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(230 P.)
Franklin county, and also 60 head of horses, 1 (1) Let us first dispose of the case in so
some other live stock and certain farming far as it affects the White-Dulaney Com.
implements. It was regular upon its face, pany. Whatever may be the technical rights
and was duly filed with the county auditor. and liabilities of a purchaser of chattels
Later, it and the evidence of indebtedness against which there are two mortgages, it
which it secured were assigned to the defend- ought to be the law that where he has agreed
ant Fidelity National Bank, of Spokane. to pay full value for the property, and the
Thereafter that institution loaned Hadley ad- purchase was in good faith, and he has paid
ditional sums to the amount of about $6,000, the purchase money to the persons entitled
to be used in caring for and harvesting the to receive it, he will in equity be protected.
wheat, and which additional sums it claims Under those circumstances, the purchase
are secured by its mortgage.

price stands in the place of the mortgaged
After giving respondent's mortgage, Had- property, and, if the money be paid to the
ley gave a second mortgage to the Pasco right person, no one can be heard to com-
Flour Mills Company to secure an indebted plain, because no one has been damaged.
ness of $3,200. At the time of the giving of This would apply to an action for conversion
this mortgage an arrangement was made be as well as one for an accounting. Thompson
tween the mour Company and the Farmers' v. Anderson, 86 Iowa, 703, 53 N. W. 418.
State Bank, which at that time held the first [2, 3] The purchase price was something
mortgage, that the latter would and it did over $17,000 and the question is, was this
release in favor of the Flour Company, 2,500 sum paid to the persons who were entitled to
bushels of wheat to be grown upon the lands it. Several hundred dollars were paid to
covered by its mortgage. The effect of this certain laborers who had filed liens on the
was to make the Flour Company's mortgage wheat in question, and it is contended by ap-
a first lien on 2,500 bushels of wheat to be pellant that neither the purchaser nor the
grown on the lands covered by both mort- Fidelity Bank had any right to pay these
gages. The second mortgage covered, or was liens because they were on their face insuffi-
intended to cover, substantially the ame cient, and because, in any event, the el.
crop of wheat which had been previously lant was entitled to have its day in court to
mortgaged to the Farmers' State Bank, but contest them. The latter objection is not
did not cover any other property. This sec-tenable because appellant has its day in
ond mortgage and the indebtedness it secured court in this case. We think these payments
were later assigned to the plaintiff. After all were properly made. In the first place, the
the transactions mentioned, Hadley harvest- testimony shows that the lienors had actually
ed the wheat and sold it to the White-Du- worked on the wheat in question, harvesting
laney Company, for what appears to have it and hauling it to market and the liens
been the then market price. This purchaser, were, in our opinion, sufficient. In the next
after deducting certain sums to discharge la- place, the mortgage held by the bank pro-
bor liens, and to pay a bill for sacks fur- vided th not only should it secure the origi.
nished by it, paid the balance of the pur- nal loan of $12,500, but “also all amounts
chase price to the Fidelity Bank, which in loaned, advanced, or expended by the mort-
turn paid, or caused to be paid, to the plain-gagees, its successors or assigns, for the main-
tiff or its assignor, the value of the 2,500 tenance or transportation of the said proper-
bushels of wheat released as above indicated. ty or for any purpose connected therewith."
The payments so received by the Fidelity Under this provision the Fidelity Bank could
National Bank did not discharge its mort- have paid these laborers or advanced the
gage indebtedness, including its additional money for that purpose, and this whether
advancements, nor did the payment made to | liens were filed or not. The fact that the
the plaintiff discharge its indebtedness. 'money was not paid until after the liens were
Thereafter the plaintiff brought this action filed cannot alter the situation.
for the purpose of collecting the balance due [4] Appellant complains that several hun-
it. It has appealed from a judgment denying | dred dollars of the purchase price were paid
it any relief, and dismissing its action. for certain sacks which were used' in har-

It seems to us that this case has been vesting the wheat. The testimony showg
greatly and perhaps naturally confused be that these sacks were not only used, but nec-
cause of the difliculty of determining its na-essarily so, and payment therefor was prop-

The pleadings are long and no good erly made under the above quoted provision can be accomplished by here dissecting them. of the mortgage. Eltopia Finance Co. v. We think it must be conceded that the First National Bank (Wash.) 219 P. 24. amended complaint sounded chiefly in con [5] Another contention is that no part of version, although there were allegations the purchase price was entitled to be paid with reference to marshaling of assets and on account of the $6,000 advancement which accounting. But whatever may be said about had been made by the bank to the mortgagor the complaint, we are convinced that the an- for the purpose of caring for and harvesting swers and replies made the case one for the this wheat. The testimony shows that this marshaling of assets and accounting, and we money was advanced and used for the purshall so treat it.

poses mentioned, and there can be no ques

tion but what such advancements were au cause it was not a party to that action. It thorized by the bank's mortgage and became is not injured by a reformation of the mortsecured thereby as much and to the same ex- gage. Its security remains identically the tent as the original indebtedness. Eltopia same whether the second mortgage be reFinance Co. v. First National Bank, supra. formed or not.

We conclude, therefore, that the purchase [7] It is our opinion that the trial court price was applied in a proper manner, and should have required the Fidelity National that the appellant can have no cause of ac- Bank to make what it could by foreclosure tion against the White-Dulaney Company, be- and sale or otherwise out of the property cause it was in no wise prejudiced or dam- which was alone covered by its mortgage, aged by that company. But it seems to us and that such sums should have been first that the Fidelity Bank is, in equity, in a very credited on its indebtedness, and if enough different situation from that occupied by the was not thus made to discharge its indebtedWhite-Dulaney Company. The doctrine of ness, then it was entitled to such portion of marshaling of assets may be applied to it, the net proceeds of the sale of the wheat as but not to the White-Dulaney Company. The was necessary to pay it, and that if any surbank and the appellant each bad mortgages plus remained the appellant would be encovering the wheat and the bank's mortgage titled to it. was the first lien, but its mortgage also cov The judgment is affirmed as to the Whiteered property which was not included with Dulaney Company, and reversed and the the appellant's mortgage.

cause remanded as to the Fidelity National It is an almost universal rule that, under Bank, with instructions to the lower court to these circumstances, the courts will require proceed as here indicated. a marshaling of assets, that is to say, will require the person holding the first mort MAIN, C. J., and FULLERTON, MITCH. gage to make what he can out of the prop ELL, and PEMBERTON, JJ., concur. erty upon which he alone has security in order that the second mortgage may, if possible, have recourse to the property which is covered by both the mortgages. "If, for in STATE V. GROSSI. (No. 18788.) stance, one creditor has a prior lien on two parcels of land while the other has a jun

(Supreme Court of Washington. Nov. 14,

1924.) ior lien on only one of the parcels, the part not subject to the junior lien should first 1. Criminal law em938 (3)-New trial for newbe sold to satisfy the prior lien and then if ly discovered evidence properly denied, where necessary the land subject to both liens evidence within defendant's knowledge at should be sold and the proceeds applied in

time of trial. the order of priority of the two liens.” 18

A motion for new trial for newly discovered R. C. L. 455.

evidence held properly denied, where defendant As between the appellant and the bank, it had sufficient knowledge of evidence offered in

support of motion to have introduced it at time was the duty of the latter, by foreclosure and of trial, and even if such evidence had been insale or otherwise, to make as much as it troduced at trial, result would have been the could out of the property which was covered by its mortgage only, and if sufficient was

2. Homicide Cim 270 in murder prosecution, not thus obtained, then the wheat might be

defendant's insanity for jury. sold, and if there was any surplus of funds it

In prosecution for murder, question of deshould be paid to the second mortgagee.

fendant's insanity is one of fact for jury. 16] It appears, however, that there was a misdescription in the appellant's second mort

Department 1. gage, that is, the mortgage as recorded was

Appeal from Superior Court, Grays Harbor not a second lien nor any lien at all on a County; Hewen, Judge. considerable portion of the wheat. But the

Guido Grossi was convicted of murder iu record shows that prior to the commencement of this action the appellant had instituted the first degree, and he appeals. Affirmed. suit against the mortgagor and others, but Jozef Zelaska and J. M. Phillips, both of not the bank, for a reformation of its mort- Aberdeen, for appellant. gage and for foreclosure, and in that action A. E. Graham, of Aberdeen, for the State. a judgment had been entered reforming the mortgage so that as reformed it covered the TOLMAN, J. [1] Appellant was tried and wheat in question. It having been the in-convicted upon the charge of murder in the tention of the mortgagor and the second first degree, the jury fixing the death penmortgagee to mortgage the same property alty. The defense was a plea of not guilty covered by the first mortgage, the bank is by reason of insanity and mental irresponsiin no position to claim that such intention bility still existing. The victim of the crime, was not binding on it or that the judgment as charged in the information, was one Guis relorming the mortgage did not bind it, belepre Tolomei, but the evidence in the case

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


(230 P.) tends to show that at the same time the No reason is stated in the affidavit, nor defendant also killed one John Ricci and one anywhere suggested in the record, why all Joe Vagrig, and severely wounded one Carlo of this supposed newly discovered evidence Pelligrini. The details of the evidence, . could not have been obtained prior to or durwhich need not be here given, fail to show ing the course of the trial, so that the man with any clearness a reasonable motive for Smith, referred to in the affidavit, could have the killing, and in the course of the trial it been produced as a witness for the defense. was brought out, first by the state, and later Even if we assume that the appellant was by the defense on cross-examination of the so far insane as to have been incapable of state's witnesses, and then by direct testi- communicating to his attorney the facts with mony to the same effect in the defense in reference to this affair, still at an early stage chief, that the appellant had, without any of the trial, which lasted for a number of apparent reason, shot and wounded two men days, the matter of this previous shooting about a week previously in a not distant had been referred to and interjected by a part of the same city. Apparently the de- witness for the state, so that clearly there. fense was permitted to introduce all of the was plenty of opportunity for investigation, testimony that it then had, or sought to of- and for the subpoenaing of Mr. Smith if his fer, touching the previous shooting, the pur- testimony were considered important. pose unquestionably being to show that the Other matters are referred to in the affiappellant was insane and irresponsible, and davits supporting the motion for a new trial, that, by reason of his mental condition, this but these are likewise matters of which counshooting' was done without motive or pur- sel had knowledge at the time sufficiently pose in such a way and manner as to indi- early to permit of the introduction of all macate a diseased and unbalanced mind. In terial evidence with reference thereto. These due course, after the verdict was rendered, are apparently the only matters which were which was on December 13, 1923, a motion relied upon in the argument upon the motion for a new trial was interposed, naming the for a new trial, and are the only matters arusual statutory grounds, among them being, gued and presented here as a reason why the “Newly discovered evidence material for the trial court erred in refusing to grant a new defendant which he could not have discovo trial. We have laboriously searched the ered with reasonable diligence and produced statement of facts, traced out all of the eviat the trial,” supported by an affidavit of one dence relating to the matters indicated, and of appellant's counsel, which says:

cannot find that the appellant was at any

time denied. an opportunity to go into these “That on the night of December 14th I talked with R. Smith, who was shot on the night of questions fully and properly present them to November 4th by the defendant, and he told me

the jury. that the defendant came to his door at 409

[2] In a case where the death penalty is South M street, Aberdeen, and went from the to be inflicted, we feel peculiarly our heavy door to the window, and peeked in the win-responsibility, and in this case have spared dow; that he then went to the door and tried no effort or pains in making certain that to open the door; that the door was locked, appellant was accorded his full rights in preand he, the said Smith, went to the door, and senting his defense. As to that defense, it opened the door, and asked the defendant to

was clearly a question for the jury. The come in; that he did not come in, but walked back to the street; that Smith shut the door jury was properly instructed as to the deand left the defendant outside, but watched fense of insanity, and had the jury found the him through the window; that the defendant defendant insane, we should have been bound started to crawl into the automobile at the to uphold that verdict. The matters set front of the house; that he went out again forth in the affidavit in support of the moand put him out of the automobile, and went tion for a new trial which we have quoted. back to the house; that the defendant stood seem to us no more to indicate a lack of on the sidewalk for a while, and went back and sanity than the details produced in evidence got into the automobile again; that he, the relating to the crime, which appellant was said Smith, and his brother-in-law, went back directly charged with committing, and of outside, and put the defendant out of the automobile a second time, and told him to get which he was found guilty. Both were of away from the house; that he started walking the same general nature, and while the full up the street, and that he went back toward details of the first shooting, as set up in the the house, and as they were entering the house afidavit, were not before the jury, the gist the defendant fired six shots at them, three shots of the matter, and the apparent lack of motaking effect, two striking Smith, and the other tive for that shooting was brought before the the brother-in-law; that one shot grazed the jury by the testimony of a number of witstomach of Smith, and the other shot went

nesses. . We cannot conceive of a different through his arm; that the brother-in-law was shot through the leg; that, after the defendant result being reached by the jury had the stopped shooting, he walked leisurely up the testimony of the Mr. Smith referred to in street, away from the house, and turned into the affidavit been roduced. Hume street, and walked past the A. A. Star "The affidavits submitted in support of this Transfer Building to about a block, and went motion fail to show that the evidence sought to to bed."

be produced is in law newly discovered; that

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is, that appellant or his counsel could not have, in possession at any time, that deed was deby reasonable diligence, discovered it before livered on day of execution and acknowledge the trial. Besides, it seems to us, as it evi-, ment. dently did to the trial court, that the alleged newly discovered evidence would not be likely Department 1. to change the result upon a new trial. We Appeal from Superior Court, Franklin think the court did not err in denying the mo- County; Truax, Judge. tion." State v. Blackwood, 103 Wash. 529, 175 P. 168.

Action by the State of Washington, on the

relation of John H. Dunbar, Attorney GenThe question of sanity or insanity was eral, against K. Shokuta. Judgment for one of fact. The jury heard and saw the wit- relator, and defendant appeals. Affirmed in nesses. It was their province to decide the part, and reversed in part, with direction. issue and fix the penalty, and the only ap

Guie & Halverstadt, of Seattle, for appeal from their decision, which can be en

pellant. tertained, is an appeal to executive clem

John H. Dunbar and E. W. Anderson, ency. The judgment is affirmed.

both of Olympia, for respondent. MAIN, C. J., and HOLCOMB, BRIDGES,

MAIN, C. J. This action was brought for and PARKER, JJ., concur.

the purpose of escheating to the state the west 25 feet of lot 10 and the south 25 feet of lot 11, in block 3, Northern Pacific Rail

way Company's plat of Pasco, in Franklin STATE ex rel. DUNBAR, Atty. Gen., v. SHO- county. It was tried to the court without KUTA. (No. 18477.)

a jury and resulted in findings of fact, con

clusions of law, and a judgment escheating (Supreme Court of Washington. Nov. 18, both tracts of land. From this judgment 1924.)

the defendant appeals. There is here no 1. Escheat On4-Title must be in defendants controversy over the west 25 feet of lot 10. when action is brought.

as it appears to be conceded that the judgTo escheat property, title must be in de- ment as to that was right. The question upfendants when action is brought.

on appeal is whether the judgment of the 2. Deeds om 193, 194(3)—Presumed executed lot 11 should be sustained, and all further

trial court escheating the south 25 feet of and delivered on date of execution and acknowledgment.

reference will be to that property. Presumption is that deed was executed and

The facts may be summarized as follows: delivered on date of execution and acknowledg. On July 13, 1910, Edward Horrigan, being ment.

the owner of the land in question, contracted 3. Escheat C4-Execution of aliens' deed be to sell it to K. Shokuta and M. Kanasashi. fore that of their vendor immaterial.

This was the ordinary real estate contract. That deed, executed and acknowledged be- and provided for a payment down and the

Neither fore action to escheat was brought, was made balance in monthly installments. by alien grantors before execution of deed, Shokuta nor Kanasashi were citizens of the with grantee blank, by their vendor, held in- United States or entitled to become such. material, on question as to ownership when They were subjects of the Emperor of Jaaction was brought, as after-acquired title in- pan and born of Japanese parents. On Janures to grantee's benefit.

uary 28, 1913, Shokuta and Kanasashi con4. Lis pendens en 25(1)-Notice held not to veyed the property to the Buddhist Mission affect title in escheat proceedings.

Society, a corporation, and it is admitted Notice of lis pendens, under Rem. Comp. that this corporation is entitled to own real Stat. § 243, filed by state in proceeding to es- estate in this state. On February 26, 1913, cheat land of aliens, held not to affect passage Horrigan executed and acknowledged a deed of title under prior deed by defendants, to third with the name of the grantee blank. On the party, so as to authorize judgment for state, i 18th of March, 1921, the Buddhist Mission although such deed had not been recorded; Society, by deed duly executed and acknowlright to escheat depending solely on whether title was in defendants at commencement of edged, conveyed the property to George F. action.

Russell. None of the deeds mentioned here

was at any time filed for record. On or about 5. Escheat Cwm 6—Finding as to time of delivApril 22, 1921, the Attorney General brought

ery of aliens' deed and their ownership of this action, seeking to escheat the property land held erroneous.

to the state, and caused a notice of lis penFindings that aliens' deed was not delivered until after action to escheat was brought and dens to be filed. The question then is whethnotice of lis pendens filed, and that they owned er the state has a right to escheat the propproperty at such times, held erroneous as not erty. giving effect to legal presumption, in absence [1] It has been held in a number of cases of evidence of time of delivery and who was by this court that, if ownership is not in the

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

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(230 P.) alien at the time of the commencement of title, then, of course, the state would have the action, no right to escheat exists. Ore no right of forfeiture as against Horrigan. gon Mortgage Co. v. Carstens, 16 Wash. 165, This case must be considered upon the the 47 P. 421, 35 L. R. A. 841; Abrams v. State, ory that the deed from Shokuta and Kanas45 Wash. 327, 88 P. 327, 9 L. R. A. (N. S.) ashi was delivered on the date of its execu186, 122 Am. St. Rep. 914, 13 Ann, Cas. 527; | tion, and that the Buddhist Mission Society State ex rel, Atkinson v. World, etc., Co., 46 | at that time acquired whatever title or right, Wash. 104, 89 P. 471; Prentice v. How, 84 if any, the two Japanese had in the property. Wash. 136, 146 P. 388. In the case last cited [4] The Attorney General in his brief upon this question it was said:

states that the principal question in this "The only person who could question Wong case is as to the effect of the filing of notice How's claim or title while he held either a of lis pendens, and consideration will now be ninety-nine year lease or a certificate of sale given to that question. was the state of Washington, it having author The lis pendens statute (section 243, Rem. ity to institute proceedings for a forfeiture. Comp. Stat.) provides: Abrams v. State, 45 Wash. 327, 88 P. 327, 122 Am. St. 914. No such proceedings were com

"In an action affecting the title to real propmenced by the state, and, after Wong How erty the plaintiff, at the time of filing the comconveyed to respondent, a native of the United

plaint *

may file with the auditor of States, the state of Washington itself could each county in which the property is situated not maintain such an action against responde a notice of the pendency of the action, conent."

taining the names of the parties, the object

of the action, and a description of the real [2] Starting, then, with the proposition property in that county affected thereby. that title must be in persons against whom From the time of the filing only shall the pendthe action is brought when the state seeks to ency of the action be constructive notice to a escheat property, inquiry must be directed purchaser or incumbrancer of the property af

fected thereby, and every person whose conas to who held the title to the portion of the

veyance or incumbrance is subsequently exland in question at the time the present ac-ecuted or subsequently recorded shall be deemtion was instituted. As stated, the deeds ed a subsequent purchaser or incumbrancer, and were not placed of record, and there is no shall be bound by all proceedings taken after evidence as to when they were delivered, but the filing of such notice to the same extent there is a legal presumption that a deed is as if he were a party to the action. executed and delivered on the date of its execution and acknowledgment. In State v.

By this statute it will be observed the filDana, 59 Wash. 30, 109 P. 191, it was said: ing of the notice of lis pendens is construc

tive notice to every person "whose convey"The deed from Hostland to the appellant ance or incumbrance is subsequently executwas presumptively executed and delivered on ed or subsequently recorded.” The state does the date of its execution and acknowledgment (Devlin on Deeds (2d Ed.] 88 178. 182, 265), not hold or claim under a subsequent conveyand, if so, no title passed by the deed to the ance or incumbrance. Its right to escheat prosecuting witness."

depends solely upon whether the title to the

property was in the alien when the action [3] In the present case the deed from Sho was brought and the lis pendens filed. The kuta and Kanasashi was executed and ac- lis pendens statute is oply a law of proceknowledged, as above stated, on the 28th day dure, and does not cut off the paramount title. of January, 1913, and therefore was pre- In Merrick v. Pattison, 85 Wash. 240, 147 sumptively delivered on that day. In addi- P. 1137, the effect of the statute is fully distion to this there is evidence that the deed cussed, and it is there said: was in possession of the Buddhist Mission "This, we think, is only a law of procedure, Society, and that that corporation had paid enacted with a view of making a decree of the a consideration for it. It is said, however, nature here sought, if ultimately rendered in that this conveyance was made by the two favor of the plaintiff, effective, not only against Japanese prior to the time that the Horrigan effective against one who purchases the prop

the original defendant in the action, but also deed, with the grantee blank, was executed.erty or whose conveyance evidencing such purThis can make no difference, because it has chase is recorded after the filing of the notice been distinctly held by this court that an of pendency of the action, 'to the same after-acquired title inures to the benefit of tent as if he were a party to the action.' In the grantee. West Seattle Land, etc., Co. v. other words, the statute, and a notice of lis Novelty Mill Co., 31 Wash. 435, 72 P. 69; pendens filed in pursuance thereof, has the efGough v. Center, 57 Wash. 276, 106 P. 771; | under such subsequently executed or recordea

feet of constructively making the one claiming Pioneer S. & G. Co. v. Seattle C. & D. D. Co., 102 Wash. 608, 173 P. 50S,

conveyance a party to the action." In what has just been said it has been as. In Ellis v. McCoy, 99 Wash. 457, 169 P. sumed, but not decided, that the deed exe- 973, it was said: cuted in blank would carry the title in ful "It must be declared that no paramount title fillment of the contract of sale which had

can be cut off by a procedure under the stat been made. If that deed did not convey any ute of notice.”


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