated; that the improvements upon the propThe complaint then alleges that, in April, erty are now the same as in December, 1897, 1897, the trust company brought two actions when the quitclaim deed was made; that in the superior court of Pierce county to large sums remain due upon legacies and foreclose the said mortgages executed by debts of the estate, and there is no other Charles Sprague to the trust company. One property of the estate, and said estate has action was brought for each mortg:ge. not been settled or closed. The prayer is for 1 'harles Sprague, the trustees of the estate, a decree adjudging the defendants to be trus

tees of the property for the benefit of the estate of John W. Sprague, deceased, for an accounting of rents and profits, and for an accounting of the amount due on account of the loan to Charles Sprague, as above stated, and for general relief.

Counsel for appellant have very learnedly and exhaustively discussed many questions in their brief's, among which questions are that the transfers to Charles Sprague and the mortgages made by him to the Provident Loan & Trust Company were void, because such mortgages were really the mortgages of the trustees who were given only the power to sell and not the power to mortgage, and therefore the said mortgages were void; that the obligation to repay the money loaned by the Provident Loan & Trust Company to Charles Sprague was the personal obligation of Charles Sprague and not the obligation of the estate of John W. Sprague, deceased, and that, therefore, the quitclaim deed of December 1, 1897, was without consideration and void. In view of the conclusion which we have reached, it will not be necessary to discuss the other questions presented. We may assume for the purposes of this case that the trustees of the estate of John W. Sprague. deceased, had no power to borrow money or mortgage the estate; that the mortgages actually made were in fact the mortgages of the trustees, and therefore void and created no lien against the estate. But it does not follow that the quitclaim deed executed in 1897 by the trustees of the estate of John W. Sprague and the residuary legatees to the Provident Loan & Trust Company was without consideration or void. It is not claimed, as we read the allegations of the complaint, that the money advanced upon the strength of the mortgages made by Charles Sprague was not advanced in good faith by the trust company, and received by the trustees in good faith, and so used to satisfy claims for debts and legacies against the estate. the other hand, it appears that the money was advanced in good faith, and was so re(eived and used by the trustees for the benefit of the estate. The estate was therefore bound in good conscience to repay it. Deery v. Hamilton, 41 Iowa, 16; Iowa Loan & Trust Co. v. Holderbaum, 86 Iowa, 1, 12, 52 N. W. 550; Thomas V. Provident Loan & Trust Co., 138 Fed. 348, 70 C. C. A. 488. When the Provident Loan & Trust Company brought actions to foreclose their mortgages, these mortgages were held void. But the trustees of the estate and the four residuary legatees, one of whom was this appellant in his personal capacity, realizing at that time that the estate was justly indebted to the trust company in the sum of $107,215.65, and that they had full power to sell the estate "with or without notice, and upon such terms either for credit or cash as they should deem best, concluded that they should sell that part of the estate in question in satisfaction of this

debt. The trustees exercised that power and sold upon condition that the residuary legatees or any one of them might repurchase upon payment of the purchase price less the net profits at any time within three years thereafter, and as indicating the character of the sale, the stipulation provided : “But this stipulation shall be construed only as an agreement on the part of the plaintiff [Prorident Loan & Trust Company] to sell said premises at any time within three years and upon the expiration of said three years this agreement to sell shall cease and determine, without any act or declaration on the part of the plaintiff, and thereafter title to said premises both legal and equitable shall be absolutely in the plaintiff, and its right to sell and dispose of the same free of all claims on the part of the stipulating defendants shall be unquestioned."

It cannot be doubted that the trustees of the Sprague estate were authorized to sell the estate at the time of this transaction for the sum of money owing by the estate to the Provident Loan & Trust Company. If a sale had been made to a third party upon the terms and conditions entered into with the Provident Loan & Trust Company, there can be no doubt that it would have been a valid sale. We see no reason why it could not have been made directly to the Provident Loan & Trust Company in satisfaction of a debt owing by the estate to the trust company, which debt the trustees were obligated to pay. While the mortgages given to secure the debt were void, because beyond the power of the trustees to make, the sale of the estate was, we think, within the power of the trustees, and transferred the estate to the purchasers, who thereupon took possession, and have continued to hold the same, not as security for a debt but as an absolute sale. Dabney v. Smith, 38 Wash. 40, 80 Pac. 199. The case of Thomas V. Provident Loan & Trust Company, 138 Fed. 348, 70 C. C. A. 488, was a case brought by a creditor of certain resíduary legatees of the will of John W. Sprague, deceased, against such legatees, to subject the interest of such legatees to the payment of certain judgments recovered by such creditors. In that case a complete history of the estate of John W. Sprague, deceased, is set out. It was there said, at page 319 of 138 Fed., at page 489 of 70 C. C. A.: “The trust company undoubtedly loaned its money in good faith. It could have had no object or purpose in doing otherwise. The borrowed money was used by the executors in discharging legal incumbrances on the estate, and in paying the debts of the estate. Afterwards, in consideration of their obligation to repay the money so advanced, the executors executed a quitclaim deed to the trust company. Who of the parties to this record was in a position to attack that conveyance? It is unnecessary to say that the executors themselves were in no such position." And


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