the act of March 9, 1893. Being of the opin ion that the assessment was void, it is not deemed necessary to determine other questions discussed in the briefs of counsel. The judgments are affirmed.

DUNBAR, C. J., and STILES, J., concur. HOYT, J., dissents.

(9 Wash. 460)

POTWIN v. BLASHER et al.1 (Supreme Court of Washington. Aug. 6, 1894.) ACTION ON PURCHASE-MONEY NOTE - DEFENSESBREACH OF COVENANTS EVICTION BY PARAMOUNT TITLE-INVALID TAX DEED-ATTORNEY'S FEES.

1. Where the purchaser of a tax title void on its face sells the land covered by it and takes a purchase-money mortgage therefor, the assignee of such mortgage is not an innocent purchaser as against the purchaser claiming under covenants in the deed to him.

2. Where one purchasing a title based on a tax deed void on its face receives a deed containing a covenant that the grantor is the owner in fee simple and a warranty against incumbrances, and he is thereafter compelled to compromise a suit brought by the original owner, and to buy out the latter's title, there is a constructive eviction, and he is entitled to recover from his vendor the amount so paid and the expenses of such litigation.

3. In a suit to foreclose a purchase-money mortgage, defendant may set up a breach of the covenant of title in that he was forced to compromise a suit brought by one having a valid claim to the premises, and to buy the latter's title.

4. Costs which depend on facts not ascertainable from the record should be itemized in the bill of costs.

5. Costs on execution should not be allowed in the cost bill. Where there is an agreement in a mortgage for attorney's fees, the statutory fee will not be allowed on foreclosure.

6. Under Code Proc. § 823, which allows parties to make their own agreements as to attorney's fees, a fee amounting to 9 per cent. of the amount due on the mortgage, in the presence of an agreement for 5 per cent., is excessive.

7. Under Act 1893, p. 111, requiring that the findings should consist of a concise and separate statement of every essential fact established by the evidence, a refusal, on request of a defendant, to file the findings on issues raised by the answer, is error.

Appeal from superior court, King county; T. J. Humes, Judge.

Action by Mary B. Potwin against F. A. Blasher and others to foreclose a mortgage. Judgment for plaintiff. Defendants appeal. Reversed.

Parsons, Corell & Parsons, for appellants. Ira A. Town and W. W. Likers, for respondent.

STILES, J. The sheriff of King county, on the 19th day of April, 1883, executed a tax deed of certain lands to John Murray, reciting in the deed that he had sold the land April 22, 1881. This deed was void on its face, having been executed three days before

'Rehearing pending.

Murray

the time allowed for redemption. quitclaimed the land to Fountain O. Chezum. March 12, 1886, and he sold it (reserving two acres) to appellant Blasher June 18, 1889. covenanting for a fee-simple title, and warranting against incumbrances. Blasher and wife executed a purchase-money mortgage to Chezu:n for $10,500, and this action was brought by respondent, claiming to be the assignee of the mortgage and unpaid notes to foreclose the lien. A purported quitclaim deed from John Moore, the owner, prior to the tax sale to Chezum, of date December 19, 1888, was immaterial, as it was conceded to have been a forgery; Moore, the grantor, having been for many years an inmate of the insane asylum, and another person having executed it. The respondent, although showing the legal title enabling her to sell, was not a purchaser for value, and was chargeable with all defenses maintainable against Chezum. The tax deed being void, and not having been supported by the limitation law of 1881 (Ward v. Huggins, 7 Wash. 617, 32 Pac. 740, 1015, and 36 Pac. 285; Baer v. Choir, 7 Wash. 631, 32 Pac. 776, and 36 Pac. 286), the title wholly failed. But appellants had taken and retained possession, and this fact is respondent's justification of the judgment entered in the lower court. There were other material facts, however, which must be stated. In November, 1890, the guardian of John Moore commenced an action of ejectment against Chezum and purchasers through him. Chezum was notified to defend the action, and promised to do so, but defended only as to his own two acres. The other defendants thereupon procured their own counsel, and filed their answers. The common defense was the tax deed, based on the three-year statute of limitations. An error seems to have existed in the minds of all parties to the effect that the sale for taxes had taken place March 22, instead of April 22, 1881, which would have made the deed good on that point. The guardian, in his reply, denied all the allegations in regard to the tax deed, and sought to avoid the bar of the statute by pleading the insanity of his ward. Notwithstanding the denials, a demurrer was sustained to the reply, and the guardian was left with the right to appeal only. Upon this the parties entered into a compromise, under leave of the probate department of the superior court, whereby the guardian agreed to accept $2,000 for a conveyance of the interest of Moore's estate in the land held by the appellants,-two-thirds of the whole. Chezum procured a like compromise covering his two acres, and took a decree of the court quieting his title. This decree purported to cover the whole tract, but it did not have that effect, as his answer was a specific defense as to his two acres only. Fifteen thousand dollars was the price paid Chezum for the land, and the compromise made was an eminently prudent one for his grantees. The tax deed was void, and the fact of the true

date of the sale must have come out on a trial of the cause. The allegation of a false date in the answers was all that saved them from failure on demurrer. The action of the court in sustaining the demurrer to the reply was certain to be reversed on appeal, since it contained a general and full denial of all the facts alleged concerning the tax deed. Thus the defendants had nothing to operate in favor of their retaining possession of any of the land but the fact that the guardian was without means belonging to the estate to prosecute an appeal. Chezum was bound, under the warranties of his deed, to successfully defend the title or make it good. He refused to do either, and left his grantees to make the best arrangement they could. Having done that, he is bound to reimburse them what they paid for the title and their necessary expenses in the litigation.

The only question is whether this outlay of the appellants can be set off against a complaint to foreclose the mortgage, by way of an affirmative defense. The covenant in the deed was that the grantor was the owner in fee simple of the premises. This was a covenant of seisin, and was broken the moment it was made. Neither the legal nor the equitable title was in the grantor, and the possession which he surrendered had nothing to support it. There was no actual eviction, but the suit commenced by the guardian was a constructive one, which compelled appellants to pay for the title their grantor had warranted. When this suit was commenced the liability of Chezum was fixed and liquidated, and was a subsisting cause of action against him in favor of the principal defendants. Moreover, it arose out of the transaction constituting the foundation of the plaintiff's claim; and the principal action and the defense both arose on contract. These conditions brought the case clearly within the provisions of our code,-Code Proc. §§ 194, 195. Walker v. Wilson, 13 Wis. 584. It would be a strange commentary on the supposed advance made by the adoption of the modern codes containing such provisions as ours if all the matters of difference between a vendor and a purchaser of land, which have been advanced to the position of subsisting causes of action, could not be adjusted in one suit, brought to recover a balance of purchase money. Under any system, we think, this defense could be made. Rice v. Goddard, 14 Pick. 293; Jones, Mortg. § 1504; Wilsie, Forecl. Mortg. § 384. Where there has been no fraud and no eviction, either actual or constructive, the rule may be the other way (Peters v. Bowman, 98 U. S. 56); but the case before us is not of that kind, and the appellants will not have the rights guarantied them by the law if they are compelled to submit to a sale without deducting their just set-off against the mortgage. From the evidence it is certain that appellants paid $2,000 for the land, under the compromise, and they are entitled to credit for that sum upon the

As

notes as of the date when they paid it. to their expenses, they are entitled to a similar credit for what they paid as the reasonable value of the legal services of their counsel in the defense of the guardian's suit; but that should not include the prosecution of the forger of the John Moore deed, or the appointment of a guardian. The evidence upon this matter is indecisive, and we refer the cause to the superior court to hear further evidence on both sides, and determine the amount proper to be allowed, not exceeding $2,000. The answer was framed as a defense, not as a counterclaim, and no special damages were pleaded; none are therefore allowed.

A motion was made to retax costs. It is said that the first four items covering clerk's, sheriff's, and attorney's fees, $56.65, were connected with the erroneous entry of a judgment by default, the same being thereafter set aside by stipulation. The cost bill does not show these facts, and, as no other costs for like matters appear to be included, they will stand, except the attorney's fee. There is an item of $131.60 for "copies served in the conduct of the action, 658 folios." The record does not support any such charge, and it is disallowed. Where, under any statute or rule of court, costs of this kind depend on facts not ascertainable from the record of the case, the cost bill should itemize the charge, so that the opposing party may know what is claimed. "Abstract of mortgaged property, $25," is another unsupported item. The abstracts in the case appear to have been put in evidence by appellants.

The

Costs on execution have no place in the cost bill. They are accruing costs, which the sheriff adds as they are made. $26.90 under this head is disallowed. The notes provided that if suit should be brought upon them the maker would pay "such sum as the court may adjudge reasonable as attorney's fees." The mortgage had it that "a reasonable attorney's fee, equal to five per cent of the amount due," should be included in the judgment. Upon a recovery of $6,093.35 the court allowed an attorney's fee of $550. statute (Code Proc. § 823) allows parties to contracts to make their own agreements as to attorney's fees; but, in the absence of any agreement, section 829 regulates the matter. There was an agreement in this instance, and therefore the statutory fee of $15 was improperly in the cost bill. The notes and mortgage constituted one transaction, and the effect of the limitation of 5 per cent. in the mortgage was a construction by the parties of what was a reasonable maximum. Therefore the allowance made was excessive, as it exceeded 9 per cent. of the recovery.

This case was tried in May, 1893. June 24th findings and conclusions of law supporting the plaintiff's case were filed, and on the same day the decree was entered. At this time the act of 1893 governing exceptions in all cases, legal or equitable, was in force.

In September the defendants filed exceptions to the findings on file, and requested the finding of facts which had been established by the evidence and were material to the Issues raised by the answer. All these the court refused. Respondent maintains that there was no error, because there were findings sufficient to support the judgment. While the act of 1893 (page 111) did not expressly make Code Proc. § 379, which directs the procedure on trials by the court, applicable to equity causes, the implication is very strong that it should be so applied. If so, the findings should cover all the issues, and not merely such as may be sufficient to support the judgment. "The findings should consist of a concise, distinct, pointed, and separate statement of each specific, essential fact established by the evidence, in its proper order." Hidden v. Jordan, 28 Cal. 306. Judgments reversed for want of sufficient findings on issues made by answers. Polhemus v. Carpenter, 42 Cal. 375; Roeding v. Perasso, 62 Cal. 515; Walker v. Brem, 67 Cal. 599, 8 Pac. 320.

Precisely the same statute as Code Proc. § 379, has existed in California for many years, except that, under an amendment, findings in writing are now required only after request. Section 3 of the act of 1893 plainly contemplates that findings shall be filed, and time given to except thereto, before a judgment is entered thereon, after notice of the filing, if it occurs in the absence of the except- | ing party; and courts should be liberal in finding facts material to the issues presented by the losing party, since he may desire to appeal upon the law as applied to such facts alone, and will thus be saved the necessity of a statement containing evidence, and much consequent expense. The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.

DUNBAR, C. J., and ANDERS, HOYT, and SCOTT, JJ., concur.

(26 Or. 186)

PARKER et al. v. JEFFERY et al. (Supreme Court of Oregon. Sept. 10, 1894.) BOND OF CITY CONTRACTOR-ACTION BY MATERIAL MAN.

A person furnishing materials to one under contract with a city to build a sewer, and within 90 days after its completion to pay all sums of money due at its completion for materials used on said work, cannot sue on the bond given by the contractor for the faithful performance of his contract with the city, unless the bond was made for the direct and primary benefit of such material man.

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by C. N. Parker and others against E. J. Jeffery and others on a city contractor's bond. Judgment for plaintiffs, and defendants appeal. Reversed.

W. W. Thayer, for appellants. Clarence Cole and A. L. Frazer, for respondents.

|

BEAN, C. J. This case comes here on appeal from a judgment given in favor of plaintiffs for want of an answer, the defendants electing to stand by their demurrer to the complaint, which was overruled by the court. From the complaint it appears that on November 23, 1892, the defendants Robertson Bros. contracted in writing with the city of Portland to furnish the material and perform the labor necessary for the construction of a sewer in Curry street, to be completed by February 24, 1893, in good and workmanlike manner, according to plans and specifications therefor, to the satisfaction of the committee on streets and public property, and to be responsible for, and hold the city harmless from, any loss or damage resulting from carelessness or negligence in doing the work. As a part of this contract, it was stipulated and agreed that within 90 days after the completion of the work Robertson Bros. "would pay all sums of money due at the completion of the work, or hereafter to become due, for material used in and labor performed on or in connection with said work." On the 29th of November, 1892, they executed and delivered to the city their bond in the penal sum of $1,940, with the defendants Jeffery and Bays as sureties, conditioned that: "Whereas, the above-bounden Robertson Bros. have this day entered into a contract with the city of Portland for the construction of a sewer in Curry street, of said city, according to the plans and specifications there for, in accordance with the provisions of Ordinance No. 7915 of said city of Portland: Now, if said contractor shall well and faithfully perform all the covenants and conditions in said contract mentioned, then this obligation to be void; otherwise to be and remain in full force and virtue." During the progress of the work, plaintiffs sold and delivered to said contractors material to be used in the construction of the sewer to the amount and value of $127.50, and, the same not having been paid within 90 days after the completion of the work, or at all, this action is brought against the sureties on the bond to recover the amount thereof.

At the outset it may be well to observe that when the contract and bond in suit were executed the charter of the city of Portland contained no provision authorizing or requir ing it to exact from contractors a stipulation to pay for labor and material used by them in the performance of their contracts; and, while the absence of such a provision would not, perhaps, necessarily render the stipulation inoperative (Knapp v. Swaney, 56 Mich. 345, 23 N. W. 162), yet without it the obligation of the defendants must be determined by the same rules as would apply in the case of similar contracts between individuals. To support the judgment of the court below, the plaintiffs invoke the doctrine that, if one person makes a promise to another for the benefit of a third, the latter may maintain an action upon it, though the consideration

tained in the penal part of the bond, and simply states the terms and conditions upon which he can exonerate himself from the debt which he has agreed to pay the obligee. The condition, standing by itself, wants the very elements of a contract, and it seems to me very clear that Harriet Perkins could never maintain an action upon the conditions contained in this bond, as well for the reasons above stated as for the palpable reasons appearing upon the face of the instrument itself." And in Merrill v. Green, 55 N. Y. 270, Roberts and Green were partners. They dissolved, and Green and one Nichols executed a bond to Roberts, conditioned that Green should pay all the partnership debts. In a suit on the bond by a creditor it was held that he had no cause of suit, Grover, J., saying: "I do not think the case within the principle of Lawrence v. Fox. Green was liable, with Roberts, for the payment of the firm debts. He agreed with Roberts, upon a valid consideration, to assume the payment of the whole of the debts, and Nichols undertook that he should perform this contract. This was no agreement made by Green and Nichols with the creditors, or for their benefit, but one with Roberts, to exonerate him from his liability for the debts of the firm by payment which Green was to make, and, in case of his default, such payment to be made by Nichols. All the liability incurred by either was upon the bond, and this was to the obligee only." And in Simson v. Brown, 68 N. Y. 355, one Boyd was indebted to Macdonald on a bond and mortgage, which was assigned to the plaintiff, and which Boyd subsequently, and without knowledge of the assignment, paid in full to Macdonald. erwards, and "for the purpose of securing to the plaintiff the amount of principal and interest unpaid to him on said bond and mortgage, and to indemnify the said Boyd against the claim of the plaintiff thereon, the said W.J. Macdonald, together with one John Macdonald, executed and delivered, under seal, their bond to said William Boyd," in the penal sum of $1,000, conditioned that, "if the obligors pay or cause to be paid unto plaintiff the amount of said bond and mortgage, and hold the said Boyd harmless therefrom, then the bond should be void." The defendant guarantied the payment of the bond. It was held plaintiff could not sue, because the bond contained no promise for his benefit, and, although it may have been made for the purpose of securing to the plaintiff the amount of the principal and interest unpaid to him on the bond and mortgage, it would not entitle him to recover thereon; Folger, J., saying: "He is not entitled to maintain this action, and recover therein, unless the promise is to pay to him. We have seen that the obligation in this case contains no promise to that effect. Whatever agreement there is in it, is to pay to Boyd the sum of $1,000. The condition is not a promise, but an alternative for the benefit of the Mac

Aft

donalds. It contains no agreement to pay any one, and is not the basis of an action." And further on in the opinion it is said that: "It is not to be denied that the performance of the condition of the bond to Boyd would have worked consequentially a benefit to Simson, if it had been performed by the payment of the $500 and interest to him. It might then be said, in a way, to have been a benefit to him in the execution of it. But it is not every promise made by one to another, from the performance of which a benefit may ensue to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited." The case of Jordan v. Kavanaugh, 63 Iowa, 152, 18 N. W. 851, is, we think, clearly distinguishable from the case at bar in this: that the contract containing the promise of the principal to pay all just claims of subcontractors is attached to and made a part of the bond, and the two instruments were considered and read together by the court in determining the undertaking of the obligors in the bond, and. when so considered, contained a promise by the obligors to pay such claims; and, besides, the statute of Iowa gave a right of action to any person intended to be secured by such a bond who has sustained injury in consequence of a breach thereof. The bond upon which the case of City of St. Paul v. Butler, 30 Minn. 459, 16 N. W. 362, was brought was one required by law to be executed by all contractors with the city "for the use of all persons who may do work or furnish material pursuant to any such contract," and hence such parties were the real obligees of the bond, although taken in the name of the city. From what has been said it follows that the complaint does not state facts sufficient to constitute a cause of action, and the judgment of the court below must be reversed, and the cause remanded, with directions to sustain the demurrer.

(26 Or. 320) BELLINGER v. THOMPSON et al. (Supreme Court of Oregon. Sept. 10, 1894.) EXECUTORS AND ADMINISTRATORS-POWER TO REQUIRE BOND-VALIDITY OF BOND LIABILITIES OF SURETIES.

1. Under Hill's Ann. Laws, § 1100, requiring the county court to supervise an executor in the performance of his duties, the county court may require a bond, though the will provide that none be given.

2. A bond voluntarily given for the faithful performance of his duties by an executor is valid, though the county court had no authori ty to require such bond.

3. Where an executor, who is also appointed trustee to convert assets into cash, and pay over the proceeds as directed, assumes such duties in the capacity of executor, his sureties, in an action on the bond, cannot question the capacity in which he was acting.

4. Sureties on the bond of an executor con ditioned for the faithful performance of his du