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(230 P.)

Franklin county, and also 60 head of horses, some other live stock and certain farming implements. It was regular upon its face, and was duly filed with the county auditor. Later, it and the evidence of indebtedness which it secured were assigned to the defendant Fidelity National Bank, of Spokane. Thereafter that institution loaned Hadley additional sums to the amount of about $6,000, to be used in caring for and harvesting the wheat, and which additional sums it claims are secured by its mortgage.

[1] Let us first dispose of the case in so far as it affects the White-Dulaney Company. Whatever may be the technical rights and liabilities of a purchaser of chattels against which there are two mortgages, it ought to be the law that where he has agreed to pay full value for the property, and the purchase was in good faith, and he has paid the purchase money to the persons entitled to receive it, he will in equity be protected. Under those circumstances, the purchase price stands in the place of the mortgaged property, and, if the money be paid to the right person, no one can be heard to complain, because no one has been damaged. This would apply to an action for conversion as well as one for an accounting. Thompson v. Anderson, 86 Iowa, 703, 53 N. W. 418.

[2, 3] The purchase price was something over $17,000 and the question is, was this sum paid to the persons who were entitled to it. Several hundred dollars were paid to certain laborers who had filed liens on the wheat in question, and it is contended by appellant that neither the purchaser nor the Fidelity Bank had any right to pay these liens because they were on their face insufficient, and because, in any event, the appellant was entitled to have its day in court to contest them. The latter objection is not tenable because appellant has its day in court in this case. We think these payments were properly made. In the first place, the testimony shows that the lienors had actually worked on the wheat in question, harvesting it and hauling it to market and the liens were, in our opinion, sufficient. In the next place, the mortgage held by the bank provided that not only should it secure the original loan of $12,500, but "also all amounts loaned, advanced, or expended by the mort

After giving respondent's mortgage, Hadley gave a second mortgage to the Pasco Flour Mills Company to secure an indebtedness of $3,200. At the time of the giving of this mortgage an arrangement was made be tween the Flour Company and the Farmers' State Bank, which at that time held the first mortgage, that the latter would and it did release in favor of the Flour Company, 2,500 bushels of wheat to be grown upon the lands covered by its mortgage. The effect of this was to make the Flour Company's mortgage a first lien on 2,500 bushels of wheat to be grown on the lands covered by both mortgages. The second mortgage covered, or was intended to cover, substantially the same crop of wheat which had been previously mortgaged to the Farmers' State Bank, but did not cover any other property. This second mortgage and the indebtedness it secured were later assigned to the plaintiff. After all the transactions mentioned, Hadley harvested the wheat and sold it to the White-Dulaney Company, for what appears to have been the then market price. This purchaser, after deducting certain sums to discharge labor liens, and to pay a bill for sacks furnished by it, paid the balance of the purchase price to the Fidelity Bank, which in turn paid, or caused to be paid, to the plain-gagees, its successors or assigns, for the maintiff or its assignor, the value of the 2,500 bushels of wheat released as above indicated. The payments so received by the Fidelity National Bank did not discharge its mortgage indebtedness, including its additional advancements, nor did the payment made to the plaintiff discharge its indebtedness. Thereafter the plaintiff brought this action for the purpose of collecting the balance due it. It has appealed from a judgment denying it any relief, and dismissing its action.

tenance or transportation of the said property or for any purpose connected therewith." Under this provision the Fidelity Bank could have paid these laborers or advanced the money for that purpose, and this whether liens were filed or not. The fact that the money was not paid until after the liens were filed cannot alter the situation.

[4] Appellant complains that several hundred dollars of the purchase price were paid for certain sacks which were used in harvesting the wheat. The testimony shows that these sacks were not only used, but nec

erly made under the above quoted provision of the mortgage. Eltopia Finance Co. v. First National Bank (Wash.) 219 P. 24.

It seems to us that this case has been greatly and perhaps naturally confused because of the difficulty of determining its na-essarily so, and payment therefor was propture. The pleadings are long and no good can be accomplished by here dissecting them. We think it must be conceded that the amended complaint sounded chiefly in conversion, although there were allegations with reference to marshaling of assets and accounting. But whatever may be said about the complaint, we are convinced that the answers and replies made the case one for the marshaling of assets and accounting, and we shall so treat it.

[5] Another contention is that no part of the purchase price was entitled to be paid on account of the $6,000 advancement which had been made by the bank to the mortgagor for the purpose of caring for and harvesting this wheat. The testimony shows that this money was advanced and used for the purposes 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 price was applied in a proper manner, and that the appellant can have no cause of action against the White-Dulaney Company, because it was in no wise prejudiced or damaged by that company. But it seems to us that the Fidelity Bank is, in equity, in a very different situation from that occupied by the White-Dulaney Company. The doctrine of marshaling of assets may be applied to it, but not to the White-Dulaney Company. The bank and the appellant each had mortgages covering the wheat and the bank's mortgage was the first lien, but its mortgage also covered property which was not included with the appellant's mortgage.

[7] It is our opinion that the trial court should have required the Fidelity National Bank to make what it could by foreclosure and sale or otherwise out of the property which was alone covered by its mortgage, and that such sums should have been first credited on its indebtedness, and if enough was not thus made to discharge its indebtedness, then it was entitled to such portion of the net proceeds of the sale of the wheat as was necessary to pay it, and that if any surplus remained the appellant would be entitled to it.

The judgment is affirmed as to the WhiteDulaney Company, and reversed and the cause remanded as to the Fidelity National Bank, with instructions to the lower court to proceed as here indicated.

MAIN, C. J., and FULLERTON, MITCH

STATE v. GROSSI. (No. 18788.)

It is an almost universal rule that, under these circumstances, the courts will require a marshaling of assets, that is to say, will require the person holding the first mortgage 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 instance, one creditor has a prior lien on two parcels of land while the other has a junior lien on only one of the parcels, the part not subject to the junior lien should first be sold to satisfy the prior lien and then if necessary the land subject to both liens should be sold and the proceeds applied in the order of priority of the two liens." 18 R. C. L. 455.

As between the appellant and the bank, it was the duty of the latter, by foreclosure and sale or otherwise, to make as much as it could out of the property which was covered by its mortgage only, and if sufficient was not thus obtained, then the wheat might be sold, and if there was any surplus of funds it should be paid to the second mortgagee.

[6] It appears, however, that there was a misdescription in the appellant's second mortgage, that is, the mortgage as recorded was not a second lien nor any lien at all on a considerable portion of the wheat. But the record shows that prior to the commencement of this action the appellant had instituted suit against the mortgagor and others, but not the bank, for a reformation of its mortgage and for foreclosure, and in that action a judgment had been entered reforming the mortgage so that as reformed it covered the wheat in question. It having been the intention of the mortgagor and the second mortgagee to mortgage the same property covered by the first mortgage, the bank is in no position to claim that such intention was not binding on it or that the judgment reforming the mortgage did not bind it, be

(Supreme Court of Washington. Nov. 14, 1924.)

1. Criminal law 938 (3)-New trial for newly discovered evidence properly denied, where evidence within defendant's knowledge at time of trial.

A motion for new trial for newly discovered evidence held properly denied, where defendant had sufficient knowledge of evidence offered in support of motion to have introduced it at time of trial, and even if such evidence had been introduced at trial, result would have been the

same.

2. Homicide 270 — In murder prosecution, defendant's insanity for jury.

In prosecution for murder, question of defendant's insanity is one of fact for jury.

Department 1.

Appeal from Superior Court, Grays Harbor County; Hewen, Judge.

Guido Grossi was convicted of murder in the first degree, and he appeals. Atfirmed. Jozef Zelaska and J. M. Phillips, both of Aberdeen, for appellant.

A. E. Graham, of Aberdeen, for the State.

TOLMAN, J. [1] Appellant was tried and convicted upon the charge of murder in the first degree, the jury fixing the death penalty. The defense was a plea of not guilty by reason of insanity and mental irresponsibility still existing. The victim of the crime, as charged in the information, was one Guis eppe Tolomei, but the evidence in the case

(230 P.)

tends to show that at the same time the defendant also killed one John Ricci and one Joe Vagrig, and severely wounded one Carlo Pelligrini. The details of the evidence, which need not be here given, fail to show with any clearness a reasonable motive for the killing, and in the course of the trial it was brought out, first by the state, and later by the defense on cross-examination of the state's witnesses, and then by direct testimony to the same effect in the defense in chief, that the appellant had, without any apparent reason, shot and wounded two men about a week previously in a not distant part of the same city. Apparently the defense was permitted to introduce all of the testimony that it then had, or sought to offer, touching the previous shooting, the purpose unquestionably being to show that the appellant was insane and irresponsible, and that, by reason of his mental condition, this shooting was done without motive or purpose in such a way and manner as to indicate a diseased and unbalanced mind. In due course, after the verdict was rendered, which was on December 13, 1923, a motion for a new trial was interposed, naming the usual statutory grounds, among them being, "Newly discovered evidence material for the defendant which he could not have discovered with reasonable diligence and produced at the trial," supported by an affidavit of one of appellant's counsel, which says:

"That on the night of December 14th I talked with R. Smith, who was shot on the night of November 4th by the defendant, and he told me that the defendant came to his door at 409 South M street, Aberdeen, and went from the door to the window, and peeked in the window; that he then went to the door and tried to open the door; that the door was locked, and he, the said Smith, went to the door, and opened the door, and asked the defendant to come in; that he did not come in. but walked back to the street; that Smith shut the door and left the defendant outside, but watched him through the window; that the defendant started to crawl into the automobile at the front of the house; that he went out again and put him out of the automobile, and went back to the house; that the defendant stood on the sidewalk for a while, and went back and got into the automobile again; that he, the said Smith, and his brother-in-law, went back outside, and put the defendant out of the automobile a second time, and told him to get away from the house; that he started walking up the street, and that he went back toward the house, and as they were entering the house the defendant fired six shots at them, three shots taking effect, two striking Smith, and the other the brother-in-law; that one shot grazed the stomach of Smith, and the other shot went through his arm; that the brother-in-law was shot through the leg; that, after the defendant stopped shooting, he walked leisurely up the street, away from the house, and turned into Hume street, and walked past the A. A. Star Transfer Building to about a block, and went to bed."

No reason is stated in the affidavit, nor anywhere suggested in the record, why all of this supposed newly discovered evidence could not have been obtained prior to or during the course of the trial, so that the man Smith, referred to in the affidavit, could have been produced as a witness for the defense. Even if we assume that the appellant was so far insane as to have been incapable of communicating to his attorney the facts with reference to this affair, still at an early stage of the trial, which lasted for a number of days, the matter of this previous shooting had been referred to and interjected by a witness for the state, so that clearly there. was plenty of opportunity for investigation, and for the subpoenaing of Mr. Smith if his testimony were considered important.

Other matters are referred to in the affidavits supporting the motion for a new trial, but these are likewise matters of which counsel had knowledge at the time sufficiently early to permit of the introduction of all material evidence with reference thereto. These are apparently the only matters which were relied upon in the argument upon the motion for a new trial, and are the only matters argued and presented here as a reason why the trial court erred in refusing to grant a new trial. We have laboriously searched the statement of facts, traced out all of the evidence relating to the matters indicated, and cannot find that the appellant was at any time denied an opportunity to go into these questions fully and properly present them to

the jury.

[2] In a case where the death penalty is to be inflicted, we feel peculiarly our heavy responsibility, and in this case have spared no effort or pains in making certain that appellant was accorded his full rights in presenting his defense. As to that defense, it was clearly a question for the jury. The jury was properly instructed as to the defense of insanity, and had the jury found the defendant insane, we should have been bound to uphold that verdict. The matters set forth in the affidavit in support of the motion for a new trial which we have quoted. seem to us no more to indicate a lack of sanity than the details produced in evidence relating to the crime, which appellant was directly charged with committing, and of which he was found guilty. Both were of the same general nature, and while the full details of the first shooting, as set up in the affidavit, were not before the jury, the gist of the matter, and the apparent lack of motive for that shooting was brought before the jury by the testimony of a number of witnesses. We cannot conceive of a different result being reached by the jury had the testimony of the Mr. Smith referred to in the affidavit been roduced.

"The affidavits submitted in support of this motion fail to show that the evidence sought to be produced is in law newly discovered; that

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 acknowledgthe 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 to change the result upon a new trial. We think the court did not err in denying the motion." State v. Blackwood, 103 Wash. 529, 175 P. 168.

The question of sanity or insanity was one of fact. The jury heard and saw the witnesses. It was their province to decide the issue and fix the penalty, and the only appeal from their decision, which can be en⚫tertained, is an appeal to executive clemency.

The judgment is affirmed.

MAIN, C. J., and HOLCOMB, BRIDGES, and PARKER, JJ., concur.

Department 1.

Appeal from Superior Court, Franklin County; Truax, Judge.

Action by the State of Washington, on the relation of John H. Dunbar, Attorney General, against K. Shokuta. Judgment for relator, and defendant appeals. Affirmed in part, and reversed in part, with direction.

Guie & Halverstadt, of Seattle, for appellant.

John H. Dunbar and E. W. Anderson, both of Olympia, for respondent.

MAIN, C. J. This action was brought for 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 Railway Company's plat of Pasco, in Franklin county. It was tried to the court without a jury and resulted in findings of fact, conclusions of law, and a judgment escheating Nov. 18, both tracts of land. From this judgment the defendant appeals. There is here no

STATE ex rel. DUNBAR, Atty. Gen., v. SHO-
KUTA. (No. 18477.)

(Supreme Court of Washington.

1924.)

1. Escheat 4-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 judg

To escheat property, title must be in de- ment as to that was right. The question upfendants when action is brought.

2. Deeds 193, 194(3)-Presumed executed and delivered on date of execution and acknowledgment.

Presumption is that deed was executed and delivered on date of execution and acknowledg

ment.

3. Escheat 4-Execution of aliens' deed be

fore that of their vendor immaterial. That deed, executed and acknowledged before action to escheat was brought, was made by alien grantors before execution of deed, with grantee blank, by their vendor, held immaterial, on question as to ownership when action was brought, as after-acquired title inures to grantee's benefit.

on appeal is whether the judgment of the trial court escheating the south 25 feet of lot 11 should be sustained, and all further reference will be to that property.

The facts may be summarized as follows: On July 13, 1910, Edward Horrigan, being the owner of the land in question, contracted to sell it to K. Shokuta and M. Kanasashi. This was the ordinary real estate contract. and provided for a payment down and the balance in monthly installments. Shokuta nor Kanasashi were citizens of the United States or entitled to become such. They were subjects of the Emperor of Japan and born of Japanese parents. On January 28, 1913, Shokuta and Kanasashi con

Neither

4. Lis pendens 25(1)-Notice held not to veyed the property to the Buddhist Mission affect title in escheat proceedings.

Notice of lis pendens, under Rem. Comp. Stat. § 243, filed by state in proceeding to escheat land of aliens, held not to affect passage of title under prior deed by defendants, to third party, so as to authorize judgment for state, although such deed had not been recorded; right to escheat depending solely on whether title was in defendants at commencement of

[blocks in formation]

Society, a corporation, and it is admitted that this corporation is entitled to own real estate in this state. On February 26, 1913, Horrigan executed and acknowledged a deed with the name of the grantee blank. On the 18th of March, 1921, the Buddhist Mission Society, by deed duly executed and acknowledged, conveyed the property to George F. Russell. None of the deeds mentioned here was at any time filed for record. On or about April 22, 1921, the Attorney General brought this action, seeking to escheat the property to the state, and caused a notice of lis pendens to be filed. The question then is whether the state has a right to escheat the property.

[1] It has been held in a number of cases by this court that, if ownership is not in the

(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 the47 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 Wash. 104, 89 P. 471; Prentice v. How, 84 Wash. 136, 146 P. 388. In the case last cited upon this question it was said:

"The only person who could question Wong How's claim or title while he held either a ninety-nine year lease or a certificate of sale was the state of Washington, it having authority to institute proceedings for a forfeiture. Abrams v. State, 45 Wash. 327, 88 P. 327, 122 Am. St. 914. No such proceedings were commenced by the state, and, after Wong How conveyed to respondent, a native of the United States, the state of Washington itself could not maintain such an action against respondent."

[2] Starting, then, with the proposition that title must be in persons against whom the action is brought when the state seeks to escheat property, inquiry must be directed as to who held the title to the portion of the land in question at the time the present action was instituted. As stated, the deeds were not placed of record, and there is no evidence as to when they were delivered, but there is a legal presumption that a deed is executed and delivered on the date of its execution and acknowledgment. In State v. Dana, 59 Wash. 30, 109 P. 191, it was said: "The deed from Hostland to the appellant was presumptively executed and delivered on the date of its execution and acknowledgment (Devlin on Deeds [2d Ed.] §§ 178. 182, 265), and, if so, no title passed by the deed to the prosecuting witness."

[3] In the present case the deed from Shokuta and Kanasashi was executed and acknowledged, as above stated, on the 28th day of January, 1913, and therefore was presumptively delivered on that day. In addition to this there is evidence that the deed was in possession of the Buddhist Mission Society, and that that corporation had paid a consideration for it. It is said, however, that this conveyance was made by the two Japanese prior to the time that the Horrigan deed, with the grantee blank, was executed. This can make no difference, because it has been distinctly held by this court that an after-acquired title inures to the benefit of the grantee. West Seattle Land, etc., Co. v. Novelty Mill Co., 31 Wash. 435, 72 P. 69; Gough v. Center, 57 Wash. 276, 106 P. 774;

Pioneer S. & G. Co. v. Seattle C. & D. D. Co., 102 Wash. 608, 173 P. 50S.

In what has just been said it has been assumed, but not decided, that the deed executed in blank would carry the title in fulfillment of the contract of sale which had been made. If that deed did not convey any

at that time acquired whatever title or right, if any, the two Japanese had in the property.

[4] The Attorney General in his brief states that the principal question in this case is as to the effect of the filing of notice of lis pendens, and consideration will now be given to that question.

The lis pendens statute (section 243, Rem. Comp. Stat.) provides:

*

"In an action affecting the title to real property the plaintiff, at the time of filing the complaint * may file with the auditor of each county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the real property in that county affected thereby. From the time of the filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby, 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.

*

By this statute it will be observed the filing of the notice of lis pendens is constructive notice to every person "whose conveyance or incumbrance is subsequently executed or subsequently recorded." The state does not hold or claim under a subsequent conveyance or incumbrance. Its right to escheat depends solely upon whether the title to the property was in the alien when the action was brought and the lis pendens filed. The lis pendens statute is only a law of procedure, and does not cut off the paramount title. In Merrick v. Pattison, 85 Wash. 240, 147 P. 1137, the effect of the statute is fully discussed, and it is there said:

"This, we think, is only a law of procedure, enacted with a view of making a decree of the nature here sought, if ultimately rendered in favor of the plaintiff, effective, not only against effective against one who purchases the propthe original defendant in the action, but also erty or whose conveyance evidencing such purchase is recorded after the filing of the notice of pendency of the action, 'to the same extent as if he were a party to the action.' In other words, the statute, and a notice of lis pendens filed in pursuance thereof, has the efunder such subsequently executed or recorded fect of constructively making the one claiming

conveyance a party to the action."

In Ellis v. McCoy, 99 Wash. 457, 169 P. 973, it was said:

"It must be declared that no paramount title can be cut off by a procedure under the stat ute of notice."

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