(193 P.)

Forney & Ponder, of Chehalis, for appel- of the trial court that the execution by relant.

Hayden, Langhorne & Metzger, of Tacoma, and A. R. Rutherford, of Morton, for respondents.

1

spondents, the Chapmans, of the mortgages and notes in question was without consideration, and induced by the false and fraudulent representations made to them by Edwards. All of the parties reside in Lewis PARKER, J. These are intimately related county, the Chapmans being farmers living companion cases. The first was commenced upon their farms near each other. It apby the plaintiffs Hiram F. Chapman and pears that C. E. Chapman, who is a brother wife, seeking the annulling and cancellation of respondent Hiram Chapman and the husof a real property mortgage and a $3,000 note band of respondent Minnie Chapman, went it purported to secure the payment of, which to Canada with Edwards in the spring of were executed and delivered by the plaintiffs 1918, with a view of participating in some to the defendant Edwards, as claimed by the sort of a wheat speculating scheme, the exact plaintiffs without consideration, and as a re-nature of which does not appear, though sult of false and fraudulent representations there is, reading between the lines of the recmade by the defendant to the plaintiffs. The ord, ample ground for inferring that the second was commenced by the plaintiff Min- scheme was of a very questionable characnie Chapman seeking the annulling and can- ter in so far as its legitimacy is concerned. cellation of a deed given as a mortgage and The thought of this venture seems to have a $2,000 note which it purported to secure first originated in the mind of C. E. Chapthe payment of, and also a chattel mortgage man, who apparently did not have sufficient and a $500 note it purported to secure the funds for the purpose. With a view of sepayment of, all of which were executed and curing such funds as he deemed necessary for delivered by the plaintiff to the defendant, as the purpose, Chapman laid the scheme beclaimed by the plaintiff without consideration fore Edwards, who agreed to furnish $5,000 and as a result of false and fraudulent rep for the purpose, with the understanding that resentations made by the defendant to the while he, Edwards, was to furnish the monplaintiff. The second action is, in form, a ey, it was to be in the form of a loan to controversy over the balance of the proceeds Chapman, for which Chapman was to pay of a sale of the mortgaged property made by him $1,500 from the profits of the venture as consent of the parties in satisfaction of a his, Edwards', compensation for financing it. prior mortgage, the plaintiff's right to such Thereupon, early in May, 1918, Edwards balance as against the defendant resting up- went to Canada, meeting Chapman at Vanon her right to have the mortgages and notes couver. Edwards took with him $5,000 in they purport to secure annulled and canceled. the form of drafts, which were converted inThe alleged false and fraudulent representa- to cash in Canada. They proceeded to the city tions made by the defendant touching the of Moose Jaw in the province of Saskatchexecution of the mortgages and notes in- ewan, where the venture was supposed to volved in both actions were concededly so in- be undertaken and consummated. Soon after timately related that all parties deemed it arriving at Moose Jaw the $5,000 fell into the desirable, and agreed to the trial of both ac- hands of Chapman. This Edwards claims tions at the same time, to avoid repetition was the result of some wrongful act on the and to the end that the record of such trial part of Chapman, claiming at one time that should become the record, apart from the Chapman actually stole it from him, and pleadings, in each case. At the conclusion of claiming at another time that Chapman obthe trial of the cases so had, the superior tained it from him by false pretenses. The court rendered judgment in each case in fa- money thereafter disappeared. The record vor of the plaintiffs as prayed for; in the fails to show what became of it. Thereupon first case awarding cancellation of the mort- Edwards went to the police magistrate of the gage and note therein involved, and in the city of Moose Jaw, and swore to a criminal second case awarding cancellation of the complaint charging Chapman with the crime mortgages and notes therein involved, and of obtaining the $5,000 from him by false awarding to the plaintiff the balance of the pretenses. Upon this complaint Chapman proceeds of the sale of the property. From was arrested and placed in jail at Moose this disposition of both cases by the superior Jaw; manifestly Edwards' complaint being court the defendant has appealed, in each the sole and only cause of Chapman's arrest. case separately, to this court; bringing each The criminal case thus started against Chapbefore us upon the pleadings therein and man never came to a hearing, even before the with one statement of facts which is treated magistrate. It was dismissed at the request by all parties as being of record in both cases. of Edwards some time later, resulting in [1] The main contention here, made in ap- Chapman's discharge and the entire abandonpellant, Edwards', behalf in both cases, to ment of the prosecution against him. which nearly the whole of his counsel's brief and argument is directed, is that the evidence does not support nor warrant the conclusion

Immediately after Chapman was arrested, Edwards started on his return journey to Lewis county, in this state, with a view of

visiting Chapman's brother and wife, these have the effect of vouching for his, Edwards', respondents, and inducing them to pay to veracity; Edwards being wholly unacquainthim, or give to him security for the repay-ed with the brother and wife, while he, ment of the $5,000, claimed by him to have Lease, was known to them by reputation, been wrongfully obtained by Chapman. Ac- though not personally. cording to Edwards' story Chapman had It is apparent from the evidence that agreed to a continuance of the hearing on the Lease's presence and his slight participation criminal charge in order to give him, Ed- in the conversations there taking place did wards, time to reach his, Chapman's, brother have the effect of inducing the brother and and wife in Lewis county in this state, and wife to believe appellant's story. This story try to induce them to make good to appellant did not fail in its purpose of deeply impressthe loss of the $5,000; counsel for the gov- ing upon these rural people who, as the eviernment representing the prosecution having dence shows, knew little or nothing of crimconsented to such continuance, and also to a inal prosecutions, or other court procedure, dismissal of the charge, upon the loss being yet fully appreciating the distressing conse made good by Chapman, or some one for him. quence of a sentence of a member of their Upon Edwards' return to Lewis county, he family to the penitentiary. The result was took with him one Lease, an old-time friend that the brother and wife yielded to the reand a man of some prominence in the county, quest of Edwards that they furnish the monto the homes of Hiram Chapman and Minnie ey or furnish him security therefor, to the Chapman, brother and wife of C. E. Chap-end that he would immediately send it to the man; and according to the testimony of wit- court at Moose Jaw, and thus accomplish the nesses, which the court, we think, was fully release of Chapman. So, not having the monwarranted in believing, told them, in sub-ey, the brother and wife executed and destance, this story: That C. E. Chapman, the livered to Edwards the mortgages and notes brother and husband, had been arrested and here in question. A few days thereafter convicted of a crime at Moose Jaw in Can- Chapman was discharged by the magistrate ada; that he was then in jail there, awaiting at Moose Jaw, the charge against him made sentence upon such conviction; that he was by Edwards being withdrawn by consent of subject to a sentence to the penitentiary for the prosecuting officer of the government. No a long term of years; that the court and money was ever sent to Moose Jaw by Edcounsel representing the prosecution for the wards for the purpose of accomplishing Chapgovernment had agreed that if Chapman man's discharge, and manifestly it was in would cause to be deposited in court the sum fact never at any time necessary to do so. of $5,500, sentence would not be rendered In fact all that was ever necessary to acagainst him upon his conviction, and that he complish Chapman's discharge was the mere would be discharged; that Chapman had no expression of a desire in that behalf on the money, and was therefore unable himself to part of Edwards to the magistrate and counso secure his discharge; that he, Edwards, sel representing the prosecution on the part had pleaded with the authorities at Moose of the government. Indeed it is conceded by Jaw not to arrest or prosecute Chapman; counsel for appellant, though we are not that sentence was being delayed by the court otherwise advised on the subject, that unsolely to enable him, appellant, to go to Lew-der the laws of Canada, a crime of this nais county and lay the matter before them, ture, being so nearly a pure personal wrong, the brother and wife, with a view of having its prosecution may be dismissed at the inthem either furnish the $5,500 or give se stance of the complaining injured party. The curity so it might be furnished by him, Ed- facts above summarized, we think, constitute wards, to the end that he forward it to Moose a fair summary of what the evidence proves. Jaw to secure Chapman's discharge; that The only serious conflict in the evidence the money had to be sent to the court at is as to what occurred upon the visit of apMoose Jaw immediately, or it would be too pellant and Lease to the brother and wife, late to accomplish Chapman's discharge. Ed- resulting in the execution of the notes and wards whole attitude in the telling of this mortgages in question. The facts above sumstory to the brother and wife evidenced sin- marized as to what occurred there we think cere friendship on his part for Chapman. find abundant support in the testimony of Edwards concealed from the brother and the brother and wife, and also the son of wife the fact that he himself had caused the wife who was present during the visit Chapman's arrest, and that his sole purpose of Lease and appellant. The testimony of was in fact to reimburse himself, not only Edwards varies from the facts above sumto the extent of $5,000, but also to the extent marized, in that he claims that he did not of $500 additional, which he now claims was conceal from the brother and wife the fact for his expenses. Lease was manifestly tak- that he himself caused Chapman's arrest, en along with Edwards to visit the brother and did not conceal the fact that the $5,500 and wife, because Lease, being a well-known which he was trying to have them give him man, both in public and business affairs in or secure was for the sole purpose of reimthe county, his presence with Edwards would | bursing himself. His story is, in some meas

(193 P.)

Both judgments are in all things affirmed.

HOLCOMB, C. J., and FULLERTON, MACKINTOSH, and BRIDGES, JJ., concur.

ure, corroborated by the testimony of Lease, | 189; Glaze v. Pullman State Bank, 91 Wash. but not in a positive and satisfactory man- 187, 157 Pac. 488. ner, especially as to the concealment of the fact that Edwards had himself caused the arrest of Chapman, and had it within his power to cause Chapman's discharge without sending any money to Moose Jaw for that purpose. These facts we think show the correctness of the trial court's judgment in both cases. The story and our discussion might be much extended, but we do not feel called upon to say more touching the merits of the cases. We conclude that this brother and wife have been grievously wronged; that they executed the mortgages and notes without any consideration whatever; and that they were induced to do so by the false and fraudulent representations made to them by Edwards.

(113 Wash. 214)

STATE ex rel. GODFREY v. TURNER,
County Treasurer. (No. 16028.)

(Supreme Court of Washington. Nov. 23, 1920.)

I. Mandamus 3(1), 118-County treasurer not compellable to accept less than certified tax.

issue to compel a county treasurer to accept, Under Const. art. 4, § 4, mandamus will not in full payment of city taxes, an amount less than that certified to him by the city as levied on relator's property, even though the portion of the tax deducted by relator was illegally assessed, as relator has other adequate remedies, such as payment and suit to recover back the illegal portion, or injunction against collection, and, furthermore, the treasurer could not be compelled, by mandamus, to decide whether the tax was illegal, but was bound to collect the

taxes as certified.

2. Municipal corporations

979-Remedies of

illegally taxed property owner stated.

A property owner, illegally taxed by the city, may pay the tax and thereafter sue to recover the amount illegally imposed, or he may, in action against the city, in which he can join the officers charged with the collection of the tax, enjoin its collection.

3. Municipal corporations 978(1)—Collecting officer not authorized to determine legality of tax.

[2] Contention is briefly made in appellant's behalf that the case of Minnie Chap man against Edwards should be dismissed for want of proper parties, and that the trial court erred in refusing to dismiss the case upon the plea and proof made in that behalf. The argument is that C. E. Chapman, the husband of Minnie Chapman, should have been made a party to the action, because of his community interest in the land in question. It appears that on May 17, 1917, they did own this land as community property, then subject to an incumbrance to secure a considerable portion of its purchase price. On that day C. E. Chapman gave to nis wife, Minnie Chapman, a quitclaim deed for the land, thus making it her separate property. Section 8766, Rem. Code. He also then gave to her the personal property in question. It seems that thus making the land and personal property her separate property was done because of the fact that they had then separated as man and wife, Mrs. Chapman continuing to live upon and manage the farm, including the personal property, as her own. They have continued ever since to live separate and apart. It is true that several months thereafter Chap man did join with his wife in the execution of a mortgage upon the land, which seems to have been a renewal of the prior incumbrance securing a portion of the original pur-4. Mandamus 118 Right as against tax chase price. It is also true that the mortgages and notes executed by Mrs Chapman which are in question here were by Edwards sent to Chapman at Moose Jaw, where he also executed them. It seems well settled by our decisions that the property becoming the separate property of Mrs. Chapman by the giving of the conveyance made May 17, 1917, did not change its character as her separate property by the mere joining of her husband with her in the execution of these subsequent mortgages. Guye v. Guye, 63 Wash. 340, 353, 115 Pac. 731, 37 L. R. A. (N. S.) 186; Nicholson v. Kilbury, 83 Wash. 196, 204, 145 Pac.

The county treasurer of a county in which there is a city of the first class, being made, by Rem. Code 1915, § 9283, ex officio collector of such city's taxes, as such collector he is a subordinate ministerial officer, with no discretion as to whether he will omit to collect taxes because of their illegality; but he must collect the taxes as they are certified to him by the assessment roll placed in his hands.

collector determined by his duty apparent at time demand made on him for action.

The right to mandamus to compel a tax collecting officer to accept a less amount for taxes than that certified to him by the taxing authorities must be determined according to the duties devolving upon him at the time demand is made upon him for action, not according to question is tried between the proper parties what his duties may appear to be after the and a determination made that the assessment roll in his hands was erroneous; it not being within his power to exercise any judicial functions and determine whether the city's levy was legal or illegal.

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

12-Will not lie to compel ments of a civil action." State ex rel. Brown public officer to exceed authority. v. McQuade, 36 Wash. 579, 79 Pac. 207.

Mandamus will not lie to compel a public officer to exceed his authority, or when he is acting in a ministerial capacity to assume powers not delegated to him.

Appeal from Superior Court, Pierce Coun- 61 Pac. 158; State ex rel. Wallace v. Superior ty; W. O. Chapman, Judge.

Andrews v. King County, 1 Wash. 46, 23 Pac. 409, 22 Am. St. Rep. 136, was an action against the county and the county treasurer to enjoin the collection of a fraudulent tax. First National Bank v. Chehalis This court has held that under this sec- County, 6 Wash. 64, 32 Pac. 1051, was an action mandamus is

tion against the county and the county treas"one of the forms of procedure provided for urer, enjoining the tax on national bank the enforcement of rights and the redress of stock; no question is raised in this case as The procedure has in it all the ele- to the form of the action. Savings Bank &

(193 P.)

Trust Co. v. Gelbach, 8 Wash. 497, 36 Pac. lector of city taxes for such city, and as such 467, was an action against a county treas-collector he is a subordinate ministerial offiurer regarding the interest on a warrant; cer, who has no discretion, but must perform nothing appears in the opinion indicating the duty of collecting taxes as they are certithe nature of the action, but plainly it was fied to him by the assessment roll placed in not one of mandamus. National Bank v. his hands for collection. Mandamus lies to City of Seattle, 9 Wash. 608, 38 Pac. 219, was compel the performance of a duty, and in this an action against the city and the city treas- case, the county treasurer's duty being only urer to enjoin the collection of a tax on to collect according to the roll in his hands, national bank shares; no question was raised by mandamus he cannot be compelled to exin this action as to the form. Knapp v. King ercise the judicial function called upon in County, 17 Wash. 567, 50 Pac. 480, was an determining, as a matter of law, whether or action against the county, county auditor not the levy made by the city was legal or iland county treasurer to enjoin them from legal. The power vested in him gives him levying and collecting arbitrary taxes; no no such function, and the right to the writ question was raised in this case as to the of mandamus must be determined according form. Phelan v. Smith, 22 Wash. 397, 61 to the duties devolving upon the officer at the Pac. 31, was an action against the treasur- time that the demand is made upon him for er to enjoin seizure of personal property and action, not according to what his duties may sale for taxes. Northwestern Lumber Co. appear to be after the question is tried bev. Chehalis County, 24 Wash. 626, 64 Pac. tween the proper parties and a determination 787, was an action against the county to made that the assessment roll in the treasrestrain by injunction the enforcement of urer's hands was erroneous. an illegal tax, in which it was held that in- The duty to keep the tax within the legal junction was the proper remedy. Phillips limits was a duty upon the city of Tacoma; v. Thurston County, 35 Wash. 187, 76 Pac. and, if mandamus would lie at all, it would 993, was an action against the county and the lie against the city to compel it to perform county treasurer to enjoin the collection of its duty. It may be that in an action so a tax. Whitfield v. Davies, 78 Wash. 256, 138 brought the county treasurer might be joined Pac. 883, was an action against assessor to as a proper, though not a necessary, party, enjoin extending excessive taxes on the rolls. proper for the reason that the final determiThis action would appear inconsistent with nation of the city's duty might result in an the cases which we will hereafter cite relat- order to the city to alter the roll in the hands ing to the proper party defendant, except of the treasurer, whose duty it would then that the record shows that the city of Sno-be to collect the corrected amount, and to homish, which was the party upon whom the duty was imposed of laying the tax, although not a party to the original proceedings, assumed the defense of the action, it thus becoming one really against the city. Benn v. Chehalis County, 11 Wash. 134, 39 Pac. 365, was an action against the county, county treasurer and other officers to restrain the collection of a tax and to accept a lesser amount, in which the court held injunction was the proper remedy.

Other forms of action than injunction have been sanctioned, for in Miller v. Pierce County, 28 Wash. 110, 68 Pac. 358, an action was sustained against the county to quiet title due to over assessment; Henderson v. Pierce County, 37 Wash. 201, 79 Pac. 617, an action against the county to cancel excessive fraudulent taxes; Dickson v. Kittitas County, 42 Wash. 429, 84 Pac. 855, an action against the county of the same nature as the foregoing; and Case v. San Juan County, 59 Wash. 222, 109 Pac. 809, an action against the treasurer and county to abate a fraudulent tax and cancel the same upon the payment of amount tendered. So it will appear that the extraordinary writ is not necessary in order to adequately protect the relator's interests.

[3, 4] Upon the second point it is to be said that by section 9283, Rem. Code, the treasurer of a county in which there is a city of the first class is made ex officio col

avoid circuity of action the treasurer might be properly joined in such an application against the city, which is the real party in interest. Under the statutory form of mandamus it has been held that in such cases the facts may be ascertained to determine the question of whether a duty exists, the performance of which can be compelled by the writ; but a determination of those facts cannot take place on an application for a writ directed against a mere ministerial officer, whose duty is defined, irrespective of whether an error has been made by other officers or municipalities for whom he is performing a purely ministerial function. Cloud V. Town of Sumas, 9 Wash. 399, 37 Pac. 305, was an action by a warrant holder to recover money advanced to the credit of the defendant. It was held that the plaintiff had mistaken his remedy; that the only duty of the city was to issue the warrants, and, that duty having been performed, that the duty was upon the treasurer to pay them, and that mandamus might be resorted to to compel such payment, and that in that action the legality of the warrants could be tried. This is mere dictum, and the opinion is further weakened by the fact that Chief Justice Dunbar dissented therefrom.

In State ex rel. Dudley v. Daggett, 28 Wash. 1, 68 Pac. 340, it was held that mandamus was the proper remedy to compel the