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interest. The court directed judgment for plaintiff for the interest, without the attorney's fee stipulated for. Both parties appeal. Affirmed.

Blake & Post and L. H. Prather, for appellants. Samuel R. Stern, for respondent.

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..

$500,000 00 Buildings erected thereon, cost. 30,000 00 Endowment notes and other real estate

90,000 00 Apparatus, library, and other personal property.

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 rapiuiy. 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 vote will be indorsed by: J. B. Sargent, estimated worth from $ 70,000 to $100,000 H. Brook,

$150,000 to $200.000 BF Burch,

$150,000 to $200.1100 W.C. Gray,

$ 70.000 H. Muzzy.

$500,000 I. S. Kaufman (provided he is at home),

$150,000 "These men are all trustees, and residents of Spokane Falls, and their property is main

ly in real estate. 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 pay. able 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 bis 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.

Sylvanus B. Merrill. "15000.

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

coin, of the present standard value, with in- between the proposed guarantors that all terest thereon, in like gold coin, from date should sign before any should be bound. In until paid, at the rate of eight per cent. per our opinion, no such inference can be drawn annum, interest payable semiannually, waiv- from the language of the application. The ing presentation for payment, protest, and no- fact that in the application it is stated that tice of protest, and nonpayment of this note; the note will be guarantied by certain persons and, in case suit or other action is instituted could not convey any notice that there was to collect this note, or any portion thereof, any understanding or agreement among such promises and agrees to pay two hundred dol- persons that all of them should become guarlars, in like gold coin, for attorney's fees in antors before any of them should be bound. said suit or action. The principal and inter- | Nothing appears upon the face of such appliest of this note payable at the Bank of Syra- cation to show that they were privy to the cuse, New York, 'in N. Y. exchange.

offer of their names as security excepting the "Spokane College,

fact that it was therein stated that they were “By W. C. Gray, trustees of the corporation; and such state“President of the Board of Trustees." ment was not sufficient to make the proposed "By R. Abernethy,

guarantors parties to the application. Such “Secretary of the Board of Trustees." application was made by or on behalf of the Indorsed as follows, to wit:

corporation, and, as a part of the security "We hereby guaranty the payment of the offered for the money, was a proposed guaranwithin note.

H. N. Muzzy.

ty of the note to be given by the company. "H. Brook.

There was nothing therein which in any way J. B. Sargent.

notified those to whom it was presented that “W. C. Gray.

the entire security offered must be furnished “Robert Abernethy. before any of it could be made available. “E. L. Powell."

For this reason we are of the opinion that Opon its delivery to the agent of the plain- | the application had nothing therein which in tiff, the money was paid over to the college, any manner notified the plaintiff of the existor its representative. Default having been ence of the understanding among the guarmade in the payment of an installment of in- antors relied upon as a defense. If, howterest, this suit was brought against the per- ever, there was any doubt in regard to the sons who had guarantied the payment of the construction of the application taken alone, note. They set up in their answer that they such doubt would be resolved against the signed such guaranty with the understanding contention of the defendants when the terms that certain other persons should also sign, of the acceptance of the application are taken and that the plaintiff had knowledge of that into consideration. From such acceptance it fact. By reason of this understanding, and clearly appears that the plaintiff was not the alleged knowledge thereof by the plain-relying upon a guaranty of the note by the tiff, the defendants contend that they cannot particular persons stated in the application; be held as guarantors of the payment of the and, since this acceptance was brought to the note. The superior court was of the opinion notice of the maker of the application, the two that there was nothing in the proofs which papers must be construed together. But, tended to show that the plaintiff had any even if the two papers, taken together, could knowledge of any reservation or understand- be construed as contended for by the defending of the guarantors, and instructed the jury ants, the note and guaranty are in such form, to return a verdict for the plaintiff. Its ac- and so signed, as to show that the condition tion in so doing is the only reason suggested as to the joining of the persons named as why the judgment should be reversed. There guarantors had been changed.

It appears is no dispute between counsel as to the law upon the face of the note that others than upon this question. The only difference be- those named in the application had joined in tween them is as to the facts established by the guaranty, and this fact authorized the the proofs. On the part of the plaintiff it is plaintiff to assume that, so far as the guarclaimed that the judgment should be af- anty provided for in the application was confirmed, for the reason that there was no proof fined to certain persons, its terms had been tending to show that the plaintiff had knowl- | changed before the execution of the note. edge of any fact which would affect the For any or all of these reasons the lower guaranty by those whose names appeared court correctly found that there was nothing upon the note as guarantors. The defendants in the case which would authorize the jury contend that there was testimony which tend- to find that the plaintiff had any knowledge ed in some degree to show such knowledge, of any understanding among the guarantors and that the determination of the question which would change the contract as it appearshould have been left to the jury. The only ed upon the face of the note. evidence upon which the defendants found The plaintiff sought to recover, in addition their claim is contained in the application, to the interest due, the sum of $200 as attoracceptance, and note, copies of which are ney's fees, and has appealed from the ruling hereinbefore set out. They contend that the of the court which refused to include such form of the application was such as to furnish sum in the judgment. By the terms of the notice to the plaintiff of an understanding | note such sum as attorney's fees was to be paid in case suit was instituted to collect the Action by the Colton Mercantile Company note, or any portion thereof. Is an install. against Luella Duff to foreclose a chattel ment of interest upon which suit may be mortgage. R. H. Duff intervened. Judg. brought before the maturity of the note a ment was rendered for plaintiff, and defendportion thereof, within the meaning of this ant and intervener appeal. Affirmed. provision? The answer to this question must

James W. Reid, for appellants. Chaddepend upon the fact as to whether or not

wick & Fullerton, for respondent this sum was to be paid more than once. If it was not, it could only be collected after the

HOYT, C. J. Upon the hearing, the purnote had been dishonored, so that it would

ported statement of facts was stricken from not pass to an innocent holder without bur

the record, leaving for our consideration dens. Until such dishonor, an innocent purchaser would take with the note the right, pleadings.

only the question of the sufficiency of the

It is claimed on the part of apapparent upon its face, to recover the attor

pellants that they have raised the question ney's fee in case of suit. Hence, until dis

of the sufficiency of the complaint in their honor, no attorney's fee could be collected

brief, but we are unable to find anything without the risk of subjecting the maker to

therein which sufficiently challenges the the payment of such fee more than once.

complaint to authorize us to enter into an That nonpayment of an installment of inter

investigation as to its sufficiency. See Franest does not dishonor a note is conceded.

cioli v. Brue, 4 Wash. 124, 29 Pac. 928. The Was it the intention of the parties to provide judgment will be affirmed. that this $200 should be paid more than once? In our opinion, it was not. If we should hold SCOTT, ANDERS, DUNBAR, and GORthat it could be collected more than once, it DON, JJ., concur. 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.

(9 Wash. 428) The judgment will be in all things affirmed.

SEARS v. WILLIAMS et al. Neither party will recover costs of this court.

(Supreme Court of Washington. July 19, 1894.)

City CONTRACTOR's Bond. SCOTT, ANDERS, DUNBAR, and GOR

An action on a contractor's bond, given DON, JJ., concur.

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 subject.

matter, the work being street grading. Per (11 Wash. 712)

Dunbar, C. J., dissenting.
WHITE V. MUZZY et al.

For majority opinion, see 37 Pac. 665. (Supreme Court of Washington. Jan. 26, 1895.)

Appeal from superior court, Spokane county; DUNBAR, C. J. (dissenting). I am unablo James Z. Moore, Judge. Action by Hamilton S. White against H. N.

to agree with the conclusion reached by the Muzzy and others, as guarantors of a note, to

majority in this case. The legality of this recover an installment of interest. The court bond is recited in the bond, and the sureties directed judgment for plaintiff, without the at- are estopped to deny the facts recited in their torney's fee stipulated for in the note. Both parties appeal. Affirmed.

obligation, whether the facts be true or false. Samuel R. Stern, for appellant.

Brandt, Sur. (2d Ed.) § 42. Again, this bond

was voluntarily given. That being true, it HOYT, C. J. This case presents the same there was no legal violation in giving it, the question as that of Merrill v. Muzzy (just decided), 39 Pac. 277; and from what was said in

sureties are estopped from denying its bene that case it follows that the judgment herein

fits to those who rely upon it. "Actions are must be in all things affirmed, and that neither sustained on bonds not required by law, when party will recover costs of this court.

executed voluntarily." 1 Dill. Mun. Corp. SCOTT, DUNBAR, ANDERS, and GOR

(4th Ed.) § 216. "In such case," says that DON, JJ., concur.

authority, "the obligor voluntarily agrees to make the obligee named a trustee for the per

son interested in the due performance of the (11 Wash. 35)

conditions." In Montville v. Haughton, 7 COLTON MERCANTILE CO v. DUFF

Conn. 513, such bond was sustained, and the (DUFF, Intervener).

court, in that case, said: “The collector is (Supreme Court of Washington. Feb. 1, 1895.)

not required to give a bond, nor are the se

lectmen authorized to take such a bond. REVIEW ON APPEAL — STATEMENT OP FACTS-ABSENCE OF-SUFFICIENCY OF PLEADING

There is, indeed, no law directing that a bond How QUESTIONED.

shall be taken in such case, nor is there any The sufficiency of a pleading will not be Law against it. It is not illegal in its nature, considered on appeal unless appellant raises the nor founded upon any illegal consideration." question in his brief.

And so in the case at bar; the bondsmen Appeal from superior court, Whitman were made the trustees of the city for the ben. county; E. H. Sullivan, Judge.

efit of those dealing with it under this con. tract. It is asserted by the majority that, the territory to carry into effect any rights .though the rule in regard to the voluntary acquired under section 2387, Rev. St. U. S. bond, which is now certainly the established | At the settlement of the town site one law of the country, might obtain, so far as Berkey was a claimant of lot 14, in block 42, the parties to the bond are concerned, it can- the lot in controversy, and about 10 days not be enforced in favor of the respondent, after the settlement of the town site erected who is in no sense a party thereto. I see no a frame building on the lot, which was rentreason why this distinction should be made. ed to the provisional government of StillIf it could be enforced by the city, there being water, and used by the officers, during the no such statutory bond provided for, on the summer of 1890, as a clerk's office and counground of estoppel, the same reason ought to cil chamber. Berkey left the town about 30 prevail for enforcing it in the interest of out- days after the town was opened, and transside parties, who relied upon the conditions ferred his interest in said lot to James M. of the bond entered into in making their con- Stafford, who became the owner of the buildtracts. There is no reason, in justice, that I | ing thereon. Stafford placed the property in can perceive, for the distinction; and techni. the custody of Wikoff, the defendant in this calities, the enforcement of which serves to case, as his agent. In November, 1889, defeat substantial justice, ought to be disre- Wikoff, as agent for Stafford, rented the garded. I think there is nothing in the property to Mrs. Hagar, the wife of the formal objection to the bond. The judgment, plaintiff; and the plaintiff and his wife went in my opinion, should be affirmed.

into possession of the premises under said leasing, and did business and resided in the

house on said lot, and paid rent therefor to (2 Okl. 580)

Wikoff, until the 1st of July, 1890, at which HAGAR V. WIKOFF.

time they ceased to pay rent, and Hagar (Supreme Court of Oklahoma. Feb. 16, 1895.) placed a tent on the lot, and took up his resiPUBLIC LANDS-Town Sites-ESTOPPEL TO DENY

dence in the tent, and afterwards erected a LANDLORD'S TITLE-RIGHTS OF GRANTEE

building on the lot, and began asserting a -OPENING DEFAULT.

claim to said lot by reason of his possession 1. Where public lands are settled upon for and actual occupancy. Hagar and wife, town-site purposes, one who improves a lot, from the time they went into possession unby erecting a building thereon, for purposes of trade, business, or residence, is an occupant, as

der the lease from Stafford, remained contincontemplated by act of congress approved May | uously in possession until the time of trial. 14, 1890, relating to town sites in Oklahoma, Before the town site was entered at the and is entitled to a conveyance from the townsite trustees, although he may have never per

United States land office, Stafford sold and sonally resided upon said lot, or in the town or

transferred his interest in the property to the territory, in the absence of any superior right. defendant, Wikoff, who succeeded to his

2. A person who goes into possession of a rights in the property on May 14, 1890. The town lot upon public lands, as a tenant of one who has improved the lot by erecting a building

lot was in the business part of the town, and thereon, will not be heard to assert a claim ad- was located for a business lot. Stafford nev. verse to his landlord, by reason of occupancy, er resided in the town of Stillwater at any settlement, or improvement, until he shall have vacated the premises and surrendered possession

time, and Berkey remained there about a to his landlord.

month, when he returned to his former 3. The doctrine of estoppel applies between home. The town was afterwards proved up landlord and tenant, and does not depend up- by a board of trustees appointed by the secon the validity of the landlord's title. 4. When a married woman rents a house

retary of the interior, under the provisions of and lot, and enters into possession of it with her

the act of congress approved May 14, 1990, husband. who resides with her, and he does not relating to town sites in Oklahoma. Both at once dissent and repudiate the contract, the lease inures to his benefit, and he becomes a

Hagar and Wikoff filed applications with tenant of the lessor.

said trustees for the lot in controversy. A 5. The interest in a town lot on public hearing was had before the board, and the lands acquired by occupancy may be trans- lot awarded to Wikoff. From their decision ferred and conveyed, and the grantee will succeed to all the rights of the occupant, as against

Hagar appealed to the commissioner of the one who holds as a tenant of the grantor.

general land office, but subsequently dis6. The question of permitting a defendant missed his appeal, and directed a deed to isto plead after default is discretionary with the sue to Wikoff. The title was conveyed to trial court, and its action will not be reversed, unless it appears that such discretion has been

Wikoff by the trustees, and he still held the abused. to the manifest injury of the party title at the time of the bringing of this accomplaining.

tion. The plaintiff, Hagar, brings this ac(Syllabus by the Court.)

tion to enjoin the defendant, Wikoff, from Appeal from district court, Payne county; disturbing his possession and to quiet title. Frank Dale, Judge.

Wikoff answers in several counts. He pleads Action by W. C. Hagar against Frank J. a general denial; ownership of the property, Wikoff. Judgment for defendant, and plain- and refusal of the plaintiff to vacate; that tiff appeals. Affirmed.

plaintiff entered as tenant of defendant's The town of Stillwater was settled soon grantor, and has never surrendered; and after the opening of Oklahoma, in 18S9, and also a cross bill alleging title in defendant, at a time when there was no law in force in the adverse occupancy of plaintiff, and praying for possession, damages, and a decree tract by which he obtained and holds pos. quieting his title. The reply is very volu- session. He cannot change the character of minous, and, when stripped of its redundant the tenure by his own acts, merely, so as and superfluous matter, amounts to little to enable himself to hold against his landmore than a general denial. Trial was had lord, who reposes under the security of the by the court. Finding and judgment for de- tenancy, believing the possession of the ten. fendant on his cross petition. Plaintiff ap- ant to be his own, held under his title, and peals.

ready to be surrendered on its termination by Geo. P. Uhl, for appellant. Hunt & Work- the lapse of time or demand of possession. man, for appellee.

The same principle applies to mortgagor and

mortgagee, trustee and cestui que trust, and BURFORD, J. The first contention of generally to all cases where one man obtains plaintiff in error is that the trial court erred possession of real estate belonging to anin permitting the defendant to plead after other by a recognition of his title. On all default. The court granted defendant leave these subjects the law is too well settled to to plead after a hearing upon his application, require illustration or reasoning or admit of in which numerous affidavits were presented a doubt." Chief Justice Marshall in Blight's on each side. This was purely a discretion- Lessee v. Rochester, 7 Wheat. 535, speaking ary matter in the trial court, and, unless it of the principle of estoppel in this class of appears that the court has abused its dis- cases, said: “This principle originates in the cretion to the manifest injury of the party relation between lessor and lessee, and, so complaining, the appellate court will not in- far as respects them, is well established and terfere. We find nothing in this ruling to ought to be maintained. The title of the show any abuse in discretion. It is next lessee is in fact the title of the lessor. He contended that the court erred in overruling comes in by virtue of it, holds by virtue of it, plaintiff's motion for continuance on account and rests upon it to maintain and justify of absent testimony. Under our view of the his possession. He professes to have no inlaw in this case, the testimony was not ma- dependent right in himself, and it is a part

ial, and there was no error in overruling of the very essence of the contract under the motion. In any event, an affidavit for which he claims that the paramount ownercontinuance of a cause on account of absent ship of the lessor shall be acknowledged durtestimony should set out the facts expected ing the continuance of the lease, and that to be proved with such definiteness and cer- possession shall be surrendered at its expiratainty that the adverse party may, if he de- tion. He cannot be allowed to controvert the sires, admit that the witnesses would so title of the lessor without disparaging his testify if present, and thus avoid the delay own, and he cannot set up the title of anof a continuance. The application in this other without violating that contract by case would not stand the test of such a rule. which he obtained and holds possession, and

The plaintiff in this case is in no position to breaking that faith which he has pledged, and ask relief from a court of equity. The plead- the obligation of which is still continuing ings and evidence show that, at the time he and in full operation.” The estoppel does not went into possession of the lot in dispute, depend upon the validity of the landlord's there was a building on the lot belonging to title. Goode v. Gaines, 145 U. S. 141, 12 Sup. another claimant, and that he went into pos- Ct. 839. A tenant in possession cannot, even session under a contract of rental which his after the expiration of his lease, deny his wife had made, and that he lived with her landlord's title, or set up a paramount outin the house, as one family, while she was standing title, without first actually, openly, paying the rent, and that he sought, by a

and in good faith surrendering possession. trick and undue advantage, to convert the Bigelow, Estop. 520. And before one who possession thus acquired into a right of oc- obtains possession under a lease or by virtue cupancy under the town-site laws, and to of a tenancy can maintain an action to asdefeat the title of the person under whom he

sert a title, either in a court of law or in was occupying. Equity will not aid a per- equity, he must be out of possession. Peyton son who cannot show clean hands and a right v. Stith, 5 Pet. 485. A person in possession based upon acts that good conscience will of land, who obtained his possession by rentapprove. There is no better settled principle ing from one who claims the land leased, is of law than that a tenant is estopped from estopped from asserting that the person from disputing the title of his landlord. The su- whom he leased or rented same was but a preme court of the United States in Willison trustee of the land for him. Lucas v. Brooks, v. Watkins, 3 Pet. 43, said: "It is an un- 18 Wall. 436. doubted principle of law, fully recognized The plaintiff seeks to avoid the principle by this court, that a tenant cannot dispute of estoppel by claiming that his wife rented the title of his landlord either by setting up the lot in dispute without his consent, and a title in himself or a third person, during that, after he had occupied the lot witb her the existence of the lease or tenancy. The for a period of about six months, he erected principle of estoppel applies to the relation a tent and building on the lot, and occupied between them, and operates in its full force bis own building. This is not sufficient to erto prevent a tenant from violating that con- cuse hinn from the operation of the rule of

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