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the pur

ing their minority as it was to preserve the ent of such former proceedings. Witnesses land intact. However, as to this feature of were examined in this case as to what took the case, it is sufficient to say that the land place, what was admitted, and what testiwas not sold upon the application aforesaid mony was introduced in such former proceedof the guardian of the plaintiffs, but was ings; and the judge before whora they were sold by virtue of the independent partition had was called and testified, and said that proceeding brought by the alleged owner of he based his judgment on what he supposed the other half interest, against which claim- was sufficient to justify the decree which ed interest, if well founded, the will could he signed. There is no testimony in this not in any wise operate.

record tending to show that any person conThere being no fraud in the premises, the nected with the defense of that partition case claims of the plaintiffs in this case must be was not as fully informed of every existing sustained, if at all, on the ground of the in- fact connected with the subject-matter of validity of the various proceedings above that litigation as this court' is capable of set forth, by virtue of which the land was being informed by the record before it, and found to be community property, and was there is absolutely no bint in the testimony sold to the defendants, now claiming it. that the plaintiff in that case, or any person Questions of estoppel against the plaintiffs, in his behalf, did anything to mislead the and claims that the defendants, or some of legal representatives of those defendants, or them, are bona fide purchasers without no- to conceal from them any fact, or did any, tice, have been presented, which we pass thing in any way to prevent a fair trial. If, over as immaterial, and treat the case as as claimed by appellants, the question of though all of the defendants had full notice title was heard, in part, upon an agreed stateof all the foregoing proceedings.

ment of facts, they were the true facts in In the proceedings brought for a partition the case. Plaintiff's counsel produced in of the land by virtue of which it was sold, court the deed on which plaintiff relied to the court had jurisdictiop of the plaintiffs prove his title. He also produced in court in this case, and of the subject matter. It sufficient testimony to convince the court of was there found that Friday owned a one- the necessity of selling the premises. The half interest in the land, and its sale was sale of the property followed in accordance ordered, and had accordingly.

These pro

with the decree of the court. The plaintiff ceedings are attacked on the ground that in the partition proceeding was the statute was not complied with in adver- chaser. The defendants, through their countising the sale. The first publication of the sel and otherwise, employed every means notice of sale was made on the 3d day of to make the property bring the highest posJuly, and the decree was not signed until sible figure. This commendable zeal had its the 7th. As a matter of fact, however, the effect; and the testimony stands undisputed finding of the court had been made prior to that the sale was in all respects fairly conthe publication, and the point raised is noth- ducted, that there was a lively rivalry being more than an irregularity, which would tween the bidders, and that the land brought not affect the jurisdiction of the court in the highest estimate of its value. the premises. It could only be taken ad- Partition is a civil action, in contemplavantage of by an appeal in the proceedings, tion of our Code, and may be used as a form if at all, and none was taken.

of action to try title. “The rights of the Complaint is also made that the guardian several parties, plaintiffs as well as defendand attorneys of record for the plaintiffs ants, may be put in issue, tried and deterherein admitted in that proceeding that the mined in such suit, and where a defendant land in controversy was the community prop- fails to answer, or where a sale of propererty of said parents; and it is contended ty is necessary, the title shall be ascerthat they had no right to make such admis- tained by proof to the satisfaction of the sion, and that the same is an evidence of court before the decree for partition or sale bad faith and of fraud in said proceedings. is given." Code 1881, § 558. The Code of It must be borne in mind that this last pro- California provides that any right, title, or ceeding was in the same court which heard interest in the land may be put in issue, and disposed of the appeal from the order tried, and determined in the action, subof sale made by the probate court on the stantially in the language above quoted application of said guardian to sell, and the from our own Code. The determination of same judge was presiding. All parties were the fact of title by the court is held to be conacting in a measure in view of said former clusive upon all the parties to the suit. Hanproceeding; and that proceeding, even if cock v. Lopez, 53 Cal. 362–371. “Any quesinvalid, throws a strong light upon the good tions affecting the right of the plaintiff to faith of all parties whose acts are now ques- a partition of the rights of each and all the tioned. We are satisfied that such admis- parties in the land may be put in issue, sions were made in entire good faith, and tried, and determined in such action. were such as the parties had a right to make * If 'disputes exist as to their right or and the court was justified in acting upon; interest in any respect, such disputes may and, furthermore, that they in no wise con- be litigated and determined in such action.'' travene the facts as they existed, independ- De Uprey v. De Uprey, 27 Cal. 329; Moren.

hout v. Higuera, 32 Cal. 290; Gates v. Sal- are infants, and the interests of such infants mon, 35 Cai. 576; Nash v. Church, 10 Wis. did not require the property to be sold.” 244. This court, in Hill v. Young, 7 Wash. Freem. Coten. (2d Ed.) § 467; Albright v. 33, 34 Pac. 144, has held that the court has Flowers, 52 Miss. 246. In the absence of power in a partition proceeding, and is re- fraud or collusion, minors properly repre. quired to determine title. “The judgment sented are bound as fully as if they had or adjudication is final and conclusive be- been majors and personally cited. “Repretween the parties, not only as to the matter sentation in courts of justice is a necessity actually determined, but as to every other of civilized societ;, and the acts or neglects matter which the parties might have been of the representative must in some degree litigating and have had decided, as incident be binding upon the party represented. And to or essentially connected with the subject- persons under disability at the time of a ju. matter of the litigation, and every matter dicial proceeding to which they are parties, coming within the legitimate purview of represented by their guardians and agents, the original action, both in respect to mat- are bound upon the knowledge of such ters of claim and of defense." Clemens v. guardian or agents.” 1 Herm. Estop. p. 178, Clemens, 37 N. Y. 59; Bloomer v. Sturges, 164; 1 Danieli, Ch. Prac. (5th Am. Ed.) 163, 58 N. Y. 168; Danaher v. Prentiss, 22 Wis. 10+; English v. Savage, 5 Or. 518. 299; Tallinan v. McCarty, 11 Wis. 420; In considering the character of the title Wells, Res Adj. $$ 248, 249; Barrett v. Fail- as to whether it was community land as a ing, 8 Or. 152; Thayhern v. Colburn, 66 Md. matter of fact, a question is raised as to 277; Pray v. Hegeman, 98 N. Y. 351; Blake- when the title vested in Erskine D. Kromer. ley v. Calder, 15 N. Y. 617; Howell v. Mills, Final proof was made by him before the 56 N. Y. 226; Sayward v. Nunan, 9 Wash. marriage ceremony aforesaid was perform22, 36 Pac. 906. When the plaintiff alleged ed, but the patent was issued thereafter. the extent of his interest in the property, Although, for certain purposes, the title-at and the extent of the defendants' interest

least the equitable title-was earned and acas he understood it, and showed on the face crued upon the making of final proof and of his pleading that the parties plaintiff and receipt of the certificate, the full or legal defendant were tenants in common, he stat- title did not pass until the patent was ised every fact required to give the court ju- sued. The plaintiffs claim that the patent risdiction. Code 1881, 8 553.1

should relate back to the time of making Appellants seek to avoid the effect of this final proof, and that, therefore, the land proceeding by reason of the minority of the vested in Erskine D. Kromer as his sepadefendants in the partition suit, and by rea- rate property, if in fact he was not then a son of the fact that the plaintiff was the married man. Undoubtedly, for certain purpurchaser. These defendants had a general poses this would be true, but the doctrine of guardian, on whom service was made, as relation is a fiction of law adopted by courts well as upon themselves personally. He an- solely for the purposes of justice. Gibson v. swered to the suit, and was represented by Chouteau, 13 Wall. 92. We are of the opincounsel throughout. The statute expressly ion that it should not be invoked in this provides that the action may be maintained case to defeat the claims of the widow. against infant cotenants, the provisions be- Her equities were as great as those of Ering broad enough to reach any and all in- skine D. Kromer or the children. It may fairterests, and any and all parties, and express- ly be inferred from all that transpired that ly makes a confirmation conclusive against there was no intentional wrongdoing upon all parties to the suit. The guardian might the part of either of said parties, and that consent to a partition without suit under the they were living together and regarded each supervision of the court. Code 1881, c. 48. other as husband and wife is apparent prior “In America the rule of the common law to the marriage ceremony aforesaid; and, if that infancy does not suspend the right of

necessary to save her rights in the premthe adult cotenants to enforce a partition is

ises, we are satisfied that we would be jusbelieved to be of universal obligation. This tified in holding, and should hold, that, the rule has been held to be applicable to a sale legal title having passed subsequent to the of the property when a division was im- marriage of the parties, it vested in the compracticable. The right of the adults to munity. have the possession of their property, and A further question is raised to the effect to have their wishes in the premises grati- that the title to the land under the homefied, is to be respected equally with the in- stead laws is taken by gift, and, consequentterests of the infants. It would be mon- ly, that it would become the separate propstrous to hold that adult part owners should erty of the husband under the laws of the be kept out of the enjoyment of their prop- territory. There seems to be some conflict erty merely because the other part owners in the authorities upon this proposition, As

the matters hereinbefore discussed decide 1 Code 1881, § 553 (Hill's Code, 8 578), pro- this case in favor of the defendants, we will vides that "the interest of all persons in the

not undertake to enter into any consideraproperty shall be set forth in the complaint (in partition) specifically and particularly, as far as

tion of the cases bearing upon this question, known to the plaintiff.”'

but content ourselves with saying we are

satisfied that, withia the intent of our laws relating to community property, such land is, in effect, taken by purchase, by reason of the settlement and improvements thereon, in wuich the wife participates as well as the husband; and, consequently, that this land was the community property of Erskine D. Kromer and his said wife. We adopted this view in the case of Andrews v. Philbrick, 8 Wash. 7, 35 Pac. 358; and, although the point was not contested there, we desire to announce our adherence thereto. A contrary holding would be productive of the grossest injustice under the community property laws of this state and territory. Judgment affirmed.

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

STILES, J. (dissenting). I think the view which the court takes of the actions of the principal respondents in this case is entirely too charitable. The opinion makes it appear as though Friday and the Ruckers had been mere passive movers in the transactions which led up to the practical annulment of the will of Erskine D. Kromer, and the despoiling of his children of the property which their father had devoted, first, to their residence and maintenance, and, lastly, to the use of his son, Victor. Kromer, Sr., died in 1885, and his widow accepted the bequest made to her, and suggested no claim of interest in her for more than four years. Meanwhile the will was proven, administration had, and distribution made in accordance with the terms of the will. In 1889 the Ruckers appeared, and, by their urgency and offers, succeeded in moving the guardian to apply for an order of sale. They had already bought up all of the surrounding lands, and were exceedingly anxious to acquire the Kromer tract, which was the key to the situation, commanding, as it did, the principal water front in the present city of Everett. To bring about the application of the guardian to sell, they put $150 into the hands of his attorney, to cover the costs of the proceedings, and agreed to bid $2,000 for the land. The bait took, and the application was made. At this time there was no occasion for selling, as the family had the land to live on, and the guardian had money enough in his hands to last nearly two years. Moreover, there was no legal warrant whatever for selling the land under any circumstances, since its condition was fixed by the will.

The interference of the late Mrs. Kromer had the effect to postpone the proceedings, but her attempt to secure recognition from the probate court was a proceeding without color of legality, since that court had long since lost jurisdiction of the matter of distribution by its final decree of distribution, which was unappealed from. Any order which that court might have made in the matter would have been wholly void. So, also, the appeal to the superior court could and did determine nothing, since on appeal

the latter court had no power to determine a matter not within the jurisdiction of the probate court. All that the superior court could do was to dismiss the appeal for want of jurisdiction in the probate court over the subject-matter. The net result of these judicial performances was to leave the entire estate where the will and the decree of distribution placed it, without a valid pen scratch either for or against it. The next operation was the conveyance by Mrs. Kromer to Friday. Now, a great endeavor was made in the course of this voluminous case to show that Friday and the Ruckers were independent individuals, but I am convinced that they were simply shadows of one substance. The Ruckers put up every dollar from first to last, Friday being their instrument and factotum. Next came the partition. Friday presented his petition, the exact language of which will be found in the so-called "finding of facts" quoted in the foregoing opinion. Now, let it be remembered that there had never been any sort of an adjudication that Mrs. Kromer was the owner of one-half, or any other interest, in this land. On the contrary, the decree of distribution, which was binding upon her and unappealed from, was squarely against any such proposition. And yet the petition for partition did not mention the will or the decree of distribution, but falsely alleged the ownership of the land and the interests of the children to be as stated in paragraph 6. And, to crown everything, the guardian of these infant children came in and assisted the fraud that was being perpetrated upon the court and his wards, by admitting in the answer every one of these false allegations, without mentioning the actual condition of the title or the will. He did set out some pitiful allegations about payment of taxes, and denied that a sale was necessary; and upon these, as the sole issues, the matter came on for hearing. And of what did this hearing consist? The guardian was there, of course, with his attorney, but there was no hostility in the proceeding. Counsel for the petitioner was there with a witness or two, and findings and a decree already drawn in the exact language of the petition. No question was asked of any witness about any matter other than whether the land could be divided or ought to be sold. The judge who made the decree so testifies, and the findings declare that the alleged facts are found “from the pleadings and evidence submitted.” And thus, upon the admissions of the guardian, without trial, and without knowledge on the part of the court that there could be any issue over the title to the land, the decree was rendered, finding that 147 acres of wild land could not be divided into two fairly equal parts, but must be sold. Of course it must be sold! That was the entire object of the scheme from A to Z. And, of course Friday was the purchaser, on time; and he at once conveyed half of his purchase to the Ruckers, and pocketed $6,000 profit

within 60 days by a sale to the Everett Land by requiring a new hearing. As it is, this Company. It only remained to carry out court has taken up the original case, and dethis judicial proceeding by allowing the at- cided it upon equitable grounds which were torney for the guardian $500 out of the pro- in no proper way before it. The opinion of ceeds of the sale of these infants' lands, and the court quotes the partition statute, which giving the Ruckers an execution against them authorizes title to be put in issue in such for the $150 advanced to start the guardian's proceedings; but the trouble is that in this application to sell. If these be fair dealings case it was not put in issue, the petition of between fair men and infants, then Heaven Friday fraudulently concealing from the court 'help the children of the state when they fall the fact that there was any question of title, into the hands of rogues!

and the answer of the guardian assisting the The following legal propositions, I main- | fraud by its admissions. Authorities are cittain, should have all been decided in favor of ed to show that whatever might have been the appellants: (1) The full equitable title decided in a litigated case will be taken as to the land having been acquired by Kromer actually decided; but in partition, unless the before his marriage, it was his separate prop- defendant answers, title must be shown. erty. (2) Mrs. Kromer was bound by the de- Code 1881, § 558. In substance, there was cree of distribution, unless in some direct no answer in this case, for what was answerproceeding she asserted her interest. (3) The ed was merely illegal admission. Guardians probate proceedings and appeal were void. may consent to partition without suit, as (1) It was beyond the power of a guardian pointed out, under supervision of the court; to admit away the title of his ward by an- but in such cases the court is the counsel of swer in a partition proceeding. A guardian the guardian, and must be satisfied that the in such a case is not called upon to answer proposition is fair, the title certain, and the further than to put his opponent upon proof division just. But here the proceeding ought of every allegation. It has been held always to have been hostile, whereas it was, in fact, and everywhere that while, upon the trial of collusive. Moreover, the statute does not a case, a guardian or his attorney may admit permit a guardian to consent to partition by probative facts, neither of them can admit sale. ultimate facts, and to do so is a fraud upon I have not had to pass upon a case which the ward. Formerly, and even now, in so profoundly impressed me with a convicsome of the states, an infant might, after tion of legal wrong as this. Not, perhaps, coming of age, set aside a decree for error that a sufficient price was not obtained for even; and fraud, either in fact or law, is a this land; but that the door has been opened just ground for such relief. Bank v. Ritchie, whereby speculators, casting their covetous 8 Pet. 128; Daingerfield v. Smith, 83 Va. 81, eyes upon the property of infants, may be 1 S. E. 599; McIlvoy v. Alsop, 45 Miss. 365; enabled, by seemingly fair propositions, and Curtis v. Ballagh, 4 Edw. Ch. 635; Loomer v. by holding out tempting offers to guardians, Wheelwright, 3 Sandf. Ch. 135; James V. who would rather handle money than be James, 4 Paige, 115; Price v. Crone, 44 Miss. bothered with land, to evade the solemn pro571; Tucker v. Bean, 65 Me. 332; Fischer visions made by a deceased father for his v. Fischer, 51 Ill. 231; Eaton v. Tillinghast, children. If the courts sit passively and let 4 R. I, 276; Chaffin v. Kimball's Heirs, 23 guardians confess away the estates of their Ill. 36; Ingersoll v. Ingersoll, 42 Miss. 155; wards in this way, no estate is safe, and a Claxton v. Claxton, 56 Mich. 557; Ralston man who makes a will might as well save v. Lahee, 8 Iowa, 17. In Joyce v. McAvoy, himself the trouble. Above all, in this case 31 Cal. 274, Judge Sawyer learnedly review- there was absolutely no occasion for causing ed the origin and principle of the parol de- this land to be sold; for I undertake to say murrer, and showed it to have no applica- that there is not a tract of land of that size tion to the state of California, because there in the state of Washington which cannot be was no statute; and he also found the doc- fairly divided into two parts, of equal value. trine not pertinent to the case, because the The partition proceeding was a sham, initiatattack was collateral, and not by appeal or ed by the first approach of Rucker to the review. But we have a modified statute of guardian with his offer of $2,000, and $150 parol demurrer in Code Civ. Proc. $ 1393, for expenses; and, if its consummation is which in subdivision 8 expressly provides for ratified, it crowns with success an effort, at the vacation of a judgment against a minor a slightly advanced cost, it is true, to evade for error within one year of his coming of the law and the last will of Erskine D. Kroage. Under this provision, the question of mer. From all appearances, Hewitt and the the title not having been in issue or consider- Everett Land Company seem to have been ed by the court, I maintain that the partition innocent purchasers, except that they could decree should have been set aside, and that not take title save through Kromer's will, matter determined. At bottom, the only point and therefore with knowledge of the whole we have to consider here is, was there error? record pertaining to the property. I advise a If there was, the statute regulates the matter reversal, and therefore dissent.

(11 Wash. 99)

same was due, and was then being foreclosWHITE V. BROOKE et al.

ed, and that the mortgage of plaintiff White (Supreme Court of Washington. Feb. 7, 1895.) was fraudulent and void, and made to hinINJUXCTION BOND-DAMAGES-RESTRAINING MORT

der, delay, and defraud the creditors of said GAGE FORECLOSCRE-RESULTING Loss

A. F. Rosbach; that at the time of the exOF PROPERTY.

ecution of the said notes and mortgages the 1. A mortgagee sued out an injunction re

said Rosbach was not indebted to said White straining a sale under a prior mortgage, and the sureties on the injunction bond bound them

in any sum whatever, and that said mortselves to pay such damages as the prior mortga- gage was not attempted to be foreclosed until gee might sustain "by reason of said injunc- after the said corporation had taken possestion.” The mortgaged property was afterwards

sion under its alleged mortgage,-and praysold, pending the injunction, to the second mortgagee under his mortgage, and removed from ing for a temporary restraining order, rethe county. Thereafter there was a judgment straining White, his agents and attorneys, for defendant in the injunction suit, but, the from further proceeding with the said foremortgagor being insolvent, the prior mortgagee was unable to collect his debt. Held, that the

closure, and from offering said stock of goods, amount of the debt was recoverable in a suit or any part thereof, for sale; that the “sheron the bond.

iff be likewise enjoined from making such 2. Where a mortgagee obtains an injunction restraining a sale under a prior mortgage,

sale, or from taking any further steps thereand, pending the injunction, the property is

in, until the final hearing of the cause comsold to the second mortgagee under his mort- menced; that on said final hearing said mortga ge, the first mortgagee may, on the dissolution

gage of White's might be adjudged null and of the injunction, sue on the bond for damages resulting from his loss of the property, though

void. Alleging, in substance, that the rehe have another remedy.

straining order was granted as asked for by

the North Star Boot & Shoe Company, temAppeal from superior court, Lincoln coun

porarily enjoining and restraining the plainty; Wallace Mount, Judge. Action by W. R. White against George

tiffs from taking any further steps in their S. Brooke and W. B. Lottman. From an

foreclosure proceedings until the final hearorder denying a new trial, and a judgment

ing of the cause; the said restraining order

to take effect and be in force from and after for plaintiff, defendants appeal. Affirmed.

the filing of a bond, in the sum of $2,000, for Jones, Belt & Quinn, for appellants. Mer

the payment of said White and Donahue, the ritt & Salisbury, for respondent.

sheriff', with two or more sureties approved

by the clerk of the court. Alleging the filing DUNBAR, J. This is an action brought of a bond, and the approval of the same, by the respondent, upon an injunction bond with the appellants here as sureties, and the executed by the appellants, for alleged dam- issuing of the injunction after the filing of ages growing out of the injunction issued the bond, and that in obedience to said order against the respondent and in favor of the of injunction they ceased from all further North Star Boot & Shoe Company, a corpo- steps in such foreclosure proceeding. The ration. The respondent in this action had a complaint alleges that the stock of goods upmortgage for $1,028.85 upon the personal on which their mortgage was a lien was on property of one A. F. Rosbach. The said the 2d day of October, 1893, of the value of a Rosbach had also executed a chattel mort- sum more than sufficient to pay the indebtgage to the North Star Boot & Shoe Com- edness of the said Rosbach to the said White, pany, on the same property, which was exe- and that if the said sale had not been encuted subsequent to the execution of the joined the same would have sold for a suffimortgage of respondent, White. The com- cient amount to pay said indebtedness; that plaint alleges these facts, together with the after the service of the restraining order as proper recording of the respondent's mort- aforesaid, and before the dissolution thereof, gage. That the same was due, and that, aft- the goods were sold under the second morter the maturing of the notes which the mort- gage in favor of the North Star Boot & Shoe gage was given to secure, White gave notice Company, and were taken out of the county of foreclosure, as provided by statute, and of Lincoln, and to some place unknown to placed the mortgage in the hands of the said White, and that he was, and has been sheriff of the proper county to post and ever since said time, unable to find said propserve. That said notices were signed, serv. erty, or any part thereof, and was therefore ed, and posted as required by the statute in unable to make or collect any part of the such cases made and provided, and that, by said indebtedness; that the said stock of the terms thereof, sale thereunder was set goods so sold was and is all of the property for the 2d day of October, 1893. That on owned by the said Rosbach, and was the said day the North Star Boot & Shoe Com- only property out of which said notes could pany filed its complaint in the superior court be collected, and that the said Rosbach is of Lincoln county, making the respondent a now, and has ever since said time of said sale defendant; alleging the chattel mortgage on been, insolvent; that at said sale, on the 3d said stock of goods, dated June 9, 1893 (the day of October, the North Star Boot & Shoe mortgage of respondent having been executed Company became the purchaser, and paid to on the 18th day of April, 1893); that the the sheriff of said county the cost of said

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