him, the record leaves but little doubt in our minds as to where the truth lies. He represented that the property would produce in rentals $24 per week, whereas it could not subsequently be made to bring as much as half of that sum, and this under the management of the respondent himself. He represented to her that the property was in a desirable locality for an apartment house, whereas it was shown that it is situated in what was formerly a restricted district, and because of its locality was not sought by a desirable class of tenants. He represented that a railway company had recently purchased lands in the vicinity for a right of way, and would shortly erect a depot near the property, whereas no such right of way had been purchased nor was the building of a depot, so far as shown, even contemplated by a railway company. He represented that the property could be turned into cash within a short period at a price which would net the appellant the values she placed upon the property she was given in exchange, and that he had a customer ready to take it at such a price, or, to use her language: "He said he wanted three months' time within which to sell the property, because he had a purchaser from Seattle waiting for their money to be handed over to them when the court decided to buy the Knapp place. He said they had been up several times, and were perfectly satisfied with the place, and just asked for time until their money could be got from the East. They seemed to be heirs, as I understood it, and their case was in court, and was to be decided in a short time, and by the time the case would be decided, the depot would be started, and he would get $12,000 for that place. That was the way the deal was planned. He was to sell the Knapp property to those people and give me, less the commission, $12,000; the mort gage to be deducted." Whereas, he knew that the property could not be so sold for the price stated; that he had not shown it to any Seattle parties, and, in fact, had no customer. As we say, there can be no other conclusion drawn from the evidence than that the appellant believed these representations and was induced to make the exchange she did make because of them. [2, 3] The further question is: Do these representations justify a rescission of the contract? It is our opinion that they do. In the first place, the difference between the values of the properties exchanged was so gross as to challenge the good faith of the transaction. In so far as the appellant is concerned, there was a gross inadequacy of consideration-for the thousands that she gave up she received only hundreds in return-and gross inadequacy of consideration has always been regarded as a badge of fraud. In the second place, all of the representations made by the respondent were not mere "seller's praise" or mere matters of opinion. Some of them at least related to matters of fact the truth or falsity of which could not readily be ascertained by the appellant. She could not readily ascertain, for example, whether a right of way had been purchased by a railroad company for a line of railway which would run near the property, and that a depot building was to be constructed near the property, nor could she readily ascertain whether the appellant had under way a sale of the property which was being delayed merely because of certain necessary formalities in court procedure; and these, we think, were representations with reference to material matters, purposely used with the intent to deceive and defraud. We said in Best v. Offield, 59 Wash. 466, 110 Pac. 17, 30 L. R. A. (N. S.) 55, that all the cases agree that the purchaser may rely upon representations of the vendor where for any reason the falsity of the representations are not readily ascertainable, and, clearly, the principle is applicable to certain of the representations made here. Some of the representations claimed to have been false and fraudulent may fall under the denomination matter of opinion, but the result of the whole was that the appellant was overreached, and the respondent, because thereof, obtained an unjust and unconscionable advantage. The observation of Judge Root in Stone v. Moody, 41 Wash. 680, 84 Pac. 617, 5 L. R. A. (N. S.) 799, therefore seems pertinent, namely: "Where it is to the court perfectly plain that one party has overreached the other, and has gained an unjust and undeserved advantage which it would be inequitable and unrighteous to permit him to enforce, we do not believe that a court of equity should hesitate to interfere, even though the victimized parties owe their predicament largely to their own stupidity and carelessness. It is well known that many good people, and people of average or greater intelligence, are sometimes duped and misled by the skill, cleverness, and artifices of those who are adepts in the matter of deceiving their fellow men; and courts should not throw about schemers of this kind a protection that will tend to encourage the practice of their arts. Such people should not find encouragement in the thought that, by keeping their machinations within the letter of the law, they may find sanction for their practices and reap the reward of import whether his property is taken from him their craftiness. To the victim it is of little by a bold and forcible robbery or by an ingenious and unsuspected deception. The injury to him is the same; and the evil effect of court the fruits of his chicanery is of no small imdecisions which permit the wrongdoer to enjoy port when viewed from the standpoint of public policy. It is not the function of courts to make contracts for parties, or to relieve them from the effects of bad bargains. But, where the simplicity and credulity of people are taken advantage of by the shrewdness, overreaching and misrepresentation of those with whom they are dealing, and they are thereby induced to do unwittingly something the effect of which they do not intend, foresee, or comprehend, and which, if permitted to culminate, would be shocking to equity and good conscience, we think a court of equity may with propriety interpose." [4] It remains to inquire what form of decree should be directed. After receiving possession of the deeds the respondent immediately sold the lots at the town of Des Moines, and increased the mortgage on the 40-acre tract from $1,000 to $1,200, retaining, however, the legal title to the latter proper Lucius G. Nash and Nuzum, Clark & Nuzum, all of Spokane, for appellant. Tolman & King, Luby & Pearson, John B. White, and Fred J. Cunningham, all of Spokane, for respondents. ty. It is not questioned that the purchasers | Edward Connolly, deceased, to contest the of the lots situated at Des Moines and the will. From a judgment in favor of contestmortgagee of the 40-acre tract acted in the ants, defendant appeals. Affirmed. utmost good faith, and, under well-known principles, the interest acquired by them cannot be questioned by the appellant. This precludes a recovery in specie of the lots, or any modification of the mortgage, but (the defendant being insolvent) it does not prohibit a recovery in specie in so far as recovery afMOUNT, J. The purported will of Edward fects only the immediate parties to the con- Connolly, deceased, is contested by one astract, with a judgment over against the par-serting himself to be an heir, and by the state ty perpetrating the wrong for the value of of Washington. The case took the usual turn the property he has placed beyond the reach of such cases, and there is much conflict of of the process of the court. This principle testimony. would entitle the appellant to a recovery of the 40-acre tract in specie, and to a judgment against the defendant Carmichael J. Smith found the will to be a forgery, and held, furAfter very thorough inquiry the trial judge for the value of the Des Moines lots, plus the ther, that the right of the state to claim the difference in the amount of the mortgage on escheat of property of deceased persons property under the laws providing for the the 40-acre tract at the time of the exchange would not be prejudiced by his holding. The and the amount to which it was subsequently increased. There is some contrariety of opin-witnesses to the will testified that it was exeion in the evidence as to the value of the Des Moines lots, but conservative witnesses valued them at from $1,000 to $1,500. The appellant received certain small sums in rents from the apartment house with which the respondent must be credited. Striking a balance, we find that the money judgment to which the appellant is entitled is $1,250. The appellant must also reconvey to the respondent the apartment property. The decree of the lower court is therefore reversed, and the cause remanded with instructions to enter a decree in accordance with this opinion. MORRIS, C. J., and ELLIS and CHADWICK, JJ., concur. In re CONNOLLY'S ESTATE. FARLEY et al. v. HOPKINS. (No. 12658.) (Supreme Court of Washington. Jan. 10, 1916.) 1. WILLS 302-DOCUMENTARY EVIDENCEIDENTITY OF SIGNATURES. That an alleged forged signature is fac simile of an admittedly genuine signature, is, where the writer was illiterate, strong and wellnigh conclusive evidence of forgery. REFUSAL [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 575, 581, 700-710; Dec. Dig. 302.] 2. APPEAL AND ERROR 1011 FINDING. A finding of the trial court on conflicting evidence, where it had the witnesses before it, will not be disturbed on appeal. [Ed. Note.--For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. 1011.] Department 1. Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge. cuted by the deceased, and its whereabouts is show that the deceased had not executed a will, and that he had manifested an intent not to do so. Several experts in handwriting were offered as witnesses, and they concur in the opinion that the purported signature to the will is a forgery. The fact that the experts agree in this case may be attributed to the unusual instance that they were all testifying on the same side of the case. At least two men who were familiar with the signature of the deceased, and with the deceased and his characteristics, expressed the opinion that the signature was that of Edward Connolly. We have read the whole of the record with more than our usual care, keeping in hand the several exhibits to which the witnesses were addressing their testimony. We have made the same examinations and comparisons in the same way and with the same instruments employed by the expert witnesses and, but for the fact that there was offered by the proponents of the will an admitted signature of Edward Connolly and which became the principal basis for comparison, we would be inclined, notwithstanding the opinion of the experts, to hold that the signature to the will is genuine. But when the two signatures, the one upon the will and the one referred to as Exhibit No. 7 are considered, we believe, as the court below must have believed, that the signature upon the will is a tracing of the genuine signature. Edward Connolly was not a man of education, nor was he given much to writing. Proceeding by John Farley and the State [1] It is understood of all men that no two of Washington against James Hopkins, as signatures are exactly alike, or so nearly executor of the last will and testament of alike that they will bear a superimposition 154 PACIFIC REPORTER of one upon the other, and if they do, it is | months the authenticated signature to which says: "Strange as it may seem, however, in many It has so happened in this case. too much. * "This coincidence of a disputed signature with a genuine one when superimposed against the light has long been held by the courts to be proof of simulation." Matter of Burtis, 43 Misc. Rep. 437, 89 N. Y. Supp. 441. "That an illiterate man, capable of writing his name * * painstaking design, produce two signatures so could, without tracing and precisely alike," is deemed incredible. Matter of Koch, 33 Misc. Rep. 153, 68 N. Y. Supp. 375. "It is a fact well known, and may be readily verified, that no two signatures, actually written in the ordinary course of writing them, are precisely alike. The character of a person's signature is generally of uniform appearance, and the resemblance between one and another signature of the same person is thus apparent. coincidence is seldom, if ever, known, where a But the genuine signature of a person, when held up to the window pane, superposed over another genuine signature of the same person, is such a fac simile that the one is a perfect match to the other in every respect. * ** "But where two or more supposed signatures are found to be counterparts, I think the simulation is detected by that circumstance. Genuine signatures will not lap with perfect similarity one over another.' Hunt v. Lawless, 7 Abb. N. C. 119. "It does not seem hardly possible that one, without design, can write his name twice so exactly alike, in spaces between and height of the letters, and their slope or angles, as that a tracing of one will accurately measure the other in every respect. show that it cannot be done when it is sought to Indeed, numerous experiments be done. Such a perfect coincidence as in the case of these two signatures in this cause is at least highly improbable, and but barely possible, if attainable at all." 129, 31 N. W. 823. Day v. Cole, 65 Mich. And so conclusive is this circumstance that at least one court has followed it to the exclusion of other evidence. It is said: 66 * * * And for this reason it does not need the testimony of experts to demonstrate that these signatures were not genuine, but tracings. The resemblance in each is so striking that it cannot help but be observed upon a bare inspec tion, and if a measurement be made from any given point in one, it will be found to correspond to the merest fraction of an inch in the other; in other words, each signature will superimpose the other, a similarity which does not appear in the concededly genuine signatures introduced in evidence, and which from the very nature of things could not occur." App. Div. 223, 81 N. Y. Supp. 68. Matter of Rice, 81 [2] We have not overlooked the point that is made that the will antedates by three it is not likely that one who is disposed to We have weighed it carefully, and we think that In short the testimony is conflicting. the findings and decree of the trial judge are sustained by a preponderance of the evidence. We have come to this conclusion endeavoring in our own minds to reject entirely the testiand George Morris. The testimony of these mony of two of the principal witnesses for the contestants, that is to say, Stephen Doyle We believe ourselves that their testimony is witnesses is vigorously assailed by counsel. so freighted with fabrication as to make them unworthy of belief. There is no question of law in this case. and hearing the witnesses, and of marking The trial judge had the advantage of seeing their demeanor while upon the witness stand. We find nothing that would sustain a holding that the preponderance of the evidence is not with the contestants. The decree of the lower court is affirmed. FULLERTON, JJ., concur. and SMITH et al. v. CRAVER et al. (Supreme Court of Washington. Jan. 11, 1916.) (No. 12792.) MUNICIPAL CORPORATIONS 582-EMINENT DOMAIN LOCAL IMPROVEMENT — DELINQUENT ASSESSMENT-DEED TO PURCHASERNOTICE TO "OWNER.' suance of deeds to the purchaser of certificates of delinquency issued on eminent domain local Within Rem. & Bal. Code, § 7808, as to isimprovement assessments, the owner of the lots days' notice within which to redeem, which nobeing after lapse of two years first given 60 tice can be given by publication if the owner cannot be found in the state after diligent search, S., in whose possession the lots have been for 10 years, who was the record owner appeared as owner on the assessment rolls and when the assessments were levied, whose name always lived in the immediate vicinity of the in the certificate of delinquency, and who has given, she having continued to be the actual lots, is the "owner" to whom notice must be owner, though after the issuance of the delinquent certificates she gave a mortgage in the form of an absolute deed to G., which was recorded, whereby he became the apparent record owner. Corporations, Cent. Dig. §§ 1299, 1300; Dec. First and Second Series, Owner.] Department 2. Appeal from Superior For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Barker & Rozema, of Seattle, for appellants. A. C. MacDonald, of Seattle, for spondents. of dismissal, plaintiffs appeal. Reversed and the lots and the only person to whom notice remanded. of application for the deeds was required to be given. No other notice was given to any one. Thereafter respondent L. R. Craver re-filed with the city treasurer his affidavits, stating, in substance, that he was the owner of the certificates; that notice had been given PARKER, J. The plaintiffs, Effie E. Smith by publication to George E. Gowen; that et al., seek to have set aside two tax deeds George E. Gowen was the record owner of issued to the defendant L. H. Craver by the the lots; "that immediately before publishing city treasurer of the city of Seattle for lots the notice hereinafter referred to, affiant 11 and 12, respectively, of block 3, Evans & made, and caused to be made, diligent search Blewett's addition to the city of Seattle. The for the said George E. Gowen, and that affideeds were issued upon delinquent eminent ant has been unable to find him, and believes domain local improvement assessments and that said George E. Gowen is not now within certificates of delinquency issued therefor, the state of Washington, and was not at the and are claimed by the defendants to rest time of the first publication of the notice of upon valid proceedings regularly had under application for a deed;" and that all other section 7808, Rem. & Bal.. Code, relating to taxes against the lots had been paid. Resuch delinquent assessments. The defendant spondent L. H. Craver thereupon demanded of L. H. Craver demurred to the plaintiffs' com- the city treasurer that he issue deeds to him plaint upon the ground of insufficiency of for the lots as holder of the unredeemed cerfacts to constitute a cause of action. The tificates of delinquency. Thereafter, on July demurrer was by the court sustained: and, 8, 1913, the city treasurer executed and delivthe plaintiffs electing to not plead further, ered to respondent L. H. Craver a deed for judgment of dismissal was rendered against each of the lots; the same not having been them, from which they have appealed. redeemed. No notice of any application for The controlling facts may be summarized the deeds, or either of them, was ever given to from the allegations of the complaint as fol- appellant Effie E. Smith, nor did she have any lows: Appellant Effie E. Smith was the ac- actual notice or knowledge thereof. Thereafttual and also the record owner of the lots at er appellant Effie E. Smith, for the purpose of the time of and long prior to the issuance of effecting a redemption from the sale of the the delinquent certificates here involved. lots, caused to be tendered to L. H. Craver the Her name appeared upon the assessment rolls sum of $425 in payment of the delinquent asas the owner of the lots, and her name also sessments for which the certificates were isappeared on the delinquent certificates as the sued, including additional taxes and assessowner of the lots. In November, 1912, after ments paid by respondent Craver and his the issuance of the delinquent certificates, predecessor in interest, which tender was reGeorge E. Gowen became the apparent record fused. In her complaint Effie E. Smith offers owner of the lots. While the conveyance to to pay all taxes, assessments, and lawful him was by deed absolute in form, it was in-charges to whomsoever due for the redemptended as a mortgage only to secure a loan tion of the lots. Touching the question of the of $445, made by him to appellant Effie E. necessity of notice to appellant Eilie E. Smith Smith. The record of this deed in the office of the applications for the deeds, giving her of the auditor of King county made him the opportunity to redeem as owner of the lots, apparent record owner of the lots. In April, she alleged: 1913, respondent L. H. Craver, having then become the owner by assignment of the certificate of delinquency against lot 11, gave notice to George E. Gowen, by publication, of his intention to apply to the city treasurer for a deed to that lot if not redeemed within 60 days from the date of the first publication of the notice. In April, 1913, M. L. Ash, the original holder and then owner of the certificate of delinquency against lot 12, gave notice to George E. Gowen, by publication, of his intention to apply to the city treasurer for a deed to that lot if not redeemed within 60 days from the date of the first publication of the notice. Thereafter respondent L. II. Craver, became the owner of that certificate No question is made as to the validity of of delinquency by assignment from M. L. the assessments, or the validity of the certifAsh. These published notices were addressed icates of delinquency. The deeds were is to George E. Gowen only. They were evident-sued, as claimed by counsel for respondents, ly so addressed and given, upon the assump- in accordance with procedure regularly had, "That said plaintiff Effie E. Smith is now, and has been for more than 10 years last past, lots 11 and 12, block 3, Evans & Blewett's the owner in fee simple and in possession of addition to the city of Seattle, in said county, as her separate property. The plaintiff Effie E. Smith is now, and has been for several years last past, a resident of the city of Seattle aforesaid, and for a long time prior to the publication of said notice lived in the immediate vicinity of said lots 11 and 12, and lots could have been ascertained at any time beher whereabouts and her ownership of said fore the publication of said notice, if any diligence at all had been exercised." This action was brought about one year following the issuing of the deeds by the city treasurer. 154 PACIFIC REPORTER (Wash. 7808, Rem. & Bal. Code, which, so far as we toppel against him, asserting that he is the need here notice its provisions, reads: * "Every piece of property sold for an assess- furnishing him an opportunity to redeem. real owner and as such entitled to notice ment shall be subject to redemption by the It might be that if the same name appeared former owner, or his grantee, mortgagee, heir or other representative at any time within two as owner upon the assessment rolls, in the years from the date of the sale. Should no redemption be made within said conveyance in the auditor's office, and in adcertificate of delinquency and in the record of period of two years, the treasurer shall, on de- dition thereto the lot was not in possession mand of the purchaser or his assigns, and the surrender to him of the certificate of purchase, of any one, such evidence of ownership would execute to such purchaser or his assigns, a deed entitle the holder of the certificate of delinfor the piece of property therein described: Pro-quency to a deed upon giving notice to such vided, that no such deed shall be executed until the holder of such certificate of purchase shall owner, regardless of who the true owner have notified the owner of such piece of proper- might be. ty that he holds such certificate, and that he will We have seen that these lots have been in But we have no such case here. demand a deed therefor; and if, notwithstanding such notice, no redemption is made within the possession of appellant Effie E Smith sixty days from the date of the service or first for more than 10 years past; that she was publication of such notice, said holder shall be the record owner when these assessments entitled to said deed. Said notice shall be giv- were levied; that her name appears as ownen by personal service upon said persons: Provided, that in case said parties are nonresidents er upon the assessment rolls; that her name of the state or they cannot be found therein aft- appears as the owner in the certificates of er diligent search, then such notice may be giv- delinquency; and that she now lives, and en by publication in a weekly newspaper pub for a long time prior to the publication of lished in said city once each week for three successive weeks or if no newspaper be publish- the notices had lived, in the "immediate vied in said city, then publication shall be made cinity" of the lots. We think these are facts as provided in section 7792. return thereto, with the affidavit of the person Such notice and to which respondent L. H. Craver could not claiming such deed showing that such service shut his eyes. We are not dealing with the was made, shall be filed with the treasurer. foreclosure of a general tax lien, a lien which Such deed shall be executed only for the piece the law itself furnishes to all owners, in a of property described in the certificate, and after payment of all subsequent taxes and spe- measure, an annual notice of its existence. cial assesments thereon." lien, the creation of which the owner of the But we are dealing with a local assessment property charged may never have any actual notice, and which is sought to be foreclosed in this summary manner instead of by judicial process. nent domain local improvement assessment, More, this is an emifor which property at some considerable distance from, and not abutting upon, the improvement may be assessed, so that the mere to the owner that his property is to be asmaking of the improvement may not suggest sessed therefor, as it generally does where his property abuts directly upon an ordinary local improvement which he sees being constructed. Hence the necessity, which the law has always recognized in such cases, of requiring the strictest compliance with the prescribed statutory prerequisities for the issuance of a deed, divesting the owner of title in satisfaction of such an assessment. These observations suggest the exercise of great caution and require strict adherence to the notice and procedure prescribed in section the owner is divested of his title in satis7808, above quoted, before it can be held that faction of such a local assessment by the issuance of a deed by the city treasurer, especially where the required notice furnishing the owner an opportunity to redeem is not personal, but constructive only, as the notice here relied upon was. We are The principal contention of counsel for appellants is that Effie E. Smith was the owner of the lots at all times here involved, within the meaning of the provisions of section 7808, above quoted, requiring notice to be given to "the owner" by the holder of the certificate of delinquency of his application to the city treasurer for a deed, so as to furnish such owner an opportunity to redeem before the issuance of such deed. constrained to agree with this contention, assuming, of course, that the allegations of the complaint are true. Counsel for respondents proceed upon the theory that the notice need only be given to the record owner, that is, the record owner as shown by the instruments of conveyance of record in the county auditor's office, and that since there was of record in that office a conveyance absolute in form for the lots from appellant Effie E. Smith to George E. Gowen, respondent L. H. Craver had the right to rely absolutely upon such conveyance as showing George E. Gowen to be the owner of the lots. this law is silent as to who shall be deemed Now the owner for the purpose of giving notice of application for deeds within the meaning of section 7808 above quoted. This law is, in this respect, unlike those tax laws which provide that for the purpose of service of notice or process, those persons shall be deemed owners whose names appear upon the tax rolls or some other specified public record. This law uses the word "owner," in this connection, unqualifiedly; and we think it means the real owner, unless the real owner has done something which works an es In Albring v. Petronio, 44 Wash. 132, 140, 87 Pac. 49, 51, Justice Crow, speaking for the court, said: "Our view is that this statute must be strictly construed as against the respondent; that he must be held to a complete and exact compliance with all of its provisions as a condition |