plaintiff sought to foreclose. The sufficiency of the complaint in this respect, it seems to us, is established by almost universal usage. The form prescribed by Estee is: "The defendant has or claims some interest in or lien upon the said real property; but the same, whatever it may be, is subject to the lien of the said mortgage."

This is substantially the same as the tenth allegation in the complaint in this clause, and is all the allegation that is necessary. The defendants' answer was a general denial, and their claim, if they had any, was not disclosed. It is claimed by the appellant that this was not a disclaimer of interest, and that it put in issue the fact that it was subject to plaintiff's lien, and cites Elder v. Spinks, 53 Cal. 293, in support of its contention. This case evidently sustains appellant's theory, but is in conflict with the earlier California authorities, and, we believe, with the well-established and generally recognized practice. In Anthony v. Nye, 30 Cal. 402, it was held that in an action to foreclose a mortgage, the allegation that a party who is made co-defendant with the mortgagor has, or claims to have, some interest or claim upon the mortgaged premises, is sufficient without averring the character of the interest; and Judge Sawyer, who rendered the opinion, says: "The allegation of her claim and interest is in the form universally adopted and long established. The plaintiff is not supposed to know the nature of every person's claim. It is enough that a claim is set up. It is the defendant's business, when thus called upon, to disclose its nature. There is no personal judgment against the wife. If she has no claim, she is in no way injured. If she has any, she has had an opportunity to present it. There is neither merit nor plausibility in the objection," - the objection being that the complaint did not disclose the defendant's interest. To the same effect, see Mitchell v. Steelman, 8 Cal. 363; Pomeroy on Remedies, 2d ed., sec. 341. We think the doctrine laid down by the earlier California courts much more in harmony with the general rules governing pleadings than the doctrine promulgated by the latter case, and therefore feel bound to follow it. The only object in making Dexter Horton & Co. parties to the suit was to settle any claim that they might set up to the mortgaged premises. The object of the law in permitting this is to avoid a multiplicity of suits, so that all claimants may have their rights adjusted in one action.

Another objection raised by the appellant is, that the mortgage was not executed by the trustees of the defendant corpo

ration, but that the president and secretary, by whom the mortgage was executed, had no authority to enter into such a contract, and that it was therefore ultra vires. Even conceding that the contract was ultra vires, and that the appellant has placed himself in a position, in this case, to legally allege it, under the testimony in this case it will not avail against the plaintiff. The corporation was attempting to execute a bona fide mortgage. It was within the power of the corporation to execute it, and its officers and agents were trying to carry out the will of the corporation. There were but three trustees, and two of them signed the mortgage, but not as trustees. They did not go through the form of an authorization by resolution, but a majority of those who had power to pass the resolution, by a short cut, brought about the result which the resolution would have authorized. The formality of the resolution, it is true, was omitted, but the corporation, taking possession of the property by virtue of the mortgage, indorsed its execution, and if there were any technical defect in its original execution, it has been cured by acquiescence and ratification. Where money has been obtained by a corporation upon its securities, which are irregular and ultra vires, but the money was applied for the benefit of the company, with the knowledge and acquiescence of the stockholders, the company and the share-holders are estopped from denying the liability of the company to repay it: In re Cork etc. R'y Co., L. R. 4 Ch. App. 748. And a court of equity abhors forfeitures, and will not lend its aid to enforce them: Marshall v. Vicksburg, 15 Wall. 146. Neither will it give its aid to the assurance of a mere legal right, contrary to the equity and justice of the case: Lewis v. Lyons, 13 Ill. 117. In this case the contract is not executory, but is executed, and a stronger rule obtains in favor of the validity of the contract. Says the supreme court in Bradley v. Ballard, 55 Ill. 413, 8 Am. Rep. 656: "But if any one of the parties proceeds in the performance of the contract, expending his money and his labor in the production of values which the corporation appropriates, we can never hold the corporation excused from payment on the plea that the contract was beyond its power."

Such we believe to be the doctrine of the authorities generally.

We have examined the other points raised by appellant, and are unable to find any error. All the facts found by the court are, in our opinion, justified by the testimony, with the excep

tion of the fact that $150 is a reasonable attorney's fee. The complaint alleged $250 as a reasonable attorney's fee. The answer denied that any greater sum than one hundred dollars is a reasonable attorney's fee in this case. There being no testimony offered on this point, and as the reasonableness of an attorney's fee, when denied, must be proven as any other fact, the court should have found that one hundred dollars was a reasonable attorney's fee, and rendered judgment accordingly. The case will be remitted to the lower court, with instructions to modify the judgment in accordance with this opinion.

MORTGAGES-FORECLOSURE-SUFFICIENCY OF COMPLAINT. —A general allegation in a complaint to foreclose a mortgage, that certain parties joined as co-defendants have or claim to have some interest in the property, is all that is required: Poett v. Stearns, 28 Cal. 227; Martin v. Noble, 29 Ind. 216.

MORTGAGE BY CORPORATION-DEFECTS IN, Cured by RATIFICATION. — Where a corporation has power to mortgage its real estate to borrow money, and does so, and uses the money so borrowed, it is estopped to contend that such mortgage was void: Wright v. Hughes, 119 Ind. 324; 12 Am. St. Rep. 412, and note. That the proceeds of an unauthorized mortgage have been applied to the use of the corporation is not a sufficient ratification to render it binding: Leggett v. New Jersey Mfg. etc. Co., 1 N. J. Eq. 541; 23 Am. Dec. 728, and note; Duke v. Markham, 105 N. C. 131; 18 Am. St. Rep. 889.

STATE INSURANCE COMPANY v. Meesman.

[2 WASHINGTON, 459.]

INSURANCE POLICY - PERIOD OF LIMITATION STIpulated in, Begins to Run FROM DATE OF FIRE. - Where a policy of fire insurance contains a stipulation that no action upon the policy shall be sustained unless commenced within six months after the time the fire shall have occurred, the period of limitation begins to run from the date of the fire, although the policy also provides that no loss shall become due and payable until proof of loss is made and examined into by the insurance company.

ACTION on an insurance policy. The opinion states the case. E. E. Coovert, and R. and E. B. Williams and Carey, for the appellant.

Gilbert and Snow, for the appellee.

ANDERS, C. J. This is an action upon a fire insurance policy issued by appellant to appellee, to recover a loss amounting to $221, alleged to have been sustained by arpellee by reason of the destruction by fire of the property insured. The complaint

was filed February 3, 1890, and service duly made. Defendant appeared and answered, setting up as a defense false representations made by plaintiff to defendant in his application for insurance, concerning his title to the land upon which the insured buildings were situated; and that, by the terms of the policy, action should be commenced thereon, if at all, within six months after the date of the fire. Plaintiff in his reply denied making any false representations, or that he knew any statements or representations contained in his said application were false or untrue; and alleged that at the time of making application for the policy of insurance he fully and truly explained to the agent of the defendant who received said application the true nature of his right and title in and to said land; and that said agent thereafter filled out said application, and plaintiff signed the same in good faith, and relying upon and believing the statement of said agent then and there made to plaintiff that the said application was right and in proper form. Plaintiff further alleged that his loss was adjusted by and between himself and the defendant on the eighth day of August, 1889, at $221. The issues having been thus joined, the case was tried by a jury, who returned a verdict in favor of the plaintiff for the sum claimed in the complaint. A motion for a new trial having been denied, judgment was entered in favor of the plaintiff and against defendant for the amount specified in the verdict. Defendant brings the case to this court for review, and seeks a reversal of the judgment for errors duly assigned.

Counsel for appellant contend that the action is barred by limitation fixed in the policy for bringing the action; and in order to determine that question, it becomes necessary to examine the contract as made by the parties thereto. Among the provisions in the policy are the following:

"It is hereby expressly covenanted and agreed by the parties hereto that no suit or action against this company for the recovery of any claim under and by virtue of this policy shall be sustained in any court of law or chancery unless such suit or action shall be commenced within six months after the time the fire shall have occurred; and in case any such suit or action shall be commenced against this company after the expiration of the aforesaid six months, the lapse of time shall be taken and admitted as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.

"All persons having a claim under this policy for loss or damage shall proceed at once to put the property saved or damaged in the best order possible, separating the damaged from the undamaged, and shall give immediate notice, and render a particular account thereof, in writing, to the company, stating the time, origin, and circumstances of the fire, the occupancy of the building insured or containing the property insured at the time of the loss, the whole value and ownership of the property insured, and all encumbrances; all of which shall be verified by the affidavit of the assured and claimant. If required, the assured and claimant shall be examined and re-examined under oath by any person appointed by the company, at such time or times and place or places, in the county where the loss occurs, as the company or such persons may require, touching all questions relating to the claim, and shall subscribe to the same; and until such examination (if required) shall have been submitted to, subscribed and verified as herein specified, the company shall not be called upon to consider such claim or loss, nor shall the same become due and payable; . . . . provided, further, that it shall be optional with the company to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time, giving notice of their intention so to do within sixty days after receipt of proofs herein required; and in case the company elect to rebuild, the assured shall, if required, furnish plans and specifications of the buildings destroyed.

"In case of any differences of opinion as to the amount of loss or damage, such differences may be submitted to the judgment of two disinterested and competent men mutually chosen (who, in case of disagreement, shall select a third), whose award shall be conclusive and binding on both parties as to the amount only."

The fire occurred on July 31, 1889. On August 8, 1889, the agents of the company went to the plaintiff to determine the amount of his loss. The plaintiff testified: "My loss was adjusted at $221 "; and this was not disputed by the agents themselves when called as witnesses on the part of the defendant. They did not agree that the loss would be paid, but at most, only promised to do the best they could for plaintiff. On August 13, 1889, however, the secretary of the insurance company wrote a letter to the plaintiff, in which he said: "We cannot see that you have any claim against this company for