to the loan, nor in the preparation of the mortgage, and simply signed as he was directed by the attorney, who represented both the mortgagee and the mortgagors in that transaction. The mortgage was prepared on a form in common use in this state. It had the word "seal" in parentheses at the end of the two dotted lines. There were four parties to sign the mortgage. Henry Cram wrote his name above the dotted lines and the word "seal" was not added thereto, and Mabel Cram wrote her name below the dotted lines without affixing the word "seal." Dora and James Cram, Jr., signed their names on the two dotted lines in front of the printed word "seal" in parentheses. James Cram, Jr., did not sign the word "trustee" after his name, and signed the mortgage only once, nor was he described as a party to said mortgage in his capacity as trustee. The third amended complaint, in addition to praying for judgment for the amount due on said promissory note and the foreclosure of the mortgage, also prayed that the note and mortgage be reformed as stated above. The defendants Lynn Cram and Hazen Cram and James Cram, Jr., as trustee, and Mabel Cram, his wife, contested the prayer of the plaintiffs to have the note and mortgage reformed as aforesaid. They contended that said mortgage was a valid lien against the interest of Henry Cram and James Cram, Jr., only; did not subject the undivided one-half interest of the said Lynn and Hazen Cram to the lien of said mortgage; and that James Cram, Jr., was not liable on either the note or mortgage in his capacity as trustee. The circuit court found in favor of the plaintiffs, by requiring the omitted seals to be affixed and James Cram, Jr., as trustee, made a party thereto, decreed the mortgage to be reformed, and entered a judgment and decree accordingly. From this judgment and decree the defendants James Cram, Jr., as trustee, and Mabel Cram, his wife, Lynn Cram, and Hazen Cram appeal. After the second amended complaint had been filed, and before the third amended complaint was filed, the defendants conveyed their interest in the land involved to the Bankers' Discount Corporation. Thereafter the defendants Lynn and Hazen Cram filed a motion "for an order compelling plaintiff to make the Bankers' Discount Corporation a party defendant on the ground that said Bankers' Discount Corporation was a necessary party." This motion was denied, and a motion was then made for an order staying proceedings until the Bankers' Discount Corporation should be served with the third amended complaint and made a party defendant. After the execution and delivery of said mortgage the said C. Sam Smith died, and the plaintiffs are his successors in interest thereto. The appellants assign as error the denial certain testimony, the denial of a motion to strike out that certain testimony, the refusal of the court to grant a nonsuit when plaintiffs rested, the order of the court permitting plaintiffs to reopen the case and introduce further testimony (including specified exhibits), and in making certain findings of fact based upon the evidence objected to, and rendering a decree reforming the mortgage as stated above, and foreclosing the mortgage against more than a one-half interest in the real property described therein. These assignments will be considered in the opinion. W. H. Maguire, of Portland (Winter & Maguire, of Portland, on the brief), for appellants. Willard H. Wirtz, of Prineville, for respondents. [2] The principal contention of the appellants is the error of the court in admitting the testimony regarding the agreement between the parties to the mortgage at the time it was executed. Appellants state their principal contention on this appeal as follows: "A witness cannot state impressions made on him by oral statements, his inference as to whether the statements of parties resulted in standing between them on a given point, or his a contract, or of whether there was an underown understanding as to what the contract was." C. Sam Smith, the mortgagee, departed this life prior to the trial. The witness, whose testimony was objected to, and upon which the plaintiffs relied, testified that he could not repeat any words that were used by either of the parties; that he remembered that his instructions were to treat this mortgage as he had theretofore testified, and that he received the instructions from both the mortgagors and mortgagee; that his instructions were to draw this mortgage giving Mr. Smith a first mortgage on all lands described covering the title and interest of all parties signing it; that he had no conversation with James Cram, Jr., other than to tell him where to sign and ask him if he acknowledged the instrument; that James Cram, Jr., was present with his father, the defendant Henry Cram, while instructions were given to him, the mortgagor, the said C. Sam Smith also being present. The prior testimony of this witness was to the effect that he was instructed by the parties to (230 P.) We of proof is on the plaintiffs to prove the mistake complained of and that it was mutual. It is not necessary to prove the mistake and its mutuality beyond a reasonable doubt, but the evidence should be convincing and satisfactory. Taylor v. Miles, 19 Or. 551, 25 P. 143: Lewis v. Lewis, 5 Or. 174; Newsom v. Greenwood, 4 Or. 119, 123, modifying Shivley v. Welch, 2 Or. 288, 290; Archer v. California Lumber Co., 24 Or. 341, 33 P. 526; 34 Cyc. 984, note 34. all of the interests of the parties executing | 4739, § 2013; 34 Cyc. 981-984. The burden it; that his instructions were to draft a mortgage covering the property, including the whole of the property and all the title and interest; that the seals were omitted by inadvertence; that he did not consider it necessary to describe James Cram, Jr., as trustee, or have James Cram, Jr., sign the mortgage as trustee, and that he deemed it unnecessary for James Cram, Jr., to sign the mortgage more than once. The objection to this testimony is that it is hearsay and an attempt on the part of the witness to simply give his impression or understanding. have carefully considered all of the authorities submitted by the appellants, but do not find them to sustain their contention. It is a fundamental rule that a witness must testify to his observation and not to his impressions. This rule does not apply when the fact in issue is the intention of the parties. A witness who is in a position to know may testify about the intention of the parties to an agreement to the same effect as to any other fact which may come to his observation. Or. L. § 727, subd. 1; 22 C. J. 535, note 32; 1 Wigmore on Evidence, 756, § 661; 3 Wigmore on Evidence, 2610, § 1964; 23 R. C. L. 365, 366, §§ 65, 66. [3] In the instant case, the witness was the attorney who drafted the mortgage. All of the parties to the mortgage were present. He received his instructions from both the mortgagor, Henry Cram and the mortgagee, C. Sam Smith, in the presence of the other mortgagor James Cram, Jr. What was done, including the instructions to the attorney, was the precise fact in issue. The instructions given the attorney were clearly admissible. 34 Cyc. 981, note 20. The testimony of the witness was knowledge acquired by him in the course of his employment and was therefore admissible. 22 C. J. 216, § 174, note 48; 34 Cyc. 981, note 20. [6] We do not deem it material to determine whether or not the mistake was one of fact or of law. That is immaterial. Equity will correct either where the mistake was mutual and the contract as written does not correctly state the agreement between the parties. If the agreement is as the parties intended it should be, and the parties were simply mistaken as to the legal effect, the contract will not be reformed. But where the writing does not express the agreement of the parties, it is immaterial whether the mistake is one of fact or of law. 2 Pomeroy's Equity Jurisprudence (4th Ed.) 1722, § 845; Richmond v. Ogden Street Ry. Co., 44 Or. 48, 54, 74 P. 333; Walden v. Skinner, 101 U. S. 577, 583, 25 L. Ed. 963. [7, 8] Two mistakes are sought to be corrected in this suit, namely, the omission of the seals, and the omission of the signature of James Cram, Jr., as trustee. Both occurred by an oversight by all of the parties, including the attorney representing all of the parties. In this connection it is our opinion that the evidence establishes, beyond any doubt, that the intention of all of the parties was to mortgage to the said C. Sam Smith the entire estate in the real property described in the mortgage. The defendant Henry Cram, who is the father of the other owners, conducted all of the negotiations. He conveyed the land to his sons for the consideration of $1, love and affection. The title to the land at that time was incumbered with mortgages, all of which were past due and exceeded the amount of the loan by Smith. That loan was contracted for the purpose of clearing the title to the land of the mortgage indebtedness. Both Henry Cram and James Cram, Jr., were witnesses in behalf of the appellants. Henry Cram never denied or refuted the testimony of Mr. Elliott in any particular. If there had been any intention to limit the mortgage to his own interest, and that of his son James Cram, Jr., amounting to an undivided onehalf interest, he would have so testified., Jones on Evidence (3d Ed.), Civil Cases, § 170. The fact that he did not so testify, tends to corroborate the testimony of Mr. [4, 5] This suit being one for the reforma- Elliott. The defendant and appellant James tion of a valid instrument, oral evidence was Cram, Jr., seems not to have taken an acadmissible for the purpose of proving the tive part any more than to have signed on agreement made. Or. L. 713, subd. 1; 5 the dotted line under the direction of Mr. ElPomeroy's Equity Jurisprudence (2d Ed.) liott. He doubtless depended upon his fa "A witness' understanding of a statement or conversation may, however, be admissible where the facts can be presented in no other way, or where the facts cannot be placed before the jury so that they themselves can draw a reasonable inference, provided the witness has stated all the facts he can. The same is true where it is apparent that he uses the word 'understanding' as synonymous with 'agreement,' or where the understanding is a fact independently relevant." 22 C. J. 516, § 603. The evidence admitted showing the disposition of the money loaned by the said C. Sam Smith, who was the predecessor in interest of the plaintiffs, and the other circumstances concerning the loan, were properly admissible. Or. L. § 707, section 713, subd. 2, and section 717. ther entirely. The fact that he was ignorant, tire estate in the land. We entertain no of the mistake, as well as to have left the doubt that the defendants Henry Cram and entire matter of arranging for the loan to James Cram, Jr., intended to convey all of his father, will not prevent a court of equity the estate including the trust estate, for the from correcting the mistake. See notes to purpose of securing that loan. The arrangePage v. Higgins, 150 Mass. 27, 22 N. E. 63, ment of giving the mortgage to the said C. 5 L. R. A. 152, 158. Doubtless James Cram, Sam Smith for the purpose of paying the Jr., would have signed his name to the mort- overdue mortgage indebtedness was for the gage again as trustee if he had been directed benefit of the trust estate. It was so acto by the scrivener. We cannot escape from cepted and received by defendants. The refthe conclusion that it was the intention of ormation prayed for to the extent of adding all of the parties to the mortgage to convey the name of James Cram, Jr., as trustee, to to the mortgagee the entire estate in the the mortgage was one which a court of equity land including the trust estate. has power to make. 24 Cyc. 934, § 4; 23 R. C. L. 332, 333, §§ 23, 24. It was proper to require seals to be affixed. 23 R. C. L 337, § 30; 34 Cyc. 933. [9] The appellants urge, with much skill and learning, that there was no agreement for the trustee to execute the mortgage in that capacity, and that a court of equity cannot supply that agreement. In their argument and authorities submitted, however, they overlook the fact that the trustee was authorized by the deed creating the trust to mortgage the property, and that in executing the mortgage the trustee was not doing anything in violation of his trust, but was actually executing the trust according to its terms. All of the mortgages incumbering the title to the land, when it was conveyed to James Cram, Jr., trustee, were past due. These mortgages could have been foreclosed at any time. James Cram, Jr., as trustee, received that title subject to those mortgages. The grantor was his father who was interested in the welfare of his sons and arranged this loan for the purpose of paying off the mortgage indebtedness and having the time extended for canceling the debt. He could not have conveyed the land so as to relieve it from the lien of the mortgage indebtedness. It would be inequitable and unconscionable to allow the plaintiffs, who have inherited the note secured by the mortgage given to C. Sam Smith, to suffer a probable loss by reason of a mistake of the scrivener who drew the mortgage and was acting for all of the parties thereto. The testimony of the scrivener as to the intention of the parties is not disputed. It is corroborated by the mortgage itself, which purports to convey the entire estate in the land, by the conduct of the parties in using the money loaned by the mortgagor to pay off the overdue liens then against the property, and by the silence of the mortgagors in regard thereto. This money was all paid out by the bank for the parties in cancellation of said mortgage indebtedness. There is no doubt at all that the mortgagee, C. Sam Smith, believed when he made the loan of $31,000 to the defendants Henry Cram and James Cram, Jr., that he was being secured for that loan by the en The court did not err in refusing to grant a motion for a nonsuit against the plaintiffs. There was evidence of the intention of the parties to frame the mortgage as contended for by the appellants. The only controversy between the appellants and the respondents was whether or not it was the intention of the mortgagors to execute and deliver a mortgage, and the intention of the mortgagee to receive a mortgage against the entire estate of the mortgagors in and to the real property, including the estate therein held by the defendant James Cram, Jr., as trustee, for his two minor brothers. [10] It was not error for the court to reopen the case and receive further testimony. Both the plaintiffs and the defendants applied for permission to open the case and introduce further testimony. The matter rested largely in the discretion of the trial court. The object of a suit in equity is always to determine the equity between the parties plaintiff and defendant. The record in this suit clearly shows the court did not abuse his discretion when he opened the case and permitted both parties to introduce further testimony. It follows, logically, that the findings of fact made by the court are correct. These findings are based upon the testimony objected to, and which was held to be admissible. The court did not decree the reformation of the note by compelling the defendant James Cram, Jr., to sign the note as trustee. The cestuis que trustent were not made personally liable for the indebtedness. The decree does not include a personal judgment against said cestuis que trustent. It operates simply to foreclose their interest in the real property described in the mortgage, and provides for the sale thereof. We find no reversible error in the record. The decree appealed from is affirmed. RAND, J., concurs in the result. (230 P.) warehouse receipts were transferred to apSTATE BANK OF WILBUR v. ALMIRA pellant, and therefore they were not lienable FARMERS' WAREHOUSE CO. PEMBERTON, J. A statement of the facts in this case is found in 123 Wash. 354, 212 P 543, wherein a judgment was entered, reversing the lower court, and granting a new trial. From a judgment in favor of respondent upon the second trial, this appeal is taken. It is not necessary to restate the facts except wherein they are materially different from the facts found in the former opinion. It is the contention of appellant that, "in order to be entitled to a lien on this wheat, the expenditures for which a lien was claimed must have been made for the benefit of the wheat while it was stored with respondent, or in transit in his care," under section 27 of the Uniform Warehouse Act which reads as follows: "Subject to the provisions of section 3616, a warehouseman shall have a lien on goods deposited or on the proceeds thereof in his hands, for all lawful charges for storage and preservation of the goods; also for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing, coopering and other charges and expenses in relation to such goods; also for all reasonable charges and expenses for notice, and advertisements of sale, and for sale of the goods, where default has been made in satisfying the warehouseman's lien." Section 3613, Rem. Comp. Stat. It is the contention that many of the supplies sold to Hansen were used by him prior to the time the wheat was marketed, and some of the supplies were used by him long after the wheat was marketed and after the items. It is the contention of respondent that the receipts given for the wheat stated the amount of advances and charges against the same, and when they were purchased by appellant the purchaser would have no greater rights than Hansen, who had agreed that these advances should be made, and that they were to be a lien upon the wheat stored, and to support this contention respondent cites section 23 of chapter 189 of the Session Laws of 1919, being section 7001, Rem. Comp. Stat., which reads as follows: "Upon the return of the receipt to the proper warehouseman, properly indorsed, and upon payment or tender of all advances and legal charges, grain, hay or peas of the grade and quantity named therein shall be delivered to the holder of such receipt, within "fortyeight hours after the facilities for receiving the same have been provided. * Respondent contends that it is not material whether these advances to Hansen shown in the statement attached to and made a part of the warehouse receipts were furnished to Hansen and used by him in connection with the handling of the particular grain in question or not, that neither Hansen nor appellant could require the delivery of the wheat until they had paid the advances made by respondent as provided in section 23, supra. Respondent further contends that all the supplies delivered by respondent to Hansen were delivered with the understanding that they were to be used in connection with the growing and marketing of the wheat in question. It is admitted in this case that the appellant knew that respondent was claiming $2,525.29 due from Hansen at the time appellant purchased the warehouse receipts. As was said in the case of State v. Broadwater Elevator Co., 61 Mont. 215, 201 P 687. "The receipts on their face show that the grain stored is charged with the amount of 'cash * furnished,' and neither the original holder nor his assignee could compel the return of the grain without returning the money so advanced, with interest thereon." The rule laid down in Cyc. is that: "The assignee of a warehouse receipt, whether negotiable or not, is entitled to the goods freed from liability for advances or other claims of the warehouseman against his assignor that are not shown on the receipt and of which the assignee did not have notice; but his rights in the goods are subject to all claims of the warehouseman of which he had notice at which he is chargeable by the terms of the the time of the transfer, or with knowledge of receipt, or by the law." 40 Cyc. 419. Section 23, supra (section 7001, Rem. Comp. Stat.), providing that the grain shall be de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 230 P.-52 livered to the holder of the receipt within | aside the conveyance, alleging in his com48 hours upon the payment of all advances plaint that the conveyance was obtained by and legal charges, is in harmony with the the exercise of undue influence. The appelgeneral law upon that subject. Respondent lants put in issue by denials the averments was entitled to the repayment of the amounts of the complaint, and for an affirmative anadvanced to Hansen up to the time of the swer alleged that the conveyance was made receipt of the notice from appellant that ap- for a valuable consideration; that they had pellant had purchased the warehouse re- expended large sums of money in supporting ceipts. and caring for Van Hoosen; and asked that, in the event that a reconveyance of the property be directed, they be reimbursed for the money so expended. The affirmative allegations of the answer were denied by a reply. The case was thereafter brought on for trial. At the trial the respondent introduced certain documentary evidence, and then called the appellant Katie Esgate as an adverse wit It appearing that all the advancements made by respondent to Hansen were made prior to the 22d day of February, 1921, the date of the notice to respondent of the purchase of the receipts by appellant, respondent was entitled to retain possession of the wheat until all of the advances were fully paid. The judgment of the trial court will be ness. She was questioned as to the consideraffirmed. ation for the conveyance and as to the circumstances which led up to it, following MAIN, C. J., and FULLERTON, MITCH- which the examination proceeded, with the ELL, and BRIDGES, JJ., concur. ALLEN v. ESGATE et ux. (No. 18345.) (Supreme Court of Washington. Dec. 10, 1924.) Evidence 265(17) — Wife's judicial admissions as witness, without husband's authorization, do not authorize conveyance of title of community property. Under Rem. Comp. Stat. § 6893, wife may not authorize vesting of title of community property in third person by concessions or admissions unauthorized by husband though judicially made as witness in suit to set aside for undue influence conveyance to them. Pemberton, J., dissenting. Department 2. Appeal from Superior Court, Yakima County; Nichoson, Judge. Action by Frank J. Allen, as guardian of the estate of John A. Van Hoosen, an incompetent person, against George Esgate and wife. Judgment for plaintiff, and defendants appeal. Reversed. following questions and answers: "Q. Do you recall having a conversation with Mr. and Mrs. Will Van Hoosen, at which time their son Miles and his wife were present, the night before Mr. Van Hoosen left your place? A. Yes; we was over there. "Q. Isn't it a fact that you told them at the time that the reason you made this deal was to secure yourself for his board and keep, and that he couldn't borrow the money himself on account of his mental condition? A. We said"Q. (Interrupting.) Now, just answer that 'Yes' or 'No.' A. I didn't say "Q. (Interrupting.) Just answer it 'Yes' or 'No.' You can answer that 'Yes' or 'No.' A. I can't answer it exactly 'Yes' or 'No' because there is some part I could say 'Yes' to and some part 'No.' "The Court: You may explain your answer then. A. As to the mental condition, I wouldn't say that I said that; but we didn't get any money, and we had to have money to pay the hospital bill and one thing another. "Q. That was the principal thing? A. And I gave them a proposition that they could have the money and property back, provided I got paid for my labor. "Q. Is that proposition still holding good? A. That proposition is still holding to-day." After some colloquy between the trial Holden, Shumate & Cheney, of Yakima, for judge and the attorney representing the apappellants. Frank J. Allen and D. V. Morthland, both of Yakima, for respondent. FULLERTON, J. On December 23, 1922, one John A. Van Hoosen, being then the owner of certain real property situated in the city of Yakima, conveyed the property to the appellants Esgate, who were husband and wife. Later on the respondent Allen was appointed guardian of Van Hoosen's estate on the ground that Van Hoosen was incompetent to manage his own affairs. Following his appointment as such guardian the respondent brought the present action to set pellants, the court ruled that the appellants were bound by the testimony of the witness, and that the respondent need not proceed further on the question of his right to a reconveyance; the judge saying in answer to objections on the part of respondent: "But, if you make the proposition you are willing to deed the property back, and the other people are willing to pay a reasonable amount, it is your duty to deed it back." The court thereupon directed the appellants to proceed with their evidence as to the nature of the services they performed for the vendor in the conveyance, and what their charges for the services were. The appel |