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London and Edinburgh. From a judgment

From a judgment | transfer from the respondent to Thacker, for plaintiff, defendant appeals. Reversed, without the consent of the appellant company with directions.

indorsed on or added to the policy. Policies Harold Preston, for appellant. Hartnett &

of insurance are rightfully construed most Sheller, for respondent.

strongly against the insurance companies

under whose supervision they are prepared RUDKIN, J. On the 18th day of Febru

and executed, and if they contain contra

dictory provisions, some of which will work ary, 1904, the defendant company issued its

a forfeiture and others not, the latter will policy of insurance to one Polly P. Belrood,

control. whereby it insured a certain one and one

But while policies are construed

strictly, against the insurer, and while forhalf story frame building in the sum of $600

feitures are not favored in law, yet, courts for a period of three years against loss or damage by fire. The policy contained the

cannot make new contracts for parties nor

grant relief where a forfeiture has accrued following provision, among others: "This entire policy, unless otherwise provided by

under the plain and unambiguous terms of agreement indorsed hereon or added here

the contract. As said by the court in Imp. to, shall be void

if any change,

Ins. Co. v. Coos Co., 151 U. S. 463, 14 Sup. other than by death of an insured, take

Ct. 381, 38 L. Ed. 231, "The rule is well set

tied that contracts of insurance, like other place in the interest, title, or possession of the subject of insurance (except change

contracts, are to be construed according to of occupants without increase of hazard),

the sense and meaning of the terms which whether by legal process or judgment, or

the parties have used, and if they are clear by voluntary act of the insured, or other

and unambiguous their terms are to be taken wise. * * On the 1st day of April,

and understood in their plain, ordinary, and 1905, the plaintiff purchased and became the popular sense.” An insurance company has rightful owner of the property described in

the right to determine for itself whom it will the policy, and on the same date an agree

insure and what interest it will insure, and ment continuing the insurance in his favor to provide that any change in such interest was added thereto. On the 9th day of April,

without its consent will work a forfeiture 1905, the plaintiff conveyed the premises

of the policy. The policy before us provides described in the policy to one Frank B.

in plain and unmistakable terms that any Thacker by good and sufficient deed, and on

change in interest, title, or possession of the the same date Thacker executed and de

subject-matter of insurance shall avoid the livered to the plaintiff a purchase-noney

policy, unless otherwise provided by agreemortgage on the property in the sum of $700.

ment indorsed thereon or added thereto. Has Whether or not this was the entire purchase

this provision been violated; or in other price does not appear. Neither the defend- words, does an absolute conveyance of the ant nor any of its agents had notice or knowl- subject of the insurance with a mortgage edge of the transfer from the plaintiff to back to secure the purchase money in whole Thacker, or of the mortgage from Thacker or in part work a change in interest, title, to the plaintiff, until after the destruction or possession? A mortgage under our law of the premises by fire, and consent to such is a mere lien or security for the payment transfer was never indorsed on or appended of money, and does not convey any title to the policy. On the 9th day of August, to the mortgagee. Dane v. Daniel, 23 Wash. 1905, the building described in the policy was

379, 63 Pac. 268. There has therefore been destroyed by fire. On the 230 day of August, an entire change of interest and title. A 1905, Thacker assigned to the plaintiff any f'ee-simple title has been converted into a interest he might have in the policy, and the mere lien, and the respondent is no longer latter demanded payment of the amount of the owner of the property at law or in equity. the policy from the insurance company, but As said by the Court of Appeals of New payment was refused. The court found in York in a similar case: “The insurers and addition to the foregoing facts that the plain- insured may agree upon the terms of the tiff and Thacker were ranchers having no contract, and make its validity or continuexperience in matters appertaining to in- ance depend upon any terms and conditions, surance, and that, at the time of the trans- lawful in themselves, which they may deem fer to Thacker, the plaintiff supposed that reasonable or proper; and whether reasonthe policy was enforceable in his favor as able or unreasonable is for them, not for mortgagee, in the event of loss. It was the courts, to determine. The title of the further stipulated by the parties that the insured to the property at risk, and the plaintiff acted in good faith and without measure and extent of his interest, is, in fraud in all matters relating to the insur- the nature of things, a material subject of ance. On the foregoing facts the court be- inquiry in the making of the contract. The low entered a judgment in favor of the plain- insurers have a right to know to what extiff for the full amount of the policy, and tent the insured has the ability to protect the defendant appeals therefrom.

or interest in protecting the property against The only question presented on the appeal the perils insured against, and whether other Is whether the policy was avoided by the parties have insurable interests which may

87 P.-59

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enable those interested to secure, in the ag. tion of the property by the mortgagor was gregate, insurances in excess of the value adjudged to make void the policy. Grosvenor of the property. The insurers certainly had 1. Atlantic F. Ins. Co. of Brooklyn, 17 N. Y. the right to treat any change or alteration 391. The condition is not capable of two either of title or possession as material, and readings, and the courts have no right under provide that such alteration or change should the pretense of interpretation to nullify a avoid the policy; and if the assured assented material provision inserted for the reasonto the contract with this condition and limita- able protection of the insurers, and thus tion, effect must be given to the condition exercise a dispensing power in favor of the according to its terms. Davenport v. New insured. It cannot be said that a conveyEngland Ins. Co., 6 Cush. (Mass.) 340; Ed- ance of the fee, and the taking back a mortmands v. Mutual Safety F. Ins. Co., 1 Allen gage for the purchase money, is not as (Mass.) 311, 79 Am. Dec. 746. As well the well a sale or transfer as a change of title. insured as the insurers are interested in the It is sufficient, to put an end to the policy, faithful observance of the conditions of the that there has been a change in the title; contract. The premium demanded is es- and no one can say that a conveyance of sentially regulated by the conditions of the the fee, and substituting the interest of a contract and the risk assumed, and if con- mortgagee in the insured, is not a substanditions deemed material by the insurers are tial change in the title. But the sale or disregarded by the insured or nullified by transfer of the property was complete and the courts, the insurers will be made to

absolute, and the retaining a lien for the suffer in the increased cost of insurance, as purchase money, either in the form of a all will be made to pay for absolute and ex- mortgage or otherwise, did not change the treme risks. * * While the

While the interests character or effect of the conveyance. The of the owner in fee and the mortgagee are fact that, to preserve equities and exclude both insurable, and each may have inde- liens which might otherwise defeat purpendent insurances, each covering his own chase-money liens, courts regard a deed of interest, the interests are entirely distinct, conveyance and purchase-money mortgage and the rights and obligations of the parties as simultaneous, and the rights of the parties to the contract different. Had the plaintiff as if the title to the amount of the mortbeen insured as mortgagee, the insurer, upon gage interest had never passed out of the payment of a loss, would be entitled to be grantor, does not aid in construing this consubrogated to the rights of the mortgagee tract, or tend to establish the claim of the against the mortgagor. The distinction be- respondent that there has been no transfer tween an issue based on a denial of an insur- of the property.” Savage v. Howard Insurable interest, and the question whether there ance Company, 52 N. Y. 502, 11 Am. Rep. 741. had been an alienation or change of title, See, also, Northern Assurance Co. v. City was recognized in Orrell v. Hampden F. Ins. Sav. Bank, 45 S. W. (Tex. Civ. App.) 737 ; Co., 13 Gray (Mass.) 431. A change of title Farmers' Ins. Co. v. Archer, 36 Ohio St. valid as between the parties was treated as 608; 13 Am. & Eng. Ency. Law (2d Ed.) a breach of the condition, but there no alien- 241-244, and cases cited. Cases holding that ation was proved. A mortgage is not an a conveyance and mortgage back do not work alienation of the property mortgaged; but a forfeiture of a contract of insurance will be when the condition of the policy was that found in general to be based upon different 'all alienations and alterations in the owner- provisions in the policy under consideration, ship,' etc., of the property should make void or from jurisdictions where a mortgage is held the policy, a mortgage was held to be an to be a conveyance leaving no interest in alteration of the ownership and to make the mortgagor except a mere right of revoid the insurance. Edmands v. Mut. Safety demption. We are therefore of opinion that F. Ins. Co., 1 Allen (Mass.) 311. The court the policy in suit was avoided by a change thought it material to the insurers to know of title and interest in the subject of insurwho had title to or interest in the property ance, and the judgment is accordingly reinsured. The question was directly before versed with directions to dismiss the action. this court in Springfield F. & M. Ins. Co. v. Allen, 43 N. Y. 389, 3 Am. Rep. 711, and it MOUNT, C. J., and FULLERTON, HADwas there held without dissent, following | LEY, ROOT, DUNBAR, and CROW, JJ., the current of authority, and giving the policy concur. a fair and reasonable interpretation, that, the policy providing it should be void upon 'any change of title in the property insured,'

(44 Wash. 618)

WRIGHT et us. v. JESSUP. it became void by a transfer of the premises by the owner although the interest of the (Supreme Court of Washington. D.:c. 8, 1906.) assured, a mortgagee, was not changed sub

1. MUNICIPAL CORPORATIONS--STREET ASSESSsequent to the date of the policy. When the MENT LIENS-FORECLOSURE-SALE-PASSING insurance was to the owner of the property, of TITLE.

A city, in a suit to foreclose a lien for a loss, if any, payable to a mortgagee, with

street assessment, recovered judgment and the a similar condition as in this case an aliena- premises were sold and the sale confirmed, and

a sheriff's deed was issued to the purchaser. | chase from the sheriff. On the same day Held, that a party defendant was devested of his Emerson assigned all his right, title, and title, and a subsequent quitclaim deed by him did not pass any title.

interest in the certificate of purchase and the [Ed. Note.For cases in point, see Cent. Dig.

property therein described to the Emerson vol. 36, Municipal Corporations, $ 1293.]

Investment Company, a corporation, by writ2. LIS PENDENS-NOTICE OF PENDENCY OF AC

ten indorsement on the back of the certifiTION - OPERATION – PERSONS BOUND BY cate. On the 4th day of June, 1897, J. S. JUDGMENT.

and J. W. Emerson conveyed the premises A person claiming under an unrecorded assignment of a certificate of purchase at a ju

to the Emerson Investment Company by quitdicial sale is bound by a degree in a suit by a

claim deed. On October 25, 1897, the Emercity to foreclose a lien for a street improvement son Investment Company assigned to Elizato which his grantor was a party and in which

beth Jane Herrman the above certificate of a lis pendens was duly filed. [Ed. Note.For cases in point, see Cent. Dig.

purchase, with all its interest in the premvol. 33, Lis Pendens, $ 47.]

ises therein described, by written indorse3. EJECTMENT-DEFENSES-AVAILABILITY.

ment on the back of the certificate. On the Where, in ejectment, a party claimed as a 28th day of March, 1900, the city of New purchaser at a sale to foreclose a lien of a Whatcom commenced an action in the supericity for a street improvement assessment, the

or court of Whatcom county to foreclose a adverse party, resting his case on the theory that a third person had no interest in the premises,

lien for a street grade assessment against could not complain of the omission to make the the premises, in which action the Emerson third person à party to the suit to foreclose

Investment Company, Henry Herrman, and the lien.


time of filing the complaint, a notice of lis TION TO RELATION.

pendens was filed in the office of the county Where parties were claiming adversely to auditor of Whatcom county. Elizabeth Jane each other, notwithstanding the existence of the

Herrman and H. P. Herrman, her husband, relation of landlord and tenant by operation of law, either might lawfully strengthen his claim were not made parties to this action, but, by obtaining a tax or street assessment deed. at the time of the commencement of the ac

[Ed. Note. For cases in point, see Cent, Dig. tion and at the time of filing the notice of vol. 32, Landlord and Tenant, § 151.]

lis pendens, the records of the auditor's office Appeal from Superior Court, Whatcom in Whatcom county disclosed no interest County; George A. Joiner, Judge.

in the premises in either Elizabeth Jane Action by Chester D. Wright and wife

TIerrman or her husband. The city recovered against Marion Jessup. From a judgment judgment in the foreclosure suit on the 31st for defendant, plaintiffs appeal. Affirmed. day of May, 1900, and on the 14th day of

July, 1900, the premises were sold under Fairchild & Bruce, for appellants. Hardin

execution to the respondent in this action. & Hurlbut and Black, Kindall & Kenyon, for

The sale was duly confirmed, and on the respondent.

9th day of September, 1901, a sheriff's deed

was issued to the purchaser which was reRUDKIN, J. This was an action of eject,

corded on the 26th day of May, 1902. On ment to recover possession of a certain lot May 6, 1902, Henry Herrman executed a in the city of Bellingham. From a judgment quitclaim deed of the premises to G. A. Milin favor of the defendant, the plaintiffs have ler. October 13, 1902, Elizabeth Jane Herrappealed.

man and husband executed a quitclaim The material facts are as follows: On deed of the premises to Leonard E. Miller. and prior to the 13th day of May, 182, On March 14, 1905, Leonard E. Miller and C. Charles G. Hopkins and wife were the own- A. Miller executed a quitclaim deed of the ers of lot 12 of block 13 of the city of What- premises to the appellants. com, now a part of the city of Bellingham. In view of the conclusion we have reached On the 20th day of June, 1894, J. W. Emerson as to the effect of the judgment of forerecovered judgment against Hopkins and closure in the action to foreclose the street wife in the superior court of Whatcom coun- grade assessment and the sheriff's deed isty for the sum of $75, together with costs sued thereunder, we do not deem it necessary and attorney's fees. On the 19th day of to consider other questions discussed in the June, 1895, Hopkins and wife conveyed the briefs. From the foregoing statement it will premises by warranty deed to Henry Herr- be observed that the appellants claim title

On November 16, 1896, J. S. Emerson from two sources: First, through a quitcommenced an action in the superior court claim deed from Henry Herrman; and second, of Whatcom county against Henry Herrman, through a quitclaim deed from Elizabeth Jane and sued out a writ of attachment, under Herrman and H. P. Herrman, her husband. which the premises were levied upon and at- Any right or title Henry Herrman may have tached. On February 23, 1897, judgment had in the premises was vested in him at was rendered in the attachment suit, and the time the action to foreclose the street the attached premises ordered sold. The sale grade assessment was commenced, and at under execution took place on the 3d day the time final judgment was rendered therein. of April, 1897, J. S. Emerson becoming the Henry Herrman was a party to that action, purchaser and receiving a certificate of pur- and, assuming that his title had not bean divested prior to the commencement of the will not be bound if not made a party, even action, the foreclosure judgment and sheriff's though the lis pendens be filed. But, if the deed cut off any interest he had in the claim under the unrecorded instrument is junpremises. The quitclaim deed thereafter exe- ior and inferior to the claim under the mortcuted by him conveyed nothing. On the other gage, the holder thereof is bound absolutely, hand any title or interest the appellants may because he would be so bound if made a party claim through the quitclaim deed from Eliza- defendant." The lien of the street grade asbeth Jane Herrman and husband was vested sessment was paramount and superior to the in Elizabeth Jane Herrman and husband claim of any of the parties hereto, and the at the time of the commencement of the judgment of foreclosure is therefore binding action to foreclose the street grade assess- upon the appellants and those under whom ment, under the unrecorded assignment of they claim by reason of the notice of lis the certificate of purchase from the Emer- pendens. son Investment Company. The Emerson In- It is argued that the wife of George Vauvestment Company was a party to that tier was not made a party to the foreclosure action, and the filing of the notice of lis proceedings, but the appellants' entire case pendens and the subsequent judgment and rests upon the theory that Vautier and wife sheriff's deed cut off any interest the Herr- had no interest in the property.

If this is inans may have acquired through their true, she was neither a necessary nor proper unrecorded assignment. The appellants con- party to that action. If, on the other hand, tend that the respondent and those under the Vautiers had title, the appellants have whom he claims had notice, actual or construc- none, and cannot complain of the omission tive, of the unrecorded assignment, but this to make Mrs. Vautier a party. Furthermore, fact is immaterial. The effect of filing a the Vautiers have conveyed the premises by notice of lis pendens in a foreclosure suit warranty deed to the respondent. was fully considered by this court in Payson Some claim is made that the relation of v. Jacobs, 38 Wash. 203, SO Pac. 429. In that landlord and tenant existed between the par(ase the court said: "This court has fre- ties to this action by construction or operaquently held that the holder of the legal tion of law. The record affords no basis for title to real property is a necessary party this claim, but, if it did, the parties were to an action to foreclose a mortgage or other claiming adversely to each other and either lien against it. Dane v. Daniel, 23 Wash. might lawfully strengthen his claim by ob379, 63 Pac. 268, and cases cited. Since the taining a tax or street assessment deed. holder of the legal title is an essential party Stoll v. Griffith, 41 Wash. 37, 82 Pac. 1025. to such an action, it is equally essential that There is no error in the record, and the the holder of the mortgage or other lien judgment is affirmned. should have certain and definite means of

MOUNT, C. J., and FULLERTON, HADascertaining who is the holder of the legal title within this rule. In our opinion our



concur. statute furnishes such means. Ballinger's Ann. Codes & St. § 4887, provides for the filing of a notice of lis pendens in actions

(44 Wash. 602) affecting the title to real property, and that,

STATE V. TIFFANY et al. from the time of filing such notice, the pen- (Supreme Court of Washington. Dec. 8, 1906.) dency of the action is constructive notice to

1. INFORMATION-STATUTORY OFFENSES-LANpurchasers and incumbrancers of the property GUAGE OF STATUTE. affected by the action, 'and every person

In a prosecution for a statutory crime, the

information need only charge the crime in the whose conveyance or incumbrance is subse

language of the statute. quently executed or subsequently recorded

[Ed. Note.--For cases in point, see Cent. Dig. shall be deemed a subsequent purchaser vol. 27, Indictment and Information, $8 288 or incumbrancer, and. shall be bound by 294.] all proceedings taken after the filing of 2. WATERS AND WATER COURSES-IRRIGATION such notice, to the same extent as if he


In a prosecution under Ballinger's Ann. were a party to the action.'” And, after

Codes & St. $ 7151, providing that every person discussing other questions not material here, who shall “willfully or maliciously" cause any the opinion concludes as follows: "As stat- aperture in any structure erected to conduct ed above, the correct rule is that the claim

water for agricultural purposes shall be punish

ed, an information was sufficient which charged ant under an unrecorded instrument is bound

that the act complained of was committed "unby the judgment of foreclosure, to the same lawfully and willfully." extent and in the same manner as if he 3. STATUTES – CONSTRUCTION PARTICULAR

WORDS. were a party to the action where the lis

The word "or," as used in Ballinger's Ann. pendens is filed. If the claim under the un

Codes & St. § 7154, providing for the punishrecorded instrument is superior and para- ment of persons who shall “willfully or malimount to the claim of the plaintiff in the fore- ciously” commit certain acts, cannot be conclosure, and the plaintiff had notice of such strued as “and.”

4. WATERS AND WATER COURSES-IRRIGATION unrecorded instrument, the claimant under

-OFFENSES-INFORMATION. the unrecorded instrument would not be

Under Ballinger's Ann. Codes & St. $ 7151, bound as a party to the action, and therefore | providing for the punishment of persons causing

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to be made any aperture in any structure that the words "willfully or maliciously” is erected to conduct water for "agricultural pur- the statute should be read "willfully and maposes," with intent to destroy same, an informa

liciously," and that the information is defecttion was sufficient which charged that the structure was erected to conduct water for "ir- ive because it does not charge that the act rigation purposes."

complained of was committed maliciously. 5. SAME.

“The first and most elementary rule of conBallinger's Ann. Codes & St. § 7154, pro

struction is that it is to be assumed that the viding for the punishment of persons who shall willfully or maliciously make any aperture in

words and phrases are used in their technical “any milldam, canal, flume, agueduct, reservoir, meaning if they have acquired one, and in embankment, or other structure erected to con- their popular meaning if they have not, and duct water for agricultural purposes," includes a dam erected for storing and conducting water

that the phrases and sentences are to be confor irrigation purposes.

strued according to the rules of grammar; Appeal from Superior Court, Kittitas Coun

and from this presumption it is not allon

able to depart, unless adequate grounds are ty; H. B. Rigg, Judge. R. K. Tiffany and J. A. Driscoll were

found, either in the context or in the congecharged with attempting to destroy a dam,

quences which would result from the literal in violation of Ballinger's Ann, Codes & St.

interpretation, for concluding that that in§ 7154, and from an order sustaining a mo

terpretation does not give the real intention tion in arrest of judgment after verdict, the

of the Legislature.” Endlich on Interpreta

tion of Statutes, $ 2. No doubt "or" is somestate appeals. Reversed.

times construed to mean "and," and vice ver. Austin Mires and W. H. Bogle, for the

sa, in statutes, wills, and contracts. Thus State. Ira P. Englehart and E. F. Blaine,

in State v. Mitchell, 27 N. C. 330, "or" for respondents.

was construed to mean "and" in a statute

providing for the punishment of any person RUDKIN, J. This is an appeal from an

who should willfully or maliciously burn the order sustaining a motion in arrest of judg.

statehouse or any of the public offices of the ment after verdict, and discharging the de

state, or any courthouse, jail, etc. In Rolfendants on the ground that the facts charg.

land v. Commonwealth, 82 Pa. 306, 22 Am. ed in the information do not constitute a

Rep. 758, "or" was construed to mean "and" crime or misdemeanor. The information,

in a statute defining the crime of burglary omitting formal parts, is as follows: "That

as the breaking or entering of a dwelling they, the said R. K. Tiffany and J. A. Dris

house. In the former case the original enactcoll, in Kittitas county, state of Washington,

ment contained the word "and.” but “when on or about the seventeenth day of August, 1905, then and there being, did then and

the acts of the General Asseinbly came to be

revised, by some mistake, the word 'or' was there unlawfully and willfully make and cause to be made an aperture in a struc

inserted in the statute in place of the con

junction 'and.'” In the latter case, it was ture known as a 'dam,' erected in and across the Cle Llum river, at the foot of Cle Llum

necessary to construe the word “or” to mean lake, for storing and conducting water for

"and," otherwise the section in which the irrigation purposes, by unlawfully and will

word appeared would define the same crime fully then and there placing and exploding

as another section of the statute to which a powder known as 'dynamite,' with intent

different penalty was attached. But the then and there to injure and destroy said | plain language of a statute can only be disstructure. The said structure then and there

regarded, and this exceptional rule of conbeing the property of the Union Gap Irriga

struction can only be resorted to where the

act itself furnishes cogent proof of the legtion Company, a corporation." The information was filed under section 7154, Ballinger's

islative error. It is argued in this case that Ann. Codes & St. The provisions of that sec

because the Legislature declared that certain tion, so far as material to the present in

acts specified in the first part of the section quiry, are as follows: Every person who

must be committed willfully and maliciously, shall willfully or maliciously make or cause

therefore, the use of the words "willfully or to be made any aperture in any milldam, maliciously” in the latter part of the section canal, flume, aqueduct reservoir, embank- in reference to other acts is an apparent erment, or other structure erected to conduct ror. It might be urged with equal force that water for agricultural purposes, with intent since the Legislature changed the phraseology to injure or destroy the same, shall, upon in the latter part of the section, the change conviction thereof, be punished, etc.

etc. This was made advisedly and for a purpose. We being a prosecution for a statutory crime, the are satisfied that the act under consideration information need only charge the crime in contains no such evidence of error or mistake the language of the statute, and there is little as would warrant us in disregarding its plain room for argument or discussion, except to language. The word "or" cannot be concompare the language of the information with strued to mean “and” where the words, "willthe language of the statute defining the crime. fully or wantonly," or "willfully, maliciously, After such comparison, we fail to see where or wantonly," are used in defining a crime. in the information is deficient.

Rountree v. State, 10 Tex. App. 110; Werner The first contention of the respondents is v. State, 93 Wis. 266, 67 N. W. 417.

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