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SLOSS, J. This case was argued and submitted with Plumas County v. Wheeler et al. (just decided) 87 Pac. 909, and involves the validity of an ordinance of Sierra county, substantially similar to the ordinance of Plumas county, considered in the Wheeler Case. Here a general general demurrer to to the county's complaint setting forth the ordinance and seeking to recover license fees due under it, was overruled, with leave to the defendant to answer. Upon his default for failure to answer within the time allowed, plaintiff had judgment according to the prayer of its complaint. Defendant appeals. For the reasons stated in Plumas County v. Wheeler, the complaint stated a cause of action, and the demurrer was properly overruled.

The judgment is affirmed.

court misconstrued his language, and that he was simply repeating what others had said; but the record does not bear him out in this. While the conduct of the respondent and her daughter may not have been above criticism, there is nothing in the record to warrant or justify the charges made by the appellant, and the animus of the witnesses called by him to sustain his charges was so apparent that the court evidently paid little heed to their testimony. The lower court concluded on the entire record that the allegations of cruel treatment and personal indignities were sustained, and we are satisfied with that conclusion.

The ruling of the court in awarding all the community property to the respondent is also assigned as error. The property consisted 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.

(44 Wash. 594)

MARKOWSKI v. MARKOWSKI. (Supreme Court of Washington. Dec. 7, 1906.) Dec. 7, 1906.) 1. DIVORCE-EVIDENCE-CRUELTY.

In an action for divorce, evidence held to sustain a judgment in favor of plaintiff on the ground of cruel treatment, consisting of repeated accusations by defendant of the infidelity of plaintiff.

2. SAME-ALIMONY-AMOUNT.

Where the community property of a husband 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 has steady employment earning $56 or $57 per month, while the wife is in ill health and has 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. vol. 17. Divorce, §§ 713-715.]

gage of $600, payable in monthly installments of $15 each. The appellant has steady employment, earning $56 or $57 per month, while the respondent is in ill health and has no earning capacity. Had the parties no community property, the court would have been called upon to make some provision for the support of the wife, and anything less than the court awarded would leave her a burden to the public or an object of charity to her friends.

We find no error in the record, and the judgment of the court below is affirmed.

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

Action by Wanda Markowski against Martin Markowski. From a judgment in favor of plaintiff, defendant appeals. Affirmed. James McNeny, for appellant. Aust & Terhune, for respondent.

RUDKIN, J. This was an action for divorce on the ground of cruel treatment and personal indignities rendering life burdensome. The court below granted the divorce as prayed, and awarded all of the community property, of the value of about $1,150, to the plaintiff. From this judgment the defendant appeals.

The only questions raised on the appeal are questions of fact. It appears from the testimony that the parties lived in a state of turmoil during the greater part of their married life. The appellant declared in the presence of strangers that his home was like a brothel, and repeatedly accused the respondent of infidelity, even upon the witness stand. The appellant contends that the

APPEARANCE-EFFECT.

Ballinger's Ann. Codes & St. § 4856, provides that an action commenced in the wrong county may be tried there unless defendant when he appears and demurs or answers, files an affidavit of merits, and demands that the 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 answer or demurrer. After default, he appeared generally, moving for a vacation of the judgment on the ground of mistake in having failed to file the demurrer, which motion was granted, and the demurrer filed. The demurrer having been stricken out as frivolous and issue having been joined, defendant failed to appear at the trial, but subsequently, without limiting his appearance, moved to vacate on the ground of mistake of the default judgment. Held, that though the filing of an affidavit of merits with the motion for change of venue was sufficient to take away the jurisdiction of the court any objection to the jurisdiction was waived by the two general appearances.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appearance, §§ 111-117.]

Appeal from Superior Court, Jefferson County; Geo. C. Hatch, Judge.

Action by John Seaton against A. E. Cook.

From an order, granting defendant a new trial upon condition that he pay certain costs, he appeals. Affirmed.

Allen, Allen & Stratton and Coleman & Ballinger, for appellant. A. W. Buddress, for respondent.

HADLEY, J. This action was brought in Jefferson county, to recover for the use of a scow, and for damages occasioned by the manner of using it. The defendant was personally served with a copy of the summons and complaint at his place of business in Jefferson county. Within 20 days after such service, he served and filed a motion for a change of venue from Jefferson county to King county, accompanied by an affidavit, called an "affidavit of merits," which recited that the defendant was a resident of King county. No answer, demurrer, or other pleading was filed at the time, or within the 20 days. Some days after the expiration of the 20 days, the plaintiff moved for a default judgment, which was granted. Thereafter the defendant moved for the vacation of the default judgment, stating among other grounds that the judgment was entered as the result of mistake and inadvertence, and affidavits in support of the motion stated that the defendant had, by oversight, failed to file a demurrer to the complaint when the motion for change of venue was filed. A demurrer was submitted and filed with the motion, and the court granted the motion to vacate the default judgment. The demurrer was noted for hearing, and the court struck it as frivolous. Answer was then filed, to which plaintiff replied, and the cause was then noted by plaintiff for trial. The defendant objected to the jurisdiction of the court, but was overruled, and the cause was again assigned for trial at a later date. No one appeared at the trial for the defendant, and judgment was given for the plaintiff. Thereafter the defendant moved for a new trial, on the ground of accident and surprise which ordinary prudence could not have guarded against, and whereby the defendant was prevented from appearing at the trial in person or by counsel. Affidavits were submitted with reference to an alleged misunderstanding about the assignment of the cause for trial. The motion for new trial was granted, and the judgment vacated, conditioned upon the payment by defendant to plaintiff of the sum of $35 costs within 10 days. The defendant refused to comply with the terms of the order, and has appealed

therefrom.

The first three assignments of error are: (1) That the court erred in striking the demurrer to the complaint; (2) in refusing to direct a change of venue; (3) in hearing the cause, or in making any order therein, after the motion for change of venue was filed, other than to set aside the order of default and judgment. Appellant says the above

assignments present but one question, viz., whether the court upon the facts presented by the motion for change of venue could entertain any further jurisdiction than to order a change of venue. We have seen that appellant filed no answer or demurrer at the time he filed his motion for change of venue. The statute upon the subject is as follows: "If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears, and demurs or answers, files an affidavit of merits, and demands that the trial be had in the proper county." Section 4856, Ballinger's Ann. Codes & St. Appellant contends that it was sufficient to file with the motion an affidavit of merits without the demurrer or answer, and that the court had no further jurisdiction thereafter except to grant the change of venue. Whether the affidavit of merits accompanied by a demurrer or answer was sufficient under the statute to wrest from the court all jurisdiction except to grant the change of venue, we need not now decide, for the reason that appellant afterwards invoked the jurisdiction of the court to permit him to file the demurrer, on the ground that it had been omitted by oversight at the time the motion for change of venue was filed. The jurisdiction of the court was also invoked to set aside the default judgment. This was all done under a general and not a special appearance, and appellant unconditionally thereby submitted himself to the jurisdiction of the court. If the action of the court theretofore taken was without jurisdiction, the general appearance and demand for affirmative relief waived the jurisdictional objection. Sayward v. Carlson. 1 Wash. 29, 23 Pac. 830; Teater v. King, 35 Wash. 138, 76 Pac. 688; Larsen v. Allan Line Steamship Co., 37 Wash. 555, 80 Pac. 181; Gaffner v. Johnson, 39 Wash. 437, 81 Pac. 859. Again, after the second judgment was entered, appellant also moved to vacate that judgment without in any manner limiting his appearance. We think appellant has waived the jurisdictional objection, and has fully submitted himself to the jurisdiction of the court. "The right to have a cause tried in a particular county is one which a party may waive either expressly or by implication." Hearne v. De Young, 111 Cal. 373, 43 Pac. 1108. Appellant assumes inconsistent positions. He first sought the aid of the court to relieve him from the default, and afterwards from the second judgment by way of a new trial. He cannot now be heard to challenge the very jurisdiction he has invoked. "Even if the objection has been taken in time, the defendant may by his own acts deprive himself of the benefit thereof, it being sometimes stated that a party who invokes the jurisdiction of a court is not thereafter in a position to question the jurisdiction." 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 costs 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. Pl. & Pr. 724. The action of the court is sustained by the rule followed in O'Toole v. Phoenix 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.

(H4 Wash. 650)

SPRAGUE v. BETZ et ux. (Supreme Court of Washington. Dec. 8. 1906.) TRUSTS-MANAGEMENT OF ESTATE-POWER OF SALE--EXECUTION.

Plaintiff, being the executor 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 affairs 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 plaintiff'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. O. 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. Affirmed.

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

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

Plaintiff 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 en 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 1903, 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 Provident 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 Provident 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 devisee could then borrow the mon

ey and secure the same by a mortgage upon the property, and then reconvey the property to the trustees. Otis Sprague then went to the agent of the trust company, and asked him if a loan could be made to Charles Sprague, if the property were transferred to said Charles Sprague by the trustees. Said agent answered that all matters, pertaining to the title, were left to their attorney, and that if said attorney passed the title, the loan would be made. Said attorney thereupon advised the agent of the trust company that a mortgage by Charles Sprague under the circumstances would give a valid lien upon the property. The trustees thereupon executed a deed conveying a certain portion of the Sprague Block to Charles Sprague, for an expressed consideration of $120,000, and thereupon Charles Sprague executed his note and mortgage in favor of the trust company for $55,000, due five years from date, with interest at the rate of 7 per cent. per annum. The deed and mortgage were executed in August, 1894. The said $55,000 was thereupon paid directly to the trustees of the Sprague estate by order of Charles Sprague. About four weeks later Charles Sprague transferred the property back to the trustees of the estate, for an express consideration of $120,000. The money received from this loan was used for the benefit of the estate. $40,000 was used to satisfy a mortgage existing on the Sprague Block, at the time of the death of John W. Sprague, and the other $15,000 was applied to the payment of a legacy designated by the will. In September, 1895, Otis Sprague, as trustee, again applied to the trust company for another loan of $30,000. upon another portion of the sprague Block. This loan was subsequently made in the same way as the one above stated. The complaint alleges that $6,360 of this last-named loan was used to pay taxes and assessments against the Sprague Block, but the plaintiff does not know how the balance was expended; that Charles Sprague paid nothing for either of said conveyances to him by the trustees of the estate, and never took possession of the property nor exercised any acts of ownership over the same; that he took no part in the negotiations leading up to the loans beyond signing his name to such papers as he was advised to sign; that each of such conveyances was a sham and fictitious sale, made with the knowledge of the trust company, in order to evade the terms of the will of John W. Sprague, deceased, and that the mortgages made by Otis Sprague were illegal and void; that the trust company never loaned any money to the trustees of the estate, but loaned the same to Charles Sprague. The complaint then alleges that, in April, 1897, the trust company brought two actions in the superior court of Pierce county to foreclose the said mortgages executed by Charles Sprague to the trust company. action was brought for each mortgage. 'harles Sprague, the trustees of the estate,

and each of the heirs, legatees, and devisees under the will were made parties in these foreclosure actions.

The complaints in these actions alleged, that default had been made in the payment of interest, etc., and that the notes were then due; that the defendants, in said actions, appeared and answered the complaints, setting up the fictitious character of the mortgages, whereupon the trust company filed demurrers to the answers. These demurrers were sustained, the court holding that the mortgages were invalid. Thereupon a stipulation was entered into by the attorneys representing the Provident Loan & Trust Company (the plaintiff in the foreclosure actions), and the defendants therein, to the effect that the trustees of the Sprague estate and the residuary legatees under the will, including the plaintiff in this action, should convey to the trust company the mortgaged premises by a quitclaim deed, in satisfaction of the money advanced upon said mortgages, and that the trust company should have possession of the property and the rents thereof, but that the said legatees or any one of them might, within three years from the date of the stipulation, repurchase the said property, upon the payment of $107,215.65, with interest thereon at the rate of 7 per cent. per annum from the date of the stipulation, less the net rentals. of the property. The consideration for this stipulation was the dismissal of the foreclosure suits and the payment to the trustees and legatees of $1,075, in addition to the amount then owing from the estate to the trust company. Thereupon, on December 1, 1897, the trustees of the Sprague estate and the residuary legatees executed a quitclaim deed conveying the Sprague Block to the said trust company, and delivered possession thereof to said company. The complaint alleges that the property at that time was of the actual value of $280,000, and is now of the value of $400,000 or $500,000; that owing to the depressed condition of the real estate market and lack of funds, the said trustees have been unable to pay or discharge the claim of the trust company for the money advanced to the trustees of the estate, or to demand a reconveyance of said property, until at this time, and that the defendants, through the trust company, now claim to own said property. The complaint also alleges that the defendants herein, Betz and wife, have purchased the said Sprague Block, but that, prior to such purchase and prior to the payment of any part of the purchase price thereof, the said defendants had actual and constructive knowledge of all the facts herein stated; that the improvements upon the property are now the same as in December, 1897, when the quitclaim deed was made; that large sums remain due upon legacies and debts of the estate, and there is no other property of the estate, and said estate has not been settled or closed. The prayer is for 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 briefs, 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 received 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 [Provident 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 residuary 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 349 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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