der the act of September 27, 1850 (chapter 76), commonly called the "Donation Act." The Missionary Society of the Methodist Episcopal Church held the legal title under patent from the United States, but in trust, however, for the testator, and for his use and benefit. On the 3d day of October, 1877, the defendant bought in the outstanding title of the missionary society, and took a deed thereto in her own name, paying $420 as a consideration therefor. In 1882 the grade of Washington street in front of the premises was raised from 21⁄2 to 5 feet, at an expense to defendant of about $100, and the buildings situate thereon were raised so as to conform to the grade at an additional expense of about $3,000. During the time the building was being repaired, the defendant sold some iron doors therefrom, for which she realized $400. The court below decreed that the defendant holds the legal title to said premises, but in trust for all persons taking and to take under the will of Jonas Whitney; that twothirds of the amount paid the Missionary Society in buying in its outstanding title, to wit, $280, plus $3,000, expended on the buildings, less the sum of $400, received from the sale of the iron doors, leaving a balance of $2,880, was a charge upon the estate; and that, upon the payment of said sum by plaintiffs, the defendant shall convey said premises to them and to said minor children, by a good and sufficient deed, subject to the life estate of the defendant, in accordance with the last will and testament of the said Jonas Whitney. From this decree both parties appeal. Other facts will appear in the course of the opinion. F. P. Mays, for plaintiffs. A. S. Bennett, for defendant.

WOLVERTON, J. (after stating the facts). From the testimony it appears that in 1877, at the time the defendant-bought in the mission title, the property was worth from nine to ten thousand dollars. Mr. D. M. French says the land was worth $1,000, and the improvements $9,000. William Lord testifies: "I should think the land was worth $1,000, and the improvements $8,000. Whitney claimed it was worth more." The defendant was asked, "What was the value of the property at the time you bought in the mission title?" to which she answered, "I suppose the property was worth perhaps six thousand dollars." She testifies, however, that, immediately after she obtained the mission deed, she claimed the whole interest in the property, and continued to claim it from that time on, including the time the improvements were made by her, but that prior to the execution of the deed she had only a life estate therein. Dr. H. Logan, who became the agent of defendant in 1878, or 1879, and acted as such for her until after the improvements were made, testifies as follows: "Q. State, if you know, what interest she [defendant] was claiming in this property while you were acting as her agent. A. The net

proceeds of all the property; that is, the net rents. Q. State whether or not she ever claimed to be the absolute owner of the property during that time to you. A. She never did. Q. To whom, if any one, did she claim the property belonged? A. To Mrs. Anna Moore, I think it is, and her children, her daughter and her children; largely the children. Q. Do you remember any particular time when she spoke of the property being owned by the persons mentioned? A. In the spring of 1883, or about the time the improvements were made on the property. I think it was in 1883. I cannot say for certain. Q. Can you explain in what connection she made the claim? A. Referring to the improvements on the property, she spoke of it as being in the end going to Mrs. Moore and her children. The money in making the improvements was borrowed from French & Co., and the note was signed by Mrs. Whitney, A. B. Moore, and wife. I think the amount was two thousand dollars, she having some money in her name, which was also expended on the improvements, which came from rents of buildings and farm." Mrs. Sarah A. Moore also testifies that her mother, the defendant, claimed only a life estate in the premises up to the time she was married to Simonson, which was some time after the improvements were made. It may be remarked, while passing, that the defendant held, not only the life estate to the premises under the will of Jonas Whitney at the time she purchased the outstanding mission title, but she occupied the position of a trustee in respect to said premises, the owners of the remainder under said will being the cestuis que trustent. She was then executrix of the estate, and had served as such scarcely a year, and was also in possession, collecting rents. Ewing, J., in Bowling's Heirs v. Dobyns' Adm'rs, 5 Dana, 446, says: "It is certainly true, as a general proposition, that if a trustee, mortgagee, or tenant for life, being in possession, purchases in an outstanding title or incumbrance, he cannot apply it to his own benefit, but it, in general, inures to the benefit of him under whom he entered, or is considered as held in trust for the cestui que trust, mortgagor, or him in reversion or remainder." Or, as stated by Bibb, C. J., in Morgan's Heirs v. Boone's Heirs, 4 T. B. Mon. 297: "It is a general principle that if a trustee, mortgagee, tenant for life, or purchaser gets an advantage, by being in possession, or behind the back of the party interested, and purchases in an outstanding title or incumbrance, he shall not use it to his own benefit, and the annoyance of him under whose title he entered, but shall be considered as holding it in trust." See, also, Holridge v. Gillespie, 2 Johns. Ch. 33; Whitney v. Salter (Minn.) 30 N. W. 755; Daviess v. Myers, 13 B. Mon. 511; 1 Washb. Real Prop. 96. There is but little doubt that the defendant purchased this title with her own funds. They

came out of the rents and profits which were rightly hers under the will, or else were derived from the personal property which she was also entitled to after the payment of debts and the expenses of settling the estate. However this might be, a court of equity may treat the claim as having been purchased for the benefit of those in remainder. In the case of Bowling's Heirs v. Dobyns' Adm'rs, supra, which was a stronger case for the life tenant than the one at bar, the court say: "And though, after a recovery in ejectment, and before possession is taken, it might be competent for the mortgagee, trustee, or tenant for life to abandon their claims, and take shelter under the adversary claim by purchase, without waiting to be ousted by writ, yet they will in all such cases be held to a rigid scrutiny and strict accountability. Slight testimony tending to show that they purchased with the means of the mortgagor, cestui que trust, or him in reversion or remainder, or with the combined means of the latter and the tenant for life, will render the claim so acquired subject to all the rights and limitations over of the original claim. And though a judgment has been recovered in ejectment, and he purchases with his own funds, while he is still in possession, a court of chancery might, perhaps, treat the claim as purchased for their benefit, requiring them to account to him for all reasonable disbursements in its acquisition." In that case the life tenant was executrix of the estate, as in this, and the court concluded that her purchase was in trust for the remainder-men. Here we have a life tenant and an executrix of the estate in full possession, purchasing the outstanding title, which she now declares was negotiated as an individual investment, intending thereby to become the absolute owner thereof, unincumbered with any trust obligations. The testimony is so strong, however, that she never claimed more than a life estate in the premises until a comparatively recent date, admitting all the while that Mrs. Sarah A. Moore and her children were entitled to the remainder after her estate had terminated, that we are convinced that she had a more equitable purpose in view when she made the purchase, and that she in reality intended the title to inure to the benefit of her child and grandchildren, as well as that of herself. The property was worth at the time of purchase from $9,000 to $10,000. She admits it to have been worth $6,000, and yet she purchased the title under which she claims the fee for $420, so that the subsisting equities are strongly against her present contention. Hence we think her purchase of the mission title ought now to be regarded as having been made, as she originally intended it, for the benefit of the devisees under the will of her former husband, Jonas Whitney and shẹ ought now to be regarded as holding the legal title to said premises in trust for the beneficiaries under said will.

The defendant claims, however, that, if she is held to be a trustee, she ought to be allowed a fair proportion of the amount expended by her in the purchase of the outstanding title, and in making permanent improvements, upon the ground that she made such expenditures from her own funds, believing that she was the owner of the absolute title. The rule is established by Hatcher v. Briggs, 6 Or. 31, that where a purchaser of real property, for full value, at an unauthorized partition sale, in good faith and without notice of any infirmity of title, believing it to be good, makes permanent improvements, which add to the value of the estate, he is entitled to recover to the extent of such added value, as well as for the amount expended in purchasing his supposed title, where such improvements and purchase price inure to the benefit of the true owners. But the defendant occupies the position of a selfconstituted trustee, by purchase of an outstanding title, which inured to the benefit of others as well as of herself. She undoubtedly believed at the time that she was taking a title without infirmities, but she took it as trustee, and whatever expenditures she made were made in the belief that she was a life tenant only. So that she is not in a position to invoke the doctrine applicable to a purchaser in good faith for value, making improvements which add to the value of the premises. Whenever it is once established that a trusteeship exists, then the obligations and duties of a trustee ensue. He will be held to a strict accountability as to the management of the trust estate, and cannot incumber it except in accordance with the powers given by the terms of his trust, by authority of the court, or with the consent of the cestui que trust. So that it is difficult to see how the defendant, being a trustee, can claim for the value of improvements, on the ground of having purchased an outstanding title, without notice of infirmities, when the very purchase itself inured to the benefit of other parties, and the very parties against whom she now claims reimbursement.

The defendant is a trustee of the legal title merely by operation of law. Her duties and obligations towards the owners of the estate in remainder are those of a life tenant. As such, she is required to keep down interest upon incumbrances, and to keep up repairs, so that those in remainder shall come into their estate after the expiration of the life estate in substantially the same condition as it came to her hands. As a general proposition, if a tenant for life makes improvements upon the premises, he cannot claim compensation therefor from the reversioner or remainder-man, though he is under no obligation to do more than keep the premises in repair, and generally he cannot make repairs or permanent improvements at the expense of the inheritance. 1 Washb. Real Prop. 129; 6 Am. & Eng. Enc. Law, 882. Paxton, J., in Datesman's Appeal, 127 Pa.

St. 359, 17 Atl. 1086, 1100, says: "It is settled law that the life tenant cannot of his own motion improve the remainder-men out of their estate." Or, as was said in Van Bibber v. Williamson, 37 Fed. 759: "Improvements made by the life tenant, or those holding or claiming by, through, or under him prior to his death, could not, upon well-settled principles, be charged against the remainder-men, who were minors, and in no position to interfere or complain." See, also, Elam v. Parkhill, 60 Tex. 582, and Miller v. Shields, 55 Ind. 71.

The cost of the improvement in raising the stone buildings was about $3,000. This expenditure was entirely, as we have seen, from the funds of the defendant, but it was by her own volition, with knowledge at the time of the exact relationship which she sustained to the owners of the remainder. So that this expenditure cannot be allowed, upon any ground that we are now enabled to discover, at the expense of the inheritance. The expenditure for the improvement of the street should, however, be allowed the defendant. This improvement constituted a betterment, and inured to the benefit of the inheritance, as well as to the life estate, and the cost thereof should be treated as an incumbrance on the whole estate. Plympton v. Boston Dispensary, 106 Mass. 547; Cairns v. Chabert, 3 Edw. Ch. 330. In view of the fact that the defendant bought in the outstanding mission title in good faith, believing it to be necessary for the protection of the whole estate, the amount expended therefor should also be treated as an incumbrance. The amount expended for improving the street was $100, which, being added to the consideration for the mission title, makes $520. The defendant, by paying this sum out of her own funds, became a creditor of the estate to that extent, deducting the interest she would have to pay as life tenant during her life. It is the duty of the defendant to keep down the interest upon this sum during her life, and of the remainder-men to pay the principal at her death. 4 Kent, Comm. 74, 75; Reyburn v. Wallace (Mo. Sup.) 3 S. W. 482. The rule is well settled by which may be ascertained the relative proportion of the incumbrance to be borne, respectively, by the life tenant and the owners of the remainder if paid at once or at any given time before the death of the life tenant. The life tenant must pay the present worth of an annuity, equal to the annual interest running during the number of years which constitute the expectancy of life. The balance, after subtracting the sum thus ascertained from the incumbrance, should be borne by those in remainder. 3 Pom. Eq. Jur. § 1223, and note 2, at page 213.

There is evidence in the case tending to show that the Missionary Society has agreed to refund to the defendant the $420 paid for the mission title, and that a percentage of that amount has been tendered and is now

ready to be paid her. When she collects this fund, it ought to go towards the discharge of the incumbrance. Plaintiffs seek to have the $400 which defendant received for the iron doors offset against any claim she may have for expenditures; but this is in the nature of waste, and no claim is made therefor under the pleadings, nor was there any evidence offered during the trial showing that she was guilty of committing waste in this respect. She may or may not have committed waste in selling the iron doors, but the evidence is insufficient to determine that question, none apparently having been offered with that end in view. Hence this claim cannot be allowed.

The decree will be that the defendant convey to the other devisees of Jonas Whitney the premises in the proportion they would take under the will, reserving to herself the rents, issues, and profits thereof during her natural life, and that the $520 be declared an incumbrance thereon, to be discharged by the life tenant and other devisees, the proportion for each to pay to be ascertained under the rule herein determined. The decree of the court below will therefore be modified in accordance with this opinion.

(4 Idaho, 431)

FIRST NAT. BANK OF PALOUSE CITY v. LIEUALLEN et al. (Supreme Court of Idaho. April 6, 1895.) ATTACHMENT LIEN-NOTICE OF LEVY-SALE.

1. The evidence of the levy of the attachment and the notice thereof, filed with the recorder, held sufficient to give notice of the attachment lien.

2. A sheriff's deed for land sold under execution relates back to the date of the attachment, and cuts off all subsequent liens.

(Syllabus by the Court.)

Appeal from district court, Latah county; W. G. Piper, Judge.

Action by the First National Bank of Palouse City against J. W. Lieuallen and others to foreclose a mortgage. Plaintiff had judg ment, and defendants appeal. Reversed.

J. H. Forney and I. N. Smith, for appellants. J. A. C. Freund and Hanna, McCrosky & Ettinger, for respondent.

SULLIVAN, J. This is an appeal from a judgment and decree of foreclosure. The facts are substantially as follows: The defendants Lieuallen and Lestoe brought suit against the defendant Andrew Clyde, doing business under the name of the Andrew Clyde Company, on the 19th of November, 1892, to recover the sum of $1,041.09, with interest and costs; and an attachment was duly issued in said action, and levied upon the land described in the complaint in this action. Thereafter, on the 20th day of December, 1893, Lieuallen and Lestoe obtained judgment in said suit for the sum $1,446.84. On the 14th day of February, 1893, the said Andrew Clyde and Anna Clyde, his wife, exe

cuted their certain mortgage upon the real estate described in the complaint to secure the payment of their promissory note for $7,040.27, due November 1, 1893, in favor of the plaintiff, the First National Bank of Palouse City, Wash. Thereafter said First National Bank brought this suit to foreclose said mortgage, and the said Lieuallen and Lestoe were made parties, for the reason following, stated in the complaint: "That the defendants Lieuallen and Lestoe have, or claim to have, some interest or claim upon said premises, or some part thereof, as judgment creditors;" and that such interest was subsequent to that of plaintiff's. The defendants answered the complaint, and denied that their interest in and to said land was subsequent to the lien of plaintiff's mortgage, and set up their said action brought on November 19, 1892, against Andrew Clyde, and their attachment proceedings therein, the judgment obtained in said case, the issuance of an execution to enforce said judgment, the sale of the land described in said notice of attachment under said execution, and the purchase thereof by said Lieuallen and Lestoe. The cause was tried by the court, and judgment and decree entered in favor of the First National Bank. The court held that said attachment was invalid, and that plaintiff's said mortgage was a prior lien to the attachment and judgment of the said Lieuallen and Lestoe against Andrew Clyde. The appeal is from the judgment. Respondent has not filed a brief in this court.

The main question in the case is as to the validity of the attachment levied November 19, 1892, in the case of Lieuallen and Lestoe v. Andrew Clyde. The record shows that on the 20th day of November, 1892, the notice of the levy of the attachment, together with a copy of the writ of attachment and a description of the property attached, was duly filed in the office of the auditor and recorder of Latah county,-the county in which said real estate is located. Section 4307, Rev. St., provides that a writ of attachment must be executed by the sheriff to whom it is delivered without delay if the undertaking mentioned in section 4305, Id., be not given. Subdivision 1 of that section is as follows: "(1) Real property standing upon the records of the county in the name of the defendant must be attached by filing with the recorder of the county, a copy of the writ together with a description of the property attached and a notice that it is attached. The record shows a sufficient compliance with the provisions of said section in making the levy of said attachment. While it is a fact that the notice of levy is not as complete as it might have been made, it is sufficient to put any person dealing with said Clyde in regard to said land upon inquiry, and to give notice to the world of the lien claimed thereon by the said Lieuallen and Lestoe, under said attachment. Said attachment lien attached to said land on the 19th of Novem

* *

ber, 1892 (the date of the levy), and the lien of the judgment in that case relates back to that date. Said land was sold under the execution issued in said case, and the certificate of sale of the land issued to said Lieuallen and Lestoe. The sheriff's deed, if issued, will relate back to the date of the levy of the writ of attachment, and cut off all subsequent liens on said land, unless subsequent lien holders redeem said land from the execution sale to Lieuallen and Lestoe. Said mortgage bears date of February 14, 1893, and is subsequent to the lien of said attachment. The court erred in holding that said mortgage was a prior lien to said attachment. The judgment and decree are reversed, with directions to the court below to enter judg ment in favor of appellants, whereby their lien obtained by said attachment judgment and execution sale is made a prior lien to that of the mortgage of the plaintiff, the First National Bank of Palouse City. Costs awarded to appellants.

MORGAN, C. J., and HUSTON, J., concur.

(4 Idaho, 426) SIMMONS v. CUNNINGHAM et al. (Supreme Court of Idaho. April 6, 1895.) JURY-DISCHARGE OF PANEL-OPEN VENIRENONSUIT.

1. Under provisions of section 3961, Rev. St., the court may, for good cause, discharge regularly drawn and summoned jurors, and order open venire for jurors to try causes at the term for which jurors were regularly drawn.

2. When plaintiff refuses to introduce evidence to prove his case, and defendants fail to produce evidence to prove their cross demand against plaintiff, it is error to instruct the jury to find for the defendant. Held, in that case action should have been dismissed, or a judgment of nonsuit entered.

(Syllabus by the Court.)

Appeal from district court, Shoshone county; J. Holleman, Judge.

Action in ejectment by Moses S. Simmons against Clarence Cunningham and others to recover certain placer mining ground. Defendants had judgment, and plaintiff appeals. Reversed.

Albert Hagan and C. W. Beale, for appellant. C. W. O'Neil, for respondents.

SULLIVAN, J. This is an action in ejectment to obtain possession of a mining claim. It appears from the record that at the commencement of the June term, 1894, of the district in and for Shoshone county there were present 36 jurors, who had been regularly drawn and summoned; that afterwards, on June 20th, 30 additional jurors were ordered by the court to be summoned on an open venire. On July 7th the court took a recess until July 16th, by reason of a resolution adopted by the bar of Shoshone county requesting the judge to adjourn the term to that date. This recess was taken, at the request of said bar, on account of a troubled

condition of affairs in said county, and it was doubtful whether the business of the court would be proceeded with on the day to which the court adjourned; and the judge, not wishing to keep the panel then summoned, because of the great expense to the county, discharged the jurors. On July 16th the court convened, and the conditions had become such that it was deemed advisable for the court to proceed with the business; and, it appearing to the court that a jury was needed to properly dispose of the business then before the court, an open venire was ordered, and 40 jurors summoned, and the court proceeded to dispatch the business of the term. The case at bar came regularly on for trial on August 2, 1894; and, a jury being about to be called to try the issues, appellant's counsel interposed a challenge to the panel, which challenge is as follows: "Comes now the plaintiff, and challenges the panel of the jury herein in attendance on said court, and the whole thereof, upon the following grounds, to wit: (1) That at the commencement of the present term of court, in June, 1894, to wit, June 13, 1894, a jury was regularly drawn from the box as provided by law; and said jury was in attendance upon this court until on or about the 7th day of July, 1894, when said panel, so drawn and in attendance, was discharged by the court, and the whole thereof discharged; and thereafter, on the 6th day of July, 1894, an open venire was issued and placed in the hands of the sheriff to summon a jury from the body of the county, and not from the names drawn from the jury box, and that such order and such panel was unauthorized and illegal. (2) That the court had no authority to discharge a drawn jury in toto in the middle of or during the term, and substitute therefor a panel summoned by the sheriff on an open venire. (3) That the plaintiff is entitled as much as any other litigant to have his case tried by the jury regularly drawn, and in attendance upon the court, and should not be forced to accept a panel not drawn as provided by law. (4) That in summoning and procuring the present panel the court proceeded without authority of law, and did not conform to title 3 of the Code of Civil Procedure, nor did the court conform to sections 3960-3962 of the Revised Statutes of Idaho. (5) Said panel was not drawn and summoned as provided by section 3961. Wherefore plaintiff moves that this challenge be sustained; that said panel be discharged; and that he be not compelled to select therefrom jurors to try his cause." The challenge was denied by the court; whereupon the plaintiff announced that he would stand on his challenge, and refused to go to trial; whereupon the jury was impaneled and sworn to try the cause, to which action plaintiff duly excepted, and refused to offer any testimony. The defendants offered no testimony, but asked the court to instruct the jury to find for the defendants, which instruction was given; whereupon the jury re

tired, and afterwards returned a verdict in favor of defendants, and judgment was entered in their favor, decreeing that the defendants were owners of and entitled to the possession of the placer mining ground in dispute. This appeal is from the judgment.

The first error assigned is that the court erred in overruling the challenge to the panel. Under this assignment of error, the appellant contends that, as a jury regularly drawn and summoned had been discharged, the court was not authorized by law to order an open venire for a jury; that section 3961, Rev. St., is the only one that permits the court to order on open venire, and the provisions of that section permits such order only "whenever jurors are not drawn and summoned to attend." Said section is as follows:

"Sec. 3961. Whenever jurors are not drawn and summoned to attend any court of record, or a sufficient number of jurors fail to appear, such court may, in its discretion order a sufficient number to be drawn and summoned to attend such court; or it may, by an order entered on its minutės, direct the sheriff of the county to summon so many good and lawful men of his county to serve as jurors as the case may require. And in either case such jurors must be summoned in the manner provided by the preceding section."

We think, under a fair construction of said section, if jurors are drawn and summoned and appear, and are thereafter discharged by the court for good cause, and it thereafter appears that a jury is necessary in the trial of any case, the court may order an open venire. We do not hold that a court may captiously or through caprice discharge the regularly drawn and summoned jurors, and issue an open venire for others. But when, as in this case, it was shown that, be cause of the excited condition of the people, the turmoil and strife occasioned by strikes, riots, and murders in the county in which court is being held, the court discharges the regular panel, and takes a recess, upon the reconvening of the court, if the business requires it the court may issue an open venire, and thus secure a jury. No claim is made by appellant that the court acted in bad faith in discharging the regularly drawn jurors, or in ordering the open venire, or that the sheriff acted corruptly in summoning the jurors. In Bennett v. Iron Co. (Utah) 34 Pac. 61, the court says: "There is abundant authority for holding that, when there is no intimation or charge of bad faith, the court has the power, whenever the necessity arises, and there is no regular jury in attendance, to impanel a jury to try a case which has been properly set, and is ready for trial to a jury." Under the circumstances of the case at bar, we do not think the court erred in denying the challenge.

The second error assigned is: "The court erred in submitting the case to the jury when plaintiff rested upon his challenge, but should have simply dismissed the plaintiff's case,