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BRIDGES, J. This is a very interesting will be harsh and oppressive. These princisuit in equity. In December, 1911, Charles ples are supported by the following cases: H. Arland and his wife, Mary E. Arland, Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. entered into a written agreement concerning Dec. 773; Alexander on Wills, $ 97; Runall their property which belonged to the dell v. McDonald, 41 Cal. App. 175, 182 P. community. By its terms each agreed to, 450; Owens v. McNally, 113 Cal. 444, 45 P. and did, execute to the other a warranty 710, 33 L. R. A. 369. In a general way we deed, covering all of the property; the con- have recognized this rule in Bernard v. Bentract providing that such deed should have son, 58 Wash. 191, 108 P. 439, 137 Am. St. the effect of vesting in the survivor the en- Rep. 1051, where we said: tire title. These deeds were to be, and were,

“We think the true rule, and the one which put in escrow to be held until the death of best harmonizes with the broad principles of eqone of the parties, and then the proper deed uity, is that specific performance will be dewas to be delivered to the survivor. It was nied when rights of innocent third parties have further agreed that the survivor should im intervened so that the enforcement of the con. mediately upon the death of the other party tract would be harsh, oppressive, or unjust to make a will, giving whatever he or she had

them." at his or her death to the children of the [4] While there are many equities in favor contracting parties. Mrs. Arland died within of the appellants, we think they are overa year after the execution of this contract, come by the greater equities of the respondand Mr. Arland at once obtained from the ent. She married Mr. Arland in entire igescrow holder the deed running from his norance of the contract between him and his deceased wife to himself. About four years deceased wife. She lived with him for six thereafter he married again. He died about years and cared for him during his old age. six years after his second marriage, leaving In so doing she must have relieved the appelhis wife, Josephine, surviving him. At the lants of many duties which otherwise would time of his death he was 79 or 80 years of have been imposed upon them. In a sense age. There were no children resulting from her equities are based on an actual considthe second marriage. He did not make the eration, while theirs are based on the right will contemplated by the contract between of heirship. She obtains only one-third of himself and his first wife, but did make one the estate. The appellants obtain all that giving to his second wife a one-third interest | portion which formerly belonged to their in his estate; the remainder being given to mother and some in addition thereto. If the his children (all by the first wife). The sec- contract did not exist, no one would think ond wife had no knowledge of the contract of denying that an equitable division had or its terms until after the death of Mr. been made. Under our statute, section 1399, Arland. From the time of the death of his Rem. Comp. Stat., if Mr. Arland had made first wife until his second marriage and there the will provided for in the contract, it would after he and his wife lived on the property have been avoided by his marriage to the rein question. They did not add to the estate spondent. His widow is his heir as well as. that was in existence at the time of the the children, for the statute provides that in death of his first wife; but, on the contrary, the event one die intestate leaving wife a small portion of it was expended for their and children one-third of his estate shall go living. The foregoing facts are set out in to his wife. Section 1341, Rem. Comp. Stat. a stipulation which provides that the ques. If the respondent had been an innocent purtion to be determined "is as to the right of chaser for value of all the property in questhe petitioner, Josephine E. Arland, to the tion, and not the widow, courts of equity portion of the estate of Charles H. Arland, would not, for a moment, think of enforcing deceased, bequeathed to her under his last the contract against her. While in the ordiwill and testament.

The trial nary sense she is not a purchaser, in an equicourt upheld Mr. Arland's will, and the chil- table sense she is in as favorable a position dren have appealed.

as if she were such. It is quite true that as [1-3] This case rests entirely upon equita- between the appellants and their father or ble principles. The court is free to do that as between him and his deceased wife the which its conscience dictates. Contracts of contract would unquestionably be enforced, the character of the one in yolved here will but that situation would not take into conhe enforced if equity so demands, but al. sideration the equities of the respondent.

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it will not be enforced if by so doing the this question. The one most nearly in point rights of others will be invaded. The court | is Owens v. McNally, supra. There the facts may not, in its anxiety to relieve one party, were: McNally lived in California, was uninflict a wrong upon another who is entirely married, was more than 50 years of age, innocent. In other words, a contract to de- and had an estate of considerable value. He vise property is valid and enforceable unless had a niece about 18 years of age who lived superior equities have intervened. Equity in Michigan. He promised her that if she will not enforce a contract where the result would come and live with him he would, upon

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(230 P.) his death, leave her all of his property. Re-, ing her. The court there held that while the lying on this oral agreement, she went to subsequent marriage of the aunt probably California and lived with and cared for him revoked the will, yet the equities were all in for a number of years, when he married and favor of the plaintiff and that the contract at his death, left a will, giving his property would be enforced. The chief ground upon to his wife./who at all tim had been entire which the court held for the plaintiff was ly ignorant of the contract between McNal- that he, being the owner of the property, ly and his niece. The latter sued to en- had, without consideration, deeded it to his force the contract with her uncle. The court aunt upon agreement that it should be resaid:

turned to him at her death. It was claimed "The defendant widow married McNally in ig- there that the McNally Case was controlling, norance of the contract, and, it appears, con- but the court said: tinued in ignorance of the contract until after (“We believe there are material points of dishis death. She acquired distinct rights of heir- | tinction between the respective equities as ship and succession. There might have been shown in Owens v. McNally and all the other children born of the marriage, with similar cases cited to the same point, and those aprights. It is true that these rights vested after parent in the case at bar." the contract was made, but, where a bill is brought for the specific performance of a con

The court then proceeds at length to set tract, the after-acquired rights of third parties out the various differences, and concludes are equitable considerations to be regarded in adjudicating the questions.

A specific that the equities were with the plaintiff, performance of this contract cannot, therefore,

The appellants also cite Dillon v. Gray, 87 be decreed without sweeping aside, as of no Kan. 129, 123 P. 878.) There the facts were. moment or avail, the rights of the wife and that Andrew Gray and his wife lived on a widow, vested under a contract most strongly farm owned by them. They procured one of favored by the law. Specific performance, as their daughters and her husband to come we have said, is not to be decreed under strict and live with them and look after their rule and formula. Every consideration which may properly be urged upon the court is to be needs on the promise that upon their death weighed and passed upon, and it will be decreed they would leave the farm and everything only when no other adequate relief is available they owned to them. Relying on this promto plaintiff, and even then it will be denied if ise, they complied with the agreement. Some it operates by way of a hardship upon the in- years afterwards, the farmer's wife having rocent."

died, he remarried. He left a will by the The court concluded that the equities of terms of which he gave to three of his sons the widow were superior to those of the all of the property except $25 to his second niece.

wife and $200 to another of his daughters. Mr. Alexander, in his work on Wills (sec- The suit was for specific performance of tion 97), after saying that specific perform the contract. The court said: ance will not be granted to the injury of in “In the present case the contract was based nocent persons, uses this language:

upon an adequate consideration and has been

fully executed on the part of the plaintiffs. No "Thus it might be inequitable to grant spe- circumstances or conditions are shown which cific performance against the estate of a de- render it inequitable, and the decree which the cedent who had agreed to will all of his prop- court made charging the funds in the executor's erty to another, the promisor having subse- hands with a trust in favor of the plaintiffs quently married and the wife having been in ig- is fully warranted by the evidence and findnorance of the agreement. Equity will not en- ings." force a contract where the result will be harsh or oppressive. And since the law presumes It will be noticed that the dispute there that wills are revoked by marriage or by mar was between children with whom the conriage and the birth of issue, it may be said tract had been made and who had performed that all parties to a contract to make a will must have done so with the statute in view.” special services and other children whose

only claim was based on the right of inherAppellants cite Rundell v. MeDonald, su- itance.) It seems to us that the distinction pra, as laying down a contrary doctrine to between the two cases is at once manifest, that stated in Owens v. McNally, supra, by and that this case is no authority for the apthe same court. There the facts were that pellants. the plaintiff owned some real estate which he We have read all the other cases cited in deeded to his aunt without other considera- the briefs, but do not consider them of suffition than her agreement to return it to him cient importance to require discussion. by devise at her death. Pursuant to this The superior equities are with the respondagreement, the aunt made a will giving the ent, and the judgment is affirmed.) property to the plaintiff and subsequently married and later died without having made MAIN, C. J., and FULLERTON, MITCHany other will, leaving her husband surviv. ELL, and PEMBERTON, JJ., concur.

was

the indorsement so that it would show that WALSH v. WESCOATT et ux. (No. 18694.) it was without recourse. The appellant in

his reply denied that there was any agree(Supreme Court of Washington. Nov. 18, 1924.)

ment that the note was to be indorsed with

out recourse, and further alleged that the re. 1. Equity em 65(2), 66–1f defendants indors. spondents were not in position to seek relief

ing note secured by mortgage misrepresented from a court of equity, because in their efland mortgaged they cannot reform unqualified fort to consummate the business transaction indorsement to one without recourse, in view they had fraudulently misrepresented the of equity maxim. In indorsee's action against indorsers of

land on which the mortgage was given which note secured by mortgage, if defendants mis- secured the note sued on; and that he had represented the land mortgaged, and plaintiff no personal knowledge concerning the lands relied thereon, defendants could not, regardless or the value of the security, and did not of good intention therein, secure reformation of have any opportunity prior to the consumtheir unqualified indorsement of note, to read mation of the transaction to examine the "without recourse,” because he who seeks eq- lands or inquire about them, and that he reuity must come with clean bands, and must do lied on the representations so made. equity.

On these facts the case went to trial. 2. Equity m66–Equity will deny relief to mis. Considerable testimony

introduced: representing party retaining benefits, regard. First, on the question of indorsement, and, less of intent.

second, on the question of the alleged misEquity will deny relief to party misrepre- representations as to the character and valsenting facts, connected with relief sought, to injury of another, regardless of intent, so long

ue of the land. The trial court found with as he retains benefits therefrom.

the respondents on the first question, but

made no determination of the second. Judg3. Bills and notes w 452 (4)-Misrepresenta- ment was entered on the cross-complaint, retions must be material, and relied upon to forming the indorsement of the note as pray. one's injury.

ed for and dismissing the appellant's action. To bar recovery against indorsers of note, The trial court seemed to be of the opinion secured by mortgage, misrepresentations as to land mortgaged, inducing acceptance by in- that the testimony with reference to the aldorsee, must be material, and relied upon to leged misrepresentations was immaterial in indorsee's injury.

this case.

Appellant does not seek rescis

sion on damages, but merely alleges the misDepartment 2.

representations for the purpose of depriving Appeal from Superior Court, Spokane respondents of the right to obtain equitable County; Huneke, Judge,

relief.

There are two questions before us; one of Suit by James J. Walsh against N. J. Wescoatt and wife. Judgment of dismissal, and fact concerning the indorsement, and the othplaintiff appeals. Reversed and remanded, it will not be useful to review the testimony

er concerning the alleged misrepresentations. with directions.

as to whether there was a mutual agreement Duell & Boyles and Burcham & Blair, all of that the respondents' indorsement was to be Spokane, for appellant.

without recourse; suffice it to say that a Charles P. Lund, of Spokane, for respond- reading of the testimony convinces us that ents.

the trial court was right in this respect, and

that if there were nothing else in the case BRIDGES, J. This is an unusual case. the judgment should be affirmed. The facts are that the respondents were the But it is argued by the appellant that owners of a note given by one Williams, whether the respondents are entitled to a refwhich was secured by a mortgage upon real ormation of their indorsement depends enestate in Idaho. The appellant was the own- tirely upon whether they fraudulently or er of certain other personal property. The falsely misrepresented the character of the parties traded; the respondents assigning land to his injury, contending that, if the their note and mortgage to the appellant, testimony establishes' such, the respondents their indorsement of the note being unre were not entitled to any relief in a court of stricted. Later the appellant brought suit equity. The argument is based on the maxon the note, waiving the mortgage. The im that “one who seeks equity must come action was against Williams, as the maker, into court with clean hands." and against the respondents as unrestricted [1] If there were misrepresentations, and indorsers. Williams was not served with they were fraudulently made, and appellant process. The respondents, by their answer, had a right to, and did, rely on them to his alleged that as a part of the trade it was mu- injury, then the principle of this maxim is tually agreed that they were to indorse the properly applicable to the case. Equity de note without recourse against them, but that mands of suitors fair dealing with reference through mistake the indorsement was unre- to matters concerning which they seek relief. stricted. They prayed for a reformation of l if they have acted in had faith, or been

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

t

P. 74.

We

(230 P.) guilty of fraud, or have resorted to trickery son of a bad motive or where the result in any to the injury of another, they will be turned degree induced by his conduct will be unconaway as unworthy of the consideration of scionable either in the benefit to himself or the such a court. They will be left where they Wis. 172, 125 N. w. 442, 20 Ann. Cas. 576.

injury to others.” Larscheid v. Kittell, 142 are found. In other words, equity will not help those who have been guilty of serious

So also "the maxim applies not only to misconduct in the same transaction concern- fraudulent and illegal transactions, but to ing which they seek relief. That sought by

any unrighteous, unconscientious, or oppresthe respondents is directly connected with sive conduct by one seeking equitable interthe fraud charged against them, and, if that ference in his own behalf.” Eaton on Equity, charge is true, we see no reason why a court of equity should relieve them of their mis

A case which is apparently directly in take concerning their indorsement of the

point is that of Cushman v. New England note. What we have said is with reference Fire Ins. Co., 65 Vt. 569, 27 A. 426. The purto fraudulent misrepresentations as distin

pose of that suit was to reform a fire insurguished from unintentional misrepresenta

ance policy. Touching the question here intions.

volved, the court said: But there is another question which may be in the case, and which we ought to dis- if its execution was procured by the false rep

"A court of equity will not reform a contract pose of lest it should arise upon a new trial. resentation of the party who is seeking to There is an intimation in the memorandum have it corrected; it will not order its specific opinion by the court and also in one of the

performance. And this is the rule even if briefs that, if the respondents made any mis- the party did not know of its falsity, and had representations concerning the land, they did no intent to deceive; nor does his belief in

The question 80 in the honest belief they were correct. its truth make any difference. Suppose the trial court should find that the is, has the party been misled by false reprerepresentations were untrue but were made sentation calculated to mislead him, and not

the existence of a fraudulent design in the cohonestly and in the belief that they were

contractor?" true, and that the respondents were not guilty of any actual fraud, and that the appellant

Appellant has cited other cases which he relied upon such misrepresentations to his contends strongly support this view. damage, then the question arises whether the think, however, they are not in point. They court under those circumstances would deny are cases where the plaintiff sought rescisrespondents reformation of their indorse-sion because of misrepresentations, and the ment.

courts held that there might be rescission The respondents argue that, if they unin- notwithstanding the misrepresentations were tentionally misrepresented the land, it can not fraudulently made, and that intent was not be said that they come into court with not a controlling factor. This court has long unclean hands and that the maxim is appli- since aligned itself in rescission cases with cable only when there is intentional wrong this doctrine. The maxim here involved was doing. But it seems to us that the maxim not discussed in those cases, is broader than that. , It is associated with

To support their contention that one does the other maxim that he who seeks equity not come into court with unclean bands if must do equity. If the respondents misrep

the misrepresentations

innocently resented the land, the result is the same

made respondents cite Harlan v. Willard, 52 both to them and the appellant, whether the Cal. App. 194, 198 P. 424. There it appeared misrepresentations were honestly or fraud that the plaintiff, who was seeking to recovulently made-the appellant, under those cir

er on a contract whereby a deceased person cumstances, will have been injured, and the

was to will her a portion of his property, respondents will have reaped a correspond-had previously sought, as decedent's widow, ing benefit. So long as one retains the bene- to acquire one-half of his property. It was fits flowing from misrepresentations, he may there contended that because of her fraud in not seek the interposition of a court of equi- previous acts the court should not give her ty. It is said that

any relief. The court said : "A court of equity acts only when and as con

“The lack of a fraudulent purpose to get science commands, and, if the conduct of the plaintiff be offensive to the dictates of natural something to which she was not legally. entitled justice, then, whatever may be the rights he takes the case without the rule as insisted for possesses and whatever use he may make of

by appellant." them in a court of law, he will be held rem While this language is somewhat in re, ediless in a court of equity." Deweese v. Reinhard, 165 U. S. 386, 17 S. ct. 340, 41 L. Ed. spondents' favor, yet it ought not to be su 757.

considered, because the plaintiff in that case

had not succeeded in her original fraudulent Again it is said :

purpose and imposed no injury thereby. "The exclusion of a plaintiff from the peculiar This exact question seems to have been but favors of courts of equity results equally where little discussed by the courts or text-book his conduct has been unconscionable by rea- writers.

230 P.-11

were

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[2] It is our view that a court of equity, transportation, and it was immaterial that liens will deny relief to a party who, to the injury filed were on their face insufficient. of another, has misrepresented facts connect- ) 4. Chattel mortgages cm 110Cost of sacks for ed with the relief sought, whether the mis.'

marketing wheat held properly deducted from representations were made with intent to de. proceeds of sale as against second mortgagee. fraud or were made in the honest belief that

Where first mortgage on wheat provided they were true, so long as the person making that mortgage should cover advances, or exthem . retains the benefits flowing therefrom. penses of maintenance or transportation, cost

[3] The judgment is reversed and the cause of sacks necessarily used to market wheat, held remanded, with directions to the trial court properly deducted from proceeds as against to determine whether the respondents made

second mortgagee. the misrepresentations charged and whether | 5. Chattei mortgages i 10-Advances by first appellant relied thereon to his damage, and, mortgagee to mortgagor for caring for and if it answers these questions in the affirma harvesting wheat held covered by mortgage. tive, then to deny respondents any relief on Money advanced by first mortgagee to morttheir cross-complaint and enter judgment for gagor for caring for and harvesting mortgaged appellant as prayed. If the court find there wbeat, held covered by mortgage as against

second mortgagee. were no material misrepresentations, or if there were they were not relied on or no 6. Judgment 507–First mortgagee could not injury resulted therefrom, then the judgment complain that second mortgagee obtained deshould be for respondents and against appel

cree of reformation as between latter and lant substantially as now made.

mortgagor. Under all the circumstances of this case we

Where mortgagor and second mortgagee deem it equitable that neither party should intended second mortgage to cover wheat alrecover costs in this court of the other, and ready subject to first mortgage, and second

mortgagee subsequently obtained judgment reit is so ordered.

forming misdescription therein, so that it did

cover such wheat, first mortgagee, though not MAIN, C. J., and FULLERTON, MIT- party to reformation suit, could not claim that CHELL, and PEMBERTON, JJ., concur.

reformation judgment was not valid as between
parties since he was not injured.
7. Marshaling assets and securities Om3(1)-

As between first and second mortgages, first

on wheat and other chattels, and second wheat SHOEMAKER WHITE-DULANEY CO.

only, doctrine of marshaling assets applies. et al. (No. 18557.)

Under doctrine of marshaling assets, first

mortgagee, baving mortgage covering wheat, (Supreme Court of Washington. Nov. 19, horses, farm implements, etc., as against sec1924.)

ond mortgage on wheat only, was bound to

make what it could out of property covered 1. Chattel mortgages Ons 235-Payment by pur:solely by its mortgage, by foreclosure and sale chaser of mortgaged chattels in good faith to

or otherwise, and credit such sums on its inpersons entitled protects such purchaser,

debtedness, and if insufficient, was entitled to Where second mortgagee of wheat had ar such portion of net proceeds of sale of wheat ranged with first mortgagee that second mort

as necessary to pay it, and second mortgagee gage should be first lien on 2,500 bushels, pay- was entitled to surplus, if any. ment by purchaser in good faith, of purchase money to first mortgagee, after deducting pay Department 2. ments on liens and other proper charges, which in turn paid second mortgagee his proportion County; Lindsley, Judge.

Appeal from Superior Court, Spokane of the proceeds, protects such purchaser.

Action by C. B. Shoemaker against the 2. Chattel mortgages On 235_Purchaser or

first mortgagee of wheat paying laborers White-Dulaney Company and another. Judgliens held not to deprive second mortgagee ment of dismissal, and plaintiff appeals. Af. of day in court.

firmed as to defendant above named, and rePurchaser or first mortgagee of wheat pay

versed as to defendant Fidelity National ing liens of laborers hauling and marketing Bank, and remanded with instructions. wheat, and deducting amounts from payments

Driscoll & Horrigan, of Pasco, for appelon two mortgages, held not to deprive second

lant. mortgagee of day in court.

Voorhees & Canfield and Hamblen & Gil3. Chattel mortgages Om 110-Liens of labor. bert, all of Spokane, for respondents.

ers held sufficient to justify payment as
against second mortgagees.
Liens of laborers against wheat for actual farmer in Eastern Washington, gave a mort-

BRIDGES, J. The defendant Hadley, a
hauling and marketing, held sufficient to justify
payment and deduction thereof from amount gage to the Farmers' State Bank of Connell,
received, as against second mortgagees of the this state, to secure an indebtedness of $12,-
wheat, where first mortgage provided it should 500. It covered wheat to be grown during
cover advances or expenses of maintenance or the year 1921 on certain described lands in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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