we are nevertheless unable to conclude that equity has any jurisdiction to afford the relief here prayed. It is fundamental that equity will not interfere where the law affords a plain, adequate, and complete remedy. "The remedy must be plain, for, if it be doubtful and obscure at law, equity will assert a jurisdiction. It must be adequate, for, if it falls short of what the party is entitled to, that founds a jurisdiction in equity. And it must be complete; that is, it must attain its full end at law. It must reach the whole mischief, and secure the whole right of the party." Mitf. Ch. Pl. (6th Am. Ed.) note, p. 2. "Covenants for title, like all other covenants, are, of course, mere contracts. For a breach of contract the common law provided a single remedy, -a recompense in damages." Rawle, Cov. § 354. Here is a contract which has been fully executed. Nothing remains to be performed. The consideration has been paid, the conveyance executed, and full covenants have been given and accepted. There is no suggestion of insolvency or nonresidence, or that the plaintiff's remedy at law would not be adequate. Hence, we do not find any good reason for interference by a court of equity.

It seems to us that much of the apparent conflict that is found in the adjudicated cases on this subject is due to a failure to observe the distinction which obtains between the rules applicable to a contract still executory and one actually executed. "The distinctions between the rules which govern the relation of vendor and purchaser before and after the execution of the deed-while the contract is still executory, and after it is executed-are broad and familiar. Although the general principles of the contract of sale of real estate, especially in this country and in England, exact less of a vendor than the rules of the civil law demand, yet, while the contract is still executory, they recognize and enforce the right of the purchaser to a title clear of defects and incumbrances; and this right does not depend upon the terms of the contract, but is given by the law, and is not, except in particular cases, affected by the nature and extent of the covenants for title which the purchaser is to receive." Rawle, Cov. § 319. "Generally speaking, a purchaser, after a conveyance, has no remedy except upon the covenants he has obtained, although evicted for want of title; and, however fatal the defect of title may be, if there is no fraudulent concealment on the part of the seller, the purchaser's only remedy is under the covenants." 1 Sugd. Vend. p. 383; Rawlins v. Timberlake, 6 T. B. Mon. 225; James v. McKernon, 6 Johns. Ch. 543; Bumpus v. Platner, 1 Johns. 213. And Lord Campbell, in Wilde v. Gibson (House of Lords) 1 Clark & Fin. (N. S.) 605, says of this distinction: "If there be, in any way whatever, misrepresentation or concealment which is

material to the purchaser, a court of equity will not compel him to complete the purchase; but, where the conveyance has been executed, I apprehend that a court of equity will set aside the conveyance only on the ground of actual fraud." In Thompson v. Jackson, 3 Rand. (Va.) 504, Justice Carr says: "Executory contracts for real property, and some other subjects, offer to the party the alternative of either suing at law for damages, or asking the aid of equity to obtain the specific thing. * * Very different is the question where a party asks the court to rescind a contract, and especially an executed contract. In the first case, the court merely decides which of two remedies a party shall pursue. In the second, it annihilates a solemn contract, rendered still more solemn by the fact that the parties have carried it into execution. * The vendor has part

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ed with the title and possession of his land, and has taken his money, bonds, or other equivalent. The vendee has entered into possession, * * and, for security of his title, has taken a deed with such covenants and warranty as his contract called for. To undo all this is a strong-handed measure, and none but a clear and strong case will justify it. Accordingly, we find it laid down in all the equity books that the court is in the daily habit of refusing the specific execution of contracts, which at the same time it just as promptly refuses to rescind. When

* * *

the application is to rescind an executed contract for land, the English books lay it down as a general rule (admitting of but few exceptions) that, to justify such decree, fraud must appear, and this fraud must be distinctly put in issue by the pleadings. If the charge be a mere failure of consideration, arising from the sale of the defective legal title, unmingled with fraud or mala fides of any kind, it is generally laid down that the vendee would be left to the covenants and warranty in his deed." "Where a contract for the sale of land has been executed by the giving of a conveyance, the court of equity will not rescind the contract upon the ground of a mere defect of title, where there has been no fraud on the part of the vendor, but will leave the purchaser to his remedy upon the covenants in his deed." Woodruff v. Bunce, 9 Paige, 442. In Denston v. Morris, 2 Edw. Ch. 36, it is said: "It is a wellsettled rule of this court that a grantee, to whom possession has been delivered, under covenants of title and warranty, can have no relief in equity against his grantor for a return of the purchase money or security on account of defect or failure of title, because he has taken care to secure himself by covenants, and, if evicted, can have an adequate remedy at law. * * But if fraud is shown, either in making the contract of sale, or in executing it, and whether there be covenants inserted in the deed to secure the title or not, the purchaser, in case of eviction or disturbance of his possession, or

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whenever it is ascertained that the title is defective, may come into this court to be relieved from his purchase, or to obtain indemnity against the consequences of the fraud. Imposition and fraud upon the purchaser, by any willful misrepresentation or concealment, take the case out of the general rule, and entitle him to be redressed in equity, in aduuion to and beyond the covenants in the deed." And in Wiley v. Fitzpatrick, 3 J. J. Marsh. 584, it is said: "The remedy which a court of law can offer in such cases, unless some extraneous circumstances intervene to prevent it, is fully adequate to all the demands of justice, and that is a sufficient reason why a court of chancery will not interpose." "A purchaser of land, who has paid part of the purchase money, and given a bond and mortgage for the residue, and is in undisturbed possession, will not be relieved against the payment of the bond, or proceedings on the mortgage, on the mere ground of a defect of title, there being no allegation of fraud in the sale, nor any eviction, but must seek his remedy at law upon the covenants in his deed." "If the purchaser was imposed on by any intentional misrepresentation or concealment, he may have redress [in equity] in addition to and beyond his covenants." Abbott v. Allen, 2 Johns. Ch. 519. "It is requisite that the charge of fraud should be made a distinct ground of allegation by the party in his pleading; otherwise, it is not to be deemed in issue, and cannot affect the contract in question." Gouverneur V. Elmendorf, Johns. Ch. 79. In that case, Chancellor Kent says: "A vendor selling in good faith is not responsible for the goodness of his title, beyond the extent of the covenants in his deed." In Patton v. Taylor, 7 How. 150, the supreme court of the United States, speaking through Mr. Justice Nelson, say: "A purchaser in the undisturbed possession of the land will not be relieved against the payment of the purchase money on the mere ground of the defect of title, there being no fraud or misrepresentation, and that in such a case he must seek his remedy at law, on the covenants in his deed." In Simpson v. Hawkins, 1 Dana, 303, it is said that: "A contract for the sale of land, unaffected by fraud, cannot be rescinded in chancery after it has been carried into effect by a conveyance. *** If the grantee in possession loses part of the land, he may recover, on the warranty, damages commensurate with the loss, but it is not cause for rescinding the whole contract. * I regard it [says Judge Underwood in that case] as immaterial whether the vendors had any title at all. If they conveyed with warranty, and put the vendee in possession, I hold that there can be no rescission of the contract, where there has been no fraud, no eviction, and no assertion of an adverse claim." This case is cited approvingly by the supreme court of the United States in Patton v. Taylor, supra.

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5

"Where a conveyance of land has been made by a deed executed with covenants of warranty, and a note has been received in consideration of the conveyance, a partial failure of title will not constitute a defense to the note, but the remedy of the party must be by suit on the covenants of his deed." Chase v. Weston, 12 N. H. 413. In Knapp v. Lee, 3 Pick. 452, it is said to be in dispute in Massachusetts whether a total failure of covenants of warranty of land would constitute a defense to a note, but no doubt exists that a partial failure of title is not permissible as a defense. In Maine it has been held that the total failure of title constitutes no defense to a note given for consideration money. Lloyd v. Jewell, 1 Greenl. 352; Jenness v. Parker, 24 Me. 289. In the case of English v. Thomasson, 82 Ky. 281, the court say: "It has been repeatedly held by this court that in the absence of fraud, or insolvency or nonresidency of the vendor, that the vendee in the peaceable possession of the granted premises, by virtue of a conveyance containing a covenant of general warranty, is not entitled to a rescission of the contract, when sued for the purchase money, although the vendor may at the time of the sale have represented his title as perfect, when in fact it was not, and that in such a case the vendee must pay the money, and rely upon the covenant of warranty in case of an eviction. 串 A mere mistake

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or error of opinion as to the validity of his title would not constitute a fraud. The warranty which the appellant chose to accept was designed to protect him against such a misrepresentation, and is effective for that purpose; and he must await eviction, if it ever occur, and then look to his remedy at law on the covenant in his deed."

We have already suggested in this opinion that a covenant on the part of a grantor that he is the "owner in fee" of premises conveyed, when in fact his title fails or is defective, might give an immediate right of action to his grantee, and unlike covenants of quiet possession, warranty of title, and the like, the grantee would not be obliged to await eviction; but for a breach in either case, in the absence of strong equitable considerations, not disclosed by the bill in this case, we hold that his remedy is at law for the damages sustained. In Edwards v. McLeay, 10 Eng. Ch. 307, the bill charged, and the court found the fact to be, that the vendor knew and concealed a fact material to the validity of his title, and that the defect could not have been ascertained from the abstract. A rescission was decreed, the learned master of the rolls holding that if the vendor knows and conceals a fact material to the validity of his title, of which fact the vendee is ignorant, relief in equity is to be afforded to the purchaser. This case has been often eited in support of a view of the law contrary to that we have taken, but it will be observed that the facts there charged and found

differ very materially from those alleged in this bill. It was there asserted that the vendor knew at the time of the sale that a large portion of the granted premises was claimed by the parish as a public common. This fact he concealed from the purchaser, and the abstract did not disclose it. The court granted a rescission; holding that the vendor's silence concerning it, when he knew of the assertion of such adverse claim, constituted such fraud as warranted the interposition of equity. And Lord Eldon, in affirming the judgment of the master of the rolls, upon appeal, said "that if one party makes a representation which he knows to be false, but the falsity of which the other party has no means of knowing, this court will rescind the contract." 2 Swanst. 302. It will be observed that the chancellor, in affirming, placed it upon the assumption that the seller knew the representation to be false.

There are cases wherein the jurisdiction of equity has been asserted upon facts similar to those alleged in the complaint in this case. Among the leading cases so holding is Parham v. Randolph, supra, in which the learned chief justice of Mississippi, in support of the position there taken, quotes Chancellor Kent, as follows: "The good sense and equity of the law on the subject is that if a defect of title, whether of land or of chattels, be so great as to render the thing sold unfit for the use intended, and not within the inducement to the purchaser, the purchaser should not be held to the contract, but be at liberty to rescind it altogether. 2 Kent, Comm. § 475." An examination of the entire section, and particularly that part immediately preceding the language above quoted, makes it manifest, however, that the learned chancellor was there referring to contracts that are executory merely. The views of that distinguished jurist upon the questions involved in the determination of this case are, to our better satisfaction, found in the cases of Abbott v. Allen and Gouverneur v. Elmendorf, supra. And it seems to us that the reference by the learned judge in Parham v. Randolph to the case of Greenleaf v. Cook, 2 Wheat. 13, is equally unfortunate. Defendant in that case, in an action on a promissory note given for the purchase price of real property, set up by way of defense a prior outstanding mortgage and a decree of foreclosure, of which mortgage it was shown that he had no knowledge at the time of purchase. Upon these facts the court, speaking through Chief Justice Marshall, say: "The note was given with full knowledge of the case. quainted with the extent of the incumbrance, and its probable consequences, the defendant consents to receive the title which the plaintiff was able to make, and, on receiving it, executes his note for the purchase money. To the payment of the note given under such circumstances, the existence of the incumbrance can certainly furnish no legal objection." This was the sole question determin

Ac

ed in that case. Woods v. North, 6 Humph. 309, is another case frequently cited in support of the contrary doctrine. The court there say: "In this deed there is a covenant of seisin, in which the defendant asserts that he has a right to sell and convey the land. Here is an express misrepresentation." In that case the sole representation of title was confined to that expressed in the covenant contained in the deed. There being a supe

rior outstanding title, a rescission was decreed. We think the misrepresentation which will entitle a party to rescind an executed contract must be something more than the statement of the vendor of what he innocently and in good faith believes to be true, without knowledge or notice of any fact affecting his title, and especially where the vendor is not insolvent or a nonresident, and where the vendee has exacted and accepted full covenants. In a note found on page 639 of his work on Covenants for Title, Mr. Rawle says of this case of Woods v. North that "it is believed that there is no wellconsidered class of cases which give such an interpretation to a covenant." Nor will equity take jurisdiction in this case on the ground of mutual mistake, although there is some authority for the assertion of such jurisdiction. In the case of Leal v. Terbush (Mich.) 17 N. W. 713, the plaintiff purchased of the defendant a parcel of land which had belonged to defendant's husband, and to which she had no title, excepting a life estate under the will; and a deed was given by her, with the usual covenants. The court held that the vendee could not rescind on the ground of mistake as to the vendor's title, as the mistake did not go to the entire consideration; the vendee, supposing the vendor had title in fee, simply accepted a mere life estate. In the opinion, Judge Cooley says: "He [plaintiff] appears to have provided against the contingency of her title falling short of the complete fee by requiring of her covenants for his protection. * It is cer

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tain that the parties took into consideration possible defects in the title, and bargained in respect to them. * * * The conveyance purports to be in fee, and the assurances, we must suppose, are to him, his heirs and assigns. The plaintiff has therefore received value for the money paid, and, if not to the full extent of the payment, the deficiency is uncertain, and dependent on contingencies, and does not go to the entire consideration. If this contract can be rescinded on the ground of mistakes of fact, then every purchase of land, the title to which proves in any respect defective, must be subject to rescission also, unless the parties have expressly bargained with mutual knowledge that defects existed. If this were the law, covenants would be of little importance."

We deem it unnecessary to multiply authorities in support of this position. The complaint in this action does not allege that the respondents knowingly conveyed what they

did not own, or that they concealed any fact affecting the title which was within their knowledge, and which they were bound to disclose; and, while it is true that the "arm of equity is long and powerful," it is also true, as is tersely said by Lord Nottingham, that the "chancery mends no man's bargain." Willful misrepresentation or concealment is nowhere charged, nor can it be ascertained in what respect or to what extent the title conveyed by the respondents has failed. They may, for aught that appears to the contrary, well have conceived that they were "seised in fee" of the premises, and have acted in good faith in executing the conveyance; and if, in so doing, they have erred in estimating their estate, and the damages flowing from such error are susceptible of definite ascertainment, and the respondents solvent and residents of the state, what occasion is there for the interposition of equity? There are many expressions to be found in the reported cases and in text-books that are seemingly antagonistic to the conclusion we have reached in disposing of this case. Of many of them, however, it may be said that they, at most, are merely "loose dicta, without any fullness of illustration," and want that precision which is requisite to give much force to them. The judgment appealed from is affirmed.

HOYT, C. J., and ANDERS, SCOTT, and DUNBAR, JJ., concur.

(11 Wash, 41)

STEPHENS v. CITY OF SPOKANE. (Supreme Court of Washington. Feb. 1, 1895.) ACTION ON CITY WARRANTS-PLEADING.

1. In declaring on a city warrant which an ordinance requires to be in writing, it need not be alleged that the contract was in writing; a written contract being admissible under a general allegation that the parties contracted.

2. In an action on city warrants signed by a person acting as mayor, where it was alleged that the warrants were duly and legally issued, it was not necessary to allege the council proceedings by which the person signing the warrants became acting mayor.

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Action by W. M. Stephens against the city of Spokane. From an order sustaining a demurrer, and judgment thereupon for defendant, plaintiff appeals. Reversed.

Jones, Belt & Quinn, for appellant. James Dawson, for respondent.

DUNBAR, J. This is an action brought on four street-grade warrants of the city of Spokane, for $500 each, and interest thereon, issued April 12, 1889, and drawn on the Mallon street fund. In 1888 the city of Spokane duly passed an ordinance for the grading of MalIon street, and let the contract for the grading thereof to one V. M. Massey, who, in April, 1889, finished the same according to the

plans and specifications, and the same was thereupon accepted by the city as a full performance of the contract. This ordinance is pleaded in the complaint. The contract entered into between Massey and the city is also pleaded, which contract provided, among other things, that if any payments upon said coŊtract became due and payable, and the said fund had not been recovered, the city would issue its warrants or certificates of indebtedness redeemable within one year. In pursu ance of said contract, the city issued, among others, its four certain warrants which are set forth in the complaint. It is alleged that the warrants set out were, on the 13th day of April, 1889, duly presented for payment to the city treasurer of the defendant corporation, and payment thereof was refused for want of funds; that the warrants have been duly assigned to plaintiff; that they are long past due, and wholly unpaid; that the city of Spokane has wholly failed, neglected, and refused to take any steps for the purpose of creating a fund to be known and designated as the "Mallon street fund"; that it has failed, neglected, and refused, and still fails, neglects, and refuses to carry out said contract upon its part by the payment to this plaintiff, or to any other person for him, of the amount of said warrants; and that, on account of said failure, neglect, and refusal of the officers of the defendant city to keep and perform said contract, the plaintiff, as the assignee and owner of the warrants, has been damaged in the sum of $2,805.26; wherefore plaintiff demands judgment for that amount. A demurrer was interposed to this complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court, and a final judgment entered against the appellant.

Section 3 of the charter of 1886 granted the power, in general terms, to the city, to assess, levy, and collect taxes for general municipal purposes; and section 7 provides that the city "shall have power to construct sidewalks, and to curb, pave, grade, plank, macadamize and gutter any street or streets, highway or highways, alley or alleys therein, or any part thereof; and to levy and collect a special tax or assessment on all lots or parcels of land fronting on such street or streets, highway or highways, or any part thereof, sufficient to pay the expenses of such improvements, and for such purposes may establish assessment districts," etc. Section S provides that "the city of Spokane Falls has power to provide for clearing, opening, gfaveling, repairing and clearing streets, alleys and highways, and for the prevention and removal of all obstructions therefrom." In the case of Soule v. City of Seattle, 6 Wash. 315, 33 Pac. 384, 1080, this court held, in construing similar charter provisions, that the city was not limited to special assessments as a means of improving its streets in any way it saw fit. On that proposition we think the decision in that case is conclusive of the ques

tion raised in this case as to the power of the city to pay for these improvements, and we pass that phase of the case without further comment.

The brief of the respondent charges the appellant with making a misstatement in his opening brief, in alleging that the city has never taken any steps whatever towards creating a fund to be known as the "Mallon street fund," and has never paid, and now refuses to pay, to plaintiff the amount of these warrants, claiming that it has no authority or power to pay the same from any other fund than the Mallon street fund, which, as before stated, has never existed, and which the city has never taken any steps to create; and counsel proceeds to show that the city has taken other steps by passing ordinances, etc. But this case comes here upon the allegations of the complaint, and we hardly see how these evidentiary matters which are argued by the counsel for respondent can be taken into consideration. If the allegations of the complaint are not true, that is a matter of defense; but, for the purposes of this demurrer, they must be considered as true, and the allegation is that the city of Spokane has wholly failed, neglected, and refused to take any steps for the purpose of creating a fund to be known and designated as the "Mallon street fund"; that it has failed, neglected, and refused, and still fails, neglects, and refuses, to carry out said contract on its part by the payment to this plaintiff, or to any other person for him, of the amount of said warrants. It is hard to conceive on what theory the statement made in appellant's brief is said to be a misstatement of the case; and it seems to us that, under the former rulings of this court and the well-settled law, if the allegations of the complaint are true, that a contract was duly made, and that no steps have been taken for five years on the part of the city to collect the necessary funds for the payment of these warrants, the plaintiff has a legal grievance against the city, and that the complaint in every respect states a cause of action.

There are two technical points, however, raised by the respondent which we will notice here. The first is that the contract must be alleged to have been in writing, because, under the ordinance of 1889, a contract, to be binding, must be reduced to writing, and signed by the mayor and city clerk on behalf of the city; and Arnott v. City of Spokane, 6 Wash. 442, 33 Pac. 1063, is cited to sustain this objection to the complaint. We think this case is not in point. In that case we decided that the city could not be rendered liable by the verbal agreement of the mayor and the council to pay certain sums exceeding $50, and the case was reversed because the court admitted testimony which went to show a verbal contract. But the question is here,is a written contract admissible in evidence under a general allegation that the parties contracted, without indicating whether the contract was in writing or not? This ques

tion was squarely decided in Pettit v. Hamlyn, 43 Wis. 314. There it was held that where there is an averment, in general terms, of an agreement to convey, it must be assumed that it is a valid agreement; and it is error to reject all evidence under the complaint for its failure to expressly allege an agreement in writing before, though the answer denies such an agreement. The court in that case said: "It is said by the counsel for the plaintiff that the court below held the complaint insufficient, because it did not show that the agreement was in writing. If that was the view of the learned circuit court, it was unsound. The complaint states the agreement to convey in general terms, and it must be presumed that it was a valid agreement. Certainly, the contrary presumption cannot be made, because the complaint states generally the agreement. It was not necessary to allege that it was in writing. The law upon this point is well settled. It is true the answer alleges that the agreement to convey was not in writing, but we do not see that that can affect the question as to the sufficiency of the complaint." In this case, the complaint being assailed by a demurrer under that authority, the complaint states a cause of action, and an allegation is made which will sustain proof of a written contract. To the same effect is Hamilton v. Lau (Neb.) 37 N. W. 688, and Higgins v. McDonnell, 16 Gray, 386. In the latter case it was held that a written contract may in general be given in evidence in support of a declaration on a contract not alleged to be in writing. See, also, Tuttle v. Hannegan, 54 N. Y. 686. The remaining contention is that it was necessary to allege the proceedings of the city council by virtue of which Tull, who signed the warrants, became acting mayor. This also, we think, is a matter of evidence, and not of pleading, and the allegation that the warrant was duly and legally issued was sufficient. Dill. Mun. Corp. § 502, states the rule thus: "County and city orders signed by the proper officers are prima facie binding and legal. These officers will be presumed to have done their duty. Such orders make a prima facie cause of action. Impeachment must come from the defendant,"-citing many cases to sustain the text. And such is the undisputed weight of authority. We think the complaint is in all respects sufficient to place the city on its defense. The judgment will therefore be reversed.

ANDERS, SCOTT, and GORDON, JJ., con

cur.

HOYT, C. J., dissents.

(11 Wash, 36)

MRAS v. DUFF et ux. (Supreme Court of Washington. Feb. 1, 1895.) MECHANIC'S LIEN-NOTICE.

A notice of lien filed by the contractor, which, in stating the terms of the contract, re