has been some hostile assertion of a better title. See Rawle, Cov. (3d Ed.) p. 156, where this careful and learned author, after an exhaustive review of the cases, comes to the conclusion that the better considered modern cases establish the law as above stated. Not only do the authorities establish the doctrine that this covenant is not broken by the naked fact that there is a better title outstanding; but we think that this is so upon reason also, for it may well happen that a person may in the best of faith convey a piece of land of which he has not a perfect title, being satisfied that he will be able to perfect his title so as fully to protect his grantee; and yet, under the rule contended for by the plaintiff in this cause, the covenant for quiet possession in his deed would be broken when made, and an action thereon would lie even although the grantor should make perfect his title the next day after making the deed.

There are some modern cases that hold that if, at the time of the conveyance, the premises are in the actual adverse possession of a third person holding by superior title, that then this covenant is broken as soon as made. But if we concede this to be the law, still the complaint in this case would be fatally defective, as there is not even an attempt made to allege such an adverse possession; the allegation being, as before stated, simply that the grantor was not the owner; and all of the allegation in question might be entirely true, and yet the grantor have been in the quiet possession of the premises described in the deed at the time of the making thereof, and may have put his grantee in such possession, which he, the said grantee, may be now fully enjoying without any disturbance or threat of the same.

After a careful examination, we have been unable to find a single case that goes anything like far enough to sustain the allegation in question; and we think that, upon reason and authority, the complaint failed to show any breach of the covenant set out therein. The demurrer was therefore rightly sustained by the district court, and its action in so doing, and in giving judgment for the defendant thereon, must be affirmed; and it is so ordered.

GREENE, C. J., and TURNER, J., concur.

(2 Wash. T. 407)

YESLER V. DE KOSLOWSKI.

Filed August 5, 1885.

STATUTE OF LIMITATIONS-PAYMENT OF INTEREST ON NOTE.

Payment of interest on note by maker, and indorsement thereof on note by holder, held to take note out of the statute of limitations.

Error to the Third judicial district.

Struve, Haines & McMicken, for appellant, Henry L. Yesler.
C. H. Hanford, for appellee, William De Koslowski.

WINGARD, J. This was an ation brought by the appellee against the appellant upon a promissory note given by appellant to John Leary for the sum of $300, dated March 21, 1874, due on or before September 1, 1874, with interest payable monthly, in advance, at the rate of 2 per cent. per month. This note was assigned, after maturity, to one Coleman, and by Coleman to Koslowski. The appellee alleges that Yesler paid the interest on the note which was then due, on September 21, 1875, which allegation, inter alia, the appellant denied. Appellant also pleads the statute of limitations, which was denied by the reply. The action was commenced July 5, 1881. The cause was tried by the court, which found all the issues presented in favor of the appellee; and thereupon a decree was entered in favor of the appellee, from which the appellant takes this appeal.

The fifth finding of the court below is as follows:

"That on the twentieth day of September, 1875, said defendant, Henry L. Yesler, paid to said James L. Coleman, as interest on said note, the sum of $66, and said Coleman upon the same day indorsed said payment on said note."

This finding, which we think is sustained by the evidence, takes the claim of the appellee, based upon the note, out of the statute of limitations. Code Wash. §§ 44, 45; 3 Pars. Cont. (7th Ed.) pp. 73-77. The seventh finding, which we also agree is sustained by the evidence, is as follows:

"That no payments have been made upon said note since said twentieth day of September, 1875, and the whole of the principal of said note, and the interest thereon since said twentieth day of September, 1875, remains unpaid."

The thirteenth finding of the district court is as follows:

"That there is no counter-claim or set-off against said promissory note." This last finding was doubtless based upon the evidence disclosed by the account itself, pleaded by the appellant as a counter-claim, that said account was barred by the statute of limitations. It follows from these findings, supported by the evidence, as we deem them to be, that the court below correctly rendered the decree of which the appellant complains.

The judgment of the district court is affirmed.

HOYT and TURNER, JJ., concur.

(2 Wash. T. 464)

BROWN and others v. RANK.

July Term, 1885.

APPEAL-ASSIGNMENT OF ERRORS.

Action held one at common law, and appeal dismissed because of a failure to assign errors in conformity to supreme court rule 5.

Appeal from Second district.

Motion to dismiss the appeal. L. Holmes, for appellants, L. D. Brown and others.

B. F. Dennison, for appellee, William Rank.

GREENE, C. J. Gazing at this motion to dismiss, we see but a single question necessary to its decision, namely, whether this cause is to be deemed one in equity or one at common law. Our rules require an assignment of errors in a law, but none in an equity, cause. Dismissal of the appeal would be the natural sequence of holding this to be a cause at law; for there is no assignment of errors here. We gather from the record that the appellants, who were plaintiffs below, are seeking to open up a judgment rendered upon overruling a demurrer to the answer. In answering, defendant, besides denials, had pleaded four affirmative defenses, to the three last of which plaintiffs interposed a lumping demurrer. Legal, and not equitable, all these defenses are conceded to have been, unless the fourth, which was addressed to the judge and was apparently intended as a plea of equitable estoppel. Let the intent as to the last have been what it may, the matter pleaded did not in our opinion display facts sufficient to constitute a defense of any description. Jurisdiction is to be determined by presuming everything to be of common-law cognizance, until the necessity for invoking equity jurisdiction appears. Unless we are to give an unreasonable force to the address of the fourth defense to the judge, we are unable to see any necessity for him to act in the capacity of chancellor in deciding the demurrer.

Decision of the demurrer was, we think, a decision at law. Getting the cause here for review of that decision is a proceeding in the nature of a writ of error. Errors therefore should have been assigned conformably to rule 5. Appeal dismissed.

EVIDENCE-ORAL AGREEMENT TO BUY AND SELL LAND-CONSIDERATION FOR DUE-BILL.

In an action on a due-bill, plaintiff may prove that an agreement was entered into between himself and defendant to purchase certain lands and divide the profits of resale, and that such due-bill was given to plaintiff by defendant in settlement of his portion of such profits.

Error to Third judicial district.

C. E. Bowman and Burke & Hallen, for plaintiffs in error.
G. Venable Smith, for defendant in error.

WINGARD, J. This was an action brought by Arthur M. Scott against I. W. Bigelow on a due-bill in words and figures as follows:

"SEATTLE, WASH. TER., July 3, 1883. "Due Arthur M. Scott seven hundred and fifty dollars, payable thirty days after date. I. N. BIGELOW."

The complaint alleged that said due-bill was given for value received, and admitted a credit or payment of $500 on the eighth day of August, 1883. The defendant below denied each and every allegation of the complaint, except the making and delivery of the duebill and the payment of $500, and set up as new matter of defense a special contract between himself and Scott, alleging that at the time of making and delivering of the said due-bill, and as the consideration thereof, plaintiff below orally promised and agreed that if defendant below would make and deliver said due-bill that said plaintiff would, within 20 days from its date, and before the said due-bill would become due, purchase and procure for said defendant below a one-half interest in a certain lot in the city of Seattle of the value of $250 and upwards, and that said promise of plaintiff below was the sole and only consideration for said due-bill. Defendant below further alleged a breach of this oral agreement, and that before the commencement of this suit he had elected to abandon and rescind the said oral agreement, and still elects to rescind and abandon the same. The plaintiff below for reply denied each and every allegation set up in the answer as new matter.

This, we think, completed the issues, and the further allegations of the reply were only evidential and might have been stricken out on motion. Code, § 95; Pom. Rem. § 625

The plaintiff offered to prove on the trial that the due-bill aforesaid was given for money received by defendant for plaintiff's use, arising out of the following transaction, viz.: Plaintiff and defendant had agreed by parol that plaintiff should pay to defendant one-half the money paid by defendant for the purchase of certain lands. Said lands were purchased by defendant in his own name, plaintiff to own jointly with defendant one-half interest in said lands, and was to receive from defendant one-half the proceeds of the sale of said lands; that on July 3, 1883, plaintiff and defendant had a settlement of the account of said real-estate transaction; that thereupon defendant admitted and agreed that the sum of $750 was plaintiff's portion of the proceeds of the sale of real estate mentioned, and that said duebill was given in consideration of said debt of $750 due from defendant to plaintiff.

Defendant below objected to the introduction of this evidence because it was not competent evidence at law to prove the purchase by plaintiff of any interest in said lands, and because any such contract

or interest can only be proved by deed, and because the same was a variance from the allegations and issues of plaintiff. The court overruled the objection. Exception was asked and allowed, and this ruling of the court is assigned as error.

A motion was made to strike out the foregoing evidence. Also a motion for nonsuit, both of which having been denied by the court, the denials are assigned as errors. A verdict was rendered for the plaintiff below, upon which judgment was entered.

We find no error in the record, and deem it unnecessary to say more than this upon the foregoing statement of the case. Let the judgment of the court below be affirmed.

HOYT and TURNER, JJ., concur.