to be used in the construction of the building, Realty Company, to be signed by the president as presently to be noticed. On August 18, 1915, Jones and wife executed and delivered to the Investment Company a note for $25,000, payable five years from date, with provisions for its maturing upon default in payment of interest; and also executed and delivered to the Investment Company a first mortgage upon the property, securing the same. At the same time a contract was entered into between the Investment Company and the Realty Company and Jones and wife which, in so far as we need here notice its terms, reads as follows: "This agreement, made this 18th day of August, 1915, between Andersonian Investment Company, as party of the first part, Central Realty Company, party of the second part, and John Parry Jones and Kate Jones, his wife, parties of the third part, "Witnesseth, that for and in consideration of matters hereinafter recited, said parties agree with each other as follows: "First. That the Andersonian Investment Company will and does by these presents agree to loan to parties of the third part, their heirs or assigns, the sum of twenty-five thousand ($25,000.00) dollars under the terms expressed in a certain mortgage this day executed by parties of the third part, which loan is to be guaranteed, and is by these presents guaranteed, by party of the second part herein, its successors and assigns, said loan to be secured by the property described in said mortgage, and now herein recited: * * "It is further stipulated and agreed as a specific consideration of said loan that said Central Realty Company shall guarantee the ultimate payment of same, and that in consideration thereof, and of other matters herein recited, said Central Realty Company shall have full charge of the building to be erected upon said premises, and shall have the right during the life of said mortgage to collect all the income from said premises, and pay all bills, and to apply the net proceeds to the payment of the liens existent upon said property, as in its judgment may seem expedient. "It is further stipulated and agreed, however, that party of the third part, namely, John Parry Jones, shall be retained as janitor of said premises as long as his services shall be satisfactory to parties of the first and second part herein, at the rate of sixty ($60.00) dollars per month; but that third parties, other than in the matter just recited, shall have no further or other rights during the life of this mortgage in the premises, but that all control and direction of the policies to be pursued in the handling of said apartment house shall be left with the Central Realty Company while its present officers are in control; it being understood and agreed, however, that in the event of a transfer of control to other parties, that party of the first part herein shall first approve the right of the successors to so continue in charge of said premises during the life of the mortgage. "It is further stipulated and agreed that said Central Realty Company, in conjunction with said parties of the third part herein, shall and they hereby stipulate and agree to provide for all remaining payments necessary to the proper and final completion of the apartment house to be erected on said premises, which apartment house shall be of the reasonable value of thirtyseven thousand ($37,000) dollars when erected, and shall be in strict accordance with the plans and specifications, true copy of which are hereto attached and made part of this agree ment. "It is further stipulated and agreed that the entire loan herein referred to shall be checked out through and over the signature of Central of said corporation and countersigned by one additional officer, and that all of said funds shall be applied in and to the erection of said building, with the exception of such commissions and expenses as may be required to be paid. * "The janitor to have an apartment for himself and family in the basement of the building, free of charge." This contract, it will be noticed, continues the relationship between the Realty Company and Jones and wife substantially as existing under their agreement of August 5th. It contains no language obligating Jones and wife to compensate the Realty Company for the construction of the building other than by the execution of the mortgages for $30,000 as originally agreed by them, though it may seem to provide for a building of greater value than was contemplated by the contract of August 5th between the Realty Company and Jones and wife. On the day of the execution of the $25,000 note and mortgage and the making of the contract between the Investment Company, the Realty Company, and Jones and wife, another contract was entered into between the Investment Company and the Realty Company, Jones and wife not being parties thereto, whereby the Realty Company agreed with the Investment Company to furnish the additional sum of $12,000 towards the construction of the building. This is found in a provision of the contract relating to the manner of advancing and applying the $25,000 of the loan from time to time towards the construction of the building, and reads as follows: "It being understood and agreed that the Central Realty Company and John Parry Jones and wife, the owners of the property herein described, have already agreed to furnish an additional fund of $12,000 necessary to the erection of said building.' While this was a binding agreement on the part of the Realty Company, it plainly was not so upon Jones and wife, since they were not parties to it. It would seem that its purpose was to insure the ultimate making of the $25,000 mortgage a good, marketable first mortgage by having the property of sufficient value for that purpose, the Realty Company being apparently sufficiently interested in the securing of the loan to induce it to enter into the contract. A few days later, to wit, on August 23, 1915, another contract was entered into between the Realty Company and the Investment Company, Jones and wife not being parties thereto, reading as follows: "Whereas, there has this day been deposited to the credit of the Central Realty Company special fund in the German-American Mercantile Bank the sum of $10,000; and whereas, on the 18th day of August, 1915, an agreement was entered into between the Andersonian Investment Company and the Central Realty Company and John Parry Jones relative to a loan for $25,000 which was to be made by said Andersonian Investment Company for the purpose of erecting a building upon lot two, block eight, of the replat of 12th Avenue addition to the city of Seattle; and whereas, said contract and agreement pro vided for the expenditure of $12,000 in addition, interest, was executed August 19, 1915, and to the $25,000 to be furnished by the Ander- concededly inferior to the $25,000 mortgage sonian Investment Company: It is agreed by the parties hereto that the said sum of $10,000, to the extent of the moneys actually adtogether with an additional sum of $2,000, shall vanced upon that loan, to wit, the $13,125 be expended by the Central Realty Company, paid over by the Investment Company to the Inc., and used in the erection of said building Realty Company and the $1,743.28 advanced and the carrying out of said above-mentioned agreement before any part of the $25,000 is to by the Investment Company to the Realty be paid over by the Andersonian Investment Company to complete the building. It is Company to the Central Realty Company special conceded that the interest upon the $5,000 account. And the Central Realty Company mortgage is in default, giving the owner shall show receipts for payments duly made in thereof the right to declare the whole amount due. connection with said building, which payments shall only be made upon architect's certificates issued by W. J. Jones, architect, in the sum of $12,000, before said $25,000 or any part thereof is to be called for." At the same time, and as part of the same transaction, the Realty Company executed and delivered to S. E. Anderson, for the Investment Company, a promissory note for $10,000, and that sum was then paid over to the Realty Company by the Investment Company as agreed upon. The construction of the building was thereupon proceeded with by the Realty Company, and, after the expenditure by it of the $12,000 thereon, the Investment Company paid over to the Realty Company, upon the $25,000 loan, sums aggregating $13,125 between January and May, inclusive, 1916. This, we assume, was applied by the Realty Company in payment of bills incurred in the construction of the building. No other sum was ever paid by the Investment Company to the Realty Company in connection with the construction of the building, and no money whatever was paid upon the $25,000 loan or otherwise by the Investment Company to Jones and wife. Enforceable liens for material and labor furnished upon the building had accumulated and been filed aggregating several thousand dollars, all of which remained unpaid at the time of the commencement of this action, in September, 1916. All of these lien claims could and would have been satisfied, we may safely assume, had the Investment Company paid over to the Realty Company the balance of the $25,000 loan, instead of refusing to do so, and claiming that the $10,000 paid to the Realty Company on August 23, 1915, was an advance upon the $25,000 loan to Jones and wife instead of an independent loan to the Realty Company. [1] The main contention here made in behalf of appellant Investment Company is that the trial court erred in refusing to treat the $10,000 paid by it to the Realty Company on August 23, 1915, as an advance on the $25,000 loan to Jones and wife. It is plain that if this $10,000 was no part of the $25,000 loan then interest had been paid upon all that was due at the time of the commencement of this action; that is, upon the portion of the loan which had then actually been advanced. On the other hand, if the $10,000 was an advance upon the $25,000 loan, then the interest which had been paid on that loan was not payment thereof in full, but there was default therein at the time of the commencement of this action, which would entitle the Investment Company to declare the whole amount due and maintain its action of foreclosure. This contention, in its last analysis, presents only a question of fact as to what the intentions of the Realty Company and the Investment Company were on August 23, 1915, at the time of the execution of the $10,000 note by the Realty Company to the Investment Company, and the paying over by the Investment Company to the Realty Company of that sum to be used by it in the construction of the building. It may be conceded that the relation between Jones and wife and the Realty Company with reference to the construction of the building was then such that whatever the intention then was on the part of the Realty Company and the Investment Company as to whether this $10,000 was an advance upon the $25,000 loan or an independent loan to the Realty Company was binding upon Jones and wife. There was introduced upon the trial of this When this action was commenced the build- case a large amount of other evidence with ing had not been quite completed. The Real- a view of throwing light upon the question ty Company being unable to complete it, a of the intentions of the Realty Company and receiver was appointed in the action, who the Investment Company touching this $10,took charge of the building in the interest 000 paid over by the Investment Company of all parties, and, under order of the court, to the Realty Company. We have painscompleted it at a cost of $1,743.28, which takingly reviewed all of this evidence. It sum was furnished by the Investment Com- would be quite impracticable to analyze pany, as already noticed. This was done it in detail here, nor do we think any usemanifestly to the end that the property could ful purpose would be served by so doing. be rented and become income producing pend. ing this litigation. The $5,000 mortgage executed by Jones and wife to the Realty Company, and assigned to the bank, and now in the hands of We deem it suflicient to say that the several contracts above quoted from, and especially the one of August 23, 1915, between the Investment Company and the Realty Company contemporaneously with the the time it received the mortgage, had full "The liens created by this chapter are prefer- over of the $10,000 by the Investment Company to the Realty Company to be used in the construction of the building, together with the numerous sidelights thrown on the several transactions by the evidence, convinces us that the learned trial court was correct in concluding that this $10,000 paid by the Investment Company to the Realty Company was intended to be, and was in law and in fact, but a loan by the Investment Company to the Realty Company wholly independent of the $25,000 loan of the Investment Company to Jones and wife. We agree with the trial court that it was made solely upon the credit of the Realty Company. The very language of the contract of August 23, 1915, above quoted, seems all but conclusive upon this question; and the surrounding circumstances disclosed by the evidence, it seems to us, show the trial court's conclusion correct with still greater certainty. It follows that at the time of the commencement of this action only $13,125 of the loan had been advanced by the Investment Company to the Realty Company on behalf of Jones and wife, and that therefore it was entitled to interest only upon the sums so advanced. Since the evidence shows that interest had been fully paid upon the sums so advanced there was no default on the part of Jones and wife at the time of the commencement of this action. Therefore the Investment Company is not entitled to foreclose its mortgage by this action, though, of course, as decreed by the trial court, that does not impair the Invest-mortgage, conceding that the architect's lien ment Company's mortgage as a first lien in securing the amount actually advanced on the $25,000 loan. [2] It is contended in behalf of the appellant John Braida, assignee of William J. Jones, the architect of the building, that the trial court erred in refusing to adjudge the lien of the architect for preparing plans and specifications and superintending construction of the building superior to that of the Investment Company's mortgage. It is argued that the architect's lien is superior to the Investment Company's mortgage because he commenced to perform labor upon the plans and specifications some two months prior to the execution of that mortgage. The trial court found that such work was commenced on June 4, 1915, which it will be noticed was over two months prior to August 18th, the date of the Investment Company's mortgage. That this work was so commenced and prosecuted by the architect at the instance of the Realty Company acting for itself and as agent for Jones and wife is quite plain. It seems equally plain that the preliminary plans and specifications were for this same building, although some changes may have been made therein in the final construction of the building. We note that not only does the evidence support these conclusions, but it also plainly shows that the Investment Company at the time it was negotiating for the making of the loan, and at " It seems quite clear to us that the learned trial court fell into error in decreeing the architect's lien now held by Braida to be inferior to the Investment Company's mortgage, and that as to this branch of the case the decree must be reversed. [3] Contention is made in behalf of appellant State Bank Examiner, successor in interest to the German-American Mercantile Bank, now owner of the $5,000 second mortgage, that the trial court erred in decreeing the labor and material liens superior to this is superior, because of the date of the com- of the $25,000 had been advanced; but we do not think there can, in good conscience, be any objection to the placing of the lien claimants, in a sense, in the shoes of the Investment Company, and the substituting of their liens as superior liens in the place of the first lien of the $25,000 mortgage, so long as the total of such liens and the amount advanced on the $25,000 does not exceed the total amount of that loan as contemplated and secured by the first mortgage. These considerations lead us to the conclusion that, under all the circumstances of the case, equity and good conscience dictate that these liens should be held superior to this $5,000 second mortgage, and that the trial court correctly so determined. The decree is in all things affirmed except in so far as it adjudges the lien of the architect, Jones, which has been assigned to appellant Braida, inferior to the Investment Company's first mortgage, and that as to that lien the decree is modified so as to adjudge it superior to that mortgage. The superior court is directed to modify the decree, and cause sale of the property, and distribution of the proceeds thereof to be had accordingly. ing incurred no costs apart from the costs awarded to the State Bank Examiner, they are denied recovery of costs in this court. MAIN, C. J., and MITCHELL, TOLMAN, and FULLERTON, JJ., concur. KNOLL v. KNOLL. (No. 14395.) (Supreme Court of Washington. Oct. 30, 1918.) 1. DIVORCE 320 REMARRIAGE WITHIN divorced person went to Canada with a resident Where within six months after divorce, a Where, within six months of her divorce decree, a divorced woman went to Canada with of marrying, and the parties were married in a resident of Washington, for the sole purpose Canada, honestly believing that the marriage would be valid, the court may, in an action brought for annullment of the marriage, treat the relation as a partnership as to all property acquired by the joint effort of the parties. 3. MARRIAGE 63-ANNULMENT-PROPERTY RIGHTS. This disposition of the cause upon the merits and the different interests involved renders it necessary that we make some directions as to the awarding of costs in this court. The Investment Company will, of course, not recover any costs in this court, since it has in all respects been unsuccess-County; Guy C. Alston, Judge. ful in its appeal. In an action to annul marriage, held that property acquired after the supposed marriage was the result of the joint efforts of the parties. The State Bank Examiner is awarded costs incurred by him solely as respondent in resisting the appeal of the Investment Company, as a part of his costs and disbursements in the foreclosure of his $5,000 second mortgage. The State Bank Examiner filed a separate brief as appellant, seeking the reversal of the decree in so far as it adjudged the lien claims superior to his mortgage. Having been unsuccessful in his appeal, he, of course, cannot recover costs incurred by him as appellant. Appellant John Braida, as assignee of William Jones, the architect, having been successful in his appeal in establishing the superiority of his lien, is awarded costs as appellant as a part of his costs and disbursements in the foreclosure of his lien. Department 2. Appeal from Superior Court, Snohomish Action by Frances Knoll against Joseph Knoll. From a decree granting only part of the relief demanded, plaintiff appeals. Reversed and remanded, with directions. Noah Shakespeare and Louis A. Merrick, both of Everett, for appellant. Coleman & Fogarty and Q. A. Kanne, all of Everett, for respondent. The MAIN, C. J. The purpose of this action, as originally brought, was to secure a divorce. An amended complaint was filed in which it was alleged that the marriage contract between the parties was void, but entered into in good faith. The defendant answered, and, among other things, alleged affirmatively that the plaintiff, at the time the marriage ceremony here sought to be annulled was performed, had not been legally divorced from a former husband. The affirmaThe lien claimants Crane Company, tive defense was denied by a reply. Schwager-Nettleton Mills, and the Seattle cause in due time came on for trial before the Paint Company have jointly filed a brief as court, and at the conclusion of the plaintiff's respondents, resisting the appeal of appellant evidence the defendant moved that the action State Bank Examiner. These claimants are be dismissed. The court declined to dismiss awarded costs in this court as a part of the action, but indicated that a judgment their costs and disbursements incurred in the would be entered annulling the marriage, foreclosure of their lien claims. Respondents which judgment the defendant did not reJones and wife have joined with the State sist. The plaintiff in her amended complaint Bank Examiner in his brief in resisting the had not only asked for an annulment of the appeal of the Investment Company. Hav- marriage but the custody of two minor chil was so engaged the appellant helped prepare the free lunches that were served in the saloon. During a large portion of the time they lived together the appellant worked as a seamstress. The property acquired during the time the parties lived together is in the name of the respondent. The evidence shows that, while the parties went to Vancouver to have the marriage ceremony performed and knew that they had no right to be married at the time in the state of Washington, they believed that the marriage performed in Vancouver, being legal there, would also be valid in the state of Washington. dren, one a natural child born as a result of business. During a portion of the time he the marriage, and the other an adopted child, and also for a division of the property which had been acquired subsequent to the marriage. The decree annuls the marriage, but makes no adjudication as to the property rights or the custody of the children. The failure to mention the children in the decree was doubtless due to an oversight, because the defendant conceded the right of the plaintiff to the custody of them, and in one of the conclusions of law, which follow the findings, it is recited that the plaintiff is entitled to the care and control of the children. From the decree entered the plaintiff appeals. The controlling facts may be stated as follows: On the 20th day of March, 1899, the appellant, being then the wife of one Henry V. Coles, instituted an action in the superior court of King county, Wash., for a divorce. The defendant in that action, though personally served, defaulted. The cause was tried on the 17th day of April, 1899, the prosecuting attorney appearing in the action. At the conclusion of the evidence the court orally announced that a decree for the plaintiff would be granted. No decree was in fact entered until the 8th day of October, 1906. The trial judge before whom the cause was tried had long prior to this time retired from the bench, and the judge who signed the decree had no knowledge of the cause except that disclosed by the record. On June 14, 1899, the parties to the present action were married in Vancouver, British Columbia, and immediately thereafter returned to the state of Washington. They went to Vancouver solely for the purpose of having the marriage ceremony performed and with the intention of immediately returning to the state of their domicile. They had no thought of changing their domicile to the jurisdiction where the marriage cere mony was performed. Soon after returning from Vancouver they took up their residence in Everett, where they resided together until a short time before the present action was begun some time during the early part of the year 1917. The plaintiff in this action did not know that no formal decree had been entered in the former divorce action prior to the time that the parties to this action entered into the contract of marriage, and in fact did not know that there was any question about the validity of the decree in the prior action until after the present action was instituted. The fault apparently was due to the failure of her attorney in that action to prepare findings, conclusions, and a decree and have them signed and entered. The parties to this action, as above stated, shortly after the marriage ceremony was performed in Vancouver, went to Everett, where the respondent engaged in the saloon [1] Much argument appears in appellant's brief in an endeavor to establish the validity of the decree entered in the former action, but we shall not review this argument nor the authorities cited. Even though a valid decree had been entered on the 17th day of April, 1899, the marriage ceremony in Vancouver, having been performed within six months from that date, would be void in this jurisdiction; the parties having gone there solely for the purpose of being married and with the intention of immediately returning to the state of Washington, and having had no intention of changing their domicile. Pierce v. Pierce, 58 Wash. 622, 109 Pac. 45; Peerless Pacific Co. v. Burckhard, 90 Wash. 221, 155 Pac. 1037, L. R. A. 1917C, 353, Ann. Cas. 1918B, 247. The fact that the marriage ceremony performed in Vancouver may also be void for another reason would not affect the situation here. [2] The controlling question upon this appeal, as it seems to us, is whether the mar riage here sought to be annulled was entered into and kept in good faith by the appellant and was in no sense meretricious. The record shows that the appellant believed she had been legally divorced from her former husband, and the fault in failing to have the decree rendered was not hers, but that of her attorney in that action. As to the effect of that proceeding, the appellant at the time" she entered into the marriage contract with the respondent was in good faith acting under a mistake of fact. In going to Vancouver to be married for the purpose of circumventing the laws of this state the appellant in good faith believed that such marriage there performed would constitute the parties thereto legally husband and wife in the state of Washington, notwithstanding the fact that the marriage ceremony could not be performed here until six months after former divorce. It thus appears that the appellant's good faith rested both in mistake of fact and mistake of law. The fact that the appellant knew that she had no right to be married in the state of Washington, but believed that she had a right to be married in a foreign jurisdiction, and that such marriage would |