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London and Edinburgh. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

Harold Preston, for appellant. Hartnett & Sheller, for respondent.

RUDKIN, J. On the 18th day of February, 1904, the defendant company issued its policy of insurance to one Polly P. Belrood, whereby it insured a certain one and onehalf story frame building in the sum of $600 for a period of three years against loss or damage by fire. The policy contained the following provision, among others: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void *** if any change, other than by death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured, or otherwise. * * * On the 1st day of April, 1905, the plaintiff purchased and became the rightful owner of the property described in the policy, and on the same date an agreement continuing the insurance in his favor was added thereto. On the 9th day of April, 1905, the plaintiff conveyed the premises described in the policy to one Frank B. Thacker by good and sufficient deed, and on the same date Thacker executed and delivered to the plaintiff a purchase-money mortgage on the property in the sum of $700. Whether or not this was the entire purchase price does not appear. Neither the defendant nor any of its agents had notice or knowledge of the transfer from the plaintiff to Thacker, or of the mortgage from Thacker to the plaintiff, until after the destruction of the premises by fire, and consent to such transfer was never indorsed on or appended to the policy. On the 9th day of August, 1905, the building described in the policy was destroyed by fire. On the 23d day of August, 1905, Thacker assigned to the plaintiff any interest he might have in the policy, and the latter demanded payment of the amount of the policy from the insurance company, but payment was refused. The court found in addition to the foregoing facts that the plaintiff and Thacker were ranchers having no experience in matters appertaining to insurance, and that, at the time of the transfer to Thacker, the plaintiff supposed that the policy was enforceable in his favor as mortgagee, in the event of loss. It was further stipulated by the parties that the plaintiff acted in good faith and without fraud in all matters relating to the insurance. On the foregoing facts the court below entered a judgment in favor of the plaintiff for the full amount of the policy, and the defendant appeals therefrom.

The only question presented on the appeal is whether the policy was avoided by the

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transfer from the respondent to Thacker, without the consent of the appellant company indorsed on or added to the policy. Policies of insurance are rightfully construed most strongly against the insurance companies under whose supervision they are prepared and executed, and if they contain contradictory provisions, some of which will work a forfeiture and others not, the latter will control. But while policies are construed strictly, against the insurer, and while forfeitures are not favored in law, yet, courts cannot make new contracts for parties nor grant relief where a forfeiture has accrued under the plain and unambiguous terms of the contract. As said by the court in Imp. Ins. Co. v. Coos Co., 151 U. S. 463, 14 Sup. Ct. 381, 38 L. Ed. 231, "The rule is well settled that contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous their terms are to be taken and understood in their plain, ordinary, and popular sense." An insurance company has the right to determine for itself whom it will insure and what interest it will insure, and to provide that any change in such interest without its consent will work a forfeiture of the policy. The policy before us provides in plain and unmistakable terms that any change in interest, title, or possession of the subject-matter of insurance shall avoid the policy, unless otherwise provided by agreement indorsed thereon or added thereto. Has this provision been violated; or in other words, does an absolute conveyance of the subject of the insurance with a mortgage back to secure the purchase money in whole or in part work a change in interest, title, or possession? A mortgage under our law is a mere lien or security for the payment of money, and does not convey any title to the mortgagee. Dane v. Daniel, 23 Wash. 379, 63 Pac. 268. There has therefore been an entire change of interest and title. A fee-simple title has been converted into a mere lien, and the respondent is no longer the owner of the property at law or in equity. As said by the Court of Appeals of New York in a similar case: "The insurers and insured may agree upon the terms of the contract, and make its validity or continuance depend upon any terms and conditions, lawful in themselves, which they may deem reasonable or proper; and whether reasonable or unreasonable is for them, not for the courts, to determine. The title of the insured to the property at risk, and the measure and extent of his interest, is, in the nature of things, a material subject of inquiry in the making of the contract. The insurers have a right to know to what extent the insured has the ability to protect or interest in protecting the property against the perils insured against, and whether other parties have insurable interests which may

enable those interested to secure, in the aggregate, insurances in excess of the value of the property. The insurers certainly had the right to treat any change or alteration either of title or possession as material, and provide that such alteration or change should avoid the policy; and if the assured assented to the contract with this condition and limitation, effect must be given to the condition according to its terms. Davenport v. New England Ins. Co., 6 Cush. (Mass.) 340; Edmands v. Mutual Safety F. Ins. Co., 1 Allen (Mass.) 311, 79 Am. Dec. 746. As well the insured as the insurers are interested in the faithful observance of the conditions of the contract. The premium demanded is essentially regulated by the conditions of the contract and the risk assumed, and if conditions deemed material by the insurers are disregarded by the insured or nullified by the courts, the insurers will be made to suffer in the increased cost of insurance, as all will be made to pay for absolute and extreme risks. *** While the interests of the owner in fee and the mortgagee are both insurable, and each may have independent insurances, each covering his own interest, the interests are entirely distinct, and the rights and obligations of the parties to the contract different. Had the plaintiff been insured as mortgagee, the insurer, upon payment of a loss, would be entitled to be subrogated to the rights of the mortgagee against the mortgagor. The distinction between an issue based on a denial of an insurable interest, and the question whether there had been an alienation or change of title, was recognized in Orrell v. Hampden F. Ins. Co., 13 Gray (Mass.) 431. A change of title valid as between the parties was treated as a breach of the condition, but there no alienation was proved. A mortgage is not an alienation of the property mortgaged; but when the condition of the policy was that 'all alienations and alterations in the ownership,' etc., of the property should make void the policy, a mortgage was held to be an alteration of the ownership and to make void the insurance. Edmands v. Mut. Safety F. Ins. Co., 1 Allen (Mass.) 311. The court thought it material to the insurers to know who had title to or interest in the property insured. The question was directly before this court in Springfield F. & M. Ins. Co. v. Allen, 43 N. Y. 389, 3 Am. Rep. 711, and it was there held without dissent, following the current of authority, and giving the policy a fair and reasonable interpretation, that, the policy providing it should be void upon 'any change of title in the property insured,' it became void by a transfer of the premises by the owner although the interest of the assured, a mortgagee, was not changed subsequent to the date of the policy. When the insurance was to the owner of the property, loss, if any, payable to a mortgagee, with a similar condition as in this case an aliena

tion of the property by the mortgagor was adjudged to make void the policy. Grosvenor V. Atlantic F. Ins. Co. of Brooklyn, 17 N. Y. 391. The condition is not capable of two readings, and the courts have no right under the pretense of interpretation to nullify a material provision inserted for the reasonable protection of the insurers, and thus exercise a dispensing power in favor of the insured. It cannot be said that a conveyance of the fee, and the taking back a mortgage for the purchase money, is not as well a sale or transfer as a change of title. It is sufficient, to put an end to the policy, that there has been a change in the title; and no one can say that a conveyance of the fee, and substituting the interest of a mortgagee in the insured, is not a substantial change in the title. But the sale or transfer of the property was complete and absolute, and the retaining a lien for the purchase money, either in the form of a mortgage or otherwise, did not change the character or effect of the conveyance. The fact that, to preserve equities and exclude liens which might otherwise defeat purchase-money liens, courts regard a deed of conveyance and purchase-money mortgage as simultaneous, and the rights of the parties as if the title to the amount of the mortgage interest had never passed out of the grantor, does not aid in construing this contract, or tend to establish the claim of the respondent that there has been no transfer of the property." Savage v. Howard Insurance Company, 52 N. Y. 502, 11 Am. Rep. 741. See, also, Northern Assurance Co. v. City Sav. Bank, 45 S. W. (Tex. Civ. App.) 737; Farmers' Ins. Co. v. Archer, 36 Ohio St. 608; 13 Am. & Eng. Ency. Law (2d Ed.) 241-244, and cases cited. Cases holding that a conveyance and mortgage back do not work a forfeiture of a contract of insurance will be found in general to be based upon different provisions in the policy under consideration. or from jurisdictions where a mortgage is held to be a conveyance leaving no interest in the mortgagor except a mere right of redemption. We are therefore of opinion that the policy in suit was avoided by a change of title and interest in the subject of insurance, and the judgment is accordingly reversed with directions to dismiss the action.

MOUNT, C. J., and FULLERTON, HADLEY, ROOT, DUNBAR, and CROW, JJ.,

concur.

(44 Wash. 618)

WRIGHT et ux. v. JESSUP. (Supreme Court of Washington. Dec. 8, 1906.) 1. MUNICIPAL CORPORATIONS-STREET ASSESSMENT LIENS-FORECLOSURE-SALE-PASSING OF TITLE.

A city, in a suit to foreclose a lien for a street assessment, recovered judgment and the premises were sold and the sale confirmed, and

a sheriff's deed was issued to the purchaser. Held, that a party defendant was devested of his title, and a subsequent quitclaim deed by him did not pass any title.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1293.] 2. LIS PENDENS-NOTICE OF PENDENCY OF ACTION OPERATION PERSONS BOUND BY JUDGMENT.

A person claiming under an unrecorded assignment of a certificate of purchase at a judicial sale is bound by a degree in a suit by a city to foreclose a lien for a street improvement to which his grantor was a party and in which a lis pendens was duly filed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33. Lis Pendens, § 47.]

3. EJECTMENT-DEFENSES-AVAILABILITY.

Where, in ejectment, a party claimed as a purchaser at a sale to foreclose a lien of a city for a street improvement assessment, the adverse party, resting his case on the theory that a third person had no interest in the premises, could not complain of the omission to make the third person a party to the suit to foreclose the lien.

4. LANDLORD AND TENANT-EXISTENCE OF RELATION-ACQUISITION OF TITLE IN OPPOSITION TO RELATION.

Where parties were claiming adversely to each other, notwithstanding the existence of the relation of landlord and tenant by operation of law, either might lawfully strengthen his claim by obtaining a tax or street assessment deed. [Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 151.]

Appeal from Superior Court, Whatcom County; George A. Joiner, Judge.

Action by Chester D. Wright and wife against Marion Jessup. From a judgment for defendant, plaintiffs appeal. Affirmed.

Fairchild & Bruce, for appellants. Hardin & Hurlbut and Black, Kindall & Kenyon, for respondent.

RUDKIN, J. This was an action of ejectment to recover possession of a certain lot in the city of Bellingham. From a judgment in favor of the defendant, the plaintiffs have appealed.

The material facts are as follows: On and prior to the 13th day of May, 1892, Charles G. Hopkins and wife were the owners of lot 12 of block 13 of the city of Whatcom, now a part of the city of Bellingham. On the 20th day of June, 1894, J. W. Emerson recovered judgment against Hopkins and wife in the superior court of Whatcom county for the sum of $75, together with costs and attorney's fees. On the 19th day of June, 1895, Hopkins and wife conveyed the premises by warranty deed to Henry Herrman. On November 16, 1896, J. S. Emerson commenced an action in the superior court of Whatcom county against Henry Herrman, and sued out a writ of attachment, under which the premises were levied upon and attached. On February 23, 1897, judgment was rendered in the attachment suit, and the attached premises ordered sold. The sale under execution took place on the 3d day of April, 1897, J. S. Emerson becoming the purchaser and receiving a certificate of pur

chase from the sheriff. On the same day Emerson assigned all his right, title, and interest in the certificate of purchase and the property therein described to the Emerson Investment Company, a corporation, by written indorsement on the back of the certificate. On the 4th day of June, 1897, J. S. and J. W. Emerson conveyed the premises to the Emerson Investment Company by quitclaim deed. On October 25, 1897, the Emerson Investment Company assigned to Elizabeth Jane Herrman the above certificate of purchase, with all its interest in the premises therein described, by written indorsement on the back of the certificate. On the 28th day of March, 1900, the city of New Whatcom commenced an action in the superior court of Whatcom county to foreclose a lien for a street grade assessment against the premises, in which action the Emerson Investment Company, Henry Herrman, and others, were made defendants, and, at the time of filing the complaint, a notice of lis pendens was filed in the office of the county auditor of Whatcom county. Elizabeth Jane Herrman and H. P. Herrman, her husband, were not made parties to this action, but, at the time of the commencement of the action and at the time of filing the notice of lis pendens, the records of the auditor's office in Whatcom county disclosed no interest in the premises in either Elizabeth Jane Herrman or her husband. The city recovered judgment in the foreclosure suit on the 31st day of May, 1900, and on the 14th day of July, 1900, the premises were sold under execution to the respondent in this action. The sale was duly confirmed, and on the 9th day of September, 1901, a sheriff's deed was issued to the purchaser which was recorded on the 26th day of May, 1902. On May 6, 1902, Henry Herrman executed a quitclaim deed of the premises to G. A. Miller. October 13, 1902, Elizabeth Jane Herrand husband executed a quitclaim deed of the premises to Leonard E. Miller. On March 14, 1905, Leonard E. Miller and C. A. Miller executed a quitclaim deed of the premises to the appellants.

In view of the conclusion we have reached as to the effect of the judgment of foreclosure in the action to foreclose the street grade assessment and the sheriff's deed issued thereunder, we do not deem it necessary to consider other questions discussed in the briefs. From the foregoing statement it will be observed that the appellants claim title from two sources: First, through a quitclaim deed from Henry Herrman; and second, through a quitclaim deed from Elizabeth Jane Herrman and H. P. Herrman, her husband. Any right or title Henry Herrman may have had in the premises was vested in him at the time the action to foreclose the street grade assessment was commenced, and at the time final judgment was rendered therein. Henry Herrman was a party to that action, and, assuming that his title had not been

divested prior to the commencement of the action, the foreclosure judgment and sheriff's deed cut off any interest he had in the premises. The quitclaim deed thereafter executed by him conveyed nothing. On the other hand any title or interest the appellants may claim through the quitclaim deed from Elizabeth Jane Herrman and husband was vested in Elizabeth Jane Herrman and husband at the time of the commencement of the action to foreclose the street grade assessment, under the unrecorded assignment of the certificate of purchase from the Emerson Investment Company. The Emerson Investment Company was a party to that action, and the filing of the notice of lis pendens and the subsequent judgment and sheriff's deed cut off any interest the Herrmans may have acquired through their unrecorded assignment. The appellants contend that the respondent and those under whom he claims had notice, actual or constructive, of the unrecorded assignment, but this fact is immaterial. The effect of filing a notice of lis pendens in a foreclosure suit was fully considered by this court in Payson v. Jacobs, 38 Wash. 203, 80 Pac. 429. In that case the court said: "This court has frequently held that the holder of the legal title to real property is a necessary party to an action to foreclose a mortgage or other lien against it. Dane v. Daniel, 23 Wash. 379, 63 Pac. 268, and cases cited. Since the holder of the legal title is an essential party to such an action, it is equally essential that the holder of the mortgage or other lien should have certain and definite means of ascertaining who is the holder of the legal title within this rule. In our opinion our statute furnishes such means. Ballinger's Ann. Codes & St. § 4887, provides for the filing of a notice of lis pendens in actions. affecting the title to real property, and that, from the time of filing such notice, the pendency of the action is constructive notice to purchasers and incumbrancers of the property affected by the action, and every person whose conveyance or incumbrance is subsequently executed or subsequently recorded shall be deemed a subsequent purchaser or incumbrancer, and. shall be bound by all proceedings taken after the filing of such notice, to the same extent as if he were a party to the action." And, after discussing other questions not material here, the opinion concludes as follows: "As stated above, the correct rule is that the claimant under an unrecorded instrument is bound by the judgment of foreclosure, to the same extent and in the same manner as if he were a party to the action where the lis pendens is filed. If the claim under the unrecorded instrument is superior and paramount to the claim of the plaintiff in the foreclosure, and the plaintiff had notice of such unrecorded instrument, the claimant under the unrecorded instrument would not be bound as a party to the action, and therefore

will not be bound if not made a party, even though the lis pendens be filed. But, if the claim under the unrecorded instrument is junior and inferior to the claim under the mortgage, the holder thereof is bound absolutely, because he would be so bound if made a party defendant." The lien of the street grade assessment was paramount and superior to the claim of any of the parties hereto, and the judgment of foreclosure is therefore binding upon the appellants and those under whom they claim by reason of the notice of lis pendens.

It is argued that the wife of George Vautier was not made a party to the foreclosure proceedings, but the appellants' entire case rests upon the theory that Vautier and wife had no interest in the property. If this is true, she was neither a necessary nor proper party to that action. If, on the other hand, the Vautiers had title, the appellants have none, and cannot complain of the omission to make Mrs. Vautier a party. Furthermore, the Vautiers have conveyed the premises by warranty deed to the respondent.

Some claim is made that the relation of landlord and tenant existed between the parties to this action by construction or operation of law. The record affords no basis for this claim, but, if it did, the parties were claiming adversely to each other and either might lawfully strengthen his claim by obtaining a tax or street assessment deed. Stoll v. Griffith, 41 Wash. 37, 82 Pac. 1025.

There is no error in the record, and the judgment is affirmed.

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

(44 Wash. 602)

STATE v. TIFFANY et al. (Supreme Court of Washington. Dec. 8, 1906.) 1. INFORMATION-STATUTORY OFFENSES-LANGUAGE OF STATUTE.

In a prosecution for a statutory crime, the information need only charge the crime in the language of the statute.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 288294.]

2. WATERS AND WATER COURSES-IRRIGATION -OFFENSES-INFORMATION.

In a prosecution under Ballinger's Ann. Codes & St. § 7154, providing that every person who shall "willfully or maliciously" cause any aperture in any structure erected to conduct water for agricultural purposes shall be punished, an information was sufficient which charged that the act complained of was committed “unlawfully and willfully."

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to be made any aperture in any structure erected to conduct water for "agricultural purposes," with intent to destroy same, an information was sufficient which charged that the structure was erected to conduct water for "irrigation purposes." 5. SAME.

Ballinger's Ann. Codes & St. § 7154, providing for the punishment of persons who shall willfully or maliciously make any aperture in "any milldam, canal, flume, aqueduct, reservoir, embankment, or other structure erected to conduct water for agricultural purposes," includes a dam erected for storing and conducting water for irrigation purposes.

Appeal from Superior Court, Kittitas County; H. B. Rigg, Judge.

R. K. Tiffany and J. A. Driscoll were charged with attempting to destroy a dam, in violation of Ballinger's Ann. Codes & St.

7154, and from an order sustaining a motion in arrest of judgment after verdict, the state appeals. Reversed.

Austin Mires and W. H. Bogle, for the State. Ira P. Englehart and E. F. Blaine, for respondents.

RUDKIN, J. This is an appeal from an order sustaining a motion in arrest of judg ment after verdict, and discharging the defendants on the ground that the facts charged in the information do not constitute a crime or misdemeanor. The information, omitting formal parts, is as follows: "That they, the said R. K. Tiffany and J. A. Driscoll, in Kittitas county, state of Washington, on or about the seventeenth day of August, 1905, then and there being, did then and there unlawfully and willfully make and cause to be made an aperture in a structure known as a 'dam,' erected in and across the Cle Llum river, at the foot of Cle Llum lake, for storing and conducting water for irrigation purposes, by unlawfully and willfully then and there placing and exploding powder known as 'dynamite,' with intent then and there to injure and destroy said

structure. The said structure then and there being the property of the Union Gap Irrigation Company, a corporation." The information was filed under section 7154, Ballinger's Ann. Codes & St. The provisions of that section, so far as material to the present inquiry, are as follows: Every person who shall willfully or maliciously make or cause to be made any aperture in any milldam, canal, flume, aqueduct, reservoir, embankment, or other structure erected to conduct water for agricultural purposes, with intent to injure or destroy the same, shall, upon conviction thereof, be punished, etc. This being a prosecution for a statutory crime, the information need only charge the crime in the language of the statute, and there is little room for argument or discussion, except to compare the language of the information with the language of the statute defining the crime. After such comparison, we fail to see wherein the information is deficient.

The first contention of the respondents is

that the words "willfully or maliciously" in the statute should be read "willfully and maliciously," and that the information is defective because it does not charge that the act complained of was committed maliciously. "The first and most elementary rule of construction is that it is to be assumed that the words and phrases are used in their technical meaning if they have acquired one, and in their popular meaning if they have not, and that the phrases and sentences are to be construed according to the rules of grammar; and from this presumption it is not allowable to depart, unless adequate grounds are found, either in the context or in the consequences which would result from the literal interpretation, for concluding that that interpretation does not give the real intention of the Legislature." Endlich on Interpretation of Statutes, § 2. No doubt "or" is sometimes construed to mean "and," and vice ver sa, in statutes, wills, and contracts. Thus in State v. Mitchell, 27 N. C. 350, "or" was construed to mean "and" in a statute providing for the punishment of any person who should willfully or maliciously burn the statehouse or any of the public offices of the state, or any courthouse, jail, etc. In Rolland v. Commonwealth, 82 Pa. 306, 22 Am. Rep. 758, "or" was construed to mean "and" in a statute defining the crime of burglary as the breaking or entering of a dwelling house. In the former case the original enactment contained the word "and." but "when the acts of the General Assembly came to be revised, by some mistake, the word 'or' was inserted in the statute in place of the conjunction 'and.'" In the latter case, it was necessary to construe the word "or" to mean "and," otherwise the section in which the word appeared would define the same crime as another section of the statute to which a different penalty was attached. But the plain language of a statute can only be disregarded, and this exceptional rule of construction can only be resorted to where the act itself furnishes cogent proof of the legislative error. It is argued in this case that because the Legislature declared that certain acts specified in the first part of the section must be committed willfully and maliciously, therefore, the use of the words "willfully or maliciously" in the latter part of the section in reference to other acts is an apparent error. It might be urged with equal force that since the Legislature changed the phraseology in the latter part of the section, the change was made advisedly and for a purpose. We are satisfied that the act under consideration contains no such evidence of error or mistake as would warrant us in disregarding its plain language. The word "or" cannot be construed to mean "and" where the words, "willfully or wantonly," or "willfully, maliciously, or wantonly," are used in defining a crime. Rountree v. State, 10 Tex. App. 110; Werner v. State, 93 Wis. 266, 67 N. W. 417.

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