HOYT, C. J. In 1890, Spokane College, a corporation organized under the laws of the state of Washington, desired to borrow $20,000, and for that purpose authorized one A. E. Lasher, its former president, to go east, and negotiate a loan for that amount. Said Lasher entered into communication with one Frank J. Webb, a broker in investment securities, in Syracuse, N. Y., and addressed to him a communication of which the following is a copy:

"Syracuse, N. Y., June 19, 1890. Dear Sir: Spokane College, Spokane Falls, Washington, desires to borrow $20,000 for five years, with the privilege of paying it at the expiration of three years. The college is a Methodist educational institution, duly chartered under the laws of the state, and may sue and be sued in its corporate capacity. The property belonging to the corporation is as follows:

26 acres of land in the city of Spo

kane Falls, valued at a very low estimate at.

Buildings erected thereon, cost. Endowment notes and other real estate

Apparatus, library, and other personal property.

$500,000 00 30,000 00 90,000 00 10,000 00 $630,000 00

"These figures are given very conservatively, and are much below our own valuation. The college authorities value the property at $800,000.00. The 26 acres of land lies in the heart of the city, surrounded by streets graded and finished, electric lighted, and cable road. The city has a population of about 30,000, and is growing rapidly. The corporation would be very willing to give a mortgage upon its real estate as security for this loan, but the grant of land contained a provision prohibiting the trustees from placing such a mortgage, and it is a matter of question as to whether a mortgage would be valid security. As security for the loan the trustees propose to execute a note of $20,000, signed by the president and secretary of the board, after a meeting of the board shall have been held, and a resolution passed authorizing the execution of said note. And a certified copy of such action will be sent to the party loaning the money. The board further agrees to take any other steps necessary to legalize the loan, and to furnish full information thereon. The note will be indorsed by:

The loaner is expected to

make any inquiries he may see fit in regard to the standing of the proposed indorsers. There is no incumbrance against any of the property owned by the college. And the trustees will bind themselves & their successors that there shall not be any liens placed upon the property during the life of the proposed loan. The note will bear interest at the rate of eight per cent. (8%) per annum, payable semiannually, both principal and interest payable in N. Y. funds, at any bank in Syracuse you may designate. Insurance in responsible companies will be written to the amount of $20,000, the sum to be made first payable to the loaner as his interest appears. "Signed, on behalf of the trustees,

"A. E. Lasher,

"Ex-President of Spokane College."

The purpose of this communication was to enable said Webb to find some one who would be willing to make the loan which the corporation was seeking. It was by him presented to the plaintiff and one Hamilton S. White, by whom it was favorably received, and the following sent by them directly to said A. E. Lasher:

"Syracuse, N. Y., June 19th, 1890. A. E. Lasher, Esq., Representing the Officers and Trustees of Spokane College-Dear Sir: We propose to take the $20,000 loan asked for by your college, upon the terms stated in the application addressed to Mr. Frank J. Webb, dated June 19th, 1890, with this modification: We wish an opinion from one of the judges of your courts that the real estate owned by the college corporation can be levied upon should we be obliged to sue & take judg ment in order to collect the debt. In addition, we ask that the president of Spokane College send to us, with notes hereinafter described-1st. A statement of the various

pieces of real estate, buildings, and other property owned by the college, with estimated value. 2nd. A certificate that there are no incumbrances or liens against the property at the time of our taking note payable to Sylvanus B. Merrill, for $5,000, & of same date & tenor as the $15,000 note. Both notes to be indorsed by the several gentlemen named in the application, or as many of them as may be at hand. We suggest that the amount of attorney's fees be placed at $200. "5000.

"15000.

Sylvanus B. Merrill. Hamilton S. White."

It does not appear from the proofs that any other communication was had between the plaintiff and said White and the corporation, or its representatives, until the note upon which this action was brought was presented to the plaintiff, and another of like tenor, but for a larger amount, to said White. This note was in the following form:

"$5000.00. Spokane Falls, Washington, July 3rd, 1890. Five years after date, without grace, for value received, Spokane College promises to pay to the order of Sylvanus B. Merrill five thousand dollars in U. S. gold

The

"Spokane College,

"By W. C. Gray, "President of the Board of Trustees." "By R. Abernethy,

"Secretary of the Board of Trustees." Indorsed as follows, to wit:

"We hereby guaranty the payment of the within note. H. N. Muzzy. "H. Brook.

"J. B. Sargent.

"W. C. Gray. "Robert Abernethy. "E. L. Powell."

Upon its delivery to the agent of the plaintiff, the money was paid over to the college, or its representative. Default having been made in the payment of an installment of interest, this suit was brought against the persons who had guarantied the payment of the note. They set up in their answer that they signed such guaranty with the understanding that certain other persons should also sign, and that the plaintiff had knowledge of that fact. By reason of this understanding, and the alleged knowledge thereof by the plaintiff, the defendants contend that they cannot be held as guarantors of the payment of the note. The superior court was of the opinion that there was nothing in the proofs which tended to show that the plaintiff had any knowledge of any reservation or understanding of the guarantors, and instructed the jury to return a verdict for the plaintiff. Its action in so doing is the only reason suggested why the judgment should be reversed. There is no dispute between counsel as to the law upon this question. The only difference between them is as to the facts established by the proofs. On the part of the plaintiff it is claimed that the judgment should be affirmed, for the reason that there was no proof tending to show that the plaintiff had knowledge of any fact which would affect the guaranty by those whose names appeared upon the note as guarantors. The defendants contend that there was testimony which tended in some degree to show such knowledge, and that the determination of the question should have been left to the jury. The only evidence upon which the defendants found their claim is contained in the application, acceptance, and note, copies of which are herein before set out. They contend that the form of the application was such as to furnish notice to the plaintiff of an understanding

should sign before any should be bound. In our opinion, no such inference can be drawn from the language of the application. fact that in the application it is stated that the note will be guarantied by certain persons could not convey any notice that there was any understanding or agreement among such persons that all of them should become guarantors before any of them should be bound. Nothing appears upon the face of such application to show that they were privy to the offer of their names as security excepting the fact that it was therein stated that they were trustees of the corporation; and such statement was not sufficient to make the proposed guarantors parties to the application. Such application was made by or on behalf of the corporation, and, as a part of the security offered for the money, was a proposed guaranty of the note to be given by the company. There was nothing therein which in any way notified those to whom it was presented that the entire security offered must be furnished before any of it could be made available. For this reason we are of the opinion that the application had nothing therein which in any manner notified the plaintiff of the existence of the understanding among the guarantors relied upon as a defense. If, however, there was any doubt in regard to the construction of the application taken alone, such doubt would be resolved against the contention of the defendants when the terms of the acceptance of the application are taken into consideration. From such acceptance it clearly appears that the plaintiff was not relying upon a guaranty of the note by the particular persons stated in the application; and, since this acceptance was brought to the notice of the maker of the application, the two papers must be construed together. But, even if the two papers, taken together, could be construed as contended for by the defendants, the note and guaranty are in such form, and so signed, as to show that the condition as to the joining of the persons named as guarantors had been changed. It appears upon the face of the note that others than those named in the application had joined in the guaranty, and this fact authorized the plaintiff to assume that, so far as the guaranty provided for in the application was confined to certain persons, its terms had been changed before the execution of the note. For any or all of these reasons the lower court correctly found that there was nothing in the case which would authorize the jury to find that the plaintiff had any knowledge of any understanding among the guarantors which would change the contract as it appeared upon the face of the note.

The plaintiff sought to recover, in addition to the interest due, the sum of $200 as attorney's fees, and has appealed from the ruling of the court which refused to include such sum in the judgment. By the terms of the note such sum as attorney's fees was to be

paid in case suit was instituted to collect the note, or any portion thereof. Is an installment of interest upon which suit may be brought before the maturity of the note a portion thereof, within the meaning of this provision? The answer to this question must depend upon the fact as to whether or not this sum was to be paid more than once. If it was not, it could only be collected after the note had been dishonored, so that it would not pass to an innocent holder without burdens. Until such dishonor, an innocent purchaser would take with the note the right, apparent upon its face, to recover the attorney's fee in case of suit. Hence, until dishonor, no attorney's fee could be collected without the risk of subjecting the maker to the payment of such fee more than once. That nonpayment of an installment of interest does not dishonor a note is conceded. Was it the intention of the parties to provide that this $200 should be paid more than once? In our opinion, it was not. If we should hold that it could be collected more than once, it would necessarily follow that it could be collected many times. The parties could not have intended that such a possible burden should be placed upon the maker of the note. The judgment will be in all things affirmed. Neither party will recover costs of this court.

SCOTT, ANDERS, DUNBAR, and GORDON, JJ., concur.

(11 Wash. 712)

WHITE v. MUZZY et al. (Supreme Court of Washington. Jan. 26, 1895.) Appeal from superior court, Spokane county; James Z. Moore, Judge.

Action by Hamilton S. White against H. N. Muzzy and others, as guarantors of a note, to recover an installment of interest. The court directed judgment for plaintiff, without the attorney's fee stipulated for in the note. Both parties appeal. Affirmed.

Samuel R. Stern, for appellant.

HOYT, C. J. This case presents the same question as that of Merrill v. Muzzy (just decided), 39 Pac. 277; and from what was said in that case it follows that the judgment herein must be in all things affirmed, and that neither party will recover costs of this court.

SCOTT, DUNBAR, ANDERS, and GORDON, JJ., concur.

(11 Wash. 35)

COLTON MERCANTILE CO ▼. DUFF (DUFF, Intervener). (Supreme Court of Washington. Feb. 1, 1895.) REVIEW ON APPEAL STATEMENT OF FACTS-ABSENCE OF-SUFFICIENCY OF PLEADINGHOW QUESTIONED.

The sufficiency of a pleading will not be considered on appeal unless appellant raises the question in his brief.

Appeal from superior court, Whitman county; E. H. Sullivan, Judge.

Action by the Colton Mercantile Company against Luella Duff to foreclose a chattel mortgage. R. H. Duff intervened. Judgment was rendered for plaintiff, and defendant and intervener appeal. Affirmed.

James W. Reid, for appellants. Chadwick & Fullerton, for respondent.

HOYT, C. J. Upon the hearing, the purported statement of facts was stricken from the record, leaving for our consideration only the question of the sufficiency of the pleadings. It is claimed on the part of appellants that they have raised the question of the sufficiency of the complaint in their brief, but we are unable to find anything therein which sufficiently challenges the complaint to authorize us to enter into an investigation as to its sufficiency. See Francioli v. Brue, 4 Wash. 124, 29 Pac. 928. The judgment will be affirmed.

SCOTT, ANDERS, DUNBAR, and GORDON, JJ., concur.

(9 Wash. 428)

SEARS v. WILLIAMS et al. (Supreme Court of Washington. July 19, 1894.) CITY CONTRACTOR'S BOND.

An action on a contractor's bond, given to a city under Gen. St. § 2415, will lie in favor of one not a party to it, and who, at the time of its execution, had no relation to the subjectmatter, the work being street grading. Per Dunbar, C. J., dissenting.

For majority opinion, see 37 Pac. 665.

DUNBAR, C. J. (dissenting). I am unable to agree with the conclusion reached by the majority in this case. The legality of this bond is recited in the bond, and the sureties are estopped to deny the facts recited in their obligation, whether the facts be true or false. Brandt, Sur. (2d Ed.) § 42. Again, this bond was voluntarily given. That being true, if there was no legal violation in giving it, the sureties are estopped from denying its benefits to those who rely upon it. "Actions are sustained on bonds not required by law, when executed voluntarily." 1 Dill. Mun. Corp. (4th Ed.) § 216. "In such case," says that authority, "the obligor voluntarily agrees to make the obligee named a trustee for the person interested in the due performance of the conditions." In Montville v. Haughton, 7 Conn. 543, such bond was sustained, and the court, in that case, said: "The collector is not required to give a bond, nor are the se lectmen authorized to take such a bond. There is, indeed, no law directing that a bond shall be taken in such case, nor is there any law against it. It is not illegal in its nature, nor founded upon any illegal consideration." And so in the case at bar; the bondsmen were made the trustees of the city for the benefit of those dealing with it under this con

tract. It is asserted by the majority that though the rule in regard to the voluntary bond, which is now certainly the established law of the country, might obtain, so far as the parties to the bond are concerned, it cannot be enforced in favor of the respondent, who is in no sense a party thereto. I see no reason why this distinction should be made. If it could be enforced by the city, there being no such statutory bond provided for, on the ground of estoppel, the same reason ought to prevail for enforcing it in the interest of outside parties, who relied upon the conditions of the bond entered into in making their contracts. There is no reason, in justice, that I can perceive, for the distinction; and technicalities, the enforcement of which serves to defeat substantial justice, ought to be disregarded. I think there is nothing in the formal objection to the bond. The judgment, in my opinion, should be affirmed.

(2 Okl. 580)

HAGAR v. WIKOFF.

the territory to carry into effect any rights acquired under section 2387, Rev. St. U. S. At the settlement of the town site one Berkey was a claimant of lot 14, in block 42, the lot in controversy, and about 10 days after the settlement of the town site erected a frame building on the lot, which was rented to the provisional government of Stillwater, and used by the officers, during the summer of 1890, as a clerk's office and council chamber. Berkey left the town about 30 days after the town was opened, and transferred his interest in said lot to James M. Stafford, who became the owner of the building thereon. Stafford placed the property in the custody of Wikoff, the defendant in this case, as his agent. In November, 1889, Wikoff, as agent for Stafford, rented the property to Mrs. Hagar, the wife of the plaintiff; and the plaintiff and his wife went into possession of the premises under said leasing, and did business and resided in the house on said lot, and paid rent therefor to Wikoff, until the 1st of July, 1890, at which time they ceased to pay rent, and Hagar

PUBLIC LANDS-TOWN SITES-ESTOPPEL TO DENY LANDLORD'S TITLE-RIGHTS OF GRANTEE

-OPENING DEFAULT.

1. Where public lands are settled upon for town-site purposes, one who improves a lot, by erecting a building thereon, for purposes of trade, business, or residence, is an occupant, as contemplated by act of congress approved May 14, 1890, relating to town sites in Oklahoma, and is entitled to a conveyance from the townsite trustees, although he may have never personally resided upon said lot, or in the town or territory, in the absence of any superior right.

2. A person who goes into possession of a town lot upon public lands, as a tenant of one who has improved the lot by erecting a building thereon, will not be heard to assert a claim adverse to his landlord, by reason of occupancy, settlement, or improvement, until he shall have vacated the premises and surrendered possession to his landlord.

3. The doctrine of estoppel applies between landlord and tenant, and does not depend upon the validity of the landlord's title.

4. When a married woman rents a house and lot, and enters into possession of it with her husband, who resides with her, and he does not at once dissent and repudiate the contract, the lease inures to his benefit, and he becomes a tenant of the lessor.

5. The interest in a town lot on public lands acquired by occupancy may be transferred and conveyed, and the grantee will succeed to all the rights of the occupant, as against one who holds as a tenant of the grantor.

6. The question of permitting a defendant to plead after default is discretionary with the trial court, and its action will not be reversed, unless it appears that such discretion has been abused, to the manifest injury of the party complaining.

(Syllabus by the Court.)

Appeal from district court, Payne county; Frank Dale, Judge.

Action by W. C. Hagar against Frank J. Wikoff. Judgment for defendant, and plaintiff appeals. Affirmed.

The town of Stillwater was settled soon after the opening of Oklahoma, in 1889, and at a time when there was no law in force in

dence in the tent, and afterwards erected a building on the lot, and began asserting a claim to said lot by reason of his possession and actual occupancy. Hagar and wife, from the time they went into possession under the lease from Stafford, remained continuously in possession until the time of trial. Before the town site was entered at the United States land office, Stafford sold and transferred his interest in the property to the defendant, Wikoff, who succeeded to his rights in the property on May 14, 1890. The lot was in the business part of the town, and was located for a business lot. Stafford never resided in the town of Stillwater at any time, and Berkey remained there about a month, when he returned to his former home. The town was afterwards proved up by a board of trustees appointed by the secretary of the interior, under the provisions of the act of congress approved May 14, 1890, relating to town sites in Oklahoma. Both Hagar and Wikoff filed applications with said trustees for the lot in controversy. A hearing was had before the board, and the lot awarded to Wikoff. From their decision Hagar appealed to the commissioner of the general land office, but subsequently dismissed his appeal, and directed a deed to issue to Wikoff. The title was conveyed to Wikoff by the trustees, and he still held the title at the time of the bringing of this action. The plaintiff, Hagar, brings this action to enjoin the defendant, Wikoff, from disturbing his possession and to quiet title. Wikoff answers in several counts. He pleads a general denial; ownership of the property, and refusal of the plaintiff to vacate; that plaintiff entered as tenant of defendant's grantor, and has never surrendered; and also a cross bill alleging title in defendant, the adverse occupancy of plaintiff, and pray

ing for possession, damages, and a decree quieting his title. The reply is very voluminous, and, when stripped of its redundant and superfluous matter, amounts to little more than a general denial. Trial was had by the court. Finding and judgment for defendant on his cross petition. Plaintiff appeals.

Geo. P. Uhl, for appellant. Hunt & Workman, for appellee.

BURFORD, J. The first contention of plaintiff in error is that the trial court erred in permitting the defendant to plead after default. The court granted defendant leave to plead after a hearing upon his application, in which numerous affidavits were presented on each side. This was purely a discretionary matter in the trial court, and, unless it appears that the court has abused its discretion to the manifest injury of the party complaining, the appellate court will not interfere. We find nothing in this ruling to show any abuse in discretion. It is next contended that the court erred in overruling plaintiff's motion for continuance on account of absent testimony. Under our view of the law in this case, the testimony was not material, and there was no error in overruling the motion. In any event, an affidavit for continuance of a cause on account of absent testimony should set out the facts expected to be proved with such definiteness and certainty that the adverse party may, if he desires, admit that the witnesses would so testify if present, and thus avoid the delay of a continuance. The application in this case would not stand the test of such a rule. The plaintiff in this case is in no position to ask relief from a court of equity. The pleadings and evidence show that, at the time he went into possession of the lot in dispute, there was a building on the lot belonging to another claimant, and that he went into possession under a contract of rental which his wife had made, and that he lived with her in the house, as one family, while she was paying the rent, and that he sought, by a trick and undue advantage, to convert the possession thus acquired into a right of occupancy under the town-site laws, and to defeat the title of the person under whom he was occupying. Equity will not aid a person who cannot show clean hands and a right based upon acts that good conscience will approve. There is no better settled principle of law than that a tenant is estopped from disputing the title of his landlord. The supreme court of the United States in Willison v. Watkins, 3 Pet. 43, said: "It is an undoubted principle of law, fully recognized by this court, that a tenant cannot dispute the title of his landlord either by setting up a title in himself or a third person, during the existence of the lease or tenancy. The principle of estoppel applies to the relation between them, and operates in its full force to prevent a tenant from violating that con

tract by which he obtained and holds pos session. He cannot change the character of the tenure by his own acts, merely, so as to enable himself to hold against his landlord, who reposes under the security of the tenancy, believing the possession of the tenant to be his own, held under his title, and ready to be surrendered on its termination by the lapse of time or demand of possession. The same principle applies to mortgagor and mortgagee, trustee and cestui que trust, and generally to all cases where one man obtains possession of real estate belonging to another by a recognition of his title. On all these subjects the law is too well settled to require illustration or reasoning or admit of a doubt." Chief Justice Marshall in Blight's Lessee v. Rochester, 7 Wheat. 535, speaking of the principle of estoppel in this class of cases, said: "This principle originates in the relation between lessor and lessee, and, so far as respects them, is well established and ought to be maintained. The title of the lessee is in fact the title of the lessor. He comes in by virtue of it, holds by virtue of it, and rests upon it to maintain and justify his possession. He professes to have no independent right in himself, and it is a part of the very essence of the contract under which he claims that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and that possession shall be surrendered at its expiration. He cannot be allowed to controvert the title of the lessor without disparaging his own, and he cannot set up the title of another without violating that contract by which he obtained and holds possession, and breaking that faith which he has pledged, and the obligation of which is still continuing and in full operation." The estoppel does not depend upon the validity of the landlord's title. Goode v. Gaines, 145 U. S. 141, 12 Sup. Ct. 839. A tenant in possession cannot, even after the expiration of his lease, deny his landlord's title, or set up a paramount outstanding title, without first actually, openly, and in good faith surrendering possession. Bigelow, Estop. 520. And before one who obtains possession under a lease or by virtue of a tenancy can maintain an action to assert a title, either in a court of law or in equity, he must be out of possession. Peyton v. Stith, 5 Pet. 485. A person in possession of land, who obtained his possession by renting from one who claims the land leased, is estopped from asserting that the person from whom he leased or rented same was but a trustee of the land for him. Lucas v. Brooks, 18 Wall. 436.

The plaintiff seeks to avoid the principle of estoppel by claiming that his wife rented the lot in dispute without his consent, and that, after he had occupied the lot with her for a period of about six months, he erected a tent and building on the lot, and occupied his own building. This is not sufficient to excuse him from the operation of the rule of