[No. 8681. Department One. June 10, 1910.]

JULIA E. BLINN, Appellant, v. HARRY L. GRINDLE et al., Respondents.1

TAXATION-TAX DEED-CANCELLATION-EXCUSE FOR FAILURE TO PAY TAXES. The negligence of the county treasurer prevented the payment of taxes and a county tax deed is void, where the owner attempted in good faith to pay taxes upon platted property, and on furnishing a list was informed by the county treasurer that all delinquent taxes were paid; and it is immaterial whether the lists furnished described the property by government subdivision as assessed at one time, or as it has been platted and assessed later. SAME-ACTIONS TO CANCEL DEED-LIMITATIONS-LACHES. An action to cancel a tax deed commenced within the time limited by Rem. & Bal. Code, § 162, is not barred by laches where there was nothing in the record upon which to predicate laches.

Appeal from a judgment of the superior court for King county, Holcomb, J., entered August 19, 1909, dismissing, at the close of plaintiff's case, an action to cancel a tax deed. Reversed.

Peters & Powell and Marion Edwards, for appellant.
Faben & Kelleran, for respondents.

GOSE, J.-In 1892 the property in controversy was assessed as the northwest quarter of the northwest quarter of section 10, township 24, north, range 5, E. W. M., and in 1898 a certificate of delinquency was issued to King county. The certificate was foreclosed in 1902, upon a service of summons by publication, in an action wherein the county was the plaintiff and "persons to whom assessed and all persons unknown, etc." were defendants, terminating in a sale of the property to the respondents' predecessor in interest in November, 1902, and the execution and delivery of a treasurer's deed in January, 1903. This action was commenced March 14, 1908, admittedly within the time fixed by 'Reported in 109 Pac. 122.

statute (Laws 1907, page 398; Rem. & Bal. Code, § 162), for the purpose of cancelling the tax deed. At the close of the plaintiff's evidence, the action was dismissed upon the motion of the defendants. The plaintiff has appealed.

The record shows that in May, 1891, the then owner of the property mortgaged it to the appellant; that the fee then passed to one McKnight, who with his wife in 1893 platted Mercer Slough Garden Tracts, of which the property in controversy formed a part, and caused the plat to be filed and recorded in the plat records of King county in October, 1893. The appellant foreclosed her mortgage upon the property, and a decree was entered therein in December, 1893, under which the property was sold to her in January, 1894. The sheriff conveyed the property to appellant in March, 1897. In the mortgage, the foreclosure thereof, and in the sheriff's deed, the land was described according to its government subdivisions. The taxes on the property for 1893 and subsequent years, to and including 1903, were paid by the appellant. The respondents paid the taxes for the years 1904-5-6-7. In 1893 the land was assessed as a government subdivision. In 1894 and subsequent years it has been assessed as Mercer Slough Garden Tracts.

The appellant asserts that she attempted in good faith to pay all taxes upon the property before the certificate of delinquency was issued, and that her failure to pay them, if she failed to do so, was due to the negligence of the county treasurer. We think this contention must be sustained. The evidence is convincing that the appellant at different times, prior to 1898 and thereafter, and before the certificate of delinquency was foreclosed, when paying her taxes, inquired at the county treasurer's office whether there were any delinquent taxes against the property, and furnished the treasurer a description of the property. It is not important whether the list furnished the treasurer described the property by government subdivisions or as it had been platted and was then carried upon the official books. Either de

scription was sufficient. The court erred in dismissing the action. Bullock v. Wallace, 47 Wash. 690, 92 Pac. 675; Taylor v. Debritz, 48 Wash. 373, 93 Pac. 528; Gleason v. Owens, 53 Wash. 483, 102 Pac. 425.

The respondents' contention that the plaintiff's cause of action is barred by her laches is not tenable. The action was commenced within the time limited by the statute, and there is nothing in the record upon which to predicate laches.

The judgment will be reversed, with directions to proceed with the trial in conformity with this opinion.

RUDKIN, C. J., FULLERTON, CHADWICK, and MORRIS, JJ.,

concur.

[No. 8750.

Department One. June 10, 1910.]

THE STATE OF WASHINGTON, Respondent, v.
ARTHUR W. GEORGE, Appellant.1

HOMICIDE-DEGREES-EVIDENCE-ADMISSIBILITY. In a prosecution for the murder of the accused's divorced wife, where evidence that the divorce was granted three years before on the ground of the husband's cruelty was admitted to show probable premeditation and a hostile mental attitude, it is error to refuse to allow the accused to rebut the same by proof of good will and apparent kindly feeling for a year previous to the homicide, in order to reduce the crime to the legal presumption of a lower degree.

EVIDENCE-OPINIONS-MENTAL ATTITUDE. The feeling or apparent mental attitude of people who are in frequent association may be shown by the opinions of acquaintances who had opportunity to observe and measure their emotions.

VENUE-LOCAL PREJUDICE-SHOWING. Upon a strong prima facie showing of local prejudice for a change of venue, the state should make a counter showing.

CRIMINAL LAW-TRIAL-MISCONDUCT OF COUNSEL. It is not misconduct of counsel requiring a new trial for counsel for the state in argument to the jury to state his opinion that the accused is guilty of murder in the first degree.

'Reported in 109 Pac. 114.

Opinion Per CHADWICK, J.

[58 Wash.

APPEAL-REVIEW-INSTRUCTIONS. Error cannot be predicated upon the refusal to give requested instructions covered in the general charge.

Appeal from a judgment of the superior court for King county, Yakey, J., entered November 23, 1909, upon a trial and conviction of murder in the first degree. Reversed.

Thos. R. Horner and J. L. Waller, for appellant.

ent.

George F. Vanderveer and John F. Murphy, for respond

CHADWICK, J.-Arthur W. George, appellant, shot and killed his wife, Elizabeth George, on the 13th day of May, 1909. He was later convicted by a jury of the crime of murder in the first degree, and brings this case to our court upon several assignments of error. We shall discuss only those having merit.

After appellant had committed the crime of which he was convicted, he had some negotiations with Fred H. Peterson, Esquire, a member of the Seattle bar, with reference to his defense. Mr. Peterson had been his attorney in a divorce suit in which a decree of divorce had been rendered nearly three years before. For reasons not now material, Mr. Peterson declined employment, and the present attorneys were appointed by the court to defend the prisoner. Upon the trial, after proving the corpus delicti, the state called Mr. Peterson as a witness "to show," as stated by counsel, "there was feeling existing between the people; and I desire to prove by Mr. Peterson that he called the attention of defendant at that time to the relation that existed; that is, that he had been warned to keep away from his divorced wife after the divorce was granted; and I want to prove that the divorce was granted, by the original findings of the court." Counsel for appellant admitted in open court that a divorce had been granted, but the court held that the fact that a decree had been rendered, and that appellant had a right to visit his children under that decree, could not be admitted but must

June 1910]

Opinion Per CHADWICK, J.

be proved by the record. He accordingly admitted a copy of the decree, but rejected the findings of fact and conclusions of law when offered. Mr. Peterson was then permitted to testify that Mrs. George had objected to the frequency of the appellant's visits, and that he had undertaken the role of peacemaker, and had advised appellant to make his calls upon his children less frequent, to which appellant assented, agreeing to follow his advice "as near as he could."

Waiving the question of materiality and remoteness, it would be hard to predicate error upon the admission of this testimony if it were not for the subsequent rulings of the court. That the decree was put in evidence to show feeling or a hostile mental attitude on the part of the appellant, there can be no doubt; but accepting it as properly before the court, appellant would have the unquestionable right to rebut the presumption arising from the decree of divorce by any competent evidence. He endeavored to show by several witnesses, neighbors and friends of his wife, that the relations existing between himself and wife up to the time of the tragedy were amicable, and that there was, notwithstanding the decree of divorce, a bond of sympathy and affection between them. This was denied him. The general tenor of the evidence upon this point may be made manifest by quoting from the testimony of some of the witnesses:

Mrs. Newberry:

"Q. State if you know whether the attitude of Arthur George to Mrs. George and of Mrs. George to Arthur George in your presence and at their home was that of friendliness and kindness to each other or not. A. It was. Q. Was it such an attitude and were the actions to each other such as indicated they cared something for each other or not? Mr. Murphy: I object as calling for a conclusion. The Court: Sustain the objection. Mr. Horner: Save an exception. Exception allowed."

Mrs. Smith:

"Q. During your intimacy with Mrs. George and your acquaintance with Mr. George did you ever see any actions