mer part, that relating to good faith was A. Ward. From a judgment for defendant, properly refused. The good or bad faith of plaintiff appeals. Reversed and remanded. the appellants here (the plaintiffs in the atJ. H. Gordon, of Tacoma, for appellant. tachment suit) was not relevant or material Roberts, Wilson & Skell and J. L. Runner, to any issue in the case. 6 C. J. p. 512, § 1226; all of Seattle, for respondent. Anvil Gold Min. Co. v. Hoxsie, 125 Fed. 724, 60 C. C. A. 492. [5] Another assignment of error is that the damages awarded by the jury are excessive. The evidence offered by the respondents was sufficient to sustain the amount of the verdict. The evidence offered by the appellants, if accepted by the jury, would establish the value at a much less sum. There is nothing in the case that would indicate that the jury was actuated by passion or prejudice in arriving at the verdict. Two or three other questions are discussed in the briefs, and, while these have been considered, it would unnecessarily extend this opinion to discuss them in detail. It is sufficient to say that, in our opinion, in none of them is there substantial merit. The judgment will be affirmed. ELLIS, C. J., and PARKER, FULLERTON, and WEBSTER, JJ., concur. MCDONALD v. WARD. (No. 14321.) (Supreme Court of Washington. Jan. 9, 1918.) 1. COVENANTS 39-CONSTRUCTION AND OPERATION KNOWLEDGE Of Defects or IN CUMBRANCES. A railroad right of way across land is not excepted from the covenants of a deed because of its public and notorious character, and the grantee may sue on the covenants, though he had knowledge of the existence of the right of way when he took his deed. 2. LIMITATION OF ACTIONS 47(2)—ACCRUAL OF CAUSE OF ACTION BREACH OF COVE NANTS. As the right of way 200 feet wide granted to the Northern Pacific Railway Company by Act Cong. July 2, 1864, c. 217, 13 Stat. 367, would revert to the government, and not to the owner of any contiguous property, upon ceasing to be used for railway purposes, the existence of such right of way across land was not a mere breach of the covenant against incumbrances, but constituted a failure of title within the covenant of warranty under which the breach did not occur until the grantee was evicted, and limitations ran only from that time. 3. LIMITATION OF ACTIONS 47(2)—ACCRUAL OF CAUSE OF ACTION BREACH OF COVE NANTS. Where at the time the grantee received his deed there was a line of telegraph poles about 40 feet from the center line of the railroad track the land occupied by the telegraph line, and all the land lying between it and the main track was occupied by the railroad company, so that there was a constructive eviction as of the date of the deed, and limitations ran from that date, though the grantee cultivated some of the land between the track and the line of poles for some years. Department 2. Appeal from Superior Court, King County; John S. Jurey, Judge. Action by William McDonald against M. CHADWICK, J. On May 4, 1903, respondent conveyed to appellant a certain legal subdivision of land in Benton county, Wash. The main line of the Northern Pacific Railway was constructed across the land at the time of the conveyance. The deed contains full covenants of warranty without exception or reservation. Respondent had been in possession of the land, and had cultivated approximately all of it other than that actually occupied by the railway. Appellant entered into possession, and he, too, cultivated all of the land except that which is actually occupied by the roadbed, its banks and borrow pits. Appellant fixes the width of this strip in his pleadings as from 16 to 20 feet. Appellant remained in possession and cultivated the land for a period of 12 or 13 years, when he was ousted by the Northern Pacific Railway Company under its superior title to a strip of land 200 feet in width on either side of its main line. See Northern Pacific Railway Company v. McDonald, 91 Wash. 113, 157 Pac. 222. Appellant then began this action upon the covenants of his deed. At the close of plaintiff's case the court granted a motion for judgment on account of the insufficiency of the evidence. We are not apprised as to the particular ground, but presume from the tenor of the briefs that it was the opinion of the trial judge that appellants could not recover for the loss of land included in the right of way of the railroad, the bounds of which were defined by public statute (Act July 2, 1864, c. 217, 13 Stat. at Large, 367), and which was occupied in part at the time the conveyance was made, and for the further reason that the statute of limitations had run. [1] It is the contention of the respondent that the right of way of a railroad company is no more than an easement of such a public and notorious character that a party having knowledge of the existence of the roadbed and the operation of trains will he held to have contracted with reference to it and to its limits and bounds. We held in Hoyt v. Rothe, 95 Wash. 369, 163 Pac. 925, that a public highway is impliedly exempted from covenants of seisin and warranty and against incumbrances. Although there is a division of authority upon this question, our holding is in line with the great weight of authority. Whether a railroad built and in operation across a piece of land at the time it is conveyed is notice to the grantee of the nature, and extent, of the right of way under which it is operated, thus impliedly binding him and preventing a recovery upon the covenants of a deed of general warranty, is the main question calling for discussion and decision. The weight of authority is that a right of way of a railroad does not fall within the exception worked by the courts as to existing highways; that a grantee may maintain an action upon his covenants, although he had knowledge of the existence of the right of way at the time he took his deed. Beach v. Miller, 51 Ill. 206, 2 Am. Rep. 290; Wadham v. Swan, 109 Ill. 46; Burk v. Hill, 48 Ind. 52, 17 Am. Rep. 731; Douglass v. Thomas, 103 Ind. 187, 2 N. E. 562; Quick v. Taylor, 113 Ind. 540, 16 N. E. 588; Barlow v. McKinley, 24 Iowa, 69; Flynn v. White Breast Coal Co., 72 Iowa, 738, 32 N. W. 471; Pilcher v. A., T., etc., Ry. Co., 38 Kan. 516, 16 Pac. 945, 5 Am. St. Rep. 770; Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426; Williamson v. Hall, 62 Mo. 405; Whiteside v. Magruder, 75 Mo. App. 364; Huyck v. Andrews, 113 N. Y. 81, 20 N. E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432; Farrington v. Fourtelott (C. C.) 39 Fed. 738. A lesser number of the courts have held to the contrary. Van Ness v. Royal Phosphate Co., 60 Fla. 284, 53 South. 381, 30 L. R. A. (N. S.) 833, Ann. Cas. 1912C, 647; Ex parte Alexander, 122 N. C. 727, 30 S. E. 336; Goodman v. Heilig, 157 N. C. 6, 72 S. E. 866, 36 L. R. A. (N. S.) 1004; Smith v. Hughes, 50 Wis. 620, 7 N. W. 653. [2] We shall not go into the reasoning of the courts, but content ourselves with holding to the weight of authority. This brings us to the question whether the action is barred by the statute of limitations. The solution of this problem compels an inquiry into the nature and extent of the covenant. If time is taken to look into the cases we have cited, it will be noticed that in almost all of them the right of way of a railway company is treated as an easement, and the courts discuss the question of the right to recover as a covenant against incumbrances, and this, too, whether the right of way has been acquired under eminent domain or by a deed of general warranty. A covenant against incumbrances operates upon existing things, and would be broken at the time it is made. It gives an immediate right of action and starts the statute running. But we think the facts take the case out of that rule. The theory upon which the cases proceed is that, notwithstanding the character of the title, whether taken under the sovereign power of the state or by deed, there is a reversion to private ownership in case the railway company should cease to use it for railway purposes. tality of the sovereign power of the state, but was made the subject of an independent grant. In other words, the effect of the act of July 2, 1864, granting a right of way to the Northern Pacific Railway Company reserved in the government for the use of the Northern Pacific Railway Company a strip of land across the public domain to be defined by a filing of a map of definite location. In Northern Pacific Railway Company v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044, the extent of the grant was a subject of inquiry. The court said: "Manifestly the land forming the right of way was not granted with the intent that it might be absolutely disposed of at the volition of the company. On the contrary, the grant was explicitly stated to be for a designated purpose, one which negated the existence of the power to voluntarily alienate the right of way or any portion thereof. The substantial consideration inducing the grant was the perpetual use of the land for the legitimate purposes of the railroad, just as though the land had been conveyed in terms to have and to hold the same so long as it was used for the railroad right of way. In effect the grant was of a limited fee, made on an implied condition of reverter in the event that the company ceased to use or retain the land for the purpose for which it was granted." Subsequent decisions of the Supreme Court in Northern Pacific Railway Co. v. Ely, 197 U. S. 1, 25 Sup. Ct. 302, 49 L. Ed. 639, and Northern Pacific Railway Co. v. Concannon, 239 U. S. 382, 36 Sup. Ct. 156, 60 L. Ed. 342, make it clear that the reversion is in the United States, and that the right of way is not, in the absence of specific legislation, a subject of sale by the railway company, and that it cannot become a subject of private ownership by adverse use or occupation. From these later decisions it is clear that the court meant, when it said in the Townsend Case, "The grant was of a limited fee, made on an implied condition of reverter in the event that the company ceased to use or retain the land for the purpose for which it was granted," that the reversion is in the United States, and not in the owner of any contiguous property. Considering, then, the nature of the grant and the ultimate resting place of the title in the event that the company should cease to use or retain it for railway purposes, the conclusion is compelled that we have a case of failure of title rather than a suit upon a covenant against incumbrances. "The covenant of warranty is a covenant in futuro, runs with land, and is broken at the time of the eviction." West Coast Mfg., etc., Co. v. West Coast Imp. Co., 25 Wash. 627, 66 Pac. 97, 62 L. R. A. 763. "The obligation in a general warranty of title is not that the covenantor is the true owner, or that he is seized in fee with right to convey, but that he will defend and protect the covenantee against the rightful claims of all persons." 7 Ruling Case Law, 1144. But here the property occupied by the railway company, and to which it is entitled under the federal grant, was never the sub- Appellant having been evicted by the asject of private ownership. It was not taken sertion of a superior title, respondent is by the railway company in the exercise of bound on his covenant of warranty, and, the of limitation after the eviction, he is entitled to recover. [3] Appellant admits that he is barred of a recovery for the loss of the land actually occupied by the railroad upon the true the ory that possession by the railroad company at the time the deed was executed and delivered was a constructive eviction. Appellant fixes the amount of land occupied by the railroad company as from 16 to 20 feet. His testimony shows that at the time he entered into possession of the land there was a line of telegraph poles about 40 feet from the center line of the railroad track. A telegraph line is incident to the track of the railway company, and is essential to the operation of the road. The land occupied by the telegraph line, and all the land lying between it and the main track, was land occupied by the railroad company, and appellant should be held, as a matter of law, to have been evicted therefrom at the time he received his deed, notwithstanding the fact that he cultivated some of the land lying between the line of poles and the track for some years thereafter. Appellant's right of recovery therefore will be limited to damages for loss of the land occupied by the respondent, less the amount of land occupied by the railway company and the telegraph line. The court will determine the amount of this from the testimony in MAIN, J. The purpose of this action was to recover for professional services rendered defendant and for moneys expended in his behalf. The summons and complaint were personally served upon the defendant by the sheriff of Garfield county on the 28th day of February, 1916. The defendant not having appeared, a judgment was taken against him by default on the 20th day of March following. On April 26, 1916, a petition was filed, supported by affidavits, for the vacation of the judgment. The plaintiffs answered this petition and supported their answer by affidavit. Upon the record thus made, the matter was submitted to the trial court on briefs, and resulted in an order denying the application to vacate. From this order the defendant and petitioner appeals. No statement of facts or bill of exceptions has been brought to this court. The affidavits in support of the petition and in resistance thereof are contained in the clerk's tran-. script. These the respondents move to strike because the including of the affidavits in the transcript does not make them a part of the record on appeal. This motion must be sus tained. In a long line of decisions, only a few of the later of which will be here assembled, it has been held by this court that affidavits used upon a hearing before the trial court cannot be here considered unless by the certificate of the trial judge they are made the case. Reversed, and remanded for further pro- a part of the record by being included in the ceedings. statement of facts or bill of exceptions. It is not sufficient that they may be found in ELLIS, C. J., and MOUNT, HOLCOMB, the clerk's transcript. Thurman v. Kildall, and MORRIS, JJ., concur. KUYKENDALL et al. v. LAMBIE. (No. 14316.) (Supreme Court of Washington. Jan. 10, 1918.) APPEAL AND ERROR 616(2)-AFFIDAVITS Affidavits used on a hearing before the trial court upon a motion to vacate a default judgment cannot be considered on appeal, unless by the certificate of the trial judge they are made a part of the record by being included in the statement of facts or bill of exceptions, and it is not sufficient that they are included in the clerk's transcript. Department 1. Appeal from Superior Court, Garfield County; Chester F. Miller, Judge. Action by E. V. Kuykendall and C. Alex McCabe, partners doing business under the firm name and style of Kuykendall & McCabe, against William Lambie. Judgment against defendant by default, and from an order denying his petition to vacate the judgment, defendant appeals. Affirmed. Ben F. Tweedy, of Lewiston, Idaho, for appellant. G. W. Jewett, of Pomeroy, for respondents. 80 Wash. 283, 141 Pac. 691; Van Dyke v. Johnson, 82 Wash. 377, 144 Pac. 540; Lebovitz v. Cogswell, 83 Wash. 174, 145 Pac. 212; State v. Armstrong, 87 Wash. 275, 151 Pac. 775. The affidavits not being properly before us, there is nothing here for review. The judgment will therefore be affirmed. . direction. Department 1. Appeal from Superior Court, King County; Boyd J. Tallman, Judge. Suit by Thomas J. Wiggins against Nancy Shaw, Mary Beckett, and others. From a judgment for defendant Beckett, plaintiff appeals. Judgment affirmed. Will H. Thompson, of Seattle, for appellant. J. M. Hawthorne, of Seattle, for respondent. mal minute entry that plaintiff have judgment over two months after the conveyance made as prayed, which entry was set aside and ex- by Nancy Shaw to her mother. On Novempunged from the record by the trial court as made by inadvertence and mistake and without ber 21, 1914, that action, having been tried upon the merits, resulted in judgment in favor of appellant, awarding him damages On December 4, 1914, appellant caused exin the sum of $200 against Nancy Shaw. and caused the sheriff of King county to of ecution to be issued upon that judgment fer for sale thereunder all the right, title, and interest of Nancy Shaw in and to the premises in controversy. Appellant, being the highest bidder therefor, became the purchaser of all the right, title, and interest of Nancy Shaw in and to the premises at the execution sale, and a certificate of purchase was issued to him accordingly. On March 7, 1916, there being no redemption from the execution sale and more than one year having elapsed, the sheriff issued to the appellant his deed, conveying all the right, title, and interest of Nancy Shaw in and to the premises. Appellant's claim of title rests upon this deed, which it may be conceded would result in him becoming the owner of the premises but for the prior conveyance of Nancy Shaw to her mother, which conveyance is here sought to be set aside by him. PARKER, J. The plaintiff, Thomas J. Wiggins, claiming to have succeeded under an execution sale to the title of the defendant Nancy Shaw to a house and lot in Seattle, seeks the setting aside of a deed of conIveyance therefor from the defendant Nancy Shaw to the defendant Mary Beckett, seeking recovery of the possession of the premises and the quieting of title thereto in himself. The defendant Mary Beckett, by her answer and cross-complaint, alleges that she is the owner of the premises as the grantee of Nancy Shaw, and prays that her title thereto be quieted as against the claim of the plaintiff. Nancy Shaw's only interest in the controversy is as the grantor of Mary Beckett by warranty deed. Trial upon the merits in the superior court for King county resulted in judgment in favor of Mary Beckett as prayed for by her, quieting her title in the premises as against the claim of the plaintiff, from which he has appealed to this court. Mary Beckett is the mother of Nancy Shaw. On January 7, 1914, and for several years prior thereto, Nancy Shaw was the owner of the premises in controversy. On that day she conveyed the premises to her mother, Mary Beckett, by warranty deed. It is not shown that Nancy Shaw was then indebted to any one except a debt secured by a mortgage upon the premises in controversy, and indebtedness to Mary Beckett, her mother, for sums which had been advanced from time to time. The amount of the consideration for the conveyance is not shown with certainty, but that it was a considerable amount seems evident from the testimony, and consisted of indebtedness owing by Nancy Shaw to her mother, Mary Beckett, for moneys advanced on several occasions. The consideration, in any event, was ample to support the conveyance as between themselves. On June 4, 1914, Thomas J. Wiggins commenced an action in the superior court for King county against Nancy Shaw, seeking recovery of damages which he alleged resulted to him from certain slanderous words spoken of and concerning him by Nancy Shaw on and after March [1] It is contended in the appellant's behalf that the conveyance of the premises made by Nancy Shaw to her mother, Mary Beckett, on January 7, 1914, is void as having been made with intent on the part of both Nancy Shaw and Mary Beckett to defraud creditors, and that therefore the premises were subject to sale under the execution as the property of Nancy Shaw. It is at once apparent that, in order to successfully maintain this contention, appellant must show that the conveyance of January 7, 1914, was made with intent to defraud creditors of Nancy Shaw, who were to become such after the making of the conveyance, since appellant was not in any sense a creditor of Nancy Shaw until the slanderous words were spoken by Nancy Shaw on and after March 25, 1914, over two months after the making by her of the conveyance of the premises to her mother on January 7, 1914. There can be such a thing as a conveyance being void as to subsequent creditors because of being made with intent on the part of the grantor and grantee to defaud such creditors. 12 R. C. L. 495. But to set aside such a conveyance on that ground there must be proof of intent to defraud subsequent creditors, of the most positive and convincing character, and that the intent to so defraud must exist on the part of both the grantor and the grantee. We have no proof here evidencing fraud on the part of Mary Beckett, the grantee, except such as might be inferred from the mere fact that the amount owing to her by Nancy Shaw may have been somewhat less in the mises conveyed. Of course, Mary Beckett | we are convinced that the formal judgment was not called upon to take notice of any signed by the judge and entered in the jourexisting creditors of Nancy Shaw, because, nal, which is here appealed from, is the only as we have seen, there were no existing final disposition of the case ever made by creditors who could have been defrauded by the trial court. the conveyance, so that even the circumstance of a grantee having existing creditors, which is sometimes considered as being material to the question of intent to defraud subsequent creditors, is absent. It is little short of inconceivable that Nancy Shaw should convey this property to her mother for the purpose of defrauding a creditor to become such in the future growing out of damages as the result of defamaatory words she was to utter over two months after the making of the conveyance. It seems to us that the proof wholly fails to show that the conveyance here in question was made with intent on the part of either Nancy Shaw or Mary Beckett to defraud either existing or subsequent creditors, nor do we think the conveyance was intended as other than an absolute conveyance of the premises. The following decisions of this court are of interest in this connection and in harmony with this view, though we do not cite them as being exactly in point: Eggleston v. Sheldon, 85 Wash. 422, 148 Pac. 575; Henry v. Yost, 88 Wash. 93, 152 Pac. 714; Allen v. Allen, 96 Wash. 689, 165 Pac. 889. [2] Some contention is made in appellant's behalf that, prior to the entering of the judgment appealed from, the court had announced its decision and, in effect, rendered a judgment in favor of appellant, and therefore had no authority to render the judgment in favor of Mary Beckett which is here appealed from. The circumstances disclosed by the record upon which appellant relies are somewhat involved. This condition of the record grew out of an attempt on the part of the court to encourage a compromise of the controversy between the parties, which they also seem to have thought possible to bring about. The clerk on December 11, 1916, some 10 days after the conclusion of the trial, made an informal minute entry "that plaintiff in this case have judgment quieting title as prayed." The trial court thereafter decided that this entry was made by inadvertence and mistake on the part of the clerk and without direction of the court, and it was for that reason set aside and expunged from the record. Thereafter the formal judgment here appealed from was prepared and entered. We see nothing in this contention except the claim that the trial court erred in setting aside and expunging from the record this informal minute entry, and thereafter signing and entering a formal judgment quieting title in respondent Mary Beckett. Looking to the record as a whole, The judgment is affirmed. ELLIS, C. J., and WEBSTER, MAIN, and FULLERTON, JJ., concur. RUPE v. KEMP. (No. 14331.) (Supreme Court of Washington. Jan. 16, 1918.) 1. PARTNERSHIP 95-SALE OF PARTNER'S INTEREST-NECESSITY OF WRITTEN TRANS FER. Under a contract of sale by one partner to of the retiring partner's interest in the partnerthe other, for cash and a note for the balance, ship and in a marketing contract of a patented device, the continuing partner could not recover payments made and secure cancellation of the note because of the retiring partner's failure to make the agreed transfer, where, although such transfer was not made by a technical assignment or writing, the retiring partner ceased to be a factor in the business and the continuing partner assumed full control and ownership over it and modified the marketing contract; the transfer being effected in fact, so that the manner of making the transfer was immaterial. 2. PARTNERSHIP 95-SALE OF PARTNER'S INTEREST-LIABILITY Of Buyer. Under a contract of sale by one partner to the other, for cash and note for the balance, of partner was liable for the amount of unpaid the retiring partner's interest, the continuing balance of the note where the continuing partner destroyed the partnership assets, either on the theory of direct obligation on the note or on the ground that, assuming the partnership still in existence, such destruction gave the retiring partner a right of action for the unpaid balance of his interest in such assets, which under the contract would be the amount unpaid 3. APPEAL AND ERROR TAKING APPEAL. on the note. 347(1)-TIME OF The time for taking appeal in a case tried the time of entry of formal judgment and not by the court without a jury begins to run from from the time when the court's decision is made or when motion for new trial is denied. 4. APPEAL AND ERROR 419(1)—NOTICE OF APPEAL FORMAL JUDGMENT ENTRY. In a case tried by the court without a jury where formal judgment is entered, appeal is from such judgment and not from the court's 5. APPEAL AND ERROR 384(3) - APPEAL decision. BOND-TECHNICAL DEFECTS. Notwithstanding Rem. Code 1915, § 1722, requiring appeal bond conditioned that appellant pay all costs and damages that may be awarded "against" him, a bond conditioned that appellant pay all costs and damages that may be awarded "to" him is sufficient, the defect being but technical, since, in view of the policy evidenced by Rem. Code 1915, 88 777, 1413, 8327, as to technical informalities in the bond, appellant could not plead such defect to defeat |