ing their minority as it was to preserve the land intact. However, as to this feature of the case, it is sufficient to say that the land was not sold upon the application aforesaid of the guardian of the plaintiffs, but was sold by virtue of the independent partition proceeding brought by the alleged owner of the other half interest, against which claimed interest, if well founded, the will could not in any wise operate.

There being no fraud in the premises, the claims of the plaintiffs in this case must be sustained, if at all, on the ground of the invalidity of the various proceedings above set forth, by virtue of which the land was found to be community property, and was sold to the defendants, now claiming it. Questions of estoppel against the plaintiffs, and claims that the defendants, or some of them, are bona fide purchasers without notice, have been presented, which we pass over as immaterial, and treat the case as though all of the defendants had full notice of all the foregoing proceedings.

It

In the proceedings brought for a partition of the land by virtue of which it was sold, the court had jurisdiction of the plaintiffs in this case, and of the subject-matter. was there found that Friday owned a onehalf interest in the land, and its sale was ordered, and had accordingly. These proceedings are attacked on the ground that the statute was not complied with in advertising the sale. The first publication of the notice of sale was made on the 3d day of July, and the decree was not signed until the 7th. As a matter of fact, however, the finding of the court had been made prior to the publication, and the point raised is nothing more than an irregularity, which would not affect the jurisdiction of the court in the premises. It could only be taken advantage of by an appeal in the proceedings, if at all, and none was taken.

Complaint is also made that the guardian and attorneys of record for the plaintiffs herein admitted in that proceeding that the land in controversy was the community property of said parents; and it is contended that they had no right to make such admission, and that the same is an evidence of bad faith and of fraud in said proceedings. It must be borne in mind that this last proceeding was in the same court which heard and disposed of the appeal from the order of sale made by the probate court on the application of said guardian to sell, and the same judge was presiding. All parties were acting in a measure in view of said former proceeding; and that proceeding, even if invalid, throws a strong light upon the good faith of all parties whose acts are now questioned. We are satisfied that such admissions were made in entire good faith, and were such as the parties had a right to make and the court was justified in acting upon; and, furthermore, that they in no wise contravene the facts as they existed, independ

ent of such former proceedings. Witnesses were examined in this case as to what took place, what was admitted, and what testimony was introduced in such former proceedings; and the judge before whom they were had was called and testified, and said that he based his judgment on what he supposed was sufficient to justify the decree which he signed. There is no testimony in this record tending to show that any person connected with the defense of that partition case was not as fully informed of every existing fact connected with the subject-matter of that litigation as this court is capable of being informed by the record before it, and there is absolutely no hint in the testimony that the plaintiff in that case, or any person in his behalf, did anything to mislead the legal representatives of those defendants, or to conceal from them any fact, or did anything in any way to prevent a fair trial. If, as claimed by appellants, the question of title was heard, in part, upon an agreed statement of facts, they were the true facts in the case. Plaintiff's counsel produced in court the deed on which plaintiff relied to prove his title. He also produced in court sufficient testimony to convince the court of the necessity of selling the premises. The sale of the property followed in accordance with the decree of the court. The plaintiff in the partition proceeding was the purchaser. The defendants, through their counsel and otherwise, employed every means to make the property bring the highest possible figure. This commendable zeal had its effect; and the testimony stands undisputed that the sale was in all respects fairly conducted, that there was a lively rivalry between the bidders, and that the land brought the highest estimate of its value.

Partition is a civil action, in contemplation of our Code, and may be used as a form of action to try title. "The rights of the several parties, plaintiffs as well as defendants, may be put in issue, tried and determined in such suit, and where a defendant fails to answer, or where a sale of property is necessary, the title shall be ascertained by proof to the satisfaction of the court before the decree for partition or sale is given." Code 1881, § 558. The Code of California provides that any right, title, or interest in the land may be put in issue, tried, and determined in the action, substantially in the language above quoted from our own Code. The determination of the fact of title by the court is held to be conclusive upon all the parties to the suit. Hancock v. Lopez, 53 Cal. 362-371. "Any questions affecting the right of the plaintiff to a partition of the rights of each and all the parties in the land may be put in issue, tried, and determined in such action.

**If 'disputes exist as to their right or interest in any respect, such disputes may be litigated and determined in such action.'' De Uprey v. De Uprey, 27 Cal. 329; Moren

hout v. Higuera, 32 Cal. 290; Gates v. Salmon, 35 Cai. 576; Nash v. Church, 10 Wis. 244. This court, in Hill v. Young, 7 Wash. 33, 34 Pac. 144, has held that the court has power in a partition proceeding, and is required to determine title. "The judgment or adjudication is final and conclusive between the parties, not only as to the matter actually determined, but as to every other matter which the parties might have been litigating and have had decided, as incident to or essentially connected with the subjectmatter of the litigation, and every matter coming within' the legitimate purview of the original action, both in respect to matters of claim and of defense." Clemens v. Clemens, 37 N. Y. 59; Bloomer v. Sturges, 58 N. Y. 168; Danaher v. Prentiss, 22 Wis. 299; Tallman v. McCarty, 11 Wis. 420; Wells, Res Adj. §§ 248, 249; Barrett v. Failing, 8 Or. 152; Thayhern v. Colburn, 66 Md. 277; Pray v. Hegeman, 98 N. Y. 351; Blakeley v. Calder, 15 N. Y. 617; Howell v. Mills, 56 N. Y. 226; Sayward v. Nunan, 9 Wash. 22, 36 Pac. 966. When the plaintiff alleged the extent of his interest in the property, and the extent of the defendants' interest as he understood it, and showed on the face of his pleading that the parties plaintiff and defendant were tenants in common, he stated every fact required to give the court jurisdiction. Code 1881, § 553.1

Appellants seek to avoid the effect of this proceeding by reason of the minority of the defendants in the partition suit, and by reason of the fact that the plaintiff was the purchaser. These defendants had a general guardian, on whom service was made, as well as upon themselves personally. He answered to the suit, and was represented by counsel throughout. The statute expressly provides that the action may be maintained against infant cotenants, the provisions being broad enough to reach any and all in ́terests, and any and all parties, and expressly makes a confirmation conclusive against all parties to the suit. The guardian might consent to a partition without suit under the supervision of the court. Code 1881, c. 48. "In America the rule of the common law that infancy does not suspend the right of the adult cotenants to enforce a partition is believed to be of universal obligation. This rule has been held to be applicable to a sale of the property when a division was impracticable. The right of the adults to have the possession of their property, and to have their wishes in the premises gratified, is to be respected equally with the interests of the infants. It would be monstrous to hold that adult part owners should be kept out of the enjoyment of their property merely because the other part owners

1 Code 1881, § 553 (Hill's Code, § 578), provides that "the interest of all persons in the property shall be set forth in the complaint (in partition) specifically and particularly, as far as known to the plaintiff."

are infants, and the interests of such infants did not require the property to be sold." Freem. Coten. (2d Ed.) § 467; Albright v. Flowers, 52 Miss. 246. In the absence of fraud or collusion, minors properly represented are bound as fully as if they had been majors and personally cited. "Repre sentation in courts of justice is a necessity of civilized society, and the acts or neglects of the representative must in some degree be binding upon the party represented. And persons under disability at the time of a judicial proceeding to which they are parties, represented by their guardians and agents, are bound upon the knowledge of such guardian or agents." 1 Herm. Estop. p. 178, § 164; 1 Daniell, Ch. Prac. (5th Am. Ed.) 163, 164; English v. Savage, 5 Or. 518.

In considering the character of the title as to whether it was community land as a matter of fact, a question is raised as to when the title vested in Erskine D. Kromer. Final proof was made by him before the marriage ceremony aforesaid was performed, but the patent was issued thereafter. Although, for certain purposes, the title-at least the equitable title-was earned and accrued upon the making of final proof and receipt of the certificate, the full or legal title did not pass until the patent was issued. The plaintiffs claim that the patent should relate back to the time of making final proof, and that, therefore, the land vested in Erskine D. Kromer as his separate property, if in fact he was not then a married man. Undoubtedly, for certain purposes this would be true, but the doctrine of relation is a fiction of law adopted by courts solely for the purposes of justice. Gibson v. Chouteau, 13 Wall. 92. We are of the opinion that it should not be invoked in this case to defeat the claims of the widow. Her equities were as great as those of Erskine D. Kromer or the children. It may fairly be inferred from all that transpired that there was no intentional wrongdoing upon the part of either of said parties, and that they were living together and regarded each other as husband and wife is apparent prior to the marriage ceremony aforesaid; and, if necessary to save her rights in the premises, we are satisfied that we would be justified in holding, and should hold, that, the legal title having passed subsequent to the marriage of the parties, it vested in the community.

A further question is raised to the effect that the title to the land under the homestead laws is taken by gift, and, consequently, that it would become the separate property of the husband under the laws of the territory. There seems to be some conflict in the authorities upon this proposition. As the matters hereinbefore discussed decide this case in favor of the defendants, we will not undertake to enter into any consideration of the cases bearing upon this question, but content ourselves with saying we are

satisfied that, within 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 which 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 Company. It only remained to carry out this judicial proceeding by allowing the attorney for the guardian $500 out of the proceeds of the sale of these infants' lands, and giving the Ruckers an execution against them for the $150 advanced to start the guardian's application to sell. If these be fair dealings between fair men and infants, then Heaven help the children of the state when they fall into the hands of rogues!

The following legal propositions, I maintain, should have all been decided in favor of the appellants: (1) The full equitable title to the land having been acquired by Kromer before his marriage, it was his separate property. (2) Mrs. Kromer was bound by the decree of distribution, unless in some direct proceeding she asserted her interest. (3) The probate proceedings and appeal were void. (4) It was beyond the power of a guardian to admit away the title of his ward by answer in a partition proceeding. A guardian in such a case is not called upon to answer further than to put his opponent upon proof of every allegation. It has been held always and everywhere that while, upon the trial of a case, a guardian or his attorney may admit probative facts, neither of them can admit ultimate facts, and to do so is a fraud upon the ward. Formerly, and even now, in some of the states, an infant might, after coming of age, set aside a decree for error even; and fraud, either in fact or law, is a just ground for such relief. Bank v. Ritchie,

8 Pet. 128; Daingerfield v. Smith, 83 Va. 81, 1 S. E. 599; Mcllvoy v. Alsop, 45 Miss. 365; Curtis v. Ballagh, 4 Edw. Ch. 635; Loomer v. Wheelwright, 3 Sandf. Ch. 135; James v. James, 4 Paige, 115; Price v. Crone, 44 Miss. 571; Tucker v. Bean, 65 Me. 352; Fischer v. Fischer, 54 Ill. 231; Eaton v. Tillinghast, 4 R. I. 276; Chaffin v. Kimball's Heirs, 23 Ill. 36; Ingersoll v. Ingersoll, 42 Miss. 155; Claxton v. Claxton, 56 Mich. 557; Ralston v. Lahee, 8 Iowa, 17. In Joyce v. McAvoy, 31 Cal. 274, Judge Sawyer learnedly reviewed the origin and principle of the parol demurrer, and showed it to have no application to the state of California, because there was no statute; and he also found the doctrine not pertinent to the case, because the attack was collateral, and not by appeal or review. But we have a modified statute of parol demurrer in Code Civ. Proc. § 1393, which in subdivision 8 expressly provides for the vacation of a judgment against a minor for error within one year of his coming of age. Under this provision, the question of the title not having been in issue or considered by the court, I maintain that the partition decree should have been set aside, and that matter determined. At bottom, the only point we have to consider here is, was there error? If there was, the statute regulates the matter

by requiring a new hearing. As it is, this court has taken up the original case, and decided it upon equitable grounds which were in no proper way before it. The opinion of the court quotes the partition statute, which authorizes title to be put in issue in such proceedings; but the trouble is that in this case it was not put in issue, the petition of Friday fraudulently concealing from the court the fact that there was any question of title, and the answer of the guardian assisting the fraud by its admissions. Authorities are cited to show that whatever might have been decided in a litigated case will be taken as actually decided; but in partition, unless the defendant answers, title must be shown. Code 1881, § 558. In substance, there was no answer in this case, for what was answered was merely illegal admission. Guardians may consent to partition without suit, as pointed out, under supervision of the court; but in such cases the court is the counsel of the guardian, and must be satisfied that the proposition is fair, the title certain, and the division just. But here the proceeding ought to have been hostile, whereas it was, in fact, collusive. Moreover, the statute does not permit a guardian to consent to partition by sale.

I have not had to pass upon a case which so profoundly impressed me with a conviction of legal wrong as this. Not, perhaps, that a sufficient price was not obtained for this land; but that the door has been opened whereby speculators, casting their covetous eyes upon the property of infants, may be enabled, by seemingly fair propositions, and by holding out tempting offers to guardians, who would rather handle money than be bothered with land, to evade the solemn provisions made by a deceased father for his children. If the courts sit passively and let guardians confess away the estates of their wards in this way, no estate is safe, and a man who makes a will might as well save himself the trouble. Above all, in this case there was absolutely no occasion for causing this land to be sold; for I undertake to say that there is not a tract of land of that size in the state of Washington which cannot be fairly divided into two parts, of equal value. The partition proceeding was a sham, initiated by the first approach of Rucker to the guardian with his offer of $2,000, and $150 for expenses; and, if its consummation is ratified, it crowns with success an effort, at a slightly advanced cost, it is true, to evade the law and the last will of Erskine D. Kromer. From all appearances, Hewitt and the Everett Land Company seem to have been innocent purchasers, except that they could not take title save through Kromer's will, and therefore with knowledge of the whole record pertaining to the property. I advise a reversal, and therefore dissent.

(11 Wash. 99)

WHITE v. BROOKE et al. (Supreme Court of Washington. Feb. 7, 1895.) INJUNCTION BOND-DAMAGES-RESTRAINING MORTGAGE FORECLOSURE-RESULTING LOSS OF PROPERTY.

1. A mortgagee sued out an injunction restraining a sale under a prior mortgage, and the sureties on the injunction bond bound themselves to pay such damages as the prior mortgagee might sustain "by reason of said injunction." The mortgaged property was afterwards sold, pending the injunction, to the second mortgagee under his mortgage, and removed from the county. Thereafter there was a judgment for defendant in the injunction suit, but, the mortgagor being insolvent, the prior mortgagee was unable to collect his debt. Held, that the amount of the debt was recoverable in a suit on the bond.

2. Where a mortgagee obtains an injunetion restraining a sale under a prior mortgage, and, pending the injunction, the property is sold to the second mortgagee under his mortgage, the first mortgagee may, on the dissolution of the injunction, sue on the bond for damages resulting from his loss of the property, though he have another remedy.

Appeal from superior court, Lincoln county; Wallace Mount, Judge.

Action by W. R. White against George S. Brooke and W. B. Lottman. From an order denying a new trial, and a judgment for plaintiff, defendants appeal. Affirmed. Jones, Belt & Quinn, for appellants. Merritt & Salisbury, for respondent.

DUNBAR, J. This is an action brought by the respondent, upon an injunction bond executed by the appellants, for alleged damages growing out of the injunction issued against the respondent and in favor of the North Star Boot & Shoe Company, a corporation. The respondent in this action had a mortgage for $1,028.85 upon the personal property of one A. F. Rosbach. The said Rosbach had also executed a chattel mortgage to the North Star Boot & Shoe Company, on the same property, which was executed subsequent to the execution of the mortgage of respondent, White. The complaint alleges these facts, together with the proper recording of the respondent's mortgage. That the same was due, and that, after the maturing of the notes which the mortgage was given to secure, White gave notice of foreclosure, as provided by statute, and placed the mortgage in the hands of the sheriff of the proper county to post and serve. That said notices were signed, served, and posted as required by the statute in such cases made and provided, and that, by the terms thereof, sale thereunder was set for the 2d day of October, 1893. That on said day the North Star Boot & Shoe Company filed its complaint in the superior court of Lincoln county, making the respondent a defendant; alleging the chattel mortgage on said stock of goods, dated June 9, 1893 (the mortgage of respondent having been executed on the 18th day of April, 1893); that the

same was due, and was then being foreclosed, and that the mortgage of plaintiff White was fraudulent and void, and made to hinder, delay, and defraud the creditors of said A. F. Rosbach; that at the time of the execution of the said notes and mortgages the said Rosbach was not indebted to said White in any sum whatever, and that said mortgage was not attempted to be foreclosed until after the said corporation had taken possession under its alleged mortgage,-and praying for a temporary restraining order, restraining White, his agents and attorneys, from further proceeding with the said foreclosure, and from offering said stock of goods, or any part thereof, for sale; that the sheriff be likewise enjoined from making such sale, or from taking any further steps therein, until the final hearing of the cause commenced; that on said final hearing said mortgage of White's might be adjudged null and void. Alleging, in substance, that the restraining order was granted as asked for by the North Star Boot & Shoe Company, temporarily enjoining and restraining the plaintiffs from taking any further steps in their foreclosure proceedings until the final hearing of the cause; the said restraining order to take effect and be in force from and after the filing of a bond, in the sum of $2,000, for the payment of said White and Donahue, the sheriff, with two or more sureties approved by the clerk of the court. Alleging the filing of a bond, and the approval of the same, with the appellants here as sureties, and the issuing of the injunction after the filing of the bond, and that in obedience to said order of injunction they ceased from all further steps in such foreclosure proceeding. The complaint alleges that the stock of goods upon which their mortgage was a lien was on the 2d day of October, 1893, of the value of a sum more than sufficient to pay the indebtedness of the said Rosbach to the said White, and that if the said sale had not been enjoined the same would have sold for a sufficient amount to pay said indebtedness; that after the service of the restraining order as aforesaid, and before the dissolution thereof, the goods were sold under the second mortgage in favor of the North Star Boot & Shoe Company, and were taken out of the county of Lincoln, and to some place unknown to said White, and that he was, and has been ever since said time, unable to find said property, or any part thereof, and was therefore unable to make or collect any part of the said indebtedness; that the said stock of goods so sold was and is all of the property owned by the said Rosbach, and was the only property out of which said notes could be collected, and that the said Rosbach is now, and has ever since said time of said sale been, insolvent; that at said sale, on the 3d day of October, the North Star Boot & Shoe Company became the purchaser, and paid to the sheriff of said county the cost of said